PURCHASE AND SALE AGREEMENT
And JOINT ESCROW INSTRUCTIONS
by and between
PACIFIC LIFE INSURANCE COMPANY
as
"Seller"
and
ARDEN REALTY LIMITED PARTNERSHIP
as
"Buyer"
dated November 3, 1997
PURCHASE AND SALE AGREEMENT
And JOINT ESCROW INSTRUCTIONS
By and Between
PACIFIC LIFE INSURANCE COMPANY
and
ARDEN REALTY LIMITED PARTNERSHIP
TABLE OF CONTENTS
ARTICLE I. Definitions
ARTICLE II. Agreement of Purchase and Sale
ARTICLE III. Execution of Agreement; Conditions Prior to Closing Date
ARTICLE IV. Representations, Warranties and Covenants of
Seller and Buyer
ARTICLE V. Action on the Closing Date
ARTICLE VI. Termination
ARTICLE VII. Costs and Commissions
ARTICLE VIII. Post-Closing Cooperation
ARTICLE IX. Default by Buyer
ARTICLE X. Default by Seller
ARTICLE XI. Exchange Provisions
ARTICLE XII. Miscellaneous
EXHIBITS
"A" Legal Description
"B" Audit Letter
"C" Rent Roll
"C-1" Assignment of Contract
"D" Grant Deed
"E" Form of Tenant Estoppel Certificate
"E-1" Form of Seller's Certificate
"F" Assignment of Rights, Warranties and Permits
"G" Assignment and Assumption of Service Contracts
"H" Assignment and Assumption of Leases
"I" Xxxx of Sale
"J" Transferor's Certificate of Non-Foreign Status
PURCHASE AND SALE AGREEMENT
And JOINT ESCROW INSTRUCTIONS
This Agreement ("Agreement") is made as of this 3rd day of November, 1997,
between PACIFIC LIFE INSURANCE COMPANY, a California corporation and ARDEN
REALTY LIMITED PARTNERSHIP a Maryland limited partnership ("Buyer").
ARTICLE I.
Definitions
The terms set forth below shall have the following meanings:
1.1 Closing: Payment of Seller's proceeds, and delivery of the Deed in
favor of Buyer, in accordance with the terms of this Agreement.
1.2 Closing Date: On or before December 4, 1997.
1.3 Xxxxxxx Money Deposit (to be credited to Purchase Price): $500,000.
1.4 Escrow Agent: First American Title Insurance Company
000 X. Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
1.5 Improvements: The improvements consist of three (3) office buildings
containing a total of approximately 302,500 rentable square feet, and all
related improvements.
1.6 Leases: All leases, subleases, amendments, extensions and
assignments and guarantees affecting the occupancy of the Property.
1.7 Permitted Exceptions: (i) Nondelinquent real property taxes and
special assessments, if any; (ii) utility easements to service the Property
which do not materially interfere with its existing use; and (iii) such title
matters as Buyer shall have approved in accordance with Section 3.6 below, and
such other matters as may appear as exceptions to title in accordance with
Section 3.6 below.
1.8 Personal Property: All equipment, appliances, tools, machinery,
supplies and other personal property owned by Seller and located at and used in
connection with the operation of the Property, excluding the telephone system
and related telephone equipment located in the following offices of the
Property: the on-site property management office, the engineer's office, the
security office, and the access phones located at each entrance to each
building of the Property, which have not or will not become trade fixtures
under the terms of the Leases, as more particularly described in the Xxxx of
Sale attached hereto as Exhibit "I".
1.9 Property: The Property shall collectively include the Real Property,
the Improvements, the Personal Property, if any, and all of Seller's interest
in the Leases, the Service Contracts and the rights, warranties and permits
described in Exhibit "F" attached hereto ("Permits").
1.10 Purchase Price: $33,000,000.
1.11 Real Property: Those certain tracts or parcels of land described in
Exhibit "A" attached hereto and by this reference made a part hereof, together
with all rights, privileges and easements benefiting said land, located at
17330-17390 Brookhurst Street, Fountain Valley, California and commonly known
as City Centre.
1.12 Review Contingency Date: November 19, 1997.
1.13 Service Contracts: All service contracts, management agreements,
listing agreements, operating contracts and other agreements affecting the
operation or use of the Property (other than Title Matters) if any.
1.14 Title Company: First American Title Insurance Company
000 X. Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxx, National Accounts
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
1.15 The following terms are defined in the Article or Section set
forth opposite such terms:
Term Article or Section
Advisors 3.1(c)
Amended Title Commitment 3.2
Buyer's Broker 7.2
Buyer's Title Notice 3.6(a)
Deed 5.2(a)
Documents and Materials 3.1(a)
Due Diligence Information 3.1(c)
Xxxxxxx Money Deposit 2.1
ERISA 4.1(d)
Exchange XI
Exchange Property XI(a)
Lender's Title Policy 5.2(d)
New Lease Obligations 4.2(b)
Opening of Escrow 3.1(a)
Owner's Title Policy 5.2(d)
PMG Lease 4.9
Permits 1.9
Property Manager 3.1(b)
Rent Roll 3.1(a)(i)
Seller's Certificate 4.8
Seller's Title Notice 3.6(b)
Suite 180 Work 4.10
Survey 3.2
Tenant Estoppel Certificate 4.8
Tenant Notification Letters 5.2(h)
Title Commitment 3.2
Title Matters 3.6(a)
Work Contract 4.10
ARTICLE II.
Agreement of Purchase and Sale
2.1 Subject to the terms and conditions of this Agreement, Seller agrees
to sell the Property to Buyer, and Buyer agrees to purchase the Property from
Seller and to pay the Purchase Price therefor. Upon full execution of this
Agreement, but in no event later than two (2) business days following such
execution, Buyer shall deposit with Escrow Agent, in the form of a wire
transfer of funds, the sum of $500,000 (the "Xxxxxxx Money Deposit"), together
with a fully executed copy of this Agreement. Any deposit made by Buyer to
Seller or Seller's representative prior to the Opening of Escrow shall be
deemed to constitute part of the Xxxxxxx Money Deposit and shall be delivered
to Escrow Agent by Seller or its representative promptly upon the Opening of
Escrow, as defined herein. Upon the Review Contingency Date, in the event
Buyer has not elected to terminate this transaction in accordance with the
terms of Article III of this Agreement, the Xxxxxxx Money Deposit shall be
deemed non-refundable to Buyer, except as a result of Seller's default or as a
result of the failure of a condition of the Closing in favor of Buyer which is
not waived in writing by Buyer on or prior to Closing. All interest on the
Xxxxxxx Money Deposit will accrue to the benefit of Buyer, and Buyer shall be
solely responsible for delivering, at Buyer's option, written instructions to
the Escrow Agent concerning the investment of the Xxxxxxx Money Deposit or any
portion thereof which is held by Escrow Agent, in accordance with the customs
and practices of Escrow Agent. At the close of this transaction, the Xxxxxxx
Money Deposit shall be credited against the Purchase Price and disbursed to
Seller along with the balance of the Purchase Price.
2.2 At least one day before the Closing Date Buyer shall cause such
balance of the Purchase Price to be delivered directly to the Escrow Agent for
the account of Seller, by wire transfer in immediately available funds, less
any credits due to Buyer, plus all sums necessary to pay Buyer's prorations in
connection with this transaction. On or before Closing, Seller shall provide
Escrow Agent with written wiring instructions identifying the financial
institution and the name and number of the account to which Seller's proceeds
shall be transferred and credited prior to the close of business of such
financial institution on the Closing Date.
2.3 The Closing shall be held at 9:00 a.m., local time, on the Closing
Date at the office of Escrow Agent, or at such other time or such other place
as may be mutually agreed upon in writing by the parties.
ARTICLE III.
Execution of Agreement; Conditions Prior to Closing Date
3.1 (a) Upon full execution of this Agreement, the party last executing
same shall date this Agreement in the space provided on the facing page and on
page 1 herein, and shall deliver three (3) fully executed originals of this
Agreement to the Escrow Agent and a facsimile copy of the signature page(s) to
the other party. Escrow Agent shall thereupon execute all three originals of
this Agreement and immediately deliver one fully executed original to Seller,
and one fully executed original to Buyer. The date of transmittal by Escrow
Agent to Buyer and Seller of this Agreement, as fully executed by Seller, Buyer
and Escrow Agent, shall hereinafter be referred to as the "Opening of Escrow".
To the extent not already furnished or made available to Buyer prior
to the Opening of Escrow, Seller shall furnish to Buyer, on or before the
Opening of Escrow, copies of the following documents and materials ("Documents
and Materials"):
(i) A rent roll for the Property (the "Rent Roll"), setting forth for
each tenant the tenant's name, square footage occupied, unit number, monthly
rent, percentage of common area expense reimbursement, lease expiration date
(if any), and security deposits actually held by Seller or Property Manager at
such time, if any. In addition, under separate cover, Seller shall furnish to
Buyer the amount of any prepaid rents and the period for which same have been
paid and the amount of any delinquent rents and/or any other arrearages;
(ii) Copies of all Service Contracts;
(iii) Copies of the most recent property tax bills received by Seller
or Property Manager;
(iv) Copies of the Leases affecting the Property; and
(v) Seller's customary monthly management, revenue and expense reports,
prepared by Seller and based upon data furnished to Seller by the Property
Manager (including operating statements), for 1995, 1996 and for year-to-date
1997, followed by periodic updates of such items customarily prepared by Seller
or Property Manager following the Opening of Escrow.
In addition, Seller shall furnish to Buyer or make available to
Buyer, to the extent not already furnished or made available to Buyer prior to
the Opening of Escrow, the following items, all of which shall be deemed to be
"Documents and Materials" within the meaning of this Agreement, to the extent
such Documents and Materials are in the actual possession of Seller or Seller's
Property Manager:
(vi) A site plan for the Property;
(vii) A list of the Personal Property, if any, maintained at the
Property and necessary for the continued operation thereof, to be transferred
to Buyer at Closing pursuant to the Xxxx of Sale attached hereto as Exhibit
"I";
(viii) Copies of the certificate(s) of occupancy for the Property,
along with any certifications from governmental agencies in connection with the
operation of the Improvements;
(ix) Maintenance reports for 1996 and year-to-date 1997 and records of any
capital improvements made to the Property during the same period of time; and
(x) Copies of the most recent existing soils, environmental and
engineering reports relating to the Property or the Improvements including,
without limitation, the most recent Phase I environmental study or report
relating to the Property, if any, provided such matters have been based upon
tests and/or studies performed during Seller's period of ownership; provided,
Buyer acknowledges that any such items shall be delivered or made available
without any representation or warranty regarding the accuracy, completeness or
any other aspect of such matters.
(b) Buyer shall have the right to review such records and documents
relating to the ownership and operation of the Property as Buyer may reasonably
deem appropriate in connection with its due diligence efforts. At any
reasonable time during the term of this Agreement, Seller shall, at Buyer's
request and at Buyer's sole cost and expense, provide to Buyer's designated
independent auditor access to Seller's books and records regarding the Property
for the period for which Buyer is required to have audited financial statements
prepared with respect to the Property as may be required by the Securities and
Exchange Commission, to the extent that such books and records are in Seller's
possession and control and relate to the period during which Seller held title
to the Property. Further, Seller agrees, on a one-time basis at Buyer's sole,
reasonable cost and expense, to provide a representation letter regarding the
books and records of the Property in substantially the form of Exhibit "B"
attached hereto, in connection with the normal course of auditing the Property
in accordance with generally accepted accounting standards. Seller shall
assist and cooperate with Buyer as may be reasonably necessary to facilitate
Buyer's investigation, due diligence and review pursuant to this Section 3.1,
including access to the files and documents (including, without limitation,
tenant files and accounting records for the Property) containing information
pertaining to the Property which are maintained at the office of Seller's
Property Manager(s), PM Realty Advisors, ("Property Manager") on site at the
Property and which have been prepared during Seller's period of ownership;
provided, Buyer shall not be entitled to examine records and documents at
Seller's home office.
(c) All Documents and Materials supplied to or made available to
Buyer or Buyer's Advisors by Seller as provided in this Section 3.1 are
confidential in nature and shall not be released or disclosed by Buyer to any
other parties except as set forth in the further provisions of this Section
3.1. All Documents and Materials shall be delivered to Buyer without
representation or warranty of any kind from Seller. In the event the Closing
of this transaction does not occur for any reason, then Buyer shall return
promptly to Seller all of such Documents and Materials, along with copies of
any reports, studies, analyses, test results or other environmental documents
which are: (i) prepared by or on behalf of Buyer or its agents in the course
of Buyer's due diligence investigation; or (ii) furnished or made available by
Seller to Buyer pursuant to this Section 3.1 or other applicable section of
this Agreement (collectively, the "Due Diligence Information"). In
consideration of the Documents and Materials being made available to Buyer, it
is understood and agreed that Buyer shall treat all Due Diligence Information
confidentially, in accordance with the provisions of this paragraph. Seller's
Documents and Materials are to be used solely for purposes of the performance
of Buyer's due diligence hereunder and no Due Diligence Information shall be
disclosed or delivered by Buyer to any person or entity other than Buyer's
attorneys, directors, officers, employees, agents, representatives and
consultants, who must be advised of such matters for the purpose of evaluating
Buyer's acquisition of the Property (collectively the "Advisors"). The
Advisors shall be informed by Buyer of the confidential nature of the Due
Diligence Information, shall be directed by Buyer to treat the Due Diligence
Information confidentially, and shall agree to be bound by the provisions of
this Subsection and to disclose the Due Diligence Information only to the
persons and/or entities to whom Buyer is authorized to disclose such matters
pursuant to the provisions of this paragraph. Buyer shall not, and shall
direct that the Advisors do not, disclose the fact that this Agreement has
been executed, or the status of any matter under this Agreement, without
Seller's prior written consent to such disclosure and approval of the form
thereof. The parties hereto acknowledge that Buyer is a publicly traded Real
Estate Investment Trust (REIT) and that the provisions of this Section 3.1 (c)
shall not prohibit Buyer from making those disclosures required by, and solely
for the purpose of complying with, the regulations of the Securities and
Exchange Commission in connection with the operation of the REIT; provided,
however, that during the term of this Agreement, Buyer shall provide Seller
with prior written notice of its intent to make each such disclosure.
Notwithstanding anything contained herein, it is understood and agreed by the
parties that all press releases or other public announcements relating to
Buyer's purchase of the Property (other than any disclosures compelled by law,
an order of a court of competent jurisdiction or a valid subpoena) shall be
subject to the prior written approval of the other party hereto, which approval
may be granted or withheld in the sole discretion of such other party. Buyer
shall defend, protect, indemnify and hold harmless Seller from and against all
claims, demands, causes of action, liabilities, losses, damages or expenses
asserted against or incurred by Seller by reason of Buyer's unauthorized
disclosure of such information in violation of this Section 3.1.
3.2 On or before the Opening of Escrow, Title Company and/or Seller shall
deliver to Buyer: (i) a Title Commitment for the Property, contemplating the
issuance of ALTA Extended Coverage (1970 Form B, if available from the Title
Company) Owner's Policy of Title Insurance or equivalent thereof ("Title
Commitment") issued by the Title Company, in the form customarily used by the
Title Company in California, showing title to the Property vested in Seller and
committing to issue ALTA Extended Coverage (1970 Form B, if available from the
Title Company) Owner's Policy of Title Insurance (or equivalent thereof,
subject to variations in conformance with local custom and practice), showing
title thereto vested in Buyer, with coverage in the amount of the Purchase
Price specifying all easements, liens, encumbrances, restrictions, conditions
or covenants of record with respect to the Property and including legible
copies of all documents referred to as exceptions to title in the Title
Commitment which are available to the Title Company, along with copies of all
documents noted therein as specifically recorded exception to title; and (ii)
the most recent available survey of the Property, if any (the "Survey"), for
the purpose of causing the Title Company to remove the standard general survey
exception(s) from the Owner's Title Policy described in Section 5.2(d) herein
and substituting therefor any specific survey exceptions disclosed by the
Survey. Within ten (10) days of the Opening of Escrow, Seller shall, at
Seller's cost, deliver or cause to be delivered to Buyer a new or updated
Survey (to the extent the prior Survey, if any, is insufficient for the Title
Company to remove the standard general survey exception((s) as described above)
and updated Title Commitment ("Amended Title Commitment") setting forth any new
or additional exceptions to title shown or disclosed by the Survey or updated
survey (if any). Notwithstanding the foregoing, Seller's failure to cause the
updated Survey (if necessary) and the Amended Title Commitment to be delivered
to Buyer within the ten (10) day period set forth herein, despite Seller's and
Buyer's reasonable good faith efforts, shall not be deemed to be a default by
Seller hereunder. The Survey shall be an as-built Survey, prepared by a
surveyor registered in the State of California.
3.3 [Intentionally Omitted]
3.4 (a) Buyer shall have until 5:00 p.m. (Pacific Time) on the Review
Contingency Date to complete, at its own expense, an inspection of the
condition of the Property, including verification of current zoning of the
Property, and such structural or soils tests or environmental reports as Buyer
may contract for. Buyer shall notify Seller in writing, no later than 5:00
p.m. (Pacific Time) on the Review Contingency Date, of its disapproval of or
any objection to the condition of the Property (including, without limitation,
the physical condition of the Property and the matters listed in Section 3.1
above), in Buyer's sole, absolute and subjective discretion, whereupon this
Agreement shall terminate in accordance with Section 3.8 herein. Failure to
provide Seller with such written disapproval or objection under this Section
3.4 on or before 5:00 p.m. (Pacific Time) on the Review Contingency Date shall
be deemed to constitute approval by Buyer of the condition of the Property,
whereupon this Agreement shall remain in full force and effect.
(b) Seller shall permit Buyer and its representatives full access
during normal business hours to make such inspections and tests as Buyer deems
necessary to complete its physical review of the Property. Such inspection
shall take place upon not less than 24 hours notice to Seller, shall be made at
Buyer's own expense, and shall take place only by appointment arranged through
Xxxxx Xxxxxxx ("Seller's Representative") and with a representative of Seller
present at all times, and shall be subject to the rights of tenants and/or
other occupants of the Property.
(c) Buyer shall be responsible for obtaining copies of any
additional documentation or information concerning the Property as Buyer may
deem appropriate in connection with Buyer's due diligence, which shall be
coordinated with and obtained through the Property Manager, with the
cooperation of Seller. Buyer shall have the right to contact such persons or
entities as Buyer may reasonably deem appropriate in connection with its due
diligence efforts and Seller shall cooperate with Buyer in arranging interviews
and meetings for Buyer with any such persons; provided, neither Buyer nor its
agents, consultants or representatives shall contact any tenant(s) of the
Property without the prior written consent of Seller, which consent shall not
be unreasonably withheld, provided that Buyer's contact with any tenant shall,
at Seller's option, be arranged by and conducted in the presence of Seller's
Property Manager or other designated representative.
(d) Seller shall assist and cooperate with Buyer as may be
reasonably necessary to facilitate Buyer's investigation, due diligence and
review pursuant to this Section 3.4, including Buyer's physical inspection of
the Property in order to conduct engineering studies, soil tests and any other
inspection and/or tests that Buyer may deem necessary or advisable; provided,
Buyer shall not be entitled to perform any tests of any kind which involve
drilling, boring, excavation, groundwater testing or similar intrusive or
invasive action on or under the surface of the Property without Seller's prior
written consent following not less than two (2) business days' written notice
setting forth in reasonable detail the nature, extent and location of such
tests and the name and contact person of the contractor selected to perform
such tests, which consent may be withheld by Seller in its sole and absolute
discretion. Failure of Seller to affirmatively consent to such tests or other
matters within the time period set forth herein shall constitute Seller's
refusal to consent to the performance of such tests or other matters. Buyer
shall treat the results of all such tests consented to by Seller as
confidential and shall not, except as expressly provided in this Agreement,
disseminate the results of such tests, in any form, written or verbal, to any
third party and shall cause its consultants to agree in writing to do the same.
Buyer shall deliver to Seller copies of all reports, analyses and test results
promptly upon Buyer's receipt of same, without warranty or representation from
Buyer of any kind.
(e) Buyer shall defend, indemnify and hold Seller harmless from and
against any and all claims, demands, causes of action, liabilities, damages,
losses or expenses (including, without limitation, Seller's reasonable
attorneys' fees) asserted against or incurred by Seller and resulting from any
act or omission of Buyer or Buyer's agents, employees, representatives or
consultants relating to Buyer's inspection and testing pursuant to this Section
3.4.
3.5 If Buyer disapproves the condition of the Property pursuant to
Section 3.4, within the time period provided therein, this Agreement shall
terminate in accordance with Section 3.8 and Section 3.9 herein. Without
limiting the application of any other provision of this Article III, upon such
disapproval, Buyer shall promptly return to Seller hereunder all copies of the
Due Diligence Information including, without limitation, any other materials
and/or documents furnished or made available to Buyer in connection with its
review of the Property and a copy of any environmental reports, studies or
analyses (along with all back-up data) performed in connection with Buyer's due
diligence activities hereunder.
3.6 (a) Buyer shall have until the earlier of: (i) the Review
Contingency Date; or (ii) the date which is five (5) days following its receipt
of the updated Survey and Amended Title Commitment in which to give Seller and
Escrow Agent written notice ("Buyer's Title Notice") of Buyer's disapproval,
which may be based on Buyer's sole, absolute and subjective discretion, or
conditional approval of the legal description or any matters shown in the
Survey, the Amended Title Commitment, all documents referred to in the Amended
Title Commitment and all matters disclosed therein (collectively the "Title
Matters"). For purposes of this Section 3.6, recertification of the Survey,
written notations of matters shown thereon, or addition of similar ministerial
matters shall not delay the time period for delivery of Buyer's Title Notice,
or the scheduled Closing Date. In the event the Survey (and any updates
thereto)and Amended Title Commitment are not received by Buyer within the time
periods set forth in Section 3.2 herein, such failure shall not be deemed to be
a default by Seller hereunder; provided, however, in the event Seller is unable
to cause such items to be timely delivered to Buyer for any reason, the date
for delivery of Buyer's Title Notice, as provided in this Section 3.6, shall be
extended on a day-to-day basis until delivery of such items to Buyer, and the
Review Contingency Period shall be extended for the same number of days with
respect to, and solely for the purpose of, extending the date for delivery of
Buyer's Title Notice. The failure of Buyer to timely give Buyer's Title Notice
shall be deemed to constitute Buyer's approval of the legal description and all
Title Matters.
(b) If Buyer timely disapproves or conditionally approves any Title
Matters, Seller may, within five (5) days after receipt of Buyer's Title
Notice, elect to eliminate some or all of the disapproved or conditionally
approved Title Matters. In such event, Seller may give Buyer written notice
("Seller's Title Notice") of those disapproved or conditionally approved Title
Matters, if any, which Seller shall attempt to cause the Title Company to
eliminate from the Owner's Title Policy as exceptions to title to the Property.
(c) If Buyer approves of Seller's Title Notice within three (3) days
of receipt thereof, Seller covenants and agrees to use reasonable efforts to
cause the Title Company to eliminate from the Owner's Title Policy, as
exceptions to title to the Property, those disapproved Title Matters set forth
in Seller's Title Notice; provided, that if as of one (1) business day prior to
the Close Date Seller has been unable, despite reasonable efforts, to cause the
Title Company to agree to eliminate as exceptions to title any such Title
Matters which Seller elected in Seller's Title Notice to attempt to cause to be
so eliminated, Seller shall not be in default hereunder, and Buyer may by
written notice to Seller either : (a) terminate this Agreement in accordance
with Section 3.8 and Section 3.9 herein; or (b) accept title in its then
existing condition, and proceed to Closing the Property as otherwise provided
herein. Failure of Buyer to deliver to Seller written disapproval of Seller's
Title Notice within such three (3) day period following its receipt thereof
shall be deemed to constitute Buyer's approval of Seller's Title Notice. Once
Buyer shall have approved, or have been deemed to approve, the Title Matters,
Buyer shall not have the right to withdraw such approval; provided, however,
that if thereafter the Title Company discloses to Buyer a new title exception,
then Buyer shall have three (3) days from its receipt of such notice form the
Title Company with respect to any such new title exception to approve or
disapprove the same by written notice to Seller as provided in Section 3.6, and
the Closing Date may be extended solely for the purposes of, and only to the
extent necessary, to permit delivery of Buyer's and Seller's Title Notices in
connection therewith as provided for in Section 3.6.
(d) If Seller does not elect to eliminate any disapproved or
conditionally approved Title Matters (which election may be based, in whole or
in part, upon the cost to eliminate such Title Matter(s), regardless of the
party obligated herein to pay such cost or the party which may otherwise agree
to pay for such cost), or Buyer disapproves of Seller's Title Notice by
written notice to Seller within three (3) days of Buyer's receipt thereof,
then this condition shall be deemed to have failed, and Buyer may, by written
notice to Seller on or before the later of: (i) the time period for delivery to
Seller of Buyer's disapproval of Seller's Title Notice, pursuant to subsection
(c) above; or (ii) the Review Contingency Date, either: (A) terminate this
Agreement in accordance with Section 3.8 and Section 3.9 herein; or (B) accept
title in its then existing condition, which shall constitute a waiver by Buyer
of any such disapproved and uncured Title Matters, and proceed to Closing on
the Property as otherwise provided herein.
(e) Other than liens for non-delinquent property taxes and
assessments, Seller shall either satisfy, or otherwise cause to be removed any
monetary encumbrances at or before Closing as exception(s) to title in the
Owner's Title Policy
3.7 (a) Seller shall notify Buyer of any damage, or destruction, or
threatened condemnation to the Property, which notice shall contain Seller's
good faith estimate of the cost to repair such damage, as soon as practicable
after Seller receives notice of such occurrence. If, prior to Closing, all or
a material part of the Property is destroyed by fire or other casualty or is
threatened to be taken or is taken by eminent domain, either Buyer or Seller
may terminate this Agreement in accordance with Section 3.8 and Section 3.9
herein by written notice to the other party within five (5) business days of
receipt of notice of the damage or condemnation. If neither Buyer nor Seller
terminates this Agreement within the time provided, Buyer shall be deemed to
have waived the destruction or taking, and this transaction shall be completed
as provided in this Agreement, without reduction in the Purchase Price (except
to the extent of the deductible under Seller's casualty policy and any
non-insured portion of the loss but only in the event Seller does not elect, in
its discretion, to repair such damage), and Buyer shall be entitled to receive
all insurance proceeds, if any, and eminent domain awards, if any, applicable
to the destruction, damage or taking, other than proceeds and awards
constituting reimbursement to Seller for repair or restoration work to the
Property resulting from such destruction, damage or taking, and performed prior
to Closing. Any termination of this Agreement pursuant to this Section 3.7 due
to damage, destruction or a taking of the Property shall constitute a
termination of this entire Agreement and this transaction, whereupon the
provisions of Section 3.8 shall apply. Nothing in this Section 3.7 shall
affect the provisions of Section 3.9 herein.
(b) Seller shall, at Closing and thereafter, execute and deliver to
Buyer all required proofs of loss, and assignments of claims and awards. The
term "material part" as used in this Section 3.7 shall be deemed damaged or
destroyed within the meaning of this Section if: (i) the cost of restoring the
Property to its condition prior to the fire or other casualty causing loss, in
Seller's good faith business judgment, will exceed $200,000 or (ii) a part of
the Property shall be taken or threatened to be taken by eminent domain (which
threatened taking shall be in the form of a formal written notice from the
appropriate governmental authority), and such taking or threatened taking shall
result in the unavailability for leasing or occupancy, at market rates and on
market terms, more than five percent (5%) of the then current rental receipts
from the Property for a period of more than three (3) months from the Closing
Date.
3.8 Should a termination occur under the terms of this Agreement: (i)
Escrow Agent shall refund to Buyer the Xxxxxxx Money Deposit, and any accrued
interest thereon which was earned while in the possession of Escrow Agent, then
held by Escrow Agent; (ii) Buyer and Seller shall have no further liability to
each other under this Agreement, except for any liability accruing under
Buyer's indemnification and/or confidentiality obligations to Seller under
Sections 3.1, 3.4, 4.2 and/or 7.2, which liability shall survive the
termination of this Agreement; and (iii) Buyer shall have no right or claim to
or against the Property or any portion thereof, absent a written agreement to
the contrary between the parties, as referenced in Section 3.9 herein. Upon
such termination, the provisions of Article VI shall apply.
3.9 Disapproval by Buyer pursuant to this Article III with respect to the
Property, accompanied by termination of this Agreement in accordance with the
terms hereof, shall be deemed to constitute disapproval and termination of this
Agreement with respect to the Property, absent a written agreement executed by
the parties, whereupon this Agreement shall terminate in its entirety pursuant
to Section 3.8 herein.
ARTICLE IV.
Representations, Warranties and Covenants of Seller and Buyer
4.1 Seller covenants and agrees with Buyer that, between the date hereof
and the Closing Date:
(a) Seller shall: (i) cause the Property to be maintained in
accordance with all applicable laws; (ii) maintain and operate the Property in
the same manner as is consistent with the operation and maintenance of the
Property during the period of Seller's ownership of the Property; (iii) keep
all insurance policies pertaining to the Property in full force and effect; and
(iv) promptly advise Buyer of any litigation, arbitration or administrative
hearing which concerns the Property or may affect Seller's ability to
consummate the transaction contemplated hereby, of which Seller has actual
knowledge. Without limiting the foregoing provisions of this Subsection (a),
Seller shall have no obligation to perform any capital improvements on the
Property unless agreed upon in writing between the parties prior to the Closing
Date, in the sole discretion of each party.
(b) If Seller acquires knowledge of any material defect, error or
omission in any of Seller's Documents and Materials, Seller shall promptly give
Buyer notice with detailed information of such defect, error or omission, and
notwithstanding the Contingency Review Date, Buyer shall have five (5) business
days from receipt of such notice to submit written objections thereto. Buyer's
failure to deliver written objection to Seller within said period shall be
deemed to constitute Buyer's waiver of the information contained in said notice
and the effect thereof upon the Property and this transaction.
(c) Seller shall not enter into any binding contract to sell or
convey the Property, or enter into any letter of intent for such sale, whether
binding or non-binding, with a third party. Upon termination of this Agreement
in accordance with the terms hereof, the provisions of this Subsection (c)
shall be null and void and of no further force and effect.
(d) There are not, as of the date of this Agreement, and shall not
be as of the Closing, any unfunded, vested liability or employer withdrawal
liability under the Employee Retirement Income Security Act of 1974 or the
Multi-Employer Pension Plan Amendment Act of 1980 ("ERISA") with respect to any
union contracts, pension plans, profit sharing plans and/or employee benefit
plans related to Seller and the Property.
4.2 (a) Seller shall keep Buyer informed of any negotiations or
discussions regarding material terms, new Leases or amendments thereto, or
termination of existing Leases, promptly upon the occurrence of same and shall,
at Buyer's request, provide Buyer with a copy of any such new Lease or
amendment. From and after the date of this Agreement, Seller shall not enter
into any new Leases, or amendments or terminations of existing Leases at the
Property except: on such other terms as may have been approved by Buyer, which
approval may not be unreasonably withheld by Buyer; provided, however, in the
event Buyer does not disapprove of any such matter within three (3) business
days following Buyer's receipt from Seller of the proposed material terms of
any such new Lease or amendment thereto, Buyer shall be deemed to have approved
such new Lease or amendment thereto and Seller shall thereupon be free to enter
into any such new Lease or amendment. Except as set forth herein, from and
after the Opening of Escrow, Seller shall not take any action or execute any
document which would create a new interest in the Property or cause to be
incurred any material liability with respect thereto. In addition, Seller
shall not, following the Opening of Escrow, enter into any Service Contract
having a material impact on the Property or its operations which shall survive
the Closing or which cannot be canceled upon thirty (30) days notice (except in
the event of an emergency and/or the inability of any service provider to
continue to discharge its duties under an existing Service Contract), without
the prior written approval of Buyer, which shall not be unreasonably withheld.
Failure of Buyer to respond to Seller's request for any approval under this
paragraph within three (3) business days from receipt of such request shall be
deemed to constitute Buyer's approval of same and Seller shall be free to enter
into such new Lease, or amendment to Lease or new Service Contract during the
pendency of this Agreement. Any such new Lease or amendment thereto entered
into after the date of this Agreement shall be deemed to be a New Lease
Obligation, as defined in the further provisions of this Section 4.2.
(b) As a condition of Closing, Buyer shall pay for all leasing
commissions and tenant improvement costs or allowances incurred in connection
with any lease transaction described herein entered into by Seller and approved
by Buyer in accordance with Subsection (a) above after the date of this
Agreement and prior to Closing in accordance with this Section 4.2 ("New Lease
Obligations") as well as any leasing commissions, tenant improvement costs or
allowances or other compensation due under existing Leases by reason of an
extension of term, renewal of such Lease, expansion of space or exercise of an
option for a period which commences following the Closing Date.
Notwithstanding the foregoing, Buyer acknowledges Space Vector Corporation's
request to renew its Lease for a three (3) year period commencing on November
1, 1997, and Buyer agrees to credit Seller through escrow at the Closing for
Buyer's share of the $2,387.25 Lease commission due for and attributable to
that portion of the Lease renewal term running from and after the Closing Date.
Buyer shall indemnify, defend, protect and hold Seller harmless from all
claims, demands, causes of action, liabilities, losses and/or damages asserted
against and/or incurred by Seller in connection with Buyer's failure to perform
its obligations pursuant to this Section 4.2. Buyer's indemnification
obligations hereunder shall survive the Closing Date or earlier termination of
this Agreement by Seller pursuant to Article IX in the event of a default by
Buyer.
4.3 Effective as of the Closing Date, Seller shall assume all existing
Service Contracts affecting the Property, excluding the current management,
leasing and listing agreement. Seller shall terminate its existing management,
leasing and listing agreements affecting the Property, effective as of the
Closing Date, and Seller shall pay all expenses of such termination.
4.4 Seller represents and warrants on its own behalf, now and as of the
Closing Date, that:
(a) Seller has the full right, power and authority to enter into
this Agreement and to sell the Property to Buyer as provided herein and to
carry out Seller's obligations hereunder, and the individuals executing this
Agreement on behalf of Seller are fully authorized to do so.
(b) To Seller's knowledge, there are no pending claims, suits,
actions, arbitrations or regulatory, legal, or other proceedings or
investigations affecting the Property or Seller's rights and obligations under
this Agreement, other than as disclosed to or discovered by Buyer prior to the
Review Contingency Date, pursuant to Section 3.1 or otherwise. To Seller's
knowledge, there is no pending condemnation of the Property, or any part of it.
(c) There are no tenant Leases currently in force or effect for the
Property and no security deposits or other sums due tenants which are actually
held by Seller or Property Manager except as specified on the Rent Roll
attached hereto as Exhibit "C" (and as may be updated prior to the Closing to
account (in part) for the use or application of any such security deposit(s) by
Seller in accordance with the Leases) and, to Seller's knowledge, Exhibit "C"
lists all Leases and tenancies, if any, with respect to the Property or any
part thereof, as of the date hereof.
(d) All of Seller's representations and warranties set forth in this
Section 4.4 shall be true and correct in all material respects as of the
Closing Date.
(e) To Seller's knowledge, Seller has not received any written
notice of any material violation of any applicable laws, ordinances, rules,
requirements, regulations, building codes or environmental rules of any
governmental agency, body or subdivision thereof bearing on the Property and
the construction of the Improvements.
(f) To Seller's knowledge: (i) all documents delivered by Seller to
Buyer pursuant to this Agreement are true, accurate, correct and complete
copies of originals; (ii) and any and all information prepared by Seller or at
Seller's direction and supplied to or made available to Buyer by Seller in
accordance with this Agreement is true, accurate, correct, and complete.
(g) To Seller's knowledge, there are no maintenance contracts,
service contracts or any other contracts (whether oral or written) affecting or
relating to the Property which will survive the Closing Date, except as
approved by Buyer. At the Closing Date, there will be no outstanding contracts
entered into by Seller for the construction of any capital improvements (not
including normal repairs and maintenance) which have not been fully paid for,
and Seller shall cause to be discharged all mechanic's and materialmen's liens
arising from any labor or materials furnished to the Property prior to the
Closing Date.
(h) Except for any matters disclosed in the Documents and Materials,
Seller has received no written notice, from the date Seller first acquired
ownership of the Property to the date of this Agreement, of: (a) any Hazardous
Material Activity in, on or from the Property or (b) the presence of any
Hazardous Materials in, on or under the Property or any real property adjoining
the Property. To Seller's knowledge, the Property has not been used for any
Hazardous Material Activity from and after the date on which Seller acquired
ownership of the Property and Seller has received no written notice of any
proceeding or threatened proceeding with respect to the presence or possible
presence of Hazardous Materials on the Property or the migration thereof from
or to adjoining real property from and after the date on which Seller acquired
ownership of the Property. For purposes of this Subsection (h), "Hazardous
Materials" shall include, without limitation, substances defined as "hazardous
substances" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq; the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801 et seq; the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq; and those
substances defined in such terms in applicable provisions of the laws of the
State of California and/or in the regulations adopted and publications
promulgated pursuant to said laws. In addition, the term "Hazardous
Material(s) Activity" as used herein shall mean the use, generation,
manufacture, storage and/or disposal of Hazardous Materials on, under or about
the Property or transportation of Hazardous Materials to or from the Property.
(i) To Seller's knowledge, Seller has not received any written notice
that there are any physical or mechanical defects or deficiencies in the
condition of the Property which would impair the operation or use thereof,
including, but not limited to, the roofs, exterior walls or structural
components of the Improvements and the heating, air conditioning, plumbing,
ventilating, utility, sprinkler and other mechanical and electrical systems,
apparatus and appliances located on the Property or in the Improvements.
(j) There are no attachments, execution proceedings, assignments for the
benefit of creditors, insolvency bankruptcy reorganization or other proceedings
pending or threatened against Seller, not are any such proceedings contemplated
by Seller.
As used in this Section 4.4 herein, Seller's "knowledge" means the actual
knowledge of Xxxx Xxxxxxxxx and Xxxxx Xxxxxxx as the Vice-President and
Director of Asset Management of Seller, respectively, responsible for the
monitoring and limited supervision of the Property Manager for the Property,
without duty to inspect the Property or make any independent investigation;
provided, it is contemplated that such individuals have reasonably discharged
such monitoring and limited supervision of the Property Manager in accordance
with Seller's customary practices concerning properties acquired for similar
purposes, and will continue to do so until the Closing Date.
Notwithstanding anything to the contrary contained in this Agreement, if
Buyer has actual knowledge that any representation or warranty of Seller is not
true and correct as of the Closing Date and shall elect to acquire the Property
notwithstanding such fact, Buyer shall be deemed to have waived such specific
breach of representation and warranty and to have released Seller from all
liability or responsibility in connection therewith, and neither Buyer nor
Buyer's permitted assignees or successors shall be entitled to commence any
action or to recover damages from Seller based upon such specific breach of a
representation and warranty.
4.5 Except as otherwise represented and warranted in Section 4.4 herein,
Seller hereby specifically disclaims any warranty, guaranty or representation,
oral or written, past, present or future, of, as to, or concerning the
following matters regarding the Property:
(i) the nature and condition of the Property, including, but not
limited to the water, soil and geology, and the suitability thereof and of the
Property for any and all activities and uses which Buyer may elect to conduct
thereon;
(ii) the nature and extent of any right-of-way, possession, lien,
encumbrance, license, reservation, condition or otherwise;
(iii) the compliance of the Property or its operation with any
laws, ordinances or regulations of any government or other body;
(iv) the quality, nature, adequacy and physical condition of the
Property, including, but not limited to, the structural elements, foundation,
appurtenances, access, landscaping, parking facilities and the electrical,
mechanical, HVAC, plumbing, sewage and utility systems, facilities and
appliances;
(v) the existence, quality, nature, adequacy and physical condition
of utilities serving the Property;
(vi) the zoning or other legal status of the Property or any other
public or private restrictions on the use of the Property;
(vii) the presence of any hazardous substances on, under or about
the Property or the adjoining or neighboring property;
(viii) the quality of any labor and materials used in any
Improvements on the Real Property; and
(ix) the possible right of any third party(ies) to use any common
area of the Property for community services, performances, public interest
information, school activities and similar matters, if applicable; and
(x) the economics of the operation of the Property.
Except as provided herein, in consideration of Buyer's receiving access to
the Property as set forth in Article III herein so that Buyer may conduct such
studies, costs, investigations, inspections and analyses with respect to the
Property as Buyer might desire, Buyer acknowledges and confirms that unless
Buyer elects to terminate this Agreement as provided herein, Buyer shall accept
Seller's conveyance of the Property to Buyer in an "AS-IS" and "WHERE-IS"
condition, free of any warranty by Seller, except as otherwise expressly
provided in this Agreement, and free of any obligation by Seller to perform any
repairs or other improvement work with respect to the Property. Buyer expressly
acknowledges that, in consideration of the agreements of Seller herein, except
as otherwise specified in this Agreement, SELLER MAKES NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, CONCERNING
THE PROPERTY, INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY OF CONDITION,
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IMPLIED IN THIS AGREEMENT, SELLER
AFFIRMS, ACKNOWLEDGES AND AGREES THAT THE FOREGOING LIMITATIONS AND DISCLAIMERS
IN THIS AGREEMENT ARE NOT INTENDED TO ABROGATE, NULLIFY OR OVERRIDE THE EXPRESS
COVENANTS, WARRANTIES AND REPRESENTATIONS OF SELLER SET FORTH IN SECTIONS 4.1,
4.2, 4.3, AND 4.4 HEREIN AND, TO THE EXTENT THE FOREGOING DISCLAIMERS ARE
DEEMED TO BE IN CONFLICT WITH THE PROVISIONS OF EITHER OF SAID SECTIONS 4.1,
4.2, 4.3 AND 4.4, THE PROVISIONS OF SUCH SECTIONS SHALL CONTROL.
4.6 Buyer represents and warrants now and as of the date of Closing that:
(a) If Buyer (or any permitted assignee of Buyer under Section 12.2
herein) is a partnership or corporation (including, without limitation, a
limited liability corporation or company), it is duly organized, validly
existing and in good standing under the laws of the state of its formation.
(b) Buyer has the full right, power and authority to purchase the
Property from Seller as provided herein and to carry out Buyer's obligations
hereunder, and the person or persons executing this Agreement on behalf of
Buyer is/are fully authorized to do so.
(c) Buyer's purchase of the Property at Closing shall constitute its
certification that Buyer, except as expressly warranted and represented by
Seller herein,: (i) has inspected and is familiar with the Property; (ii) has
had the opportunity to have prepared for Buyer's review such soils,
engineering, environmental or hazardous substance reports or such other reports
or inspections of any nature relating to the Property as Buyer deemed
appropriate; (iii) has purchased the Property on an "AS IS" and "WHERE-IS"
basis, relying solely on Buyer's own examination and inspection of the
Property, and the express representations contained herein.
(d) All of Buyer's representations and warranties under this Section
4.6 shall be true and correct in all material respects as of the Closing Date.
4.7 All representations, warranties and covenants of Seller and Buyer
under this Article IV shall survive the Closing; provided, however, that any
claim, action, suit or proceeding with respect to the truth, accuracy or
completeness of such representations and warranties must be commenced, if at
all, on or before nine (9) months from the Closing Date.
4.8 Seller shall use its good faith and commercially reasonable efforts
to obtain tenant estoppel certificates (collectively, "Tenant Estoppel
Certificates" and individually, a "Tenant Estoppel Certificate") duly executed
by all of the tenants occupying space in the Improvements. The Tenant Estoppel
Certificates shall be in the form of, and upon the terms contained in, Exhibit
"E" attached hereto, with such modifications for any particular tenant as may
be reasonably requested by Buyer and reflected in the Lease for such tenant(s).
Seller shall use its good faith and commercially reasonable efforts to deliver
the original executed Tenant Estoppel Certificates of Systems Tax Service,
Environmental Science & Engineering, Pacific Mutual Group Life Insurance
Company and Safeco Insurance Company of America ("Credit Tenants") and all
other tenants to Buyer not later than three (3) business days prior to the
Review Contingency Date. Buyer's failure to disapprove the executed Tenant
Estoppel Certificates in writing prior to the Review Contingency Date shall be
deemed to constitute Buyer's approval thereof. In the event Seller has been
unable to obtain Tenant Estoppel Certificates from all of the tenants in a
timely fashion, as set forth herein, and Buyer has elected to nevertheless go
forward with the purchase of the Property as set forth in this Agreement,
Seller shall deliver to Buyer at Closing its own, separate certificate to Buyer
for each of the Credit Tenants from whom a Tenant Estoppel Certificate is not
obtained ("Seller's Certificate"), wherein Seller certifies to Buyer the
accuracy of the matters set forth in the Tenant Estoppel Certificate(s)
relating to such Credit Tenant who fails to deliver Estoppel Certificates in a
timely manner. The form of Seller's Certificate is attached hereto as Exhibit
"E-1". Seller shall deliver the original executed Seller's Certificates to
Buyer not later than two (2) business days prior to the Closing Date.
Notwithstanding any other provision of this Section 4.8, the inability or
failure of Seller to obtain one or more Tenant Estoppel Certificates, and to
deliver such executed documents to Buyer on or before the time provided herein,
despite the good faith and commercially reasonable efforts of Seller, and/or
its Property Manager, shall not be deemed to be a default of Seller hereunder.
Nothing in this Section 4.8 shall be deemed to establish or imply that the
obtaining of executed Tenant Estoppel Certificates from each tenant at the
Property shall be a condition precedent to the Closing.
4.9 As a condition of Closing, Pacific Mutual Group Life Insurance
Company ( a subsidiary of Seller and herein referred to as "PMG"), as tenant,
will enter into a lease with Buyer, as lessor (the "PMG Lease") for the
premises presently occupied by PMG in the 17360 building at the Property, which
premises is identified as Suites 100, 200 and 300 consisting of approximately
95,245 rentable square feet (the "Premises"), upon the following terms: (a)
PMG will accept the Premises in "as is" condition; (b) the initial term of the
Lease will be five years commencing on the Closing Date, at a monthly rent of
$1.00 per square foot triple net for the first 30 months, and $1.15 per square
foot triple net for months 31 through 60 ; (c) tenant will have a renewal
option exercisable no later than six months prior to the expiration of the
initial term of the Lease at an option rental rate equal to ninety-five percent
(95%) of the fair rental value of the premises as of the 60th month of the
initial term; and (d) the Lease shall be made on Buyer's lease form for the
Property, a copy of which Buyer will provide to Seller within three (3) days
following the Opening of Escrow. Buyer and Seller each agree to use its good
faith efforts to negotiate a mutually acceptable and commercially reasonable
PMG Lease; provided, that in the event Buyer and Seller reach an impass in the
PMG Lease negotiations which cannot be resolved to their mutual satisfaction,
or Buyer and Seller cannot otherwise agree on a mutually acceptable PMG Lease,
then either Buyer or Seller may terminate this Agreement upon written notice to
the other and in accordance with Section 3.8.
4.10 Buyer and Seller acknowledge that Seller, as lessor, has certain
obligations to fund the following leasehold improvement allowances to Systems
Tax Service ("STS") pursuant to its lease for space at the Property: (i)
leasehold improvement reimbursement in the amount of $52,115 upon submission of
required STS leasehold improvement invoices for work done in the first floor
Suite at the 17390 building of the Property, pursuant to the Fourth Amendment
to Office Lease for STS dated April 11, 1996; and (ii) leasehold improvements
in the amount of $42,028 for work to be done in Suite 180 of the 17330 building
of the Property (the "Suite 180 Work"), pursuant to the Sixth Amendment to
Office Lease for STS, dated March 3, 1997, (collectively the "Leasehold
Allowances").
The parties hereby acknowledge that certain approvals are
required of STS for finalization and/or modification to any contract for the
Suite 180 Work (a "Work Contract"). Seller shall use its best efforts to enter
into a Work Contract prior to the Closing. During the term of this Agreement
Seller shall keep Buyer informed of any negotiations or discussions regarding
material terms or modifications to the Work Contract. Seller shall provide
Buyer with a copy of any Work Contract executed prior to the Review Contingency
Date, within one (1) business day of Seller's receipt of same. From and after
the Review Contingency Date, Seller shall not enter into any new Work Contract
or amendment to existing Work Contract except on terms approved by Buyer, which
approval may not be unreasonably withheld; provided, however, in the event
Buyer does not disapprove any such new Work Contract or amendment within one
(1) business day following receipt thereof, Buyer shall be deemed to have
approved said new Work Contract or amendment and Seller shall be free to enter
into same. Notwithstanding the foregoing, Seller shall be free to amend a Work
Contract without Buyer's prior approval for purposes of effecting change orders
approved by STS to be done at STS's cost, or required by any regulatory body or
agency having authority over the Suite 180 Work. On the Closing Date the
amount of the Leasehold Allowances, less any amounts thereof previously funded
to STS or under the Work Contract(s), will be credited to Buyer, and Seller's
rights and obligations under the Work Contract(s), and any amendments thereto,
will be assigned to Buyer. Notwithstanding anything contained herein, Buyer
and Seller agree that Seller's inability to enter into or complete a Work
Contract prior to the Closing for reasons beyond Seller's control shall not be
deemed to be a default hereunder, and Buyer shall assume, as holder of the
lessor's interest, the obligation for execution and/or completion of the Suite
180 Work.
4.11 Seller has entered into a contract with SCR Construction dated
September 11, 1997 (a copy of which will be provided to Buyer on or before the
Opening of Escrow) for redecoration of the on-site property management office
at the Property (the `Redecoration Contract") to be completed on or before the
Closing Date. Seller will pay all outstanding amounts due or owing upon
completion of the work pursuant to said Redecoration Contract, and Seller
indemnifies, defends and holds Buyer harmless from any and all claims,
demands, causes of action, liabilities, costs and/or expenses incurred by Buyer
in connection with any claim for payment owing for work performed under the
Redecoration Contract.
ARTICLE V.
Action on the Closing Date
5.1 Buyer shall take the following actions on or before the Closing Date,
the satisfaction or written waiver of each of which shall be deemed to be a
condition precedent to Seller's Closing obligations hereunder:
(a) Seller shall have received, on the date of Closing, confirmation
by Escrow Agent of receipt of Buyer's funds in the amount of the Purchase Price
(adjusted for credits or debits for all prorations under Section 5.3) and
Escrow Agent's unconditional commitment to disburse said funds by wire transfer
to the account of Seller at the financial institution designated by Seller in
its instructions to Escrow Agent prior to Closing, in sufficient time for
investment at such institution's customary rate paid to Seller;
(b) Seller shall be provided on the date of Closing with an executed
duplicate original of the documents listed under subsections (e), (f), (g), (m)
and (n) of Section 5.2 below.
(c) Seller shall be provided on the date of Closing with a fully
executed duplicate original of the PMG Lease required under the provisions of
Section 4.9 herein.
5.2 Seller shall provide or cause to be provided to Buyer the following
items, on or before the Closing Date, the provision of which shall be deemed to
be a condition precedent to Buyer's Closing obligations hereunder:
(a) An executed and acknowledged California grant deed for the
Property (collectively, the "Deed") in the form of Exhibit "D";
(b) Originals (or copies if such originals are not available) of all
executed Leases, if any, in accordance with Section 4.2 herein;
(c) All keys for the Property in the possession or control of Seller
(properly labeled);
(d) An ALTA Extended Coverage (1970-Form B, if available from the
Title Company) Owner's Policy of Title Insurance, or equivalent thereof, for
the Property in the form customarily used in the State of California (subject
to variations in conformance with local custom and practice), issued by the
Title Company and dated as of the Closing Date, with coverage in the amount of
the Purchase Price, setting forth the legal description of the Property and
showing title vested in Buyer, subject only to the Permitted Exceptions,
together with such endorsements as Buyer may request (and the Title Company may
agree to issue) (the "Owner's Title Policy"); provided, however, in the event
Buyer desires an "extended coverage" form of Owner's Title Policy and/or one or
more lender's title Policy ("Lender's Title Policy"), Buyer shall so inform the
Title Company, and the Owner's Title Policy and Lender's Title Policy, if
applicable, shall contain "extended coverage" in accordance with the statutes,
regulations, customs and/or practices of the State of California . In the
event Buyer uses third-party financing in connection with the funding of the
Purchase Price, the Title Company shall issue the Lender's Title Policy in
favor of such Lender; provided, however, nothing herein shall be construed to
mean that the obtaining of any financing or the issuance of one or more
Lender's Title Policy is a condition to the performance of Buyer's obligations
hereunder. The premium for the Owner's Title Policy and Lender's Title Policy
and any endorsements thereto shall then be allocated between the parties
pursuant to Section 7.1 herein.
(e) An executed duplicate original of the Assignment and Assumption
of Rights, Warranties and Permits in the form of Exhibit "F";
(f) An executed duplicate original of the Assignment and Assumption
of Service Contracts in the form of Exhibit "G".
(g) An executed duplicate original of the Assignment and Assumption
of Leases in the form of Exhibit "H".
(h) Letters executed by Seller, in form reasonably satisfactory to
Buyer, notifying each of the tenants at the Property of the change of ownership
of the Property, and directing such tenants to make all payments following the
Closing Date which are due under the Leases to such party and at such address
as Buyer may designate ("Tenant Notification Letters"). Buyer shall be
responsible for delivery of all such Tenant Notification Letters outside of
Escrow, not sooner than the recordation of the Deed and receipt by Seller of
the Purchase Price, and Escrow Agent shall have no responsibility therefor;
(i) An original executed Xxxx of Sale for the Personal Property
identified in Exhibit "I" attached hereto, reciting that such transfer is on an
"AS-IS" and "WHERE-IS" basis; provided, Exhibit "1" to the Xxxx of Sale may, at
Seller's election, list only the Personal Property excluded from the transfer
or, alternatively, Exhibit "1" may be eliminated in the event all Personal
Property (if any) located at the Property is included in the transfer;
(j) An updated Rent Roll, dated as of the end of the last full
calendar month prior to the Closing Date;
(k) A certification duly executed by Seller under penalty of perjury
in the form of, and upon the terms set forth in Exhibit "J", setting forth
Seller's address and federal tax identification number and certifying that
Seller is not a foreign entity in accordance with and/or for the purpose of the
provisions of Section 1445 (as may be amended) of the Internal Revenue Code of
1954, as amended, and any regulations promulgated thereunder;
(l) The PMG Lease required under the provisions of Section 4.9
herein executed in duplicate original by PMG;
(m) An executed duplicate original of the Assignment of Contract, if
any, required under Section 4.10; and
(n) An executed duplicate original of the Tenant Allowances Escrow
Agreement required under the provisions of Section 7.4 herein.
5.3 The following items will be prorated as of the Closing Date on a per
diem basis: rents (including any adjustments and other charges, if any, paid
by the tenants under the Leases as pass-through items); merchants' association
dues and advertising charges, if any; the current year's real estate taxes and
assessments (calculated on the most recent available tax xxxx and reprorated
after Closing based upon the actual tax xxxx for the period in which the
Closing occurred, and again reprorated, if necessary, due to any change in the
assessed value or tax rate of the Property following a pending assessment
appeal by Seller or a separate reassessment due to the change in ownership of
the Property pursuant to this transaction), amounts payable or paid under
Service Contracts assumed by Buyer, as set forth in Section 4.3 herein, and
utilities; provided, however, rent and all other sums which are due and payable
to Seller by any tenant but uncollected as of Closing shall not be adjusted,
but Buyer shall cause such sums for the period prior to Closing to be remitted
to Seller if, as and when collected pursuant to Article VIII of this Agreement.
Notwithstanding the foregoing, utilities shall be prorated only to the extent
Seller is unable, despite its best efforts, to cause the providers of utilities
services to the Property to read the meters and, in cooperation with Buyer, to
cause such providers to change the name of the responsible party for payment of
such utilities from Seller to Buyer, effective as of the Closing Date. The
account of Seller or Buyer shall be debited or credited, as the case may be, on
the closing settlement statement to reflect these prorations, and the Purchase
Price to be paid to Seller shall be similarly adjusted. Security deposit(s)
and pre-paid rents under Leases shall be credited to Buyer at the Closing.
Buyer and Seller agree to use reasonable efforts to prepare and deliver to
Escrow Agent a schedule of tentative rental adjustments three (3) business days
prior to the Closing of this Agreement. Any such adjustments not determinable
or not agreed upon as of the Closing shall be paid by Buyer to Seller, or by
Seller to Buyer, as the case may be, in cash or by wire transfer of funds as
soon as practicable following the Closing of this Agreement. A copy of the
schedule of adjustments as agreed upon by Buyer and Seller shall be delivered
to Escrow Agent as soon as practicable prior to the Closing. For purposes of
this Section 5.3, Buyer shall be deemed to be the owner of the Property as of
12:01 A.M. on the Closing Date, regardless of the actual hour on which Closing
occurs or recordation of the Deed takes place. This transaction shall in no
event close later than the Closing Date, as defined in Section 1.2 hereof.
5.4 Any property and liability insurance on the Property maintained by
Seller shall terminate on the Closing Date.
5.5 Seller shall deliver possession of the Property to Buyer on the
Closing Date.
5.6 In addition to the matters set forth in Section 5.2 herein, the
Closing shall be subject to the satisfaction, or Buyer's written waiver, of the
following conditions, for the benefit of Buyer:
(a) The Title Company shall be unconditionally prepared to issue the
Owner's Title Policy, subject only to the Permitted Exceptions;
(b) Seller shall have duly performed each and every covenant and
agreement to be performed by Seller pursuant to this Agreement and Seller's
representations, warranties and covenants shall be true and correct as of the
Closing Date subject to the provisions of Section 4.4 herein.
(c) Buyer shall have received the Tenant Estoppel Certificates
and/or Seller's Certificates in the form and in the manner required by Section
4.8 herein.
5.7 In addition to the matters set forth in Section 5.1 herein, the
Closing shall be subject to the satisfaction, or Seller's written waiver, of
the following conditions, for the benefit of Seller:
(a) Buyer shall have duly performed each and every covenant and agreement
to be performed by Buyer pursuant to this Agreement and Buyer's
representations, warranties and covenants as set forth in this Agreement shall
be true and correct as of the Closing Date, subject to the provisions of
Section 4.4 herein.
ARTICLE VI.
Termination
Should this transaction not close on or before 5:00 p.m., local time, as
of the fifth day following the Closing Date, for reasons other than a default
by Buyer (in which case Article IX herein shall govern) or a default by Seller
(in which case Article X herein shall govern) either party may, by delivery of
written notice to the other and to the Escrow Agent, terminate this Agreement,
whereupon each party shall pay one-half (1/2) of Escrow Agent's normal
cancellation charges. Such exercise of the right of termination by either
party shall constitute a waiver of any rights, claims, causes of action or
demands either party may have against the other or the Property, or any portion
thereof, due to such failure of this transaction to close on or before the
Closing Date, except for any liability accruing under Buyer's indemnification
and/or confidentiality obligations to Seller pursuant to Sections 3.1, 3.4, 4.2
and/or 7.2 herein, which liability shall survive the termination of this
Agreement. Upon such termination, pursuant to this Article VI, Buyer shall
return to Seller, within five (5) days following such termination, all of
Seller's Documents and Materials provided or made available to Buyer by Seller
hereunder, along with copies of Buyer's Due Diligence Information compiled in
accordance with Article III herein, and Buyer shall be entitled to the prompt
return of the Xxxxxxx Money Deposit deposited with Escrow Agent, together with
any accrued interest thereon which was earned while in the possession of Escrow
Agent, whether or not previously released to Seller in accordance with the
terms of this Agreement, unless Buyer is in default hereunder, in which event
the Xxxxxxx Money Deposit shall be non-refundable and Buyer shall pay the full
amount of Escrow Agent's normal cancellation charges. In the event the Closing
does not occur and this transaction is terminated by reason of a default by
Seller, Seller shall pay the full amount of Escrow Agent's normal cancellation
charges. The provisions of this Article shall not limit or affect the
provisions of Section 3.8 herein.
ARTICLE VII.
Costs and Commissions
7.1 Seller shall pay the premiums for the Owner's Title Policies
allocable to standard coverage, the cost of the Survey, and updated Survey (if
any), its own legal fees, state sales tax and grantor's documentary transfer
tax (if any). Buyer shall pay any additional title premiums attributable to
extended (survey) coverage and any endorsements to the Owner's Title Policy
requested by Buyer and agreed to by the Title Company, the entire cost of the
Lender's Title Policy, if any, and any endorsements thereto, its own legal
fees, all fees and expenses relating to its inspection and testing of the
Property or its review of the books and records relating to the Property, the
cost of recording the Deed. Seller and Buyer will share equally all other
closing fees and closing costs (to the extent consistent with local custom and
practice), including, without limitation, Escrow Agent's fees and expenses,
subject to the provisions of Article VI herein.
7.2 In connection with the transaction contemplated by this Agreement,
Buyer has agreed, pursuant to a separate document, to pay to Xxxxx Xxxxxx
("Buyer's Broker") at Closing compensation in an amount set forth in such
separate agreement. Buyer and Seller each represent to the other that they
have not entered into any other agreement or incurred any other obligation
which might result in the obligation to pay a real estate sales or brokerage
commission or finder's fee to any other person or entity with respect to this
transaction. Buyer and Seller each agree to indemnify, defend and hold the
other harmless from and against any and all claims, demands, causes of action,
liabilities, costs and/or expenses (including reasonable attorney's fees and
costs) asserted against or incurred by the other party as a result of any claim
or assertion made by any person to a right to a real estate sales or brokerage
commission or finder's fee in connection with this transaction, to the extent
such claim or assertion is based on the actual or alleged acts or omissions of
the indemnifying party, its broker or representative. The obligations of Buyer
and Seller under this Section 7.2 shall survive the Closing Date or the earlier
termination of this Agreement pursuant to its terms.
ARTICLE VIII.
Post-Closing Cooperation
If, as of Closing Date, there is any accrued and delinquent rent due from
any tenant then in occupancy, and Seller advises Buyer of that fact on or
before the Closing Date by means of the Rent Roll or otherwise, Buyer shall use
its good faith and commercially reasonable efforts to collect such delinquent
rent following Closing; provided, however, Buyer shall not be required to incur
any out-of-pocket expense or liability in doing so. The good faith and
commercially reasonable efforts required of Buyer shall not be deemed to
include the institution of any litigation. All rent collected by Buyer from
such delinquent tenant(s) shall be applied by Buyer first, to rent and other
charges currently due Buyer for the period from and after the Closing Date and
second, to rent and other charges due to Seller for the period prior to the
Closing Date. Notwithstanding the foregoing, Seller shall retain the right to
pursue, at Seller's sole cost, any and all actions or proceedings against: (i)
any former tenants or occupants of the Property, who are not subject to
existing Leases at the Property or who are in breach of their Leases by reason
(in part) of their abandonment of the leased premises prior to the end of the
term of their Lease; or (ii) any remaining tenants of the Property who are
delinquent in payment of rent and/or other charges for a period of sixty (60)
days or more as of the Closing Date, for delinquent rents and/or other cause(s)
of action, and any amounts collected by Seller pursuant to such actions or
proceedings shall be the sole property of Seller. Buyer hereby assigns any
cause(s) of action or claim(s) it may have against such persons for the period
prior to Closing to Seller, and Buyer shall have no responsibility in
connection with the prosecution of said actions or proceedings.
ARTICLE IX.
Default by Buyer
IF THE CLOSING OF THIS TRANSACTION FAILS TO OCCUR ON OR BEFORE THE CLOSING
DATE AS A RESULT OF BUYER'S BREACH OF THIS AGREEMENT, THE PARTIES ACKNOWLEDGE
AND AGREE BY INITIALING THIS AGREEMENT IN THE SPACE PROVIDED BELOW THAT:
(I) THE XXXXXXX MONEY DEPOSIT BEARS A REASONABLE RELATIONSHIP TO THE
DAMAGES WHICH THE PARTIES ESTIMATE MAY BE SUFFERED BY SELLER AS THE RESULT OF
BUYER'S DEFAULT IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT,
WHICH DAMAGES WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX, THAT THE
XXXXXXX MONEY DEPOSIT CONSTITUTES A REASONABLE ESTIMATE OF SELLER'S DAMAGES IN
SUCH EVENT, AND THAT THE REMEDY PROVIDED FOR HEREIN IS NOT A PENALTY OR
FORFEITURE AND IS A REASONABLE LIMITATION ON BUYER'S POTENTIAL LIABILITY AS A
RESULT OF SUCH DEFAULT; AND
(II) AS A RESULT OF BUYER'S BREACH OF THIS AGREEMENT AND FAILURE OF THE
CLOSING TO OCCUR ON OR BEFORE THE CLOSING DATE, SELLER SHALL HAVE THE RIGHT TO
TERMINATE THIS AGREEMENT AND THE ESCROW BY WRITTEN NOTICE TO ESCROW AGENT,
WHEREUPON SELLER AND ESCROW AGENT SHALL THEREUPON BE RELEASED FROM THEIR
RESPECTIVE OBLIGATIONS THEREUNDER TO SELL THE PROPERTY TO BUYER OR ITS
PERMITTED ASSIGNEE, AND SELLER SHALL RETAIN THE XXXXXXX MONEY DEPOSIT (OR
ESCROW AGENT SHALL RELEASE THE XXXXXXX MONEY DEPOSIT AND ALL ACCRUED INTEREST
THEREON TO SELLER, TO THE EXTENT NOT ALREADY SO RELEASED) AS LIQUIDATED
DAMAGES, WHICH DAMAGES SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY HEREUNDER IN
THE EVENT OF SUCH BREACH, EXCEPT FOR SELLER'S RIGHTS AND REMEDIES FOR A
SEPARATE BREACH, IF ANY OF THE CONFIDENTIALITY AND INDEMNIFICATION PROVISIONS
OF THIS AGREEMENT.
/s/ JCM /s/ DC /s/ VJC
Initials of Seller Initials of Buyer
ARTICLE X.
Default by Seller
In the event of a default by Seller under the terms of this Agreement,
Buyer shall have the right either: (i) to purchase the Property notwithstanding
such default, whereupon such default shall be deemed waived; or (ii) to
terminate this Agreement by notice furnished to Seller and to Escrow Agent,
whereupon Buyer will be entitled to a refund of the Xxxxxxx Money Deposit and
all interest accrued thereon, if any, held by Escrow Agent, and Buyer shall be
entitled to pursue an action against Seller at law for damages; provided,
however, Buyer shall have no right of action against Seller or subsequent
owners of the Property at equity, for specific performance of this Agreement or
otherwise, for purposes of asserting a claim of title to and/or possession of
all or any portion of the Property.
ARTICLE XI.
Exchange Provisions
Seller acknowledges that Buyer may elect to engage in a tax-deferred
exchange ("Exchange") pursuant to Section 1031 of the Internal Revenue Code.
To effect this Exchange, Buyer may assign its rights in, and delegate its
duties under, this Agreement to an exchange accommodator which Buyer shall
determine. As an accommodation to Buyer, Seller agrees to cooperate with Buyer
in connection with the Exchange, including the execution of documents therefor,
provided the following terms and conditions are satisfied:
(a) Seller shall have no obligation to take title to any property in
connection with the Exchange, nor shall Seller have any liability to Buyer in
connection with any such property ("Exchange Property");
(b) Buyer shall be solely responsible, and Seller shall have no
responsibility whatsoever, for negotiating any and all agreements, escrow
instructions and other documents (collectively "Exchange Documents") with
respect to the Exchange Property, as well as for any and all investigations,
approvals and/or other actions required to be taken or permitted to be taken by
Buyer under the Exchange Documents;
(c) Seller shall in no way to be obligated to pay any escrow costs,
brokerage commissions, title charges, survey costs, recording costs or other
charges incurred with respect to any Exchange Property and/or the Exchange, and
Buyer shall reimburse Seller for any professional fees including, without
limitation, actual attorneys' fees which Seller may incur with respect thereto;
(d) In no way shall the Closing of this transaction be contingent upon or
otherwise subject to the consummation of the Exchange, and the escrow shall
timely close in accordance with the terms of this Agreement, notwithstanding
any failure, for any reason, of the parties to the Exchange to effect same;
(e) Buyer shall not be relieved of any obligations which would otherwise
survive the Closing by reason of effecting the Exchange contemplated herein,
and all such obligations of Buyer shall survive the Closing in the same fashion
as if the Exchange had not taken place;
(f) Seller shall not be required to make any representations or
warranties, or to assume any obligations, or to spend any sum or to incur any
personal liability whatsoever in connection with the Exchange;
(g) No representations, warranties, covenants and/or indemnification
obligations set forth in this Agreement shall be affected or limited by Buyer's
use of an exchange accommodator and shall survive the Exchange and shall
continue to inure from Buyer for the benefit of Seller. No provision of any
separate instruction or related instruction from Buyer, the exchange
accommodator and/or any other party shall be deemed to modify the terms of this
Agreement or any rights of Seller hereunder; and
(h) Buyer agrees to indemnify, protect, defend (with counsel chosen by
Seller) and hold harmless Seller from and against any and all claims, demands,
causes of action, liabilities, costs and expenses (including, without
limitation, actual attorneys fees) asserted against and/or incurred by Seller
in connection with the Exchange or attempted Exchange.
Seller makes absolutely no representations or warranties of any kind or
nature, express or implied, that tax-deferred exchange treatment is available
to Buyer with respect to the Exchange, or that such a transaction will qualify
in any respect for such treatment, and Seller shall incur no liability if the
Exchange fails to qualify for tax-deferred treatment for any reason. If Seller
defaults under the terms of this Agreement, then Seller shall be liable to
Buyer for only those damages which would have occurred if Buyer had not
included the Property in any Exchange. Specifically excluded from such damages
for which Seller would be liable, but not by way of limitation, are any
consequential damages Buyer may incur because of a loss of tax advantages, tax
deferral or other detrimental tax impacts upon Buyer caused by Seller's
default. Buyer hereby acknowledges and represents to Seller that Buyer is
relying solely and entirely upon the advice of Buyer's own attorneys and
consultants with respect to any and all aspects of any such Exchange. In no
event whatsoever shall the obligations of Buyer under this Agreement be
contingent upon the inclusion of this transaction and/or the Property as part
of any Exchange in which Buyer may become involved.
ARTICLE XII.
Miscellaneous
12.1 All notices, requests, demands or other communications required or
permitted under this Agreement shall be in writing and delivered personally, by
certified mail, return receipt requested, postage prepaid, by telecopy or other
facsimile transmission, or by overnight courier (such as Federal Express),
addressed as follows:
Seller: Pacific Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx,
Vice President, Sales and Acquisitions
Xxxxx Xxxxxxx, Director, Asset Management
Fax No: (000)000-0000
Copy to: Pacific Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: June X. Xxxxx, Esq.
Fax No: (000) 000-0000
Buyer: Arden Realty Limited Partnership
0000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Telephone No: (000) 000-0000
Fax No: (000) 000-0000
Copy to: Jeffer, Mangels, Xxxxxx & Marmaro
2121 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Telephone No: (000) 000-0000
Fax No: (000) 000-0000
All Notices in accordance with the terms hereof shall be deemed given upon
actual receipt thereof whether delivered by first-class mail, postage prepaid,
personally, or by courier or messenger service, or facsimile transmission to
the numbers given above, provided electronic confirmation of such facsimile
transmission is received by the noticing party. Either party hereto may change
the address or facsimile number for receiving notices, requests, demands or
other communication by notice sent in accordance with the terms of this Section
12.1.
12.2 Buyer may not assign this Agreement or its rights and obligations
hereunder without the prior written consent of Seller, which Seller may
withhold in its sole and absolute discretion; provided, however, Buyer shall be
entitled to assign this Agreement, upon prompt notice to Seller but without
Seller's prior consent, to an affiliate of Buyer. For purposes of this Section
12.2, an "affiliate" of Buyer is an entity which controls Buyer, or is
controlled by or under common control with Buyer. Any assignment hereunder
will be subject to the terms and provisions of this Agreement; provided,
however, that upon such assignment such Assignee shall succeed to all of the
rights and obligations of Buyer hereunder, and agrees to execute all documents
and perform all obligations pursuant to this Agreement. Notwithstanding any
assignment of this Agreement, the Assignor shall not be relieved of its
obligations to complete this transaction and pay the Purchase Price to Seller
as provided for herein.
12.3 Each party agrees to execute any additional documents or supplemental
escrow instructions as may be reasonably necessary to comply with the terms of
this Agreement, provided that such instructions are not in conflict with the
terms hereof and that if a conflict exists, the provisions of this Agreement
shall prevail.
12.4 This is the entire agreement between Seller and Buyer pertaining to
the sale of the Property and supersedes any prior written or oral
understandings. Any amendment to this Agreement must be in writing. This
Agreement will be governed by the laws of the state in which the Property is
located.
12.5 The prevailing party in any litigation, including any appeal, arising
out of this Agreement will be entitled to its reasonable attorney's fees, costs
and expenses incurred in connection with the prosecution or defense of such
action.
12.6 All Exhibits referred to are attached to this Agreement and are
incorporated herein by reference.
12.7 In the event this Agreement is terminated by the default of Buyer or
Seller, any escrow termination fee or charges of Escrow Agent will be borne by
the defaulting party.
12.8 This Agreement may be executed in separate counterparts, each of
which will be deemed an original, and all of which together will constitute one
instrument.
12.9 Time is of the essence of this Agreement.
12.10 The heading, captions and titles used in this Agreement are for
convenience only and shall not be deemed in any way to limit or amplify the
terms and provisions of this Agreement.
12.11 If any date of significance hereunder falls upon a Saturday,
Sunday, or legal holiday such date will be deemed moved forward to the next day
which is not a Saturday, Sunday, or legal holiday. The terms "working day" or
"business day" shall mean days elapsed exclusive of Saturdays, Sunday, or legal
holidays.
12.12 This Agreement is not intended to confer any benefit upon, or
create any contractual right in, any person or entity other than the parties
hereto.
12.13 In the event this Agreement is not fully executed by Buyer and
Seller on or before November 5, 1997, this Agreement shall be null and void and
neither party shall have any liability to the other hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
SELLER: BUYER:
PACIFIC LIFE INSURANCE COMPANY ARDEN REALTY LIMITED PARTNERSHIP,
a California corporation a Maryland limited partnership
By: /s/ Xxxx X. Xxxxxxxxx By: ARDEN REALTY, INC.
Name: Xxxx Xxxxxxxxx a Maryland corporation
Title: Vice President Its: General Partner
By: Xxxxx Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxx Xxxxxxxxxx Xxxxxx X. Xxxxxxx
Title: Assistant Secretary President & COO
Dated November 4, 1997 Dated: November 4, 1997
Escrow Agent acknowledges receipt of a fully executed copy of this
Agreement, and by its signature hereby accepts and agrees that the provisions
of this Agreement, and any amendment thereto as may be executed by Buyer and
Seller, shall constitute instructions and control the deposit and disposition
of funds by the Escrow Agent hereunder.
ESCROW AGENT:
/s/ X. X. Xxxxx
FIRST AMERICAN TITLE INSURANCE COMPANY
Title: A. V. President
Date: 11-5-97
