AGREEMENT OF PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUC-
TIONS ("Agreement") is made and entered into this 6th day of
November 1996 by and between XXXXXX XXXXXXX, TRUSTEE OF THE
XXXXXX XXXXXXX AND XXXXXXXXX XXXXXXX 1982 TRUST, AS AMENDED
("Seller"), and ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership ("Purchaser"), with
reference to the following facts:
A. Prior to closing Seller will be the fee owner of
that certain parcel of real property (the "Real Property")
and the improvements thereon, for informational purposes
only, are an eleven (11)-story office building containing
approximately 118,000 rentable square feet, other facili-
ties, fixtures, paving and surfacing thereon or associated
therewith, and a separate three (3)-story automobile parking
structure containing approximately 75,000 square feet
including 230 marked parking spaces (collectively, the
"Improvements"). The Real Property and Improvements are
commonly known as the Xxxxx Fargo Bank Building and are
located at 000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000, and is more particularly described in Exhibit "A"
attached hereto and forming a part hereof.
B. Seller desires to sell, and Purchaser desires to
purchase, all of the real and personal property to be
acquired by Seller located at or forming part of the Real
Property, including, but not limited to, the Improvements,
and all appurtenant easements and rights, and the Personal
Property (as hereinafter defined) on the terms, covenants
and conditions hereinafter set forth.
NOW, THEREFORE, with reference to the foregoing reci-
tals and in reliance thereon and in consideration of the
purchase price hereinbelow set forth, and the other terms,
covenants and conditions set forth below, and other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, it is mutually covenanted and
agreed by Seller and Purchaser as follows:
1. Purchase and Sale. Subject to all of the
terms and conditions of this Agreement and for the
consideration set forth, on Closing (as hereinafter
defined), Seller shall convey, or cause to be conveyed, to
Purchaser or to Purchaser's assignee pursuant to paragraph
15(f) below, and Purchaser or assignee shall purchase from
Seller, all of the following:
(a) The Real Property and the Improvements,
together with all easements, hereditaments and appurtenances
thereto, subject only to such easements, agreements and
exceptions as may have been approved by Purchaser in
accordance with Paragraph 4(a) hereof and the tenancies and
occupancies that are set forth on Exhibit "B";
(b) All of the personal property (the "Personal
Property") located at, attached or appurtenant to, or used
in connection with the operation or maintenance of the Real
Property and/or the Improvements (the "Inventory");
(c) All leases to tenants leasing space in the
Improvements (the "Tenant Leases");
(d) To the extent assignable, those certain
service and other agreements more particularly described in
Exhibit "C" attached hereto and made a part hereof; and
(e) All other right, title and interest of Seller
constituting part and parcel of the Property (as hereinafter
defined), including, but not limited to, trade names, logos,
easements, licenses, permits, air rights, certificates of
occupancy, warranties, rights-of-way, signs, trademarks,
telephone listings and numbers, sewer agreements, water line
agreements, utility agreements, water rights and oil, gas
and mineral rights (collectively, the "Intangibles") to the
extent assignable or transferable. Reference herein to the
"Property" shall include all of the real, personal and
intangible property described in subparagraphs (a) through
(e) hereof.
2. Purchase Price and Payment. The purchase
price (the "Purchase Price") to be paid by Purchaser to
Seller for the Property is the sum of Ten Million Dollars
($10,000,000.00), payable as follows:
(a) Upon the opening of Escrow (as hereinafter
set forth) Purchaser shall deliver to Escrow Agent (as
hereinafter defined) cash in the sum of One Hundred Thousand
Dollars ($100,000), ("Deposit") which shall be held by
Escrow Agent as security for the full performance by
Purchaser of its obligations hereunder and on account of the
Purchase Price payable at Closing, subject to the following
terms and conditions:
(i) If Closing occurs, then the Deposit
shall be applied to the Purchase Price;
(ii) If Closing does not occur and
Seller shall be entitled to liquidated damages as provided
in Paragraph 10(b) hereof, Seller shall be entitled to the
Deposit; and
(iii) If the Closing does not occur and
Purchaser shall be entitled to the return of the Deposit as
provided in this Agreement, the same shall be returned to
Purchaser.
(b) Purchaser shall pay to Seller through Escrow
Agent at Closing in immediately available funds an amount
equal to the balance of the Purchase Price, plus (or minus)
the net amount of all costs, expenses, adjustments and
prorations to be credited (or debited) to Purchaser pursuant
to this Agreement. If Seller fails to forward to Purchaser
a Qualifying Statement provided under 1445 of the Internal
Revenue Code and an equivalent Form 590RE provided under the
Revenue and Taxation Code of the State of California, Escrow
Agent shall be entitled to withhold and pay to the Internal
Revenue Service and the Franchise Tax Board such withholding
required of Purchaser pursuant to Internal Revenue Code 1445
and equivalent form provided under the Revenue and Taxation
Code of the State of California.
(c) The Deposit shall be at all times invested by
Escrow Agent in the following investments ("Approved
Investments"): (i) United States Treasury obligations, (ii)
United States Treasury-backed repurchase agreements issued
by a major money center banking institution reasonably
acceptable to Seller, (iii) Certificates of Deposit or Money
Market Accounts of institutions whose deposits are insured
by the FDIC or (iv) such other manner as may be reasonably
agreed to by Seller and Purchaser. The Deposit shall be
disposed of by Escrow Agent only as provided in this
Agreement.
(d) All payments required to be made under this
Agreement shall be made in U.S. funds.
3. Escrow.
(a) Opening of Escrow. As soon as commercially
reasonable after their complete execution of this Agreement
("Effective Date") and in any event not later than two
business days thereafter, Seller and Purchaser shall open an
escrow (the "Escrow") with Commerce Escrow, 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxx Xxxxxx ("Escrow Agent"), through which the
purchase and sale of the Property shall be consummated. A
fully executed copy of this Agreement shall be deposited
with Escrow Agent, duly executed by Seller, Purchaser and
Escrow Agent, to serve as Escrow instructions to Escrow
Agent, and Escrow Agent shall be and is hereby authorized
and instructed to deliver pursuant to the terms of this
Agreement the documents and monies to be deposited into the
Escrow. Escrow Agent may attach to this Agreement Escrow
Agent's standard form escrow agreement, to the extent that
the same is consistent with the terms hereof, and are
reasonably approved by Seller and Purchaser. Escrow Agent
shall immediately, upon receipt of such duly executed copy
of this Agreement, notify Seller and Purchaser of the
opening of Escrow. Should either party fail to open Escrow
in accordance with the provisions of this Paragraph 3(a),
such failure shall constitute a material breach of this
Agreement.
(b) Closing of Escrow. Escrow shall close not
later than sixty (60) days following the expiration of the
Approval Period and upon five (5) days prior written notice
from Purchaser, but in all events not later than January 31,
1997, provided the Tenant Estoppels satisfying the
requirements of paragraph 8(b) hereof have been received and
all other Purchaser's Conditions Precedent to Closing as set
forth in Paragraph 8 hereof have been satisfied. The term
"Closing" as used herein shall be deemed to be the date upon
which the respective Conditions Precedent to Purchaser's
Obligation to Close Escrow (set forth in Paragraph 8 below)
and the Conditions Precedent to Seller's Obligation to Close
Escrow (set forth in Paragraph 9 below) have been satisfied,
the Grant Deed ("Grant Deed" herein) hereinafter referred to
is recorded in the office of the County Recorder of Los
Angeles County and the net proceeds of sale are held by
Escrow Agent for disbursement to Seller. If the Closing as
provided herein does not occur, this Agreement and the
Escrow shall be cancelled and terminated and thereafter
neither party shall have any further obligation or liability
to the other party, except as expressly set forth in this
Agreement.
4. Title Matters.
(a) Title Report.
(i) Seller has ordered (and upon
receipt shall cause to be delivered to Purchaser) a CLTA
Preliminary Title Report covering the Real Property and the
Improvements, which may state that it is subject to any
matter that would be disclosed by a survey (the "Preliminary
Title Report"), issued by Commonwealth Title Insurance
Company ("Title Company"), together with true copies of all
documents evidencing matters of record shown as exceptions
to title thereon. If Purchaser shall desire an ALTA Survey
of the Real Property and Improvements ("Survey"), Purchaser
shall cause the same to be so made at Purchaser's sole cost
and expense before the Approval Date (and upon receipt shall
deliver a copy of the updated Survey to Seller). Purchaser
shall have the right to object to any exceptions contained
in the Preliminary Title Report or the Survey by giving
notice to Seller by the Approval Date. Notwithstanding any
of the foregoing, Seller shall at Closing (but shall not be
obligated prior thereto) remove of record all tax and
mechanic's liens (except only for the liens of the taxes and
assessments to be prorated under Paragraph 12(a)(ii)), at
its sole cost and expense. Unless Purchaser gives written
notice that it disapproves any such additional exceptions to
title matters, stating the exceptions so disapproved, by the
Approval Date, Purchaser shall be deemed to have approved
said exceptions. Purchaser's approval of the Preliminary
Title Report shall be without prejudice to Purchaser's right
to disapprove additional survey matters or any supplementary
reports issued by Title Company or disclosed after the
Approval Date; provided, however, Purchaser's approval shall
not be unreasonably withheld, and, as to survey matters,
shall only be applicable if Purchaser shall have obtained a
Survey before the Approval Date. If for any reason, on or
before the Closing Date Seller does not cause such
exceptions to title or survey matters which Purchaser timely
disapproves (to the extent Purchaser is permitted hereunder
to so disapprove) to be removed at no cost or expense to
Purchaser (Seller having the right but not the obligation to
do so), the obligation of Seller to sell, and Purchaser to
buy, the Property as herein provided shall terminate (and
Seller and Purchaser shall have no further obligations in
connection herewith). Purchaser shall have the option to
waive the condition precedent set forth in this paragraph
4(a) by notice to Seller. In the event of such waiver, such
condition shall be deemed satisfied. All matters set forth
on the Preliminary Title Report, the Survey or any updated
Survey obtained by Purchaser which are not timely objected
to by Purchaser shall be permitted exceptions to title and
shall additionally include (i) any title or survey matters
objected to by Purchaser, which objections are subsequently
waived in writing by Purchaser, and (ii) any title or survey
matters objected to by Purchaser in accordance with the
terms and provisions of this Agreement, which objections are
cured to Purchaser's satisfaction, (iii) real estate taxes
and assessments not yet due and payable; and (iv) the
printed exceptions which appear in the standard form ALTA
owner's policy of title insurance (with extended coverage).
(ii) If at the date of Closing there are
any liens or encumbrances that Seller is obligated to pay
and discharge, Escrow Agent may use any portion of the
Purchase Price to satisfy the same (if the same are not
bonded-over or otherwise satisfied by title endorsement),
provided Seller shall simultaneously either deliver to
Escrow Agent at Closing title instruments in recordable form
sufficient to satisfy such liens and encumbrances of record,
together with the cost of recording or filing said
instruments.
(b) Title Policy. The Title Policy shall be
Commonwealth Title Company's ALTA Owner's policy with
liability in the amount of the Purchase Price, showing fee
title to the Real Property and the Improvements as vested in
Purchaser, or in Purchaser's permitted assignee, subject
only to the permitted exceptions specified in Paragraph 4(a)
above.
5. Delivery of Information.
(a) As soon as practicable after the date hereof,
but in no event later than five (5) business days after the
Effective Date, except as otherwise set forth, Seller shall
have delivered or shall have caused to be delivered or made
available to Purchaser at the Property to Purchaser to the
extent they are in Seller's possession or under its control,
the following:
(i) Complete copies of all of the
Tenant Leases and all amendments thereto, a schedule of
which is attached hereto as Exhibit "B" and forms a part
hereof.
(ii) The loss history of the Property
pertaining to any property damage or personal injury
suffered for which an insurance claim of more than Fifty
Thousand Dollars ($50,000) was submitted by Seller at any
time after January 1, 1995 to the extent available to
Seller;
(iii) A set of all "as built" plans,
specifications and structural drawings (including, but not
limited to, mechanical, electrical, air conditioning,
landscaping and sprinkler drawings), third-party soil,
geological, seismic, environmental and hazardous materials
and asbestos studies or reports, relating to the
Improvements or the subsurface conditions, grading plans,
water table or other matters bearing upon condition of the
Property;
(iv) All electricity and property tax
bills for the period beginning January 1, 1994 to the extent
available to Seller;
(v) Statements of income and expense
for the Property for the calendar years 1994, 1995 and
current year to date to the extent available to Seller;
(vi) All warranties and operating
manuals that Seller may have from vendors, contractors or
servicing agents with respect to the physical condition of
the Improvements, the Property or any portion thereof or the
equipment located therein;
(vii) Complete copies of all service and
other contracts pertaining to the Property (including, but
not limited to, HVAC, elevator, landscape, management,
leasing brokerage and parking) in respect to which Seller is
obligated (the "Service Contracts");
(viii) A list of all personal property
(including supplies) owned or leased by Seller and used in
connection with the operation, maintenance and repair of the
Property.
(b) Purchaser shall have until 5:00 P.M. on the
later of November 30, 1996 or 15 days following the latest
date that (i) all of the materials listed in paragraph (a)
above have been delivered or made available to Purchaser and
(ii) Purchaser shall have obtained an ALTA Survey, Phase I
Report and M.A.I. Appraisal of the Property (the "Approval
Date") in which to approve or disapprove all matters and
things that are subject to Purchaser's rights of review,
inspection and approval hereunder. Purchaser's failure
either to approve or disapprove said information by the
Approval Date as aforesaid shall be deemed its approval
thereof. If Purchaser disapproves any of said information,
Purchaser shall notify Seller in writing thereof within the
time period specified above whereupon, this Agreement shall
terminate, however, notwithstanding the foregoing, if
Purchaser disapproves any Service Contract, this Agreement
shall not terminate and Seller shall lawfully terminate such
Service Contract not later than thirty (30) days after the
Closing, to the extent the same can be so terminated and
provided Purchaser shall pay all cancellation or termination
penalties, fees or costs in connection therewith.
6. Inspections and Approval by Purchaser.
(a) From and after the date hereof, Purchaser and
its agents, employees and contractors shall be afforded full
access to the Property during normal business hours and upon
twenty-four (24) hours prior notice for the purpose of
making such investigations as Purchaser deems prudent with
respect to the physical condition of the Property,
including, but not limited to, engineering tests, subject to
the rights of tenants in possession. Seller shall
reasonably cooperate to assist Purchaser in completing such
inspection. However, Purchaser agrees not to contact any of
Seller's tenants without Seller's prior consent and to hold
Seller harmless from and against any loss, cost, damage,
claim or expense suffered by Seller or the Property and
caused by Purchaser's said investigations (the foregoing
obligation surviving any termination of this Agreement). In
no event shall Purchaser make any intrusive physical testing
(environmental, structural or otherwise) at the Property
(such as soil borings or the like) without Seller's prior
consent. Purchaser shall promptly restore the Property to
its condition immediately prior to such investigations. In
addition, Purchaser agrees not to unreasonably interfere
with the use and enjoyment of the Property by Seller, its
agents, representatives, employees or any tenants or other
occupants. Seller shall have the right, at its option, to
cause a representative of Seller to be present at all
inspections, reviews and examinations conducted hereunder.
At the request of Seller, Purchaser shall promptly deliver
to Seller true, accurate and complete copies of any written
reports relating to the Property prepared for or on behalf
of Purchaser by any third party and, in the event of
termination hereunder, shall return all documents and other
materials furnished to or on behalf of Purchaser by Seller
hereunder. Purchaser shall keep all information or data
received or discovered in connection with any of the
inspections, reviews or examinations strictly confidential;
provided; however, that Purchaser shall be entitled to
disclose such information to Purchaser's attorneys,
accountants and prospective debt and equity financing
sources who reasonably need to be informed in connection
with Purchaser's determinations hereunder (and who shall, in
turn, be required to keep such information confidential).
(b) From and after the date hereof until Closing,
Purchaser and its agents shall be afforded full opportunity
by Seller during normal business hours and upon twenty-four
(24) hours prior notice to examine all operating books and
records that relate to the Property, including all
specifications and as-built drawings (to the extent they are
in Seller's possession), all building permits, certificates
of occupancy, soil reports, engineers' reports and studies,
and similar information relating to the Property or its
management, operation, maintenance or use, and all
warranties and operating manuals that Seller may have from
vendors, contractors or servicing agents with respect to the
physical condition of the Property or any portion thereof or
the equipment located thereon.
(c) Purchaser shall have until the Approval Date
in which to approve or disapprove the matters referred to in
subparagraphs (a) and (b) above. Purchaser's disapproval
shall be in writing and shall be delivered to Seller prior
to the Approval Date. Failure to deliver such written dis-
approval shall be deemed Purchaser's approval of said
matters.
7. Operation of Property Pending Closing.
(a) Tenant Leases. Seller has leased portions of
the Property to various occupancy tenants. From and after
the date of execution of this Agreement and until the
Closing Date Seller shall not enter into any new leases or
amend or extend, terminate or accept the surrender of any
existing tenancies or approve any subleases without the
prior written consent of Purchaser (which consent shall not
be unreasonably withheld). In requesting such consent,
Seller shall inform Purchaser in writing of the amount, if
any, proposed to be required to pay for, or any allowance
proposed to be given for, tenant improvement work, any
leasing commissions and fees, in connection with such lease
and any rent concessions. Also included in the request for
consent, shall be Seller's proposed draft of the lease
agreement. The failure of Purchaser to respond within five
(5) business days after written request for any such
approval shall be deemed to constitute approval. Seller
shall not collect in advance any rent or other sum due under
any of the Tenant Leases, except for collection of current
rents no more than one month in advance.
(b) Leasing Commissions; Tenant Improvements and
Rent Concessions. Purchaser agrees to be responsible for
all leasing commissions, tenant improvement costs and
unamortized rent concessions with respect to new leases,
extension of existing leases and renewal occurring after
November 1, 1996, provided that (i) Purchaser has approved
or is deemed to have approved such action or event by Seller
and (ii) Seller has delivered to Purchaser copies of the
proposed lease and other agreements with respect thereto and
to which any brokerage commissions are payable. Failing
such delivery, Seller shall remain responsible for all of
costs and expenses including commissions.
(c) Insurance Policies. Seller shall keep all of
the insurance policies covering the Property (or
substantially equivalent coverage) in full force and effect
between the date of this Agreement and Closing (the
"Insurance Policies").
(d) Service Contracts. Seller shall have the
right to renew or replace Service Contracts that expire
prior to Closing or to enter into new Service Contracts for
emergency purposes if deemed reasonably necessary by Seller
for any term provided that such Service Contracts are
terminable by Seller or its successors in interest upon not
more than thirty (30) days' notice to the service provider.
(e) Property Management. Seller shall maintain
the Property in the same manner as prior hereto pursuant to
its normal course of business (such maintenance obligations
not including extraordinary capital expenditures or
expenditures not incurred in such normal course of
business), subject to reasonable wear and tear and further
subject to destruction by casualty or other events beyond
the reasonable control of Seller.
8. Conditions Precedent to Purchaser's
Obligation to Close Escrow. The obligation of Purchaser to
consummate the transactions contemplated hereby is subject
to the following conditions, inserted for Purchaser's sole
benefit and that may be waived by Purchaser only in writing
at its sole option. Said conditions are as follows:
(a) Representations and Warranties True at Clos-
ing. The representations and warranties of Seller contained
in Paragraph 13 of this Agreement shall be true on the date
of Closing in all material respects as though such
representations and warranties were made on and as of such
date.
(b) Delivery of Tenant Estoppels. Seller shall
have delivered to Purchaser estoppel letters (the "Tenant
Estoppels") from tenants representing 85% of the leased area
and from all tenants leasing more than 3,500 square feet in
the Improvements in substantially the form of Exhibit "D"
attached hereto and forming a part hereof, consistent in all
material respects with the information to be provided by
Seller hereunder and certifying inter alia to the effect
that there are no defaults by landlord under the lease known
to tenant thereunder; that such lease is unmodified except
as may be set forth therein and in full force and effect;
that there are no defenses or offsets against the landlord
known to tenant thereunder; and that rental is current and
has not been paid more than one month in advance.
(c) Compliance with This Agreement. Seller shall
have performed and complied within all material respects all
agreements and conditions required by this Agreement to be
performed or complied with by it on or prior to Closing.
(d) Title Policy. Title Company shall be ready,
willing and able to issue the Title Policy required by Para-
graph 4(b).
(e) Change in Condition. Subject to the pro-
visions of Paragraphs 15(b) and 15(c) hereof, there shall
exist no damage, destruction or condemnation of the Property
prior to Closing.
9. Conditions Precedent to Seller's Obligation
to Close Escrow. The obligation of Seller to consummate the
transactions contemplated hereby is subject to the following
conditions, inserted for Seller's sole benefit and that may
be waived solely by Seller only in writing at its sole
option. Said conditions are as follows:
(a) Representations and Warranties True at Clos-
ing. The representations and warranties of Purchaser con-
tained in this Agreement, or in any certificate or document
signed by Purchaser pursuant to the provisions hereof, shall
be true on and as of Closing in all material respects as
though such representations and warranties were made on and
as of such date.
(b) Delivery of Purchase Price and Documents.
Purchaser shall have delivered all funds and documents to
Escrow Holder required by it hereunder to enable it to close
the Escrow.
(c) Compliance with This Agreement. Purchaser
shall have performed and complied with all agreements and
conditions required by this Agreement to be performed or
complied with by it on or prior to Closing.
10. Remedy of Purchaser and Seller Upon Default.
(a) Remedies of Purchaser. In the event that
Seller fails to keep and perform each and every obligation,
covenant and agreement herein by Seller to be kept or per-
formed, then Purchaser may pursue such rights it may have
against Seller and the Property either at law or in equity.
(b) Remedy of Seller. THE PARTIES HERETO, BEFORE
ENTERING INTO THIS TRANSACTION, HAVE BEEN CONCERNED WITH THE
FACT THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY SELLER IF
PURCHASER SHOULD WRONGFULLY FAIL TO PURCHASE THE PROPERTY.
WITH THE FLUCTUATION IN VALUE OF REAL PROPERTY, THE CURRENT
AND HIGHLY UNPREDICTABLE STATE OF THE ECONOMY, THE
FLUCTUATING MONEY MARKET FOR REAL ESTATE LOANS OF ALL TYPES,
AND OTHER FACTORS THAT DIRECTLY AFFECT THE VALUE AND MARKET-
ABILITY OF THE PROPERTY, IT IS REALIZED BY THE PARTIES THAT
IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE, IF NOT
IMPOSSIBLE, TO ASCERTAIN WITH ANY DEGREE OF CERTAINTY PRIOR
TO SIGNING THIS AGREEMENT THE AMOUNT OF DAMAGES THAT WOULD
BE SUFFERED BY SELLER IN THE EVENT OF PURCHASER'S WRONGFUL
FAILURE TO PURCHASE THE PROPERTY. THE PARTIES, HAVING MADE
DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL
COMPENSATORY DAMAGES SELLER WOULD SUFFER IN THE EVENT OF
PURCHASER'S WRONGFUL FAILURE TO PURCHASE THE PROPERTY,
HEREBY AGREE THAT THE REASONABLE ESTIMATE OF SAID DAMAGES IS
AN AMOUNT EQUAL TO ONE HUNDRED THOUSAND DOLLARS ($100,000);
AND IN THE EVENT OF PURCHASER'S WRONGFUL FAILURE TO PURCHASE
THE PROPERTY, SELLER SHALL BE ENTITLED TO SUCH AMOUNT AS
FULL LIQUIDATED DAMAGES, AND THAT PAYMENT OR TENDER TO
SELLER BY PURCHASER OF SUCH AMOUNT SHALL TERMINATE ALL OF
SELLER'S RIGHTS AND REMEDIES AT LAW OR IN EQUITY AGAINST
PURCHASER WITH RESPECT TO SUCH FAILURE TO PERFORM.
/a/ AG /a/ RSZ
Seller's Purchaser's
Initials Initials
11. Closing Procedure.
(a) At least one business day prior to the date
of Closing, Purchaser shall have delivered to Escrow Agent
counterpart executed originals of the following documents
and the following sums of money required to be delivered by
Purchaser hereunder:
(i) The Purchase Price in the manner
set forth in Paragraph 2;
(ii) Such funds as may be necessary to
comply with Purchaser's obligations hereunder regarding
prorations, costs and expenses; and
(iii) A signed counterpart of the
Assignment of Leases and a signed counterpart of the
Assignment of Service Contracts.
(b) At least one business day prior to the date
of Closing, Seller shall have delivered to Escrow Agent
counterpart executed originals of the following documents:
(i) The Grant Deed in the form of
Exhibit "E" attached hereto and forming a part hereof;
(ii) A Xxxx of Sale (the "Xxxx of Sale")
in the form of Exhibit "F" attached hereto covering the
Personal Property;
(iii) An Assignment and Assumption of
Leases and Security Agreements (the "Assignment of Leases")
substantially in the form and substance of Exhibit "G"
attached hereto and forming a part hereof;
(iv) An Assignment and Assumption of
Service and Miscellaneous Rights and Agreements (the
"Assignment of Service Contracts") substantially in the form
and substance of Exhibit "H" attached hereto and forming a
part hereof;
(v) An original counterpart of each of
the Service Contracts, Leases and keys to the Property if in
Seller's possession or under its control;
(vi) Notices to each of the tenants and
occupants of the Property of the transfer of the Property to
Purchaser;
(vii) To the extent they are in Seller's
possession, a complete set of all plans, specifications and
as-built drawings, and all building permits, certificates of
occupancy, third-party soil reports, and environmental
reports and studies relating to the Improvements; and
(viii) All warranties and operating
manuals that Seller may have from vendors, contractors or
servicing agents with respect to the physical condition of
the Property or any portion thereof or the equipment located
thereon.
(c) Upon delivery of the foregoing sums and
documents, Escrow Agent shall cause Title Company to cause
the Grant Deed to be recorded (by a special recording if
necessary) in the Official Records of Los Angeles County,
California, and immediately to issue the Title Policy.
12. Costs and Prorations.
(a) Prorations. All revenues, income, receiv-
xxxxx, 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 Tenant 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; Purchaser shall include such
delinquencies in its normal billing and shall pursue the
collection thereof in good faith after the Closing Date (but
Purchaser shall not be required to litigate or declare a
default in any Tenant Lease). To the extent Purchaser
receives amounts on account of Tenant Leases on or after the
Closing Date, such payments shall be applied first toward
then current rent owed to Purchaser in connection with the
applicable Tenant 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. Purchaser
may not waive any delinquent rents nor modify a Tenant 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. Purchaser shall reasonably
cooperate with Seller in any collection efforts hereunder
(but shall not be require 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 Purchaser 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, the Seller or the Purchaser at any time subsequent
to Closing but with reference to any period prior thereto
during Seller's ownership thereof, Seller shall promptly pay
to Purchaser 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 Purchaser 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, plus accrued
interest, if any, payable thereon to tenants which have not
been validly applied by Seller to a prior default by any of
such tenants, and any other deposits and prepaid rent, shall
be credited (or assigned) to Purchaser;
(v) Subject to the provisions of
Paragraph 12(c) below, utility charges levied against Seller
or the Property, and Purchaser 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) Tenant improvements costs and leasing
commissions for leases signed after the November 1, 1996 shall
be paid by Purchaser if approved by Purchaser in accordance with
Paragraphs 7(a) and 7(b).
(viii) All other operating 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.
(b) Expenses of Closing. The expenses of Closing
shall be paid in the following manner:
(i) Seller shall pay nothing, except
its own legal and accounting fees and expenses.
(ii) Purchaser shall pay:
(1) The cost of recording the
Grant Deed, including the documentary transfer taxes;
(2) The cost of the Title Policy
and the cost of any Survey;
(3) Escrow Agent's Escrow fees,
charges and expenses;
(4) The prepayment premium on any
mortgages or deeds of trust paid off at Closing; and
(5) The Brokerage commission of Xxxxxxx
Xxxxxx, a licensed broker, in the amount of $175,000.00.
All other Closing fees and expenses, including, but not
limited to, the parties' legal expenses, accounting and con-
sulting fees, and other incidental expenses in connection
with this transaction shall be borne by the party incurring
same.
13. Representations, Warranties and Covenants of
Seller.
(a). Except as specifically set forth in this
Paragraph 13(a), the sale of the Property hereunder is and
will be made on an "as is" basis, without representations
and warranties of any kind or nature, express, implied or
otherwise, including but not limited to, any representation
or warranty concerning title to the Property, the physical
condition of the Property (including, but not limited to,
the condition of the soil or the improvements), the
environmental condition in of the Property (including, but
not limited to, the presence or absence of hazardous
substances on or respecting the Property), the compliance of
the Property with applicable laws and regulations
(including, but not limited to, zoning and building codes or
the status of development or use rights respecting the
Property), the financial condition of the Property or any
other representation or warranty respecting any income,
expenses, charges, liens or encumbrances, rights or claims
on, affecting or pertaining to the Property or any party
thereof. Purchaser acknowledges that Purchaser has
examined, reviewed and inspected all matters which in
Purchaser's judgment bear upon the Property and its value
and suitability for Purchaser's purposes. Except as to
matters specifically set forth in this Paragraph 13(a),
Purchaser will acquire the Property solely on the basis of
its own physical and financial examinations, reviews and
inspections and the title insurance protection afforded by
the Title Policy. Subject to the foregoing and except as
disclosed by Seller to Purchaser or otherwise discovered by
Purchaser prior to the Approval Date or as contained in the
materials delivered to Purchaser and identified in Paragraph
5 hereof, Seller hereby makes the following representations,
warranties and covenants, each of which is deemed to be
material and each of which is stated by Seller to be true
and correct on the date hereof and on the Closing Date and
each of which shall survive the Closing for a period of one
(1) year:
(i) Seller has no actual knowledge,
without independent investigation, of any:
(1) existing latent defects or
seismic conditions concerning the Real Property or
materially incorrect income or expense figures in any
financial statements prepared by or for Seller and delivered
to Purchaser regarding the Property.
(2) any litigation or
administrative action, arbitration, proceeding pending
before any court, agency or official, nor any claim or
action threatened in writing, relating to the Seller or the
Property or with respect to the validity of any statutes,
ordinances, regulations or restrictions or any permits or
approvals thereunder relating to the construction of any
improvements on the Property or the operation thereof nor
any outstanding contingent liabilities affecting the
Property;
(3) written notice of violations
of City, County, State, Federal, building, zoning, fire or
health codes, regulations or ordinances, filed or issued
against the Property;
(4) Hazardous Substance (other
than asbestos) in existence on or below the surface of the
Real Property or in any building located upon the Real
Property, including, without limitation, contamination of
soil, subsoil or ground water, which constitutes a violation
of any applicable law, rule or regulation of any government
entity having jurisdiction thereof;
(5) thing that would suggest any
portion of the Property has ever been used by Seller or any
tenant of any portion of the Property during Seller's
ownership thereof as a waste storage or disposal site or
gasoline station. Without limiting the other provisions of
this Agreement, Seller shall reasonably cooperate with
Purchaser's investigation of matters relating to the
foregoing provisions of this paragraph and to provide access
to and copies of any data and/or documents dealing with
potentially Hazardous Substances used at the Property and
any disposal practices followed in accordance with, and
subject to the provisions of, Paragraph 6 hereof. Seller
agrees that Purchaser may make inquiries of governmental
agencies regarding such matters, without liability for the
outcome of such discussions. For the purposes of this
Agreement, "Hazardous Substances" shall mean (A) substances
defined as "hazardous substances" in (i) the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S. C. ss. 9601 et seq.), or (ii) the
Resource Conservation and Recovery Act of 1976 (42 U.S.C.
ss. 6901 et seq.), together with the regulations enacted
pursuant to such acts, and (B) those substances defined as
"hazardous wastes" in ss. 25117 of the California Health and
Safety Code or as "hazardous substances" in ss. 25316 of the
California Health and Safety Code together with the
regulations enacted pursuant to such statutes.
(ii) The Tenant Leases and Service
Contracts and any other agreements, matters and things to be
submitted to Purchaser by Seller for approval pursuant to
Paragraph 5 above, or otherwise, shall be true, correct and
complete copies thereof as of the date of submission
thereof, and as thereafter supplemented by supplements or
additions, approved in writing by Purchaser, on or before
Closing. Notwithstanding anything to the contrary contained
herein, Seller shall have no obligation or liability to
Purchaser with respect to any of the foregoing lease matters
which shall be confirmed as correct in any tenant estoppel
certificate delivered to Purchaser as provided in this
Agreement;
(iii) The operating financial information
prepared by Seller and delivered to Purchaser with respect
to the Property, consisting of Statements of Operations for
the calendar years ended December 31, 1994, December 31,
1995 and for the current calendar year are true and correct
in all material respects; in this regard Seller agrees to
make available to Purchaser and its accountants, at
Purchaser's cost, all accounting records for the calendar
year ended December 31, 1995 and for the period from January
1, 1996 through the date of Closing, including but not
limited to all general ledgers, cash receipts, cancelled
checks and any other accounting documents and information
reasonably requested; and
(iv) As used in this Agreement, "to
Seller's knowledge" or other similar knowledge limitations
as to Seller shall mean the actual knowledge of Xxxxxx
Xxxxxxx and Xxxxxxx Xxxxxx, the Property Manager of Seller.
(b) Notwithstanding anything contained in Para-
graphs 5(a) or 13(a) to the contrary, Seller is neither
responsible nor liable for any representation or warranty,
either expressed or implied, guaranty, promise or other
information pertaining to the Property or the Improvements
made or furnished to Purchaser by any broker representing or
purporting to represent Seller.
14. Representations and Warranties of Purchaser.
Purchaser hereby makes the following representations and
warranties, each of which is deemed to be material and each
of which is stated by Purchaser to be true and correct on
the date hereof:
(a) Purchaser has full legal power and authority
to enter into and perform this Agreement in accordance with
its terms. This Agreement constitutes the valid and binding
obligation of Purchaser, enforceable in accordance with its
terms, except as such enforcement may be affected by bank-
ruptcy, insolvency and other laws affecting the rights of
creditors generally. The execution, delivery and
performance of this Agreement and all documents in
connection therewith are not in contravention of or in
conflict with any agreement or undertaking to which
Purchaser is a party or by which Purchaser may be bound or
affected; and
(b) The execution and delivery of this Agreement
and the payment and performance by Purchaser of its payments
and obligations hereunder require no further action or
approval in order to constitute this Agreement as a binding
and enforceable obligation of Purchaser, and all such
actions have been duly taken by Purchaser.
(c) As of the Approval Date and as of the Closing
Date (i) Purchaser has received and reviewed all materials
provided to Purchaser by Seller pursuant to Sections 4 and 5
above (collectively, the "Due Diligence Materials"), (ii)
Purchaser has inspected the Property, (iii) Purchaser has
made such investigation of the information contained in the
Due Diligence Materials as it deems appropriate, and (iv)
Purchaser is satisfied based upon its examination of the Due
Diligence Materials and its investigation of all other
aspects of the Property which Purchaser deems material to
its purchase thereof, including, without limitation, the
condition of title to the Property, the zoning of the
Property, the condition and physical aspects of all
structures located on the Real Property (including the
Improvements) and the presence or absence of Hazardous
Substances on the Property.
15. General Covenants and Agreements of Purchaser
and Seller.
(a) Delivery of Possession. Possession of the
Property shall be delivered to Purchaser upon Closing,
subject to the rights of tenants in possession.
(b) Damage to or Destruction of Property Prior to
Closing; Risk of Loss. If prior to Closing the Property
shall sustain damage caused by fire or other casualty that
is insured and that would cost One Hundred Fifty Thousand
Dollars ($150,000) or more to repair or if any uninsured
loss or casualty occurs that would cost One Hundred Fifty
Thousand Dollars ($150,000) or more to repair, either Seller
or Purchaser may respectively elect to terminate this
Agreement by written notice to the other within fifteen days
after notice of such event, or at Closing, whichever is
earlier. If neither Seller nor Purchaser so elects to
terminate its obligations under this Agreement, or if the
loss or casualty would cost less than One Hundred Fifty
Thousand Dollars ($150,000) to repair, the Closing shall
take place as provided herein and Purchaser shall receive an
assignment of Seller's rights to insurance proceeds with
respect to any unrepaired damage (including any rental loss
proceeds for periods after the Closing), loss or casualty in
question. Seller shall retain all interest in and to the
insurance proceeds that may be payable to Seller on account
of repaired and completed damage, but Seller shall have no
obligation of repair or replacement.
(c) Condemnation of Property Prior to Closing. In
the event that the Property or any part thereof becomes the
subject of a condemnation proceeding other than of a minor
immaterial nature prior to Closing, Seller agrees to
immediately advise Purchaser thereof. In the event of such
condemnation, Purchaser shall have the option to (1) take
title in accordance with the terms and conditions of this
Agreement and negotiate with the said condemning authority
for the condemnation award and receive the benefits thereof
without affecting the Purchase Price, or (2) terminate this
Agreement and declare its obligations thereunder null and
void and of no further effect, in which event all sums
theretofore paid to Seller or to Escrow Agent hereunder
shall be returned to Purchaser as set forth herein. Notice
of the exercise of such option hereunder shall be in
writing, delivered to Seller at the address set forth in
Paragraph 16(g) of this Agreement (or such other address as
Seller may have theretofore designated in writing) at least
two days prior to Closing.
(d) Brokers' Commissions. Seller warrants that
Seller did not negotiate with respect to the purchase of the
Property through any broker, agent, finder, affiliate or
other third party other than Xxxxxxx Xxxxxx ("Broker") or
incur any liability, contingent or otherwise, for brokerage
or finder's fees or agent's commissions or other like
payments in connection with this Agreement, or the
transactions contemplated hereby. Purchaser agrees to pay
at Closing to Broker the commission due him in connection
with the within transaction and Seller and hereby agrees to
indemnify Purchaser against and hold Purchaser harmless from
any and all claims, demands, causes of action or damages
resulting from any breach of this warranty. Purchaser
hereby warrants that Purchaser did not negotiate through any
broker, agent, finder, affiliate or other third party other
than Broker or incur any liability, contingent or otherwise,
for any such brokerage or finder's fees, agent's commissions
or other like payments, in connection with this Agreement,
and hereby agrees to indemnify Seller against and hold
Seller harmless from any and all claims, demands, causes of
action or damages resulting from any breach of this
warranty. This provision shall survive Closing.
(e) Further Assurances Prior to Closing. Seller
and Purchaser shall, prior to Closing, execute any and all
documents and perform any and all acts reasonably necessary,
incidental or appropriate to effect the purchase and sale
and the transactions contemplated in this Agreement.
(f) Time of Essence. Time shall be of the
essence with respect to the obligations of the parties
hereunder.
(g) Assignability. Purchaser may assign all of
its rights and duties hereunder to any entity with which
Purchaser is, directly or indirectly, affiliated or an
entity to be formed by the principals (Xxxxxxx X. Xxxxx and
Xxxxxx X. Xxxxxxx) of Purchaser, without Seller's consent,
upon the giving of written notice to Seller, which notice
may not be given less than three days prior to Closing. For
the purpose of this paragraph an "affiliate" of or a person
"affiliated" with, a specified person, is a person that
directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control
with, the person specified. Any such assignment is
conditional upon such assignee assuming the obligations of
Purchaser under this Agreement agreeing to be bound by all
consents and approvals theretofore given or deemed to have
been given by Purchaser, and such assignment or nomination
shall not relieve Purchaser of its obligations hereunder.
(h) Waivers, Amendments and Modifications of
Provisions. Waivers, amendments or modifications of any
term or condition of this Agreement must be in writing
signed by the party against whom such waiver is sought to be
enforced. No waiver by any party of any breach hereunder
shall be deemed a waiver of any other or subsequent breach.
(i) Indemnification. Seller shall indemnify Pur-
chaser against and hold Purchaser harmless from any and all
loss, cost, damage, claim, liability or expense, including
court costs and reasonable attorneys' fees, for third party
claims arising out of or in connection with any tort
committed by Seller (including any personal injury or
property damage or claim of personal injury or property
damage of any kind whatsoever, including death, to property
or persons, including employees of Seller) unless caused by
Purchaser, resulting from such tort occasioned in or about
the Property prior to Closing. Purchaser shall indemnify
Seller against and hold Seller harmless from any and all
loss, damage, claim of damage, liability or expense,
including court costs and reasonable attorneys' fees, for
third party claims arising out of or in connection with any
tort committed by Purchaser (including any personal injury
or property damage or claim of personal injury or property
damage of any kind whatsoever, including death, to property
or persons, including employees of Purchaser) unless caused
by Seller, resulting from such tort occasioned in or about
the Property (a) as a result of its investigation of the
Property during the Approval Period and (b) on or subsequent
to Closing. These covenants shall survive Closing.
16. Miscellaneous Provisions.
(a) Successors and Assigns. Subject to the pro-
visions hereof, the terms and provisions hereof shall be
binding upon and inure to the benefit of the successors and
assigns of the parties hereto.
(b) Meaning of Terms. When necessary herein, all
terms used in the singular shall apply to the plural and
vice versa; and all terms used in the masculine shall apply
to the neuter and feminine genders.
(c) Entire Agreement. This Agreement is the
entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior
agreements between the parties hereto with respect thereto.
No claim of waiver, modification, consent or acquiescence
with respect to any of the provisions of this Agreement
shall be made against either party, except on the basis of a
written instrument executed by or on behalf of such party.
(d) Governing Law. This Agreement is to be
governed by and construed in accordance with the internal
laws of the State of California.
(e) Paragraph Headings. The headings of the sev-
eral paragraphs of this Agreement are inserted solely for
convenience of reference and are not a part of and are not
intended to govern, limit or aid in the construction of any
term or provision hereof.
(f) Attorneys' Fees. If either Seller or Pur-
chaser shall obtain legal counsel and bring an action or
proceeding against the other by reason of the breach of any
covenant, provision or condition hereof, or otherwise
arising out of this Agreement, the unsuccessful party shall
pay to the prevailing party reasonable attorneys' fees,
which shall be payable whether or not any proceeding is
prosecuted to judgment or award. The term "prevailing
party" shall include a party who brings an action or
proceeding against the other by reason of the other's breach
or default and obtains substantially the relief sought by
judgment or award.
(g) Notices. All notices, requests and other
communications hereunder shall be in writing and shall be
personally delivered or, in the alternative, deposited with
(1) the United States Postal Service, Certified Mail with
Return Receipt Requested, with postage prepaid or (2)
Federal Express or other overnight air freight forwarder for
delivery to the following addresses, and shall be effective
immediately upon delivery:
Seller: Xxxxxx Xxxxxxx
Xxxxxxx Financial Corporation
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
With a copy to: Xxxxxx X. Xxxxx, Xx.
Attorney at Law
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Purchaser: Arden Realty, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000 Xxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxx
With a copy to: Xxxx & Xxxxx
0000 Xxxxxxx Xxxx Xxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Escrow Agent: Commerce Escrow
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
All notices, requests and other communications shall be
deemed received on the date of acknowledgment or other
evidence of actual receipt and shall also be deemed received
on the date service is refused.
(h) Severability. If any provision of this
Agreement or the application thereof to any person or cir-
cumstance shall be invalid or unenforceable to any extent,
the remainder of this Agreement and the application of such
provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest
extent permitted by law.
(i) Further Assurances on or After Closing. Each
party hereto agrees to do all acts and things and to make,
execute and deliver such written instruments as shall be
reasonably necessary to carry out the terms and provisions
of this Agreement. This covenant of further assurances
shall survive Closing.
(j) Other Parties. Nothing in this Agreement
shall be construed as giving any person, firm, corporation
or other entity, other than the parties hereto, their
successors and permitted assigns, any right, remedy or claim
under or with respect to this Agreement or any provision
hereof.
(h). Confidentiality. Seller and Purchaser agree
that it is in both of their best interests to keep this
Agreement and all information concerning the Property
confidential until Closing. Seller and Purchaser each
agrees that neither shall take any action nor conduct itself
in any fashion that would disclose to third parties
unrelated to Purchaser's acquisition or intended ownership
and operation of the Property, any aspect of the
contemplated transaction. After Closing, neither party
shall make any public announcement of the transaction that
has not been approved in advance and in writing by the other
party.
(l) Counterparts. This Agreement may be executed
in any number of counterparts, each of which so executed
shall be deemed an original; such counterparts shall
together constitute but one agreement.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement the day and year first hereinabove written.
Seller: /s/ Xxxxxx Xxxxxxx
XXXXXX XXXXXXX, TRUSTEE OF THE
XXXXXX XXXXXXX AND XXXXXXXXX XXXXXXX
1982 TRUST, AS AMENDED
Purchaser: ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Arden Realty, Inc.,
a Maryland corporation,
Its general partner
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx,
Chairman of the Board and
Chief Executive Officer
The undersigned hereby executes this Agreement to
evidence its agreement to act as Escrow Holder in accordance
with the terms of this Agreement.
AGREED AND ACCEPTED:
Escrow Agent:
COMMERCE ESCROW
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President
