EXHIBIT 10.62
AGREEMENT FOR PURCHASE AND SALE
OF
0000 XXXXXXXX XXXXXX, XXXXX XXXXXX, XXXXXXXXXX
JUNE 16, 1997
_______________
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE I BASIC DEFINITIONS............................................ -1-
ARTICLE II
PURCHASE AND SALE............................................ -3-
Section 2.1 Purchase and Sale.............................................. -3-
Section 2.2 Purchase Price................................................. -3-
Section 2.3 Buyer's Review and Seller's Disclaimer......................... -3-
Section 2.4 Permitted Title Exceptions..................................... -5-
ARTICLE III
CONDITIONS PRECEDENT......................................... -6-
Section 3.1 Conditions..................................................... -6-
Section 3.2 Failure or Waiver of Conditions Precedent...................... -7-
ARTICLE IV
COVENANTS. WARRANTIES AND REPRESENTATIVES.................... -8-
Section 4.1 Seller's Warranties and Representations........................ -8-
Section 4.2 Seller's Covenants............................................. -9-
Section 4.3 Buyer's Warranties and Representations......................... -10-
Section 4.4 Limitations.................................................... -10-
Section 4.5 Seller's Certificate........................................... -11-
Section 4.6 Indemnifications............................................... -11-
Section 4.7 Completion of Seismic Retrofit Work............................ -12-
ARTICLE V DEPOSIT...................................................... -12-
ARTICLE VI
ESCROW AND CLOSING .......................................... -13-
Section 6.1 Escrow Arrangements............................................ -13-
Section 6.2 Closing........................................................ -15-
Section 6.3 Prorations..................................................... -15-
Section 6.4 Other Closing Costs............................................ -16-
TABLE OF CONTENTS
-----------------
(continued)
PAGE
----
Section 6.5 Further Documentation ......................................... -16-
ARTICLE VII
MISCELLANEOUS................................................ -17-
Section 7.1 Damage or Destruction.......................................... -17-
Section 7.2 Brokerage Commissions and Finder's Fees........................ -17-
Section 7.3 Successors and Assigns......................................... -18-
Section 7.4 Notices........................................................ -18-
Section 7.5 Time........................................................... -19-
Section 7.6 Possession..................................................... -19-
Section 7.7 Incorporation by Reference..................................... -19-
Section 7.8 No Deductions or Off-Sets...................................... -19-
Section 7.9 Attorneys' Fees................................................ -19-
Section 7.10 Construction.................................................. -19-
Section 7.11 Governing Law................................................. -19-
Section 7.12 Confidentiality............................................... -20-
Section 7.13 Counterparts.................................................. -20-
Section 7.14 Entire Agreement: Amendments.................................. -20-
Section 7.15 Further Assurances............................................ -20-
Section 7.16 Partial Invalidity............................................ -20-
Section 7.17 Waivers....................................................... -21-
Section 7.18 Damages....................................................... -21-
EXHIBIT A DISCLOSURE STATEMENT
EXHIBIT B INSPECTION LETTER
EXHIBIT C LIST OF CONTRACTS AND WARRANTIES
EXHIBIT D PROPERTY DESCRIPTION
EXHIBIT E DEED
EXHIBIT F XXXX OF SALE
EXHIBIT G ASSIGNMENT OF LEASES AND INTANGIBLE PROPERTY
EXHIBIT H DUE DILIGENCE MATERIALS
EXHIBIT I ESCROW AGREEMENT
EXHIBIT I FORM OF SONY ESTOPPEL
EXHIBIT K FORM OF DEVELOPMENT AGREEMENT ESTOPPEL
EXHIBIT L FORM OF MTA LEASE ESTOPPEL
EXHIBIT M FORM OF THETFORD ASSIGNMENT
-ii-
AGREEMENT FOR PURCHASE AND SALE
OF
0000 XXXXXXXX XXXXXX, XXXXX XXXXXX, XXXXXXXXXX
THIS AGREEMENT FOR PURCHASE AND SALE OF 0000 XXXXXXXX XXXXXX, XXXXX
XXXXXX, XXXXXXXXXX ("Agreement") is made and entered into as of June 16, 1997,
by and between Santa Xxxxxx Number Seven Associates L.P., a Delaware limited
partnership ("Seller"), and Xxxxxx Realty L.P., a Delaware limited partnership
("Buyer").
RECITALS
--------
A. Seller owns certain improved real property consisting of an office
building commonly known as the Sony Building and located at 0000 Xxxxxxxx
Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx, together with associated tangible and
intangible personal property.
B. Buyer desires to purchase from Seller and Seller desires to sell to
Buyer, subject to the terms and conditions contained in this Agreement, the
foregoing real property and any and all associated tangible and intangible
personal property owned by Seller.
AGREEMENT
---------
NOW, THEREFORE, Buyer and Seller do hereby agree as follows:
ARTICLE I
BASIC DEFINITIONS
-----------------
For purposes of this Agreement, and in addition to the other terms defined
in this Agreement, each of the following terms, when used with an initial
capital letter, shall have the following meaning:
CC&R's. The term "CC&R's" shall mean that certain Second Declaration
-------
of Protective Covenants, Conditions and Restrictions and Reciprocal Easement
Agreement for the Arboretum dated as of November 8, 1994 and recorded November
23, 1994 as Instrument No. 00-0000000 of the Official Records of Los Angeles
County, as amended by that certain First Amendment to Second Declaration of
Protective Covenants, Conditions and Restrictions and Reciprocal Easement
Agreement for the Arboretum dated December 5, 1994 and recorded May 2, 1995 as
Instrument No. 95-717712 in the Official Records of Los Angeles County.
Closing Date. The term "Closing Date" shall mean June 24, 1997, or
-------------
another date approved in writing by both Buyer and Seller. For purposes of this
Agreement, the Closing Date shall be deemed to have occurred on the date of the
recordation of the Deed and payment of the Purchase Price to Seller.
Contract Period. The term "Contract Period" shall mean the period from
----------------
the date of this Agreement through and including the Closing Date.
Development Agreement. The term "Development Agreement" shall mean
----------------------
that certain Development Agreement affecting the Property dated December 16,1987
and recorded December 17, 1987 as Instrument No. 00-0000000 in the Official
Records of Los Angeles County, as amended by (i) Amendment No. 1 to Development
Agreement dated December 28,1988 and recorded January 5,1989 as Instrument No.
89-15234 in the Official Records of Los Angeles County, (ii) an Assignment and
Assumption Agreement dated February 22, 1989 and recorded February 22, 1989 as
Instrument No. 89-282004 in the Official Records of Los Angeles County, and
(iii) Amendment No. 2 to Development Agreement dated March 16,1995 and recorded
April 11,1995 as Instrument No. 95-504419 in the Official Records of Los Angeles
County.
Disclosure Statement. The term "Disclosure Statement" shall mean the
---------------------
statement set forth as Exhibit A to this Agreement.
---------
Estoppel Certificate. The term "Estoppel Certificate" shall have the
---------------------
meaning set forth in Section 3.1(a)(iii).
Inspection Period. The term "Inspection Period" shall mean the period
------------------
commencing on the date of this Agreement and ending at [5pm] Pacific Time on
[June 24], 1997, subject to extension as may be approved in writing by both
Buyer and Seller or extended pursuant to Section 2.3(c) below; provided that the
Inspection Period may end earlier at Buyer's election upon delivery by Buyer to
Seller of the Inspection Letter (representing the conclusive waiver by Buyer of
any further Inspection Period). RN
--
Inspection Letter. The term "Inspection Letter" shall mean a letter
------------------
in the form attached as Exhibit B to this Agreement, to be delivered by Buyer to
---------
Seller on or prior to the close of the Inspection Period pursuant to Section 3.2
below.
Intangible Property. The term "Intangible Property" shall mean
--------------------
Seller's rights and interests in: (a) any and all transferable or assignable
permits, building plans and specifications, certificates of occupancy, operating
permits, sign permits, development rights and approvals, certificates, licenses,
warranties and guarantees, trade names, service marks, engineering, soils, pest
control and other reports relating to the Property, tenant lists, advertising
materials, and telephone exchange numbers identified with the Property; (b) all
maintenance, service and other operating contracts), equipment leases and other
arrangements or agreements to which Seller is a party affecting the ownership,
repair, maintenance, management, leasing or operation of the Property, not
terminated pursuant to Section 4.2(c) including, without limitation, the
contracts and warranties listed on Exhibit C hereto; (c) all other transferable
---------
intangible property, miscellaneous
-2-
rights, benefits or privileges of any kind or character with respect to the
Property; (d) Seller's rights (but reserving to Seller any indemnification
rights of Seller) under the Development Agreement and the CC&R's; and (e) all
rights, claims or remedies of seller against Xxxxxxx Xxxxxx arising with respect
to the Retrofit Work.
MTA Lease. The term "MTA Lease" shall mean that certain Commercial
----------
Lease dated March 12, 1979, between the Metropolitan Transit Authority of Los
Angeles ("MTA"),as successor-in-interest to Southern Pacific Transportation
Company, a Delaware corporation, and Seller, as successor-in-interest to Santa
Xxxxxx Xxxx Partners, L.P.,a Delaware limited partnership.
Personal Property. The term "Personal Property" shall mean all
------------------
furniture, furnishings, trade fixtures, building systems and equipment
(including, without limitation, HVAC, security and life safety systems) and
other tangible personal property owned by Seller that is located at and used in
connection with the operation of the Real Property.
Property. The term "Property" shall mean the Real Property, Seller's
---------
interest in the MTA Lease, the Thetford Agreement, the Sony Lease, the Personal
Property located on and used in connection with the Real Property and the
Intangible Property that pertains to the Real Property.
Real Property. The term "Real Property" shall mean that certain real
--------------
property (including, without limitation, any and all improvements thereon, all
easements and rights appurtenant thereto, all strips and gores of land owned by
Seller and adjacent thereto and any interest of Seller in the SMNSA Garage and
the other improvements on the adjacent Lot 6) commonly known as the Sony
Building and situated at 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx, the
land component of which is legally described in Exhibit D attached to this
---------
Agreement.
Seller's Knowledge. The term "Seller's Knowledge" shall have the
-------------------
meaning set forth in Section 4.1 below.
Sony. The term "Sony" shall mean Sony Music Entertainment Inc., a
-----
Delaware corporation.
Sony Lease. The term "Sony Lease" shall mean that certain Office
-----------
Lease by and between Seller, as landlord, and Sony, as tenant, dated to be
effective as of January 1, 1997, together with a Guaranty of Lease executed by
Sony Corporation of America and dated as of January 1, 1997.
Thetford Agreement. The term "Thetford Agreement" shall mean that
-------------------
certain Wastewater Treatment Agreement dated August 21,1991 between Thetford
Systems, Inc., a Michigan corporation and Seller, as successor-in-interest to
Santa Xxxxxx Xxxx Partners, a Delaware limited partnership.
Title Company. The term "Title Company" shall mean Chicago Title
--------------
Insurance Company, whose address is 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000; Attn: Xxxx Xxxxxx (telephone no. 000 000-0000).
-3-
ARTICLE II
PURCHASE AND SALE
-----------------
Section 2.1 Purchase and Sale. Seller agrees to sell the Property to Buyer,
------------------
and Buyer agrees to purchase the Property upon all of the terms, covenants and
conditions set forth in this Agreement.
Section 2.2 Purchase Price. The purchase price for the Property (the
---------------
"Purchase Price") shall be the sum of Thirty-One Million Dollars ($31,000,000).
The entire amount of the Purchase Price (less the Deposit delivered pursuant to
Article V below) shall be payable by Buyer to Seller in cash on the Closing Date
through the escrow described in Section 6.1 below.
Section 2.3 Buyer's Review and Seller's Disclaimer.
---------------------------------------
(a) Seller has previously delivered, or will deliver, to Buyer for
its review and evaluation copies of (i) the Sony Lease, (ii) all leasing agent
contracts currently in effect with respect to the Property, (iii) the most
recent survey of the Real Property in Seller's possession or control, and (iv) a
set of environmental and physical inspection reports performed on behalf of and
held by seller. In addition, subject to the provisions of subsection 2.3(c)
below, during the Inspection Period, following reasonable notice, Buyer shall be
permitted to make a complete review and inspection of all materials within
Seller's possession or control relating to the physical, legal, economic and
environmental condition of the Property, including, without limitation, the
tenant correspondence files and records maintained by Seller or its agents
relating to the Property, rent rolls for the Property, operating statements of
Seller, the most recent real estate tax bills for the Property, Seller's
schedule, if any, of expense reimbursements to tenants, Seller's schedules, if
any, of repairs or capital improvements to the Property for 1996 and the first
quarter of 1997, Seller's invoices for Property expenditures within the last 12
months, boundary and other survey-related issues relating to the Real Property,
reports relating to pest control matters, soil condition, asbestos, PCB,
hazardous waste, toxic substance or other environmental matters, evidence of
compliance with building, health, safety, land use and zoning laws, regulations
and orders, plans and specifications, reports relating to structural, life
safety, HVAC and other building system and engineering characteristics, traffic
patterns and all other information pertaining to the Property. The materials
previously delivered or to be delivered to, or otherwise made available for
review by, Buyer pursuant to the preceding two sentences are referred to
collectively in this Agreement as the "Due Diligence Materials". The Due
Diligence Materials are those materials listed on Exhibit H hereto. Upon
---------
reasonable notice and request, Seller agrees to provide Buyer with access to all
of the Due Diligence Materials in its possession or control at the Property, at
Buyer's offices in Los Angeles or at the offices of Xxxx Enterprises in Los
Angeles. Buyer acknowledges (i) that Buyer has entered into this Agreement with
the intention of making and relying upon its own investigation of the physical,
environmental, economic and legal condition of the Property and (ii) that Buyer
is not relying upon any representations and warranties, other than those
specifically set forth in this Agreement or in any of the documents to be
-4-
executed and delivered by Seller on the Closing Date or as a condition to the
closing, made by Seller or anyone acting or claiming to act on Seller's behalf
concerning the Property. Buyer further acknowledges that it has not received
from Seller any accounting, tax, legal, architectural, engineering, property
management or other advice with respect to this transaction and is relying
solely upon the advice of its own accounting, tax, legal, architectural,
engineering, property management and other advisors. Subject to the provisions
of Section 4.1 of this Agreement, Buyer shall purchase the Property in its "as
is" condition on the Closing Date and except as otherwise provided in this
Agreement, assumes the risk that adverse physical, environmental, economic or
legal conditions may not have been revealed by its investigation. Buyer hereby
approves all physical, environmental, economic, legal and all other matters
relating to the Property and Buyer's review of the Property, with the exception
of (i) the status of title to the property as it relates to item #16 of the
Chicago title preliminary report dated May 13, 1997, (ii) review of the scope
of work, budget and amount of holdback for the completion of the Retrofit Work
(as defined below) (such excepted items being the "Remaining Due Diligence
-----------------------
Items"). Buyer's expression of approval in this subparagraph shall not deny
-----
Buyer the benefit of the conditions set forth in Sections 3.1(a)(iii)-
(vi). RN HG
-- --
(b) Except with respect to any claims arising out of (i) any breach of
express covenants, representations or warranties set forth in this Agreement or
any of the documents to be executed and delivered by Seller on the Closing Date
or as a condition of the closing or (ii) Seller's commission of fraudulent
misrepresentation or omission or fraud in the inducement of this transaction:
Buyer, for itself and its agents, affiliates, successors and assigns, hereby
releases and forever discharges Seller, its agents, affiliates, successors and
assigns from any and all rights, claims and demands at law or in equity, whether
known or unknown at the time of this Agreement, which Buyer has or may have in
the future, arising out of the physical, environmental, economic or legal
condition of the Property, including, without limitation, any claim for
indemnification or contribution arising under the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. Section 9601, et. seq.), as
amended, or any similar federal, state or local statute, rule or ordinance
relating to liability of property owners for environmental matters
(collectively, "Environmental Laws"). For the foregoing purposes, Buyer hereby
specifically waives the provisions of Section 1542 of the California Civil Code
and any similar law of any other state, territory or jurisdiction. Section 1542
provides:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
-5-
Buyer hereby specifically acknowledges that Buyer has carefully reviewed this
subsection and discussed its import with legal counsel and that the provisions
of this subsection are a material part of this Agreement.
The foregoing provisions of release shall not apply to claims against Seller for
indemnification or contribution based on rights arising under Environmental Laws
based upon the generation or release (which, for such purposes, shall not be
deemed to include mere movement of substances [unless moved by or on behalf of
Seller] under the Property which were present as of the date of Seller's
acquisition of the Property, any migration of substances from adjoining Property
or any matters as to which Buyer has actual knowledge as of the Closing Date) of
toxic or hazardous substances on or about the Property during Seller's ownership
of the Property, except for claims based solely on the unauthorized acts of
trespassers, invitees or tenants of the Property.
HG
-------------------
Buyer
(c) Buyer's exercise of the rights of review and inspection set forth
in subsection (a) shall be subject to the following limitations: (i) any entry
onto the Real Property by Buyer, its agents or representatives, shall be during
normal business hours, following reasonable prior notice to Seller and delivery
to Seller of satisfactory evidence of Buyer's general liability insurance, and,
at Seller's discretion, accompanied by a representative of Seller; (ii) Buyer
shall not conduct any drilling, test borings or other disturbance of the Real
Property for review of soils, compaction, environmental, structural or other
conditions without Seller's prior written consent; (iii) any discussions or
interviews with Sony or its personnel shall be conducted in the presence of
Seller or its representatives; (iv) Buyer shall exercise reasonable diligence
not to disturb the use or occupancy of any occupant of the Property; and (v)
Buyer shall indemnify, defend and hold Seller harmless from all loss, cost, and
expense resulting from any personal injury or property damage caused by any
entry or inspections performed by Buyer, its agents or representatives except to
the extent such property damage is covered by Seller's property insurance
policy. Any request for Seller's consent to any matter described in clause (ii)
above shall be made in writing (which may be sent by facsimile with telephone
confirmation of receipt) to Seller's representative, Xxxxxxx Xxxxxx. Seller
shall respond as promptly as reasonably possible to any such request and, if
Seller does not respond to any such request within two (2) business days, the
Inspection Period shall be extended on a day by day basis for each day of delay
in Seller's response. Buyer's obligations under clause (v) above shall survive
any termination of this Agreement.
Section 2.4 Permitted Title Exceptions. During the Inspection Period,
---------------------------
Buyer shall obtain from Title Company and review a preliminary title report or
commitment with respect to the Real Property ("Title Report"), together with all
documents and information pertaining to the exceptions to title listed in the
Title Report. In addition, Seller will deliver to Buyer a copy of any survey of
the Real Property in Seller's possession ("Survey"). At Buyer's sole cost and
expense, Buyer may have the Survey updated and certified as Buyer and the
surveyor may agree during the Inspection Period. Buyer may advise Seller in
writing and in reasonable detail, not later
-6-
than the close of the Inspection Period, what exceptions to title, if any,
listed in the current preliminary report for the Real Property or disclosed on
the Survey (as it may be further refined by Buyer, as provided above) or other
title or survey matters are not acceptable to Buyer with respect to the Real
Property ("Title Objections"). Prior to notifying Seller of any Title
Objections, Buyer shall endeavor in good faith to cause Title Company to modify
and update the preliminary report to reflect requested corrections and
revisions. Seller shall have one (1) business day after receipt of Buyer's Title
Objections to give Buyer notice that (a) Seller will remove any Title Objections
from title (or, if acceptable to Buyer, in its sole discretion, afford the Title
Company necessary information or certifications to permit it to insure over such
exceptions) or (b) Seller elects not to cause such exceptions to be removed or
to cause the Title Company to insure over such exceptions. Seller's failure to
provide notice to Buyer within such 1-business day period as to any Title
Objection shall be deemed an election by Seller not to remove the Title
Objection. If Seller so notifies or is deemed to have notified Buyer that Seller
shall not remove any or all of the Title Objections, Buyer shall have until the
close of the Inspection Period to determine whether (i) to proceed with the
purchase and take the Property subject to such exceptions or (ii) to terminate
this Agreement and cause a concurrent release of the Deposit and any accrued
interest to Buyer. Buyer's delivery of the Inspection Letter shall constitute
Buyer's conclusive agreement to accept the Property subject to the Permitted
Exceptions. "Permitted Exceptions" shall include and refer to (x) any and all
exceptions to title disclosed by the Title Report or the Survey, excepting
solely Title Objections which are timely identified by Buyer and which Seller
has notified Buyer pursuant to this Section that Seller is willing to remove and
(y) any other exceptions to title (i) caused by the acts or omissions of, or
(ii) approved by, Buyer. Notwithstanding the foregoing, Seller shall be
responsible for the removal from title of any mortgage liens or mechanic's liens
for work or services provided at the Property prior to the Closing Date and
post-closing with respect to the Seismic Retrofit Work.
ARTICLE III
CONDITIONS PRECEDENT
--------------------
Section 3.1 Conditions.
-----------
(a) Notwithstanding anything in this Agreement to the contrary,
Buyer's obligation to purchase the Property shall be subject to and contingent
upon the satisfaction or waiver of the following conditions precedent:
(i) Buyer's inspection and approval in its sole discretion,
within the Inspection Period, of the Remaining Due
Diligence Items, as evidenced by Buyer's delivery of the
Inspection Letter;
(ii) The willingness of Title Company to issue, upon the sole
condition of the payment of its premium as approved by
Buyer during the Inspection Period, its American Land
Title
-7-
Association extended coverage Owner's Policy of Title
Insurance [1970-B Form] ("Title Policy"), insuring Buyer
in the amount of the Purchase Price that fee title to the
Real Property is vested of record in Buyer on the Closing
Date subject only to the printed conditions and
exceptions of such policy and the Permitted Exceptions;
(iii) Execution and delivery of the Sony Lease, and Buyer's
receipt from Sony, on or prior to the Closing Date, of an
estoppel certificate in substantially the form attached
hereto as Exhibit J, executed by Sony and any guarantor
----------
of the Sony Lease (the "Sony Lease Estoppel") and
--------------------
delivery of the Sony Lease Estoppel to the guarantor of
the Sony Lease with a request that such Guarantor execute
same, provided that the failure of such guarantor to
execute the Sony Lease Estoppel shall not be deemed a
failure of this condition precedent;
(iv) Confirmation by Buyer that the lease previously in effect
between Sony and Seller has been terminated, that Sony
has agreed to waive the benefit of the first sentence of
the last paragraph of Section 4.2 of the Sony Lease which
reads as follows: Tenant shall not be liable for payment
of any increase in Taxes which is solely attributable. .
. from the date of such sale through August 31, 1997"
(the "Proposition 13 Provision") and that Sony has
--------------------------
received the sums owing to Sony on account of the
incremental difference between rent due and payable by
Sony pursuant to the Sony Lease and rent previously paid
by Sony on account of the prior lease in effect between
Seller and Sony;
(v) Buyer's receipt, on or prior to the Closing Date, from
the City of Santa Xxxxxx of an estoppel certificate with
respect to the Development Agreement, pursuant to Section
30 of the Development Agreement, substantially in the
form attached hereto as Exhibit K ("the Development
---------
Agreement Estoppel");
(vi) Seller's delivery to MTA, on or prior to the Closing
Date, of an estoppel with respect to the MTA Lease, in
the form attached hereto as Exhibit L (the "MTA Lease
---------
Estoppel"), and Seller's delivery to Buyer of the
conveyance documents necessary to transfer the interest
of the lessee under the MTA Lease to Buyer;
(vii) Execution, on or prior to the Closing Date, of an
agreement between Seller and the owner of the parcel
adjacent to the Property, in recordable form satisfactory
to Buyer (the "Lot 6/7 Agreement"); and
-8-
(viii) Seller's performance or tender of performance of all
material obligations under this Agreement and the truth
and accuracy of Seller's express representations and
warranties, as of the Closing Date.
Buyer's receipt from the MTA of an executed MTA Lease estoppel shall not be a
condition precedent to Buyer's obligation to purchase the Property, nor shall
the failure of MTA to deliver an executed MTA Lease Estoppel or Buyer's receipt
of an estoppel from MTA that varies from the form of the MTA Lease Estoppel be a
condition subsequent to Buyer's obligation to purchase the Property or afford
Buyer any legal or equitable rights or remedies against Seller.
(b) Notwithstanding anything in this Agreement to the contrary,
Seller's obligation to sell the Property shall be subject to and contingent upon
the satisfaction or waiver of the following conditions precedent:
(i) Buyer's performance or tender of performance of all
material obligations under this Agreement and the truth
and accuracy of Buyer's express representations and
warranties, as of the Closing Date; and
(ii) The satisfaction or Buyer's written waiver of the
conditions set forth in subparagraphs (a)(i), (ii) and
(iii) above.
Section 3.2 Failure or Waiver of Conditions Precedent. In the event
------------------------------------------
any of the conditions set forth in Section 3.1 are not fulfilled or waived, the
party benefitted by such condition may, by written notice to the other party,
terminate this Agreement, whereupon all then remaining rights and obligations
hereunder of each party shall be at an end and, in the event of the failure of a
condition set forth in Section 3.1(a), the Deposit, together with interest,
shall be returned to Buyer. Either party may, at its election, at any time or
times on or before the date specified for the satisfaction of the condition,
waive in writing the benefit of any of the conditions set forth in Section
3.1(a) and 3.1(b) above. Notwithstanding the foregoing, Buyer's failure to
deliver to Seller on or prior to the close of the Inspection Period an executed
Inspection Letter in the form attached as Exhibit B, without modification or
----------
qualification in any manner whatsoever, shall be deemed a failure of the
condition set forth in Section 3.1(a)(i) above. In any event, Buyer's consent to
the close of escrow pursuant to this Agreement shall waive any remaining
unfulfilled conditions. In the event this Agreement is terminated by Buyer prior
to the end of the Inspection Period based on the failure of a condition set
forth in Section 3.1(a)(i) (as evidenced by written notice of such termination
given by Buyer to Seller and Title Company on or prior to the close of the
Inspection Period), then, within two (2) business days following Title Company's
receipt of Buyer's demand therefor, Title Company is hereby instructed, without
the need for further mutual instructions from the parties (and notwithstanding
any contrary instruction from either Buyer or Seller), to immediately deliver
the Deposit and all interest accrued thereon to Buyer and to cancel the Escrow.
Title Company is instructed not to accept any modification of this instruction
unless such modification is on a single document signed by both Buyer and
-9-
Seller. If either Buyer or Seller should attempt to break the mutuality of this
instruction, Title Company is authorized to return to the party attempting to do
so any documents purporting to do so and to continue with the instructions set
forth herein. Each of Buyer and Seller acknowledge that they are sophisticated
parties with extensive experience in commercial real estate transactions, that
they have been represented by legal counsel in negotiating the agreement set
forth herein and that they have consulted with such counsel in respect of the
execution of this agreement. Each of Buyer and Seller agree to indemnify Title
Company for following the instructions set forth herein. Any party attempting to
break the mutuality of this agreement hereby agrees to indemnify, defend,
protect and hold harmless the other party from and against any all loss, cost,
damage, liability and expense (including without limitation attorneys' fees and
costs) incurred as a result or arising out of such attempt, including without
limitation any loss, cost, damage, liability or expense incurred under the
indemnity set forth in the immediately preceding sentence.
ARTICLE IV
COVENANTS, WARRANTIES AND REPRESENTATIVES
-----------------------------------------
Section 4.1 Seller's Warranties and Representations. Seller hereby
----------------------------------------
makes the following representations and warranties to Buyer as of the date of
this Agreement; provided that each of such representations and warranties shall
be deemed to be modified by any contrary or qualifying information set forth on
the Disclosure Statement:
(a) Seller is a limited partnership duly formed and in good standing
under the laws of the State of Delaware and is duly qualified to conduct
business in California. Seller has the power, right and authority to enter into
this Agreement and the instruments and documents referenced herein, and to
consummate the transaction contemplated hereby. The persons executing this
Agreement on behalf of Seller have the right, power and authority to bind
Seller.
(b) All requisite action has been taken by Seller and all requisite
consents have been obtained in connection with the entering into this Agreement
and the instruments and documents referenced herein, and the consummation of the
transaction contemplated hereby, and no consent of any other party is required.
(c) This Agreement is, and all Agreements, instruments and documents
to be executed by Seller pursuant to this Agreement shall be, duly executed by
Seller and are, or shall be, valid and legally binding upon Seller and
enforceable in accordance with their respective terms subject to the effect of
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting the rights of creditors generally.
(d) Neither the execution of this Agreement nor the consummation of
the transactions contemplated hereby shall result in a breach of or constitute a
default under any Agreement, document, instrument or other obligation to which
Seller is a party or by which Seller may be bound, or under any law, statute,
ordinance, rule,
-10-
governmental regulation or any writ, injunction, order or decree of any court or
governmental body, applicable to Seller or to the Property.
(e) The Sony Lease constitutes the only lease or rental agreement
presently in effect with respect to the Real Property; the copy of the Sony
Lease delivered to Buyer is true, correct and complete and sets forth all
written agreements in effect with Sony with respect to Sony's occupancy of the
Property; and, to Seller's Knowledge, (i) the copies of the correspondence
related to the Sony Lease delivered or made available to Buyer are true, correct
and complete, (ii) there have been no prepayments of rent under the Sony Lease,
(iii) except as may be set forth in the Sony Lease, Sony shall not become
entitled to any concession, rebate, allowance or free rent for any period
subsequent to the Closing Date, and (iv) the Sony Lease is in full force and
effect.
(f) To Seller's Knowledge, (i) Seller has received no written notice
that Sony intends to terminate the Sony Lease prior to the expiration of its
scheduled term, (ii) no default by Seller as Landlord or by Sony as Tenant
exists under the Sony Lease, and (iii) no event has occurred which, with the
giving of notice or the passage of time or both, would constitute a default
under the Sony Lease by Seller or Sony.
(g) To Seller's Knowledge, Seller has received no written notice from
any governmental authority that any of the improvements located on the Real
Property are presently in violation of any applicable building codes, zoning or
land use laws, or other law, order, ordinance, rule or regulation affecting the
Real Property, including the Development Agreement (collectively, "Applicable
Laws").
(h) To Seller's Knowledge, Seller has received no written notice from
any governmental authority that the current use of the Real Property is
presently in violation of any Applicable Laws.
(i) To Seller's Knowledge, Seller possesses all licenses, permits and
approvals required in connection with the ownership and operation of the
Property.
(j) To Seller's Knowledge: the copies of the service and equipment
contracts listed on Exhibit C and delivered to Buyer as part of the Due
---------
Diligence Materials include all such contracts affecting the Real Property which
will be binding upon Buyer following the Closing Date; the copies of all such
contracts (collectively, the "Contracts") which Seller has delivered or made
available to Buyer pursuant to this Agreement, are true, correct and complete
copies of such documents; Seller has received no written notice of a default by
Seller under any of the Contracts; and no event has occurred which, with the
giving of notice or the passage of time or both, would constitute a default
under any of the Contracts.
(k) To Seller's Knowledge, Seller has received no written notice from
any governmental authorities that eminent domain proceedings for the
condemnation of the Real Property are pending or threatened.
-11-
(1) To Seller's Knowledge, Seller has received no written notice of
(i) any threatened or pending litigation, governmental investigation or
arbitration affecting the Property (other than litigation arising in the
ordinary course of the operation of the Property and covered by insurance) or
(ii) any threatened or pending litigation, governmental investigation or
arbitration against Seller which would materially and adversely affect Seller's
capacity to perform under this Agreement.
(m) Seller has no employees who, by reason of any governmental
regulations, employment contract or other reason, would become employees of
Buyer as a result of Buyer's purchase of the Property. Seller is not a party to
any collective bargaining agreements or multi-employer pension funds covering
employees who service the Property.
(n) To Seller's Knowledge, (i) Seller is not in default under the
Development Agreement, the Thetford Agreement or the MTA Lease, (ii) no event
has occurred which, with the giving of notice or the passage of time or both,
would constitute a default by Seller under the Development Agreement, the
Thetford Agreement or the MTA Lease, (iii) there exists no basis for a right of
termination of the MTA Lease based on a discontinuation of use for more than
ninety (90) days and (iv) Seller has received no written notice of any default
by any other party to the MTA Lease.
(o) To Seller's Knowledge, Seller is not in material default under the
CC&R's.
(p) To Seller's Knowledge, Seller has received no written notice of
any default by any party under the Development Agreement.
(q) To Seller's Knowledge, (i) the copies of the CC&R's and the MTA
Lease delivered to Buyer are true, correct and complete, and (ii) the CC&R's and
the MTA Lease are in full force and effect.
(r) Seller is not a "foreign person" within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended (the "Code").
As used herein, the term "Seller's Knowledge" or words of similar effect shall
mean the current actual subjective knowledge of Xxxxxxx Xxxxxx, Xxxx Xxxxxx and
Xxxxx Xxxxxxxxxx, without duty of independent inquiry. Neither such individuals
nor any party other than Seller shall bear responsibility for any breach of
representation. Seller, however, represents and warrants that Messrs. Pepper,
Xxxxxx and Kristensen are the individuals associated with Seller that have
principal administrative and oversight responsibility for the Property.
Section 4.2 Seller's Covenants. Seller hereby covenants and agrees as
-------------------
follows:
(a) During the Contract Period, (i) Seller shall ensure that the
Property is operated and maintained in a manner consistent with past practices
and maintain
-12-
current levels and coverages of insurance, (ii) Seller shall not create or
acquiesce in the creation of liens or exceptions to title other than the
Permitted Exceptions or voluntarily take any action (other than as may be
permitted pursuant to subparagraphs (b) and (c) of this Section 4.2) to cause
any of the representations or warranties of Seller set forth in Section 4.1 to
be materially incorrect, (iii) Seller shall promptly provide Buyer with copies
of any of the notices enumerated in Sections 4.1(c)-(e) and (g)-(i) received by
Seller and (iv) Seller shall exercise reasonable efforts, consistent with past
practices and without incurring any capital or extraordinary operating expense,
to comply with the contracts affecting the Property, the CC&R's, the Development
Agreement, the MTA Lease and the Sony Lease.
(b) Upon Buyer's written request, Seller will give notice as of the
Closing Date terminating any Contracts which Buyer does not elect to assume, in
a written notice to Seller delivered during the Inspection Period. Such notices
of termination shall be effective as provided in the applicable Contracts.
(c) Following the Closing Date, Seller shall pay to Buyer, in
accordance with a separate escrow agreement in the form attached hereto as
Exhibit I, a supplement to base rent due and payable by Sony pursuant to the
-----------
Sony Lease.
Section 4.3 Buyer's Warranties and Representations. Buyer hereby
---------------------------------------
represents and warrants to Seller that (a) Buyer has and as of the Closing Date
shall have, full power and lawful authority to enter into and carry out the
terms and conditions of this Agreement and to execute and deliver all documents
which are contemplated by this Agreement, (b) all actions necessary to confer
such power and authority upon the persons executing this Agreement and all
documents which are contemplated by this Agreement to be executed on behalf of
Buyer or its assignee have been taken, and (c) Buyer has received no written
notice of any threatened or pending litigation which would materially and
adversely affect Buyer's capacity to perform under this Agreement.
Section 4.4 Limitations. The parties agree that (a) Seller's
-------------
warranties and representations contained in this Agreement and in any document
executed by Seller pursuant to this Agreement shall survive Buyer's purchase of
the Property only for a period of 12 months after the Closing Date (the
"Limitation Period"), (b) Seller shall have no liability to Buyer for any
matters disclosed to Buyer in the Due Diligence Materials or any other due
diligence materials procured by Buyer in connection with its review of the
Property, (c) Seller's aggregate liability for claims arising out of such
representations and warranties shall not exceed $500,000 in the aggregate, and
(d) Buyer shall provide actual written notice to Seller prior to the expiration
of the Limitation Period of any breach of such applicable warranties or
representations and shall allow Seller 30 days within which to cure such breach,
or, if such breach cannot reasonably be cured within 30 days, an additional
reasonable time period, so long as such cure has been commenced within such 30
days and diligently pursued to completion within 90 days. If Seller fails to
cure such breach after written notice and within such cure period, Buyer's sole
remedies shall be either an action at law for damages or, assuming the character
of the breach meets the requirements for such a remedy, rescission, as a
-13-
consequence thereof, either of which remedies must be commenced, if at all,
within the Limitation Period; provided, however, that if within the Limitation
---------
Period Buyer gives Seller written notice of such a breach and Seller gives
Buyer written notice of its commencement of a cure and thereafter terminates
such cure effort by giving written notice to Buyer of such termination, Buyer
shall have an additional 30 days from the date of such termination (and the
Limitation Period shall be deemed extended for such additional 30-day period)
within which to commence an action at law for damages or a suit for rescission
as a consequence of Seller's failure to cure. The Limitation Period referred to
herein shall apply to known as well as unknown breaches of such warranties or
representations.
Section 4.5 Seller's Certificate. Seller shall deliver to Buyer on the
----------------------
Closing Date a certificate (a "Seller's Certificate") updating the
representations and warranties of Seller set forth in Section 4.1 with respect
to the Property through the then current date; provided, however, that if Seller
becomes aware during the Contract Period of any matters which make any of such
representations or warranties untrue, Seller shall disclose such matters in
writing to Buyer promptly upon becoming aware of them (and shall also disclose
such matters in the Seller's Certificate). In the event that Seller discloses
any matters to Buyer which make any of Seller's representations or warranties
untrue (whether such disclosure is made in the Seller's Certificate or
otherwise) or in the event any matters which make any of Seller's
representations or warranties materially untrue in any material respect are
otherwise disclosed to or discovered by Buyer during the Contract Period, Seller
shall bear no liability for such matters (provided that Seller has not breached
an express covenant set forth in this Agreement), but Buyer shall have the right
to elect in writing (a) to waive such matters and complete the purchase of the
Property in accordance with the terms of this Agreement, or (b) as to any
matters disclosed or discovered following the expiration of the Inspection
Period, to terminate this Agreement, if at all, prior to the Closing Date.
Buyer's delivery of the Inspection Letter shall constitute Buyer's conclusive
agreement to accept or waive any such matters disclosed to or discovered by
Buyer prior to the close of the Inspection Period.
Section 4.6 Indemnifications. Subject to the foregoing limitations:
-----------------
(a) Seller shall indemnify and defend Buyer against and hold Buyer
harmless from any and all claims, liabilities, losses, damage, costs and
expenses, including, without limitation, all reasonable attorneys' fees,
asserted against or suffered by Buyer resulting from (i) any breach by Seller of
this Agreement, (ii) the untruth, inaccuracy or breach of any of the
representations and warranties made by Seller pursuant to this Agreement,
subject to the limitations of Section 4.4, or (iii) any claim, liability or
obligation arising in connection with the Property and accruing prior to the
Closing Date (except as may be expressly assumed by Buyer pursuant to the
operation of Section 6.3). For purposes of this subparagraph, no claim,
liability or obligation arising on or following the Closing Date shall be deemed
to accrue prior to the Closing Date based on a causal or other relationship to
the physical, environmental or legal condition of the Property as of the Closing
Date.
-14-
(b) Buyer shall indemnify and defend Seller against and hold Seller
harmless from any claim, loss, damage, or expense, including any reasonable
attorneys' fees, asserted against or suffered by Seller resulting from (i) any
breach by Buyer of this Agreement, (ii) the untruth, inaccuracy or breach of any
of the representations or warranties made by Buyer pursuant to this Agreement,
(iii) any liability or obligation arising in connection with the Property
accruing following the Closing Date, or (iv) any liability or obligation
expressly assumed by Buyer arising in connection with the Property accruing
prior to the Closing Date pursuant to the operation of Section 6.3.
Section 4.7 Completion of Seismic Retrofit Work. Within one hundred
------------------------------------
eighty (180) days following the Closing Date, Seller shall complete or cause the
completion of certain seismic retrofit work at the Property as provided in the
Scope of Work and Specifications contained in that certain Abbreviated Form of
Agreement Between Owner and Contractor (the "Construction Contract") between
-----------------------
Seller and Xxxx Enterprises Commercial Group dated March 27, 1997, as approved
by Xxxxxxx Xxxxxx and including any changes in the Scope of Work and
Specifications approved by Xxxxxxx Xxxxxx or recommended by Xxxxxxx Xxxxxx in
writing (such written recommendation having been reasonably approved by Seller)
or required by any applicable governmental authority (the "Retrofit Work"). To
--------------
ensure Seller's timely completion of the Retrofit Work, Seller shall deposit
into an escrow account the amount necessary to complete the Retrofit Work, as
agreed to between Seller and Buyer, together with 25% of such amount. The rights
and responsibilities of Buyer and Seller with respect to the Retrofit Work and
the release of the funds in the escrow account shall be governed by the terms of
the Escrow Agreement to be executed in the form attached hereto as Exhibit I.
----------
Seller shall not be deemed to have made any representation or warranty to Buyer
with respect to the design, sufficiency or workmanship of the Retrofit Work by
virtue of its agreement to complete the Retrofit Work, provided, however, that
Seller shall assign to Buyer any warranty rights or legal or equitable rights
and remedies set forth in the Construction Contract and with any other
contractors, subcontractors and suppliers.
ARTICLE V
DEPOSIT
-------
Within two (2) business days following execution of this Agreement, Buyer
shall deliver to Title Company for deposit into the escrow described in Section
6.1 below, the sum of $500,000 (the "Initial Deposit"). At the close of the
Inspection Period, if Buyer has not then elected to terminate this Agreement as
provided herein, Buyer shall deliver to Title Company, for deposit into the
escrow described in Section 6.1 below, the additional sum of $500,000 (which
amount, together with the Initial Deposit and any interest that may accrue
thereon in escrow, referred to herein as the "Deposit"). The Initial Deposit
and the Deposit shall be kept by Title Company in an interest-bearing account.
In the event that the sale of the Property to Buyer is consummated as
contemplated by this Agreement, then the entire amount of the Deposit, including
any interest accrued thereon, shall be credited against the Purchase Price. The
entire amount of the Initial Deposit or Deposit, as applicable, including any
interest accrued thereon, shall be returned immediately to Buyer in the event
that Buyer is entitled to
-15-
terminate this Agreement due to the failure of any of the conditions precedent
set forth in Section 3.l(a) or pursuant to Sections 2.4, 4.5 or 7.l(b), in
each case, prior to the Closing Date as contemplated in this Agreement, or in
the event that (a) the conditions precedent set forth in Section 3.1(b) shall
have been satisfied or waived, (b) Buyer shall have performed fully or tendered
performance of its obligations hereunder and (c) Seller shall be unable or fail
to perform its obligations under this Agreement to close the sale of the
Property. The return of the Deposit shall be governed by the automatic
procedures of Section 3.2 if the termination of the Agreement is based on a
failure of the condition set forth in Section 3.1(a)(i). IF THE CLOSING DOES
NOT OCCUR FOR THE PROPERTY ON OR BEFORE THE DATE PROVIDED THEREFOR IN THIS
AGREEMENT DUE TO A DEFAULT BY BUYER, THEN THE ENTIRE
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-15A-
AMOUNT OF THE DEPOSIT SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES, AND
BUYER SHALL EXECUTE ANY REASONABLE DOCUMENTATION REQUIRED BY TITLE COMPANY IN
ORDER TO RELEASE THE DEPOSIT TO SELLER. BUYER AND SELLER HEREBY ACKNOWLEDGE AND
AGREE THAT SELLER'S DAMAGES IN THE EVENT OF SUCH A BREACH OF THIS AGREEMENT BY
BUYER WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE AMOUNT OF THE
DEPOSIT IS THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES SELLER
WOULD SUFFER IN THE EVENT THE SALE OF THE PROPERTY TO BUYER FAILS TO CLOSE ON OR
BEFORE THE CLOSING DATE CONTEMPLATED BY THIS AGREEMENT, AND THAT SUCH ESTIMATE
IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT.
BUYER AND SELLER AGREE THAT SELLER'S RIGHT TO RETAIN THE DEPOSIT SHALL BE THE
SOLE AND EXCLUSIVE REMEDY OF SELLER AT LAW IN THE EVENT OF A BREACH OF THIS
AGREEMENT BY BUYER THAT PREVENTS THE SALE OF THE PROPERTY FROM CLOSING.
ACCEPTED AND AGREED TO:
Xxx Xxxxxx, Jr. Xxxx Xxxxxxx
------------------------------ ------------------------------
Seller Buyer
ARTICLE VI
ESCROW AND CLOSING
------------------
Section 6.1 Escrow Arrangements. An escrow for the purchase and sale
-------------------
contemplated by this Agreement has been opened by Buyer and Seller with Title
Company. Not later than one business day prior to the Closing Date, Seller and
Buyer shall each deliver escrow instructions to the Title Company consistent
with this Article VI, and the parties shall deposit in escrow the funds and
documents described below.
(a) Seller shall deposit (or cause to be deposited):
(i) a duly executed and acknowledged grant deed in favor of
Buyer from Seller with respect to the Real Property in the
form attached to this Agreement as Exhibit E, with the
----------
statement of documentary transfer tax separately affixed
(the "Deed");
(ii) a duly executed xxxx of sale with respect to the Personal
Property in the form attached to this Agreement as
Exhibit F (the "Xxxx of Sale");
---------
(iii) two duly executed counterparts of an assignment and
assumption of Seller's interest in the Sony Lease, the MTA
-16-
Lease and Intangible Property in the form attached to this
Agreement as Exhibit G (the "Assignment of Leases and
---------
Intangible Property") pertaining to the Property;
(iv) three (3) counterparts of the Assignment of the Thetford
Agreement, executed by Seller and Thetford in the form
attached hereto to Exhibit M (the "Thetford Assignment");
---------
(v) a certificate from Seller certifying the information
required by Sections 18662 and 26131 of the California
Revenue and Taxation Code to establish that the
transaction contemplated by this Agreement is exempt from
the tax withholding requirements of the State of
California (the "California Certificate");
(vi) a certificate from Seller certifying the information
required by (S)1445 of the Internal Revenue Code and the
regulations issued thereunder to establish, for the
purposes of avoiding Buyer's tax withholding obligations,
that Seller is not a "foreign person" as defined in
Internal Revenue Code (S)1445(f)(3) (the "FIRPTA
Certificate");
(vii) the Seller's Certificate;
(viii) an executed notice to Sony, informing Sony of the transfer
of the Property and directing the payment of rent as
requested by Buyer;
(ix) a notice to the City of Santa Xxxxxx of the transfer of
the Property as may be required pursuant to the
Development Agreement;
(x) a notice to the other Lot owners under the CC&R's of the
transfer of the Property as may be required pursuant to
the CC&R's; and
(xi) customary affidavits as may be reasonably requested by
Title Company.
(b) Buyer shall deposit:
(i) at least one (1) business day prior to the Closing Date,
immediately available funds sufficient to pay the balance
of the Purchase Price, plus sufficient additional cash to
pay Buyer's share of all applicable escrow costs and
closing expenses;
-17-
(ii) two duly executed counterparts of the Assignment of Leases
and Intangible Property pertaining to the Property; and
(iii) three (3) counterparts of the Thetford Assignment executed
by Buyer;
(iv) a certificate duly executed by Buyer in favor of Seller
confirming the waivers and acknowledgments set forth in
Sections 2.3(a) and (b) above with respect to the
Property.
Section 6.2 Closing. Title Company shall close escrow for the sale of
-------
the Property by:
(a) recording the Deed [, the Lot 6/7 Agreement] and other recordable
documents, if any, and causing conformed copies to be delivered
to Buyer and Seller;
(b) issuing the Title Policy to Buyer;
(c) delivering to Buyer the Xxxx of Sale, the FIRPTA Certificate, the
California Certificate, the Seller's Certificate and one counterpart of the
Assignment of Leases and Intangible Property, each executed by Seller;
(d) delivering to Seller one counterpart of the Assignment of Leases
and Intangible Property executed by Buyer, the certificate described in Section
6.1(b)(iii) above, and funds in the amount of the Purchase Price, as adjusted
for credits, prorations and closing costs in accordance with this Article VI;
and
(e) filing the information return for the sale of the Property
required by Section 6045 of the Internal Revenue Code of 1986, as amended, and
the Income Tax Regulations thereunder.
Section 6.3 Prorations.
----------
(a) Real estate taxes and assessments, personal property taxes, if
any, rental income and all other items of income and expense with respect to the
Property shall be prorated between Seller and Buyer as of the Closing Date.
Income and expenses for the Property shall be prorated on the basis of the
actual number of days in the month and on the basis of the accrual method of
accounting. All items of income and expense for the Property attributable to the
period through and including the Closing Date shall be credited and debited,
respectively, to Seller; all items of income and expense attributable to the
period following the Closing-Date shall be credited and debited, respectively,
to Buyer. Buyer shall be credited in escrow with (i) any portion of deposits
made by Sony with respect to the Property held by Seller and which are
refundable to Sony and (ii) rent prepaid by Sony beyond the Closing Date. Buyer
shall not be entitled to any interest on deposits made by Sony or prepaid rent
accrued on or
-18-
before the Closing Date, except for any interest required to be paid to Sony
under Applicable Law or pursuant to the terms of the Sony Lease. Seller shall be
credited in escrow with any refundable deposits or bonds held by any utility,
governmental agency or service contractor with respect to the Property (to the
extent the same are assignable and assigned to Buyer in connection with the sale
of the Property). Buyer shall be credited in escrow with any leasing
commissions, other allowances or leasing costs (collectively, "Leasing Costs")
attributable to the Sony Lease which Seller has not paid on or prior to the
Closing Date, and the budgeted amount for the Sony Work agreed upon between
Buyer and Seller.
(b) Buyer and Seller shall cooperate to produce prior to the Closing
Date a schedule of prorations to be made on and after the Closing Date
pertaining to the Property as complete and accurate as reasonably possible. All
prorations which can be liquidated accurately or reasonably estimated as of the
Closing Date shall be made in escrow on the Closing Date. All other prorations,
and adjustments to initial estimated prorations, shall be made by the parties
with due diligence and cooperation within 30 days following the Closing Date, or
such later time as may be required to obtain necessary information for
proration, by immediate cash payment to the party yielding a net credit from
such prorations from the other party.
(c) On or prior to the Closing Date, Seller shall pay to Sony any
sums owing to Sony on account of the incremental difference' between rent due
and payable by Sony pursuant to the Sony Lease and rent previously paid by Sony
on account of the prior lease in effect between Seller and Sony.
(d) On the Closing Date, Seller shall pay Sony through escrow the
amount due to Sony, as agreed between Seller and Sony, in order for Sony to
waive the benefit of the Proposition 13 Provision of the Sony Lease.
Section 6.4 Other Closing Costs.
-------------------
(a) Buyer shall pay (i) the cost of the Survey, (ii) 50% of any
escrow or other costs charged by or reimbursable to the Title Company (other
than the title premium), (iii) the cost of the Title Policy in excess of the
premium borne by Seller pursuant to subsection (b)(iii) below, and (iv) all fees
and expenses of its legal counsel and other third party consultants engaged by
or on behalf of Buyer in connection with this transaction.
(b) Seller shall pay (i) 100% of any state or county governmental
documentary transfer or transaction taxes or fees due on the transfer of the
Property, (ii) 100% of any charter city governmental documentary transfer or
transaction taxes or fees due on the transfer of the Property, (iii) the premium
for the Title Policy -- up to the amount of the premium which would be charged
for a CLTA standard coverage Owner's policy (i.e., excluding any premium
attributable to extended coverage insurance and any endorsements), (iv) 50% of
any escrow or other costs charged by or reimbursable to the Title Company (other
than the title premium) and (v) all fees and expenses of its legal
-19-
counsel and other third party consultants engaged by or on behalf of Seller in
connection with this transaction.
(c) Any costs and expenses of closing that are not expressly
identified in subparagraph (a) or (b) above shall be allocated between the
parties in accordance with prevailing custom in Los Angeles County, California.
Section 6.5 Further Documentation. Buyer and Seller shall provide to
---------------------
each service contractor of the Real Property written notice advising such
contractors of the sale of the Real Property by Seller to Buyer, and including
any other information required by applicable local law. At or following each
such close of escrow, Buyer and Seller each shall execute any certificate or
other instruments required by law or local custom or otherwise reasonably
requested by the other party to effect the transaction contemplated by this
Agreement.
ARTICLE VII
MISCELLANEOUS
-------------
Section 7.1 Damage or Destruction.
---------------------
(a) Subject to subparagraph (b) below, Buyer shall be bound to
purchase the Property for the Purchase Price as required by the terms of this
Agreement without regard to the occurrence or effect of any damage to or
destruction of the improvements on the Real Property, provided that if Buyer is
so bound to purchase the Property, notwithstanding the occurrence of damage or
destruction, upon the Closing Date for the Property: (A) in the event of damage
fully covered by insurance, Buyer shall receive a credit against the Purchase
Price in the amount of the estimated cost of repairs as a result of any such
damage or destruction; and (B) in the event of damage not fully covered by
insurance, Buyer shall receive a credit in the amount of the estimated cost to
repair the damage.
(b) Notwithstanding the foregoing, Buyer may terminate this Agreement
by written notice of election given promptly to Seller following the event if
there occurs damage or destruction to the Property prior to the Closing Date
therefor (i) which involves a repair cost in excess of $500,000 (whether or not
covered by insurance), excluding the cost of any remaining portion of the
seismic retrofit work described in Section 4.7, or (ii) which affords Sony the
right to terminate the Sony Lease. Seller shall have the right to terminate this
Agreement if the repair costs not covered by insurance are in excess of $250,000
(excluding the cost of any remaining portion of the seismic retrofit work
described in Section 4.7), provided that in such case Buyer shall have the right
to pay for the estimated cost of repair in excess of $250,000 and proceed with
the closing of its acquisition of the Property pursuant to the terms of this
Agreement.
Section 7.2 Brokerage Commissions and Finder's Fees.
---------------------------------------
(a) Each party to this Agreement warrants to the other that, except
as provided in subsection (b) below, no person or entity can properly claim a
right to a real
-20-
estate commission, real estate finder's fee, real estate acquisition fee or
other real estate brokerage-type compensation (collectively, "Real Estate
Compensation") based upon the acts of that party with respect to the transaction
contemplated by this Agreement. Each party hereby agrees to indemnify and defend
the other against and to hold the other harmless from any and all loss, cost,
liability or expense (including but not limited to attorneys' fees and returned
commissions) resulting from any claim for Real Estate Compensation by any person
or entity based upon such acts.
(b) The parties hereby acknowledge that Xxxxxxx Commercial, on behalf
of Buyer, and Xxxx Development, on behalf of Seller (the "Brokers"), have acted
as brokers in connection with this transaction. Buyer and Seller shall be
responsible for paying any commission due to their respective Brokers in
connection with this transaction.
Section 7.3 Successors and Assigns. Buyer may not assign any of
----------------------
Buyer's rights or duties hereunder without the prior written consent of Seller;
provided that Buyer may assign this Agreement, (a) without Seller's prior
consent, to a title-holding corporation whose stock is wholly owned, directly or
indirectly, by Buyer or (b) to any other entity affiliated with Buyer, provided
that such assignee has, in Seller's reasonable judgment, the financial capacity
to perform the obligations of Buyer hereunder. No assignment by Buyer shall
relieve Buyer of its obligations under this Agreement. Subject to the
limitations on assignment expressed in this Section 7.3, this Agreement shall be
binding upon, and inure to the benefit of, Buyer and Seller and their respective
successors and assigns.
Section 7.4 Notices. All notices or other communications required or
-------
provided to be sent by either party shall be in writing and shall be sent by
United States Postal Service, postage prepaid or certified mail, return receipt
requested, by any nationally known overnight delivery service, by courier, or in
person. All notices shall be deemed to have been given forty-eight (48) hours
following deposit in the United States Postal Service or upon personal delivery
if sent by facsimile, overnight delivery service, courier or personally
delivered. All notices shall be addressed to the party at the address below:
To Seller: Lowe Enterprises
00000 Xxx Xxxxxxx Xxxx. #000
Xxx Xxxxxxx, XX 00000
Attn: Mr. Xxxx Xxxxxx
Facsimile: (310) 207- 1132
with a copy to: x/x XXX Xxxxxxx Xxxxxxxxxx, X.X.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
with a copy to: x/x XXX Xxxxxxx Xxxxxxxxxx, X.X.
-21-
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attn: Xx. Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
and with a copy to: Heller, Ehrman, White & XxXxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
To Buyer: Xxxxxx Realty L.P.
0000 Xxxx Xxxxxxxx Xxxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxx & Associates
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Any address or name specified above may be changed by notice given to the
addressee by the other party in accordance with this Section 7.4. The inability
to deliver because of a changed address of which no notice was given, or
rejection or other refusal to accept any notice, shall be deemed to be the
receipt of the notice as of the date of such inability to deliver or rejection
or refusal to accept. Any notice to be given by any party hereto may be given by
the counsel for such party.
Section 7.5 Time. Time is of the essence of every provision contained
----
in this Agreement.
Section 7.6 Possession. The rights of possession of the Property
----------
(subject to the Sony Lease) shall be delivered to Buyer on the Closing Date.
Section 7.7 Incorporation by Reference. All of the exhibits attached
--------------------------
to this Agreement or referred to herein and all documents in the nature of such
exhibits, when executed, are by this reference incorporated in and made a part
of this Agreement.
Section 7.8 No Deductions or Off-Sets. Buyer acknowledges that the
-------------------------
Purchase Price to be paid pursuant to this Agreement is a net amount and shall
not be subject to any off-sets or deductions except as specifically provided in
this Agreement.
Section 7.9 Attorneys' Fees. In the event any dispute between Buyer
---------------
and Seller should result in litigation, the prevailing party shall be reimbursed
for all
-22-
reasonable costs incurred in connection with such litigation, including, without
limitation, reasonable attorneys' fees.
Section 7.10 Construction. The parties acknowledge that each party
------------
and its counsel have reviewed and revised this Agreement and that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement or any amendments or exhibits hereto.
Section 7.11 Governing Law. This Agreement shall be construed and
-------------
interpreted in accordance with and shall be governed and enforced in all
respects according to the laws of the State of California.
Section 7.12 Confidentiality. Each of Seller and Buyer hereby
---------------
acknowledges and agrees that the existence of this Agreement, and the terms and
conditions set forth herein, are to be kept strictly confidential. Accordingly,
except as may be required by law or court order, neither Seller nor Buyer shall,
without the prior written consent of the other, release, publish or otherwise
distribute (and shall not authorize or permit any other person or entity to
release, publish or otherwise distribute) any information concerning this
Agreement or the transaction contemplated herein to any person or entity other
than such party's prospective lenders and such party's legal and financial
advisors or other consultants engaged in connection with this transaction, each
of whom shall agree to hold such information strictly confidential as if such
persons were bound by the provisions of this Section 7.12. The foregoing shall
not prevent either party from disclosing the existence, but not the terms, of
this transaction to other persons, including, without limitation, prospective
property managers and/or leasing brokers. Buyer and Seller shall exercise
reasonable efforts to secure the agreement of their respective Brokers
identified in Section 7.2 to keep the existence of this Agreement and its terms
confidential. Buyer and Seller acknowledge that they will cooperate to prepare a
mutually acceptable press release announcing the sale of the Property to Buyer.
Section 7.13 Counterparts. This Agreement may be executed in one or
------------
more counterparts. All counterparts so executed shall constitute one contract,
binding on all parties, even though all parties are not signatory to the same
counterpart.
Section 7.14 Entire Agreement: Amendments. This Agreement and the
----------------------------
attached exhibits, which are by this reference incorporated herein, and all
documents in the nature of such exhibits, when executed, contain the entire
understanding of the parties and supersede any and all other written or oral
understanding. This Agreement may not be amended or modified except by a written
instrument signed by Buyer and Seller.
Section 7.15 Further Assurances. From and after the date of this
------------------
Agreement, Seller and Buyer agree to do such things, perform such acts, and
make, execute, acknowledge and deliver such documents as may be reasonably
necessary or proper and usual to complete the transactions contemplated by this
Agreement and to
-23-
carry out the purpose of this Agreement in accordance with this Agreement.
Seller agrees that for a period of sixty (60) days following the closing, Seller
or its representatives will provide, at no cost to Buyer, Seller's time and
personnel for the purposes of (a) providing reasonable assistance to Buyer in
the transition of the Property to new ownership, including familiarizing Buyer
with the Property files and introducing Buyer to vendors, contractors and tenant
representatives at the Property and (b) enabling Buyer to review any Due
Diligence Materials that may be necessary for Buyer to comply with regulatory
compliance requirements applicable to Buyer; provided. that such activities
--------
shall in no way operate to supplement or expand the limited representations and
warranties of Seller contained in this Agreement.
Section 7.16 Partial Invalidity. If any provision of this Agreement is
------------------
determined by a proper court to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not affect the other provisions
of this Agreement and this Agreement shall remain in full force and effect
without such invalid, illegal or unenforceable provision.
Section 7.17 Waivers. No waiver of any provision of this Agreement or
-------
any breach of this Agreement shall be effective unless such waiver is in writing
and signed by the waiving party and any such waiver shall not be deemed a waiver
of any other provision of this Agreement or any other or subsequent breach of
this Agreement.
Section 7.18 Damages. Subject to the limitations of Section 4.4 and
-------
except as provided below, Buyer agrees that any liability of Seller under any
claim brought prior to the Closing Date pursuant to this Agreement or any
document or instrument delivered simultaneously or in connection with, or
pursuant to this Agreement, shall be limited solely to its interest in the
Property, and no other assets of Seller shall be subject to levy or execution
With respect to any such claim brought following the Closing Date, any liability
of Seller shall be limited solely to the assets of Seller, provided that Seller
agrees that it shall, during the Limitation Period, maintain assets or permit
Buyer recourse to assets, of at least $500,000 to cover any claims that may be
asserted by Buyer under this Agreement following the Closing Date, in addition
to the amounts held in the Escrow Account pursuant to the Escrow Agreement. In
addition, in the event that any legal action is commenced by Buyer against
Seller during the Limitation Period based on a claim arising out of this
Agreement, Seller shall, until such claim is resolved, maintain or permit Buyer
recourse to assets equal to the lesser of (a) the amount of such claim, or (b)
$500,000, in addition to the amounts held in the Escrow Account pursuant to the
Escrow Agreement. The minimum amounts described in the preceding two sentences
shall be referred to herein as the "Minimum Assets". Except as expressly
--------------
provided in this Section 7.18,Seller shall be under no obligation to retain, or
afford Buyer recourse to, any assets of Seller following the Closing Date. In no
event shall either party seek satisfaction for any claim asserted by such party
against the other from any of the other party's trustees, beneficiaries or
partners or from any partners, shareholders, directors, officers, employees,
agents, legal representatives, successors or assigns of such party or such
party's trustees, beneficiaries or partners, nor shall any such person or entity
have any personal liability for any such obligations of the other party,
provided (i) notwithstanding anything to the contrary in this Agreement,
--------
including without limitation
-24-
Section 4.4 hereof, that the foregoing shall not limit Buyer's ability to trace,
and have recourse to, the proceeds of the sale of the Property to the extent
that the cost to complete the Retrofit Work exceeds the amount of funds in the
Escrow Account established pursuant to the terms of the Escrow Agreement
attached hereto as Exhibit I and (ii) except as provided in subsection (i)
---------
above, that Buyer shall have the right to seek satisfaction for claims following
the Closing Date from AEW Partners, L.P., a Delaware limited partnership, solely
if Seller has either liquidated, dissolved or failed to maintain the pertinent
Minimum Assets during or following the
-24A-
Limitation Period, provided further that any such claims shall remain subject to
----------------
the limitations set forth in Section 4.4 above. AEW Partners has executed this
Agreement in the space provided below the parties' signature blocks for the sole
purpose of confirming the foregoing conditional right of action of Buyer. In no
event shall AEW Partners, L.P. have any other liability or obligation arising
out of this Agreement.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as
of the day and year first written above.
BUYER:
SELLER:
XXXXXX REALTY L.P.,a Maryland
SANTA XXXXXX NUMBER SEVEN Limited Partnership
ASSOCIATES L.P., a Delaware limited
partnership By: XXXXXX REALTY CORPORATION, A
Maryland Corporation
By: COLORADO PHASE III L.P.,a Its General Partner
California Limited Partnership
Its General Partner By: /s/ XXXX XXXXXXX
-------------------------
By: COLORADO PHASE III, Name: Xxxx Xxxxxxx
---------------------
INC., a California
corporation Title: General Counsel
---------------------
Its General Partner
By: /s/ XXXXXXX XXXXXX JR. By:
---------------------- _________________________
Name: XXXXXXX XXXXXX JR. Name:
-------------------- _____________________
Title: VICE PRESIDENT Title:
-------------------- _____________________
-25-
Solely for the limited purpose described
in the final sentence of Section 7.18 above:
AEW Partners L.P.,a Delaware limited
partnership doing business in Arizona
as AEW Partners Limited Partnership.
By: AEW/L.P., a Delaware limited
partnership, its general partner
By: AEW Inc., a Delaware Corporation,
its general partner
By: [SIGNATURE ILLEGIBLE]
---------------------
Its: Vice President
---------------------
-26-
EXHIBIT A
---------
DISCLOSURE STATEMENT
All capitalized terms used herein but not otherwise defined shall have the
meanings given them in the Agreement.
1. Matters disclosed by any environmental reports and audits, structural,
soils and other physical inspection reports, title reports and surveys
delivered to Buyer prior to the end of the Inspection Period or included in
the materials delivered to or made available to Buyer pursuant to Section
2.3 of the Agreement.
2. The Personal Property and the improvements located on the Real Property,
and their structural components, the building systems and other mechanical
systems, and the parking and loading areas are, and have been, subject to
normal wear and tear and obsolescence as the result of the age of such
items.
3. Seller received notice from the Santa Xxxxxx Fire Marshal that the Property
needs to have street address numbers at least 6" in height with a 3/4" wide
stroke at rear entrance. Currently the Property has numbers 3" in height
with a 1/2" wide stroke. Seller has asked for a variance as of June 3,
1997, but has not yet received a response.
4. To Seller's Knowledge, Seller possesses all licenses, permits and approvals
required in connection with the ownership and operation of the Property
with the exception of the Waste Water Treatment Plant, for which licensing
and permits are currently under application with the Air Quality Management
District.
All the matters set forth on this Disclosure Statement are limited to
Seller's Knowledge. Seller does not make any representations or warranties,
other than as expressly set forth in the Agreement, regarding the scope or
content of the matters referenced in this Disclosure Statement. Neither the
foregoing list nor the materials referred to therein are intended to be an
exhaustive enumeration of issues relevant to the Property, nor are they intended
to fully inform you of any particular issue or its ramifications. Rather this
Disclosure Statement is presented to you pursuant to Section 4.1 of the
Agreement and is merely intended to assist you with your investigation of the
Property by flagging for you those matters which, to Seller's Knowledge, may
affect the Property or Seller's warranties and representations set forth in
Section 4.1 of the Agreement.
EXHIBIT B
---------
INSPECTION LETTER
__________, 1997
AEW Capital Management, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
Re: Agreement for Purchase and Sale of 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx,
Xxxxxxxxxx dated June 16, 1997 (the "Purchase Agreement") between
Santa Xxxxxx Number Seven Associates L.P. ("Seller") and Xxxxxx Realty
L.P. ("Buyer")
Gentlemen & Ladies:
This letter constitutes the Inspection Letter contemplated by the
above referenced Purchase Agreement and is delivered to confirm the satisfaction
of the condition precedent described in Section 3.1(a)(i) of the Purchase
Agreement.
Buyer hereby expressly confirms to Seller (and to its trustees and
beneficiaries and their respective agents, employees, successors and assigns)
that Buyer has completed to its satisfaction the inspection and review of the
Remaining Due Diligence Items (as such term is defined in Section 2.3(a) of the
Purchase Agreement. Buyer, moreover, hereby ratifies and affirms all of the
acknowledgements, waivers and releases set forth in Section 2.3 of the Purchase
Agreement.
Accordingly, based on its inspection and review of the Property, Buyer
is prepared to proceed with the purchase of the Property in accordance with the
terms of the Purchase Agreement subject only to the satisfaction of the
conditions described in Sections 3.1(a)(ii)-(vii) of the Purchase Agreement.
Very truly yours,
XXXXXX REALTY L.P.,a Maryland limited partnership
By: Xxxxxx Realty Corporation, a Maryland corporation
Its General Partner
By:__________________________
Name:________________________
Title:_______________________
By:__________________________
Name: _______________________
Title:_______________________
EXHIBIT C
---------
LIST OF CONTRACTS AND WARRANTIES
1. Roofing and Waterproofing Warranty - Xxxx Pacific
2. Pest Control Service Agreement - ORKIN
3. Parking Management Contract - Century Parking, Inc.
4. Landscaping Agreement - Live Art Plantscapes
5. Carpet/Wood Floors Agreement - InTex Services
6. HVAC Service Contract - Imperial Air Conditioning Corp.
7. Elevator Maintenance Agreement- Xxxxxxxxx Elevator Corp.
8. Water Waste Treatment Agreement - Integrated Performance
9. Fire Alarm System - TRL Systems, Inc.
11. Property Management Agreement - Santa Xxxxxx Xxxx Partners
12. Fish Pond Service - Asahi Fancy Koi, Inc.
13. Property Tax Audit - Red Estate Tax Services
EXHIBIT D
---------
PROPERTY DESCRIPTION
DESCRIPTION
-------------------------------------------------------------------------------
PARCEL 1:
XXX 0 XX XXXXX XX. 00000, IN THE CITY OF SANTA XXXXXX, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1175 PAGES 37 TO 40 INCLUSIVE,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 2:
THAT PORTION OF THE RIGHT-OF-WAY, 100.00 FEET WIDE, OF THE SOUTHERN PACIFIC
RAILROAD COMPANY, IN THE CITY OF SANTA XXXXXX, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 40 PAGE 282 OF DEEDS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE CURVED NORTHWESTERLY LINE OF SAID RIGHT-OF-
WAY, 100.00 FEET WIDE, WITH THE CURVED NORTHWESTERLY LINE OF THE LAND DESCRIBED
IN PARCEL 3 OF THE FINAL ORDER OF CONDEMNATION NO. 496651, FILED JULY 23, 1945
AND ENTERED JULY 24, 1945 IN JUDGMENT BOOK 1553 PAGE 00, XXXXXXXX XXXXX XXXXXXX
XX XXXX XXXXX; SAID LAST MENTIONED CURVE BEING CONCAVE SOUTHEASTERLY AND HAVING
A RADIUS OF 905.00 FEET; A RADIAL LINE OF SAID CURVE TO SAID INTERSECTION BEARS
NORTH 51 DEGREES 34 MINUTES 36 SECONDS WEST; THENCE SOUTHWESTERLY AND CONTINUING
ALONG SAID CURVE, 94.25 FEET THROUGH A CENTRAL ANGLE OF 5 DEGREES 58 MINUTES 02
SECONDS TO A POINT IN A CURVED LINE BEING CONCENTRIC WITH AND DISTANT
SOUTHEASTERLY 40.00 FEET MEASURED RADIALLY FROM SAID NORTHWESTERLY LINE OF SAID
RIGHT-OF-WAY, 100.00 FEET WIDE; SAID LAST DESCRIBED CURVE BEING CONCAVE
SOUTHEASTERLY AND HAVING A RADIUS OF 11,663.40 FEET; A RADIAL LINE OF SAID CURVE
TO SAID POINT BEARS NORTH 29 DEGREES 38 MINUTES 43 SECONDS WEST; THENCE
SOUTHWESTERLY 636.65 FEET ALONG SAID CONCENTRIC CURVE THROUGH A CENTRAL ANGLE OF
3 DEGREES 07 MINUTES 39 SECONDS, TO THE NORTHEASTERLY LINE OF TWENTIETH STREET,
70.00 FEET WIDE, AS SHOWN ON THE MAP OF TRACT NO. 9774 IN SAID CITY AND RECORDED
IN BOOK 140 PAGES 64 AND 65 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY; THENCE ALONG SAID LAST DESCRIBED NORTHEASTERLY LINE NORTH 44
DEGREES 45 MINUTES 25 SECONDS WEST 40.88 FEET TO ITS INTERSECTION WITH SAID
CURVE NORTHWESTERLY LINE OF SAID RIGHT-OF-WAY, 100.00 FEET WIDE; SAID LAST
MENTIONED CURVE BEING CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 11,703.40
FEET; A RADIAL LINE OF SAID CURVE TO SAID INTERSECTION BEARS NORTH 32 DEGREES 48
MINUTES 53 SECONDS WEST; THENCE NORTHEASTERLY 732.79 FEET ALONG SAID CURVE,
THROUGH A CENTRAL ANGLE OF 3 DEGREES 35 MINUTES 15 SECONDS TO THE POINT OF
BEGINNING.
PARCEL 3.
NON-EXCLUSIVE EASEMENTS FOR THE PURPOSES OF VEHICULAR AND PEDESTRIAN INGRESS AND
EGRESS, PARKING TOGETHER WITH THE RIGHT TO USE A PARKING TICKET COLLECTION
BOOTH, AS PROVIDED FOR IN THAT CERTAIN DOCUMENT ENTITLED "SECOND DECLARATION OF
PROTECTIVE COVENANTS AND RESTRICTIONS AND RECIPROCAL EASEMENT AGREEMENT FOR THE
ARBORETUM" RECORDED NOVEMBER 23, 1994 AS INSTRUMENT NO. 00-0000000, OVER LOT 6
AND THOSE PORTIONS OF XXXX 0 XXX 0 XX XXXXX XX. 00000, RECORDED IN BOOK 1175
PAGES 37 TO 40 INCLUSIVE OF MAPS, SHOWN AS PARCEL C OF THE CERTIFICATE OF
COMPLIANCE NO. WPM 96-01, RECORDED APRIL 4, 1997 AS INSTRUMENT NO. 97-512250.
--------------------------------------------------------------------------------
EXHIBIT E
---------
DEED
[Form attached]
DEED
----
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
MAIL TAX STATEMENTS TO:
--------------------------------------------------------------------------------
(Above Space For Recorder's Use Only)
The undersigned grantor declares:
Documentary Transfer Tax is shown on a separate sheet attached to this
deed and is not a part of the public record.
--------------------------------------------------------------------------------
GRANT DEED
FOR A VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, Santa
Xxxxxx Number Seven Associates L.P., a Delaware limited partnership ("Grantor"),
hereby grants to Xxxxxx Realty L.P., a Maryland limited partnership, that
certain real property described on Exhibit "A" attached hereto and made a part
-----------
hereof (the "Property"), TOGETHER with all improvements located thereon and all
rights, privileges, easements and appurtenances of Grantor appertaining to the
Property and all right, title and interest of Grantor in, to and under adjoining
streets, rights-of-way and easements.
DATED: _____________, 1997
GRANTOR: SANTA XXXXXX NUMBER SEVEN ASSOCIATES L.P., a Delaware limited
partnership
By: COLORADO PHASE III L.P., a California limited partnership
Its General Partner
By: COLORADO PHASE III, INC., a California corporation
Its General Partner
By:___________________________
Name:_________________________
SEPARATE STATEMENT OF
DOCUMENTARY TRANSFER TAX
------------------------
County Recorder
Los Angeles County
Gentlemen:
In accordance with Revenue and Taxation Code Section 11932, it is
requested that this Statement of Documentary Transfer Tax due not be recorded
with the attached deed, but be affixed to the deed after recordation and before
return as directed on the deed.
The deed names the undersigned as Grantor, and Xxxxxx Realty L.P.,a
Maryland limited partnership, as Grantee.
The undersigned Grantor declares:
A. The purchase price for the property is $31,000,000.
B. The documentary transfer tax is $34,100,based upon $1.10 per $1,000 of
property value.
C. The real property being transferred is located in the City of Santa
Xxxxxx, County of Los Angeles, State of California, as more particularly
described in the deed.
Very Truly Yours,
SANTA XXXXXX NUMBER SEVEN ASSOCIATES L.P., a Delaware limited
partnership
By: COLORADO PHASE III L.P., a California limited partnership
Its General Partner
By: COLORADO PHASE III, INC., a California corporation
Its General Partner
By:___________________________
Name:_________________________
EXHIBIT F
---------
XXXX OF SALE
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby expressly acknowledged, Santa Xxxxxx Number Seven Associates L.P., a
Delaware limited partnership, hereby assigns, transfers and conveys a fee
interest to Xxxxxx Realty L.P., a Maryland limited partnership ("Buyer"), in and
to all of the Personal Property (including the personal property listed on
Schedule 1 attached hereto) and Intangible Property of Seller, as such terms are
----------
defined in that certain Agreement for Purchase and Sale of 0000 Xxxxxxxx Xxxxxx,
Xxxxx Xxxxxx, Xxxxxxxxxx dated as of June 16, 1997, by and between Seller and
Buyer (the "Purchase Agreement"). The foregoing conveyance is made pursuant to,
and is subject to the terms and conditions of, the Purchase Agreement.
Seller hereby warrants to Buyer that it is the lawful owner of the
Personal Property and the Intangible Property, that the Personal Property and
Intangible Property are free of all encumbrances and that Seller has good right
to sell the Personal Property and the Intangible Property.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale as of
_________ 1997.
SELLER:
SANTA XXXXXX NUMBER SEVEN ASSOCIATES L.P., a Delaware limited
partnership
By: COLORADO PHASE III L.P., a California limited partnership
Its General Partner
By: COLORADO PHASE III, INC., a California corporation
Its General Partner
By:___________________________
Name:_________________________
SCHEDULE 1
----------
Personal Property
. Miscellaneous power and hand tools located at the Property.
. Plans, files and documents stored on-site at the Property.
EXHIBIT G
---------
ASSIGNMENT OF LEASES AND INTANGIBLE PROPERTY
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby expressly acknowledged, Santa Xxxxxx Number Seven L.P., a Delaware
limited partnership ("Assignor"), hereby assigns, transfers and conveys to
Xxxxxx Realty L.P., a Maryland limited partnership ("Assignee"), all of the
landlord's right, title and interest in and to the Sony Lease and the Intangible
Property, as those terms are defined in that certain Agreement for Purchase and
Sale of 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx dated June 16, 1997 (the
"Agreement"), entered into by and between Assignor, as "Seller," and Assignee,
as "Buyer."
In accordance with the Agreement, Assignee hereby assumes all
obligations of Seller as landlord under the Sony Lease, as tenant under the MTA
Lease and as owner of the Intangible Property (including, without limitation,
Assignor's rights and interests as a party to the Contracts) to the extent such
obligations arise on or after the date of this Assignment (collectively, the
"Assigned Obligations"), and Assignee agrees to indemnify and defend Assignor
against, to hold Assignor harmless from, and to reimburse Assignor for, any and
all loss, cost, liability and expense (including attorneys' fees) arising out of
or relating to any breach or alleged breach of the Assigned Obligations
occurring (or alleged to have occurred) on or after the date of this Assignment.
Assignor agrees to indemnify and defend Assignee against, to hold
Assignee harmless from, and to reimburse Assignee for, any and all loss, cost,
liability and expense (including attorneys' fees) arising out of or relating to
any breach or alleged breach of any obligations of the Landlord under the Lease
or as owner of the Intangible Property (including the Contracts) occurring (or
alleged to have occurred) prior to the date of this Assignment.
This Assignment may be executed in one or more counterparts. All
counterparts so executed shall constitute one contract, binding on all parties,
even though all parties are not signatory to the same counterpart.
Any liability which may arise as a consequence of the execution of
this Assignment by or on behalf of either Assignor or Assignee shall be a
liability of Assignor or Assignee, as applicable, and not the personal liability
of any trustee, corporate officer of a trustee, corporate officer of such party
or employee of such party.
IN WITNESS WHEREOF, Assignor and Assignees have executed
this Assignment of Leases and Intangible Property as of _________, 1997.
ASSIGNEE:
ASSIGNOR:
XXXXXX REALTY L.P., a Maryland
SANTA XXXXXX NUMBER SEVEN limited partnership
ASSOCIATES L.P., a Delaware limited
partnership
By: Xxxxxx Realty Corporation, A
By: COLORADO PHASE III L.P., a Maryland corporation
California limited partnership Its General Partner
Its General Partner
By:_____________________
By: COLORADO PHASE III,
INC., a California Name:___________________
corporation
Its General Partner Title:__________________
By:______________________
By:_____________________
Name:____________________
Name:___________________
Title:___________________
Title:__________________
Exhibit G - Page 2
EXHIBIT H
---------
DUE DILIGENCE MATERIALS
DUE DILIGENCE MATERIALS
--------------------------------------------------------------------------------
1. Materials provided on or before May 30, 1997 from Xxxx Enterprises:
A. SOIL REPORTS
------------
Report of Foundation Investigation - (June 13, 1991)
Law/Xxxxxxxx
REPORT OF PRELIMINARY FOUNDATION INVESTIGATION - (OCT08ER 3,
1985)
Report of Ground Motion Studies - (December 26, 1989)
XxXxx Xxxxxxxx And Associates
Report of Geotechnical Investigation - (April 17, 1997)
Law/Xxxxxxxx
Report of Foundation Investigation - (December 4, 1989)
Geotechnical Executive Summary - (Letter dated April 10, 1997)
Proposal for Geotechnical Investigation (Letter dated February 24,
1997)
B ENVIRONMENTAL
-------------
Report of Environmental Assessment - (November 3, 1988)
XxXxx Xxxxxxxx And Associates
Environmental Materials packet
Report of Building Survey For Asbestos-Containing Materials - (dated
November 2, 1988)
Letco Associates, Inc.
Letter RE: Hydrocarbon Leakage - (dated October 15, 1986
Southmark Pacific Corp.
Report of Environmental Assessment And Geologic-Seismic Hazards Study
- (dated November 3, 1988).
XxXxx Xxxxxxxx And Associates
Memo from Mac to Xxxxxx with attachments - (dated November 1, 1996)
Supplementary Environmental Information
XxXxx Xxxxxxxx And Associates
Report of Phase I Environmental Site Assessment - (dated November 21,
1996)
Law/Crandall
C. COPIES OF SERVICE AGREEMENTS & CONTRACTS - (Delivered 5/30 via FEDX)
--------------------------------------------------------------------
L.E. PROPERTY MANAGEMENT FILES
1. Property Management Agreement - Santa Xxxxxx Xxxx Partners
2. Roofing And Waterproofing Warranty - Xxxx Pacific
3. Pest Control Service Agreement - ORKIN
4. Parking Management Contract - Century Parking, Inc.
5. Landscaping Agreement - Live Art Plantscapes
6. Carpet/Wood Floors Agreement- InTex Services
7. HVAC Service Contract - Imperial Air Conditioning Corp.
8. Elevator Maintenance Agreement - Xxxxxxxxx Elevator Corp.
9. Water Waste Treatment Agreement - Integrated Performance
10. Window Washing - Skyline Services
11. Fish Pond Service - Asahi Fancy Koi, Inc.
1
EXHIBIT H - DUE DILIGENCE MATERIALS
--------------------------------------------------------------------------------
D. Preliminary Title Report as of May 8th 1997
E. Amended CC&R's
F. Copy of Certificate of Occupancy
G. Plans for the Sony Music Project:
. Architectural
. Electrical
. Structural
. Plumbing
. HVAC
H. Closure report from Clean Up Technologies, RE: Soils
I. Water Treatment Agreement & Plans
X. Xxxxxxxxx Elevator Corporation Contract
K. Real Estate Tax Services Contract
L. Monthly Operating Reports - 01/97 - 04/97
II. Due Diligence Documentation - (Delivered May 5, 1997 by AEW)
1. Year End Financial Statements: 1994-1996
2. Non Reimbursable Expense Worksheet
3. Development Agreement
4. Declaration of Protective Covenants, Conditions, and Restrictions and
Reciprocal Easement Agreement for the Arboretum
5. Arboretum Settlement Agreement
6. Director's Action by Unanimous Written Consent, The Arboretum
Association
7. Memo re: Parking Requirement Calculations
8. MTA Lease
9. Sony Music Lease
10. Correspondence re: Lease Renewal
11. Structural Engineering Reports
12. Correspondence re: facade Repair/Retrofit Project
13. First Cause of Action/Xxxx Development Corp. vs. Orange County
Plastering
14. Correspondence re: Orange County Plastering lawsuit
15. Settlement Agreement
16. Sony Office Lease
17. Operating Expense Reconciliation
18. CLA File C-1439 Site Observation Report #1 through #6
19. Preliminary Project Report
20. Excerpt from December 1995 Appraisal
21. Floor Plans
22. Certificate of Insurance
23. Replacement Cost Memorandum
24. Correspondence: Remediation Program
25. Phase I Environmental Assessment (performed for Lincoln Property Co. on
the Arboretum site which is adjacent to Sony Music Campus).
2
EXHIBIT H - DUE DILIGENCE MATERIALS
--------------------------------------------------------------------------------
III List of all files/information in Xxxx Enterprises Possession:
A. SONY ASSET MANAGEMENT FILES
---------------------------
LE - 9TH Floor - (X. Xxxxxxx/X. Xxxxxx files)
1. ADP
2. Xxxxxxx Xxxxxxx Waltch
3. Budget 1996
4. Business Plan
5. Correspondence
6. Credit Lyonnais
7. Development/Property Management Agreement
8. Earthquake Costs
9. Insurance
10. Leaks
11. Sony Lease
12. Xxxx Xxxxx
13. Monthly Reports
14. Parking
15. Business Plan & Quarterly Operating Reports
16. Property Management
17. Operating Expense Xxxxxxxxxxxxxx
00. Xxxx xx Xxxxx Xxxxxx
00. Soils (closure)
20. SMNSA Budget
21. CCR's
22. Development Agreement
23. Environmental
24. Soils Reports
B. ARBORETUM DEVELOPMENT & SONY FILES
----------------------------------
LE - FILE STORAGE (0XX XXXXX)
1. DA Amendment City Council
2. ADP/SMNSA - Final Settlement Agreement
3. EIR/Planning Commission for Processing of ARBO-DA Amendment #2 -
1994
4. Arboretum Development Agreement Amendment Two
5. Development Agreement
6. ADP Settlement Agreement - 11/94
7. Amendment Arboretum CC&R's - 11/94
8. Architectural Committee
9. ADP Arboretum DA Amendment - City Council
10. Sony/Arbor Business License
11. ADP/SMNSA - Issues/Settlement
12. ADP/SMNSA - Issues/Settlement - 1993
13. ADP/SMNSA - Declarancy Suit/Settlement Agreement
14. ADP/SMNSA-DA-Amendment Suit
15. Arbor Association
3
EXHIBIT H - DUE DILIGENCE MATERIALS
--------------------------------------------------------------------------------
16. ADP/SMNSA
17. ARBO - Watergarden vs. ADP
18. SMNSA 1993 Financials
19. ADP - CC&R's
20. Arboretum - Development/Property Management
21. Arboretum - Xxxxxxxx & Xxxxxxx
22 Sony - Earthquake Restoration
23. Sony - Earthquake Costs/Draws
24. Sony - "C of O"
25. SMNSA Tax Appeal
26. SMNSA Monthly Reports
27. Sony Correspondence
28. Sony - Water damage/Xxxxxx
29. Sony - Leaks
30. Sony - "Awards" files
31. Sony Soils
32. Sony "Sale" Proposal
33. Sony Music Campus/SM (Law/Xxxxxxxx, Inc.)
34. Sony Music Campus City of S.M.
35. ARBOR 20/20 Video
36. RTC/San Jacinto Loon Pool v Purchase
37. Sub-Contractors/Suppliers List
38. Sub-Lease Form
39. Personnel
40. Service Call Log
41. Chron File
42. Outstanding Leases
43. Arboretum Aerials
44. Arboretum Hotel Site
45. Arboretum - Project Description
46. Arboretum- Xxxx/Xxxxx
47. Pre-Construction Agreement
48. Arboretum - Gensler Architectural Contract with X.X Xxxx
Partners, L.P.
C. ADP/SMNSA FILES
---------------
LE - BOXED IN STORAGE ROOM
1. ADP Suit O9.13.1994
2. ADP/Xxxx/AEW Fraud Suit (correspondence)
3. ADP/Xxxx/AEW Fraud Suite
4. ADP/SMNSA - "Declarancy Xxxx"
0. ADP/SMNSA - "Declarancy Suits" (correspondence)
6. ADP/SMNSA - DA Suite Discovery
7. ADP/SMNSA "# Votes" Association Suit
8. ADP/SMNSA DA Amendment Suit
9. ADP/SMNSA DA Amendment Suit (correspondence)
10. ADP/SMNSA Settlement Drafts/Discussions
4
EXHIBIT 1l - DUE DILIGENCE MATERIALS
--------------------------------------------------------------------------------
11. Number Two (7/26/94)
12. Sony to be approved (Charlotte's Construction Administration)
D. CONSTRUCTION PLANS & FILES
--------------------------
Sony Garage Storage
1. Construction Plans: TI And Shell
2. Construction Files: Reports, Budgets, Draws Process,
Inspections, etc.
E. SONY PROPERTY MANAGEMENT FILES
------------------------------
LE - 9th Floor Files - Property Management
1. Air Quality Management
2. American Industrial Supply
3. Appraisal 1995
4. Awnings
5. Back-up Power System
6. Xxxxxxxx Xxxxxx Industries
7. Business License
8. Business Plan/Budget
9. Budget & Business Plan
10. Budget Notes
11. Carpet - Masland Carpets Inc.
12. Carpet/Wood Floors - Intex Services
13. Carpet/Wood Floors - Service Tickets (Intex)
14. Carpet/Wood Floors - 1995
15. Certificate of Occupancy
16. Xxxxxxxx of Xxxxxxxx
00. Xxxx xx Xxxxx Xxxxxx
00. Claim Handling Procedures
19. Columbia - Reception Desk
20. Columbia - West Conference Room
21. Columbia - Conference Room
22. Columbia - Mat
23. Columbia - Skylight
24. Construction - Agreement
25. Construction - Xxxxxxxx Construction
26. Construction Loan
27. Correspondence - Lease
28. Correspondence - NewLowe Construction
29. Correspondence - Xxxxxx Xxxxxxx
30. COX Industrial
31. CPI Increases
32. Credit Applications
33. Xxxxx Engineering
34. Draperies
35. Doors - Hardware (S&S)
5
EXHIBIT H - DUE DILIGENCE MATERIALS
--------------------------------------------------------------------------------
36. Doors
37. Doors - (Xxxxxxx & Xxxx)
38. Employee Listings
39. Earthquake - ACCO
40. Earthquake - Releases
41. Earthquake - Carpets
42. Earthquake - AEW Draw Requisition
43. Earthquake - Revised Earthquake Budget
44. Earthquake - Damage Meeting
45. Earthquake - EDA Reports
46. Earthquake - Emergency Shut Offs
47. Earthquake - Facility Memorandums
48. Earthquake - Indoor Air Quality
49. Earthquake - Information to Tenants
50. Earthquake - Related Invoices
51. Earthquake - Punch Lists
52. Earthquake - Painting
53. Earthquake - Repairs- LDC
54. Earthquake - Seismic Engineering Association
55. Earthquake - Studio
56. Earthquake - Thetford
57. Earthquake - Video Tapes
58. Earthquake - TRL
59. Earthquake - Water Damage/lnsurance
60. Earthquake - Waterproofing Repairs
61. Electrical - Halo Electric
62. Elevators - Permits
63. Elevators - Schindler
64. Elevators- Safety Materials
65. Emergency Contact List
66. Environment Air Quality
67. Phantom Direct (Vacuum Cleaner)
68. Fire - Fire Life & Safety
69. Fire - Instant Fire Protection
70. Fire - Studio Pre-action System
71. Fire - Monitoring
72. FIRE - Grinnel Fire Protection
73. FIRE - Fire Sprinklers
74. Fire - World Fire Protection
75. Floor Cleaning
76. Furniture Floor Plans
77. Flooring - Pacific Flooring Inc.
78. Garage Door- Vortex
79. Garbage Collection (BFI)
80. XXXX Construction (Energy Management)
81. Glass - Glass Table/Columbia Building
82. Glass - Xxxxxx Xxxxx Company
83. Xxxxx - Xxxxxx Glass Company
84. Hazardous Waste Manifest
6
EXHIBIT H-DUE DILIGENCE MATERIALS
--------------------------------------------------------------------------------
85. HVAC-Imperial A/C
86. HVAC-A/C Data Xxxx
00. HVAC-Notes
88. Indoor Air Quality
89. Images of
90. Insurance-Insurance Claims Procedures
91. Insurance-Miscellaneous Certificates
92. Insurance-Sony
93. Insurance-Vendor Correspondence 1994
94. Janitorial-Gemini Excellence In Maintenance
95. Janitorial-MainTech
96. Janitorial-Xxxx Xxxxxxxx
97. Landscaping-Landscaping
98. Landscaping-Live Art PlantScapes
99. Leaks-Leaks
100.Leaks-Water Leaks
101.Legal-Bisno Settlement Agreement
102.Legal-Greenwood Suit
103.Legal-Legal 1
104.Legal-Legal 2
105.Legal-Notices
106.Lighting-3rd Floor Conference Room
107.Lighting-Art Gate Lighting
108.Lighting-Xxxxxxxxxxx Electrical Service
109.Lighting-Xxxxxx Lighting
110.Lighting-Midwest Wholesale Lighting
111.Lighting-Regency Lighting
112.Lock-Lock Combinations
113.Lock-Master Keys
114.Lock-Manchester Lock & Key
115.Mailroom
116.Maintenance Logs-Jan-June 1997
117.Maintenance Logs-Jul-Dec 1997
118.Maintenance Requests 1996
119.Preventive Maintenance Calendar
120.Metropolitan Transportation Authority
121.1994 Operating Expense Reconclliation
122.1994 Actual Operating Expense-Reimbursement
123.Operating Expenses
124.Painting-A-1 Work Painting
125.Painting-Xxxxxx & Associates
126.Painting-Painting
127.Parking
128.Parking-Century
129.Parking Fees
130.Pest Control-Orkin Pest Control
131.Pest Control-Advance
132.Photographs
133.Xxxxxxxx Associates, Inc
7
EXHIBIT H - DUE DILIGENCE MATERIALS
--------------------------------------------------------------------------------
134. Planter Drains
135. Plumbing - All Area Plumbing Inc.
136. Plumbing - Backflow Testing
137. Plumbing - Plumbing Information
138. Plumbing - Faucets
139. Plumbing - Fish Pond
140. Plot Plan
141. Property Management File
142. Proposition 65 Signage
143. Power Outage/Generator
144. Prudential Overall Supply
145. Roof - Warranty File
146. Roof - Xxxx Pacific Roofing
147. Roof - San Marino Roof Company, Inc.
148. Sam's U-Drive
149. Satellite Dish
150. Security - GuardsMark Incident Reports
151. Security - Xxxxxx Xxxxxx Security
152. Security - ADT Access Card
153. Security - Security Access Fax
154. Signage - Xxxx Xxxxxxxx, Inc.
155. Signage - CAS
156. Signage - Signage Page
157. Signage - Plan
158. Power - Southern CA Edison
159. Power - Southern CA Millwork
160. Power - Door Veneers
161. Stairwells - Vinyl Samples
162. Stairwells - Railing Corp. Building
163. Studio
164. Studio - Notices - Xxxx Xxxx
165. Studio Security
166. Studio - Correspondence
167. Studio- Sample (Marmoleum)
168. Studio Basketball Court
169. Sub-contractors List
170. Sump Pump (Cox Industry)
171. Tape Library
172. Taxes - Tax Appeal
173. Taxes - Real Estate Tax Service
174. Taxes - KRMG Peat Marwick
175. Taxes - Property Tax Appeal
176. Teleco Xxxx
000. Xxxxxxxx Xxxx
000. Teledata Room Expansion
179. T.I. Buildout
180. Tool Inventory
181. TRL Systems
182. Valuation Data Summary
8
EXHIBIT H - DUE DILIGENCE MATERIALS
--------------------------------------------------------------------------------
183. Wall Finishing (Interior)
184. Warehouse - AVID Room
185. Water Heater Temps
186. Water Leaks
187. Water Treatment
186. Waste Treatment - (IPC)
189. Waste Treatment - (Thetford Systems)
190. West Coast Elevator Pads
191. Westwood Wholesale Electric
192. Window Washing - Skyline Service
193. Wood Trends
194. Zee Medical Service.
F. CONSTRUCTION FILES
------------------
Xxxxx Xxxxxxxxx'x files at NewLowe
(1) SONY STRUCTURAL RETROFIT CONTRACT FILES
---------------------------------------
1. AEW/Santa Xxxxxx Number Seven Associates
2. Xxxxxxx Xxxxxx
3. Owner/Contractor Agreement (Santa Xxxxxx #7 & LECG)
4. Sony Music
5. Xxx Xxxxxxx
6. TruForm Construction
7. Xxxxxx & Xxxxxx
8. Building Analytics
9. Xxx Xxxxx - Expense Reports
10. Xxxxx Xxxx Painting
11. Daily Construction Reports
12. Memos - Xxxx Xxxxxx
13. Memos - Xxxx Goodbarian
14. Memos - Xxx Xxxxx
00. Settlement Information - Orange County Plastering
16. Santa Xxxxxx Number Seven
17. Truform Construction
18. Memos to Xxxx Goodbarian
19. Memos to Xxx Xxxxx
(2) SONY EARTHQUAKE REPAIR - CONTRACT FILES
---------------------------------------
1. ACCO
2. Advanced Waterproofing
3. Xxxxxxx, Xxxxxxx & Waltch
4. American Bonding Company
5. Xxxxx & Associates
6. Xxxxx, Xxxxxxxx & Strange
7. Carmel Architectural Sales
8. Xxxxxxxxx & Xxxx
9. Xxxxx Xxxx Painting
9
EXHIBIT H - DUE DILIGENCE MATERIALS
--------------------------------------------------------------------------------
10. Xxxxxxxxxxx Electric
11. Civic Engineering
12. Clean Up Technology
13. CAN Insurance
14. Continental Studio Builders
15. Dalan Engineering
16. Devco Engineering
17. Xxxxxxx Xxxxxx
18. Xxxxxx & Associates
19. Fetzers, Inc.
20. GSC Associates
21. Xxxxx X. Xxxxxxxx
22. Home Insurance
23. Integrated Performance Consultants
24. International Marble
25. Intex Service
(3) EARTHQUAKE REPAIR (2-LEAF)
--------------------------
1. Xxxxx & Associates
2. As-Built Information
3. Attic Stock Carpet
4. Backup Power System
5. Bid Analysis
6. Budget Estimates - Earthquake
7. Building Department
8. Carpet Issues - Masland Xxxxx
9. Closeout Schedule
10. Construction Estimates
11. Devco Design Calculations
12. Door Survey
13. Earthquake Repair Log - Exterior Damage
14. Earthquake Repair Log Interior Damage
15. Elevator Information
16. Epic Facade Failure Repair Costs
17. Estimates - Misc. T.I.'s
18. Xxxxx & Sons
19. GC Fee Calculation
20. Har-Bro Construction - EQ Retro Estimate
21. Halco Electric
22. Integrated Performance Consultants
23. Job Cost Information
24. Karmey Waterproofing - Insurance Claim
25. Leak Survey
26 Maintenance
27. Masland Carpets Inc.
28. Mediation Information
29. Meeting Minutes - Sony
30. Memos Xxxx Goodbarian
10
EXHIBIT H - DUE DILIGENCE MATERIALS
--------------------------------------------------------------------------------
31. Memos Xxxxx Xxxxx
00. Memos Xxxxx Xxxxxx
33. Memos Xxxxx Xxxxxx
34. Memos Xxxxx Xxxxxxxx
35. Memos Xxxx Xxxxxxxx
36. Memos Xxxxxx Xxxxx
37. Memos Xxxxxxxx Xxxxxxx
38. Memos Xxx Xxxxx
39. Memos Xxxxx Xxxxxxxx
40. Memos Xxxx Xxxxxx
41. Memos Xxxxxxx Xxxxx
42. Metalurgical Testing Corporation
43. Planters
44. Punchlist
45. Schedules
46. Settlement Information - O.C.P.
47. Xxxxxxx - Xxx Xxxxx
48. Sony Music Lease 1630 21st
49. Structural Information
50. Subcontractor List
51. Waterproofing
52. Westland Heating & Air
53. Xxxxx
(4) SONY PROJECT EARTHQUAKE REPAIRS #2
----------------------------------
1. Advance Waterproofing
2. Daily Reports
3. Xxxxxxxx
4. Ismail & Xxxxx
0. Xxxxxx Xxxxxxx
6. Seismic Engineering Assoc.
7. ACCO
8. Truform Construction
9. Continental Studio builders
10. Fetzers Inc.
11. Sony
12. Deimitry X. Xxxxxx
13. Xxxxxx Insurance
14. Xxxxxxx Xxxxxxx;
15. International Marble
16. Devco Engineering
17. AEW
18. Xxxxx Xxxxx Company
19. Home Insurance
20. Xxx Xxxxxxx
21. GSC & Associated
22. CNA Insurance
23. Toshco
11
EXHIBIT H - DUE DILIGENCE MATERIALS
--------------------------------------------------------------------------------
24. Cleanup Technology
25. Western Office Interiors
26. American Bonding Company
27. Thetford Systems
28. Intex Services, Inc.
29. Xxxxxxxxxxx Electric
30. Xxxxxxx & Xxxxxxx
31. Civic Engineering
32. Marks & Xxxxx
33. Kirtland & Packard
34. Sedgwick, Detert, Xxxxx & Xxxxxx
35. Xxxxx Xxxxxxx & Strange
36. Dalan Engineering
37. Xxxxxxx Laboratories
38. Xxxxxxxxx & Xxxx, Inc.
39. San Marino Roofing
40. So. Cal. Millwork
41. Truform Construction
42. Orange County Plastering
43. Xxxxxx Xxxxx
44. HSP
45. Xxxxxx Painting
46. Xxxxx Xxxx Painting
47. Pacific Flooring
48. Masland Carpets
12
IV. AEW - SONY FILES
----------------
A. Sony (Also, See Iron Mountain List)
1993 Business Plan
1994 Budget From Xxxx Development
1994 Business Plan
1995 ABP
1995 ABP - Draft Budget(s)
1995 ABP - Leasing Assumptions & Market Info.
1995 ABP - Valuation
Arboretum Association
Articles
Issue: Power Outages
Issue: Remediation Program: Clean-up Technology (cut)
Issue: SCE Under Billing
Issue: Seismic/PMI. Evaluation
Issue: Soil Remediation Program
Issue: Renewal/Expansion
Litigation - 2O/20 Video v. CP Phase III, L.P., et al
Litigation - Greenwood & Co. Development Corp. x.
Xxxx Development Xxxx.xx al
Litigation - Legal Bills
Market - Water Garden Note Purchase
Market - Water Garden Phase II Sale
Marketing/Leasing
Project Notes
Roof Guarantees - Post Earthquake
Tax Appeal - 1995/1996
Valuation Strategy & Related Information (2/95)
B. IRON MOUNTAIN FILES
1.9 Sony
Bisno Dispute
Bisno Dispute - ADP's Motion for Summary Adjudication
Bisno Dispute - AEW Answer to Complaint (8/16/94)
Bisno Dispute - AEW Response to Interrogatories
Bisno Dispute - Association Issue
Bisno Dispute - Attorney Evaluation
Bisno Dispute - Comments for Public Hearing Planning Commission
Bisno Dispute - Development Agreement Amendment
Bisno Dispute - Draft EIR
Bisno Dispute - Gensfer & Associates: Urban Design
1
Issues & Principles Paper/Drawings (11/94)
Bisno Dispute - Litigation Strategy & Assessment by Xxxxxx &
Xxxxxx (9/94)
Bisno Dispute - Response to Draft EIR
Bisno Dispute - Legal Bills
Bisno Dispute - Letters To/From Adjacent Property/Land Owners
Bisno Dispute - Litigation File
Bisno Dispute - Memorandum of Right of First Refusal
Bisno Dispute - "Nuisance" Lawsuit
Bisno Dispute - Planning Staff Report/Correspondence (11/9/94)
Bisno Dispute - Proposed Market Development
Bisno Dispute - Real Estate Development Plans
Bisno Dispute - Request For Resolution via Binding Arbitration
Bisno Dispute - RTC Approval of Development Agreement (DA)
Amendment
Bisno Dispute - Settlement Agreement (Fully Executed Original)
Bisno Dispute - Settlement Proposal/Notes
Bisno Dispute - SMNSA Opposition To Summary Adjudication
Bisno Dispute - SMNSA Response to Planning Commission
Bisno Dispute - SMNSA Responses to Specially Prepared
Interrogatories (11/94)
Bisno Dispute - Status Report
Bisno Dispute - Stipulation for Protective Order & Letters
To/From RTC
Bisno Dispute - Summaries of Settlement Proposal
Bisno Dispute - Urban Design Issues & Principles
Bisno Dispute - Verified Complaint for Damages
Bisno Dispute - Zoning Administrator Appeal
Earthquake
Earthquake - Change Orders
Earthquake - Construction Related Correspondence
Earthquake - Draw Request #1
Earthquake - Draw Request #2
Earthquake - Draw Request #3
Earthquake - Draw Request #4
Earthquake - Draw Request #5
Earthquake - Draw Request #6
Earthquake - Draw Request #7
Earthquake - Draw Request #8
Earthquake - Facade Failure/O.C. Plastering
Earthquake - Landscape Planter Repairs
Earthquake - Lease Review & Settlement Discussion
Earthquake - LDC Fee Negotiation
2
Earthquake - UT Testing Report
Earthquake - Videotapes (2) of Earthquake Damage
Earthquake - Water Damage Claim & Correspondence
3
INDEX REFERENCE LIST - BOTTOM FILE DRAWER
ARBORETUM/BISNO RESTRUCTURING FILES
FILE NO. FILE NAME
AB 1.1 Arboretum/Bisno: Acquisition letters/memos/corresp
AB 2.1 Arboretum/Bisno: Market Data Information
AB 3.4 Arboretum/Bisno: TransAction Background Report
AB 3.5 Arboretum/Bisno: 0000 XXX Xxxxxxxx Xxxx
XX 4.1 Arboretum/Bisno: Xxxxx & Xxxxx Appraisal/Info.
AB 4.2 Arboretum/Bisno: Lease/Sale Proposals/Offers
AB 5.3 Arboretum/Bisno: Loan Restructuring
AB 6.1 Arboretum/Bisno: Joint Venture Agreement
AB 6.3 Arboretum/Bisno: AEW Investment Committee Minutes
AR 7.3 Arboretum/Bisno: Marketing Agreement
AB 7.6 Arboretum/Bisno: Letters of Intent
AB 7.6 Arboretum/Bisno: Supermarket Proposals
ARBORETUM/SONY MUSIC CAMPUS FILES
AS 2.1 Arboretum/Sony: West Side Office Market Data
AS 3.1 Arboretum/Sony: Hazardous Waste
AS 3.3 Arboretum/Sony: Xxxx General Contractor
AS 3.3 Arboretum/Sony: Xxxx/Okubo Review of Plans/Specs
AS 3.4 Arboretum/Sony: Owners' Representative Proposals
AS 3.6 Arboretum/Sony: 1991 Business Plan
AS 3.6.1 Arboretum/Sony: 1993 AEW Business Plan
AS 4.1 Arboretum/Sony: KTR Appraisal 11/92
AS 4.1 Arboretum/Sony: CB Appraisal 5/17/91
AS 4.1 Arboretum/Sony: Xxxxx, Chudleigh Appraisal
AS 4.1 Arboretum/Sony: LEA Assoc. Appraisal 6/21/91
AS 4.2 Arboretum/Sony: Lease/Hotel Proposal
AS 5.3 Arboretum/Sony: Credit Lyonnaise Financing
AS 5.3 Arboretum/Sony: FNBC Construction Loan/Guaranty: Enviorn.
Side Ltr.
AS 5.4 Arboretum/Sony: First Chicago
AS 5.4 Arboretum/Sony: SO PAC Restructure
AS 5.6 Arboretum/Sony: Financing Proposals
AS 5.7 Arboretum/Sony: Real Estate Taxes
AS 6.1 Arboretum/Sony: Santa Xxxxxx #7 Assoc. L.P. Agreement
AS 7.2 Arboretum/Sony: Change Orders
AS 7.2 Arboretum/Sony: Architect's Agreement (Chrlich 4/11/91)
AS 7.7 Arboretum/Sony: Release of Lot #7 - Release Docs. 5/12/91
EXHIBIT I
---------
ESCROW AGREEMENT
----------------
This Escrow Agreement (this "Agreement") is entered into as of ___________,
---------
1997, by and among Santa Xxxxxx Number Seven Associates, L.P., a Delaware
limited partnership ("Seller"), Xxxxxx Realty, L.P., a Delaware limited
------
partnership ("Buyer") and Chicago Title Insurance Company ("Escrow Holder").
----- --------------
RECITALS
--------
A. Buyer and Seller are the parties to that certain Agreement for
Purchase and Sale of 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx dated as of
June __, 1997 (the "Purchase Agreement"), pursuant to which Buyer has agreed to
------------------
purchase from Seller certain real property and improvements located at 0000
Xxxxxxxx Xxxxxx and commonly known as the Sony Arboretum Building in Santa
Monica, California and more particularly described in the Purchase Agreement, in
accordance with the terms of the Purchase Agreement. Capitalized terms used but
not defined herein shall have the meanings given to them in the Purchase
Agreement.
B. Buyer and Seller have agreed in the Purchase Agreement to establish an
escrow account with respect to certain post-closing obligations of Seller.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and intending to be legally bound hereby, Buyer, Seller and
Escrow Holder do hereby agree as follows:
1. Appointment of Escrow Agent. Seller and Buyer hereby appoint and
---------------------------
designate Escrow Holder as the escrow agent for the purposes set forth herein,
and Escrow Holder hereby accepts such appointment.
2. Deposit and Investment of Funds. Escrow Holder shall retain as of
-------------------------------
the date of this Agreement, as trustee and fiduciary of Buyer and Seller, the
Sony Lease Amount (as defined below) and the Seismic Retrofit Amount (as defined
below) in an escrow account in the name of Buyer and Seller (the "Escrow
------
Account"), to be released from such Escrow Account only in accordance with the
-------
terms of this Agreement. Escrow Holder shall invest all amounts deposited into
the Escrow Account (and all payments, collections, interest and other proceeds
of any such investments) in (i) securities that are direct obligations of the
United States of America for the full and timely payment of which the full faith
and credit of the United States of America are pledged, maturing not later than
180 days following the date of this Agreement and cancelable at any time with
prorated interest accrual and without penalty as to interest or principal or
(ii) money market accounts, bank repurchase agreements or such other investments
as Seller may direct in writing, provided that Seller covenants to Buyer that
all such investments shall be consistent with prudent institutional standards
for short-term cash management investments and involve de minimis risk of loss
of principal. Escrow Holder shall have
-1-
no liability for any loss incurred by reason of any such investments, except for
actions which result from its negligence or willful misconduct. All interest
received with respect to the amounts in the Escrow Account shall be disbursed by
Escrow Holder as provided in this Agreement.
3. Sony Lease Payments. Seller shall deposit into the Escrow
-------------------
Account, from the proceeds of the Purchase Price on the Closing Date, an amount
equal to $____________ (the "Sony Lease Amount") for the payment to Buyer of a
-----------------
supplement to base rent due and payable by Sony pursuant to the Sony Lease.
Escrow Holder shall release to Buyer from the Escrow Account, on the first day
of each month following the Closing Date and until release of the last payment
for December 1, 1997, an amount equal to $72,081.44. If the Closing Date should
occur on any date that is not the first day of the month, then the first such
release of funds to Buyer shall be made on the Closing Date and prorated
according to the number of days remaining in the month in which the Closing Date
occurs. Any amounts payable to Buyer pursuant to this paragraph shall not be
subject to increase based upon (i) any failure of Sony to pay in a full and
timely fashion any rental due under the Sony Lease or (ii) any termination or
modification of the Sony Lease by Buyer.
4. Seismic Retrofit Escrow.
-----------------------
(a) Amount of Holdback. Seller shall deposit into the Escrow Account,
------------------
from the proceeds of the Purchase Price on the Closing Date, an amount (the
"Seismic Retrofit Holdback") equal to the sum of (i) the estimated cost to
complete the Retrofit Work determined pursuant to Section 4.7 of the Purchase
Agreement (the "Seismic Retrofit Amount"); plus (ii) twenty-five percent (25%)
of the Seismic Retrofit Amount, as adjusted from time to time (the "Seismic
Retrofit Contingency"). If the estimated cost to complete the Retrofit Work is
increased after the Close of Escrow, then the Seismic Retrofit Amount and the
Seismic Retrofit Contingency shall be increased accordingly. The Retrofit Work
shall be supervised by Seller to its completion in accordance with the
Construction Contract.
(b) Progress Payments. Seller shall have the right to a release of
-----------------
portions of the Seismic Retrofit Amount upon satisfaction of the following
conditions:
i. Seller's written request (delivered not more often than
once per month) for a portion of the Seismic Retrofit Amount to be released,
delivered to Buyer and Escrow Holder along with copies of invoices evidencing
such amounts, certification by Xxxxxxx Xxxxxx that the work covered by such
request and invoices has been completed, conditional lien releases for the work
covered by the payment request and unconditional lien releases for any work
covered by prior payment requests;
ii. Seller's and the general contractor's statement of the
estimated cost to complete the Retrofit Work;
iii. Buyer's approval of the work covered by the payment
request, provided that if Buyer fails to disapprove of any such work within five
(5)
-2-
business days after receipt of such payment request, Buyer shall be deemed to
have approved of same; and
iv. Seller having deposited in the Escrow Account the amount by
which the estimated cost to complete the Retrofit Work (as adjusted from time to
time) exceeds the unfunded portion of the Seismic Retrofit Amount, plus the
amount by which the Seismic Retrofit Contingency has been increased due to the
increase in estimated cost to complete the Retrofit Work.
(c) Release of Balance of Seismic Retrofit Holdback. The Seismic
-----------------------------------------------
Retrofit Contingency shall not be released to Seller until the conditions set
forth in this Section (c) are satisfied. The unfunded portion of the Seismic
Retrofit Holdback shall be released to Seller upon the satisfaction of the
following conditions:
i. Completion of the Retrofit Work and certification by
Xxxxxxx Xxxxxx that the Retrofit Work has been completed;
ii. Correction of any work disapproved by Buyer in Buyer's
reasonable opinion, provided that if Buyer fails to disapprove of any such work
within five (5) business days after receipt of such payment request, Buyer shall
be deemed to have approved of same;
iii. Receipt of all governmental approvals, certificates of
occupancy and final sign-offs as may be required by applicable laws;
iv. Provision to Buyer of all photographs, deputy inspector's
certificates, records and descriptions of the Retrofit Work in Seller's
possession, as the same may be reasonably requested by Buyer;
v. Receipt of unconditional lien releases from the general
contractor and all subcontractors and suppliers; and
vi. The expiration of the mechanics' lien period without any
lien having been filed.
(d) Objection to Release of Funds. Escrow Holder shall release the
-----------------------------
requested funds to Seller unless Buyer delivers written notice to Escrow Holder
of its objection to such release within seven (7) business days of Buyer's
receipt of the applicable request, provided that Buyer may only object to such
release on the basis that the conditions set forth in Sections (c) and (d) above
have not been satisfied.
(e) Completion: Resolution of Disputes. Seller shall complete the
----------------------------------
Retrofit Work within one hundred eighty (180) days following the Closing Date.
If the Retrofit Work has not been completed by such date, then, in addition to
any other rights and remedies which Buyer may have, Buyer shall have a right to
the release of funds then resident in the Escrow Account with respect to the
Seismic Retrofit Amount. Buyer shall only be entitled to use such funds for the
completion of the Retrofit Work. If the
-3-
funds so released to Buyer exceed the amount necessary for Buyer to complete the
Retrofit Work; Buyer shall retain such excess. Any disputes regarding the
completion of the Retrofit Work shall be resolved by a neutral third party
agreed upon between Buyer and Seller, whose decision shall be binding. If Buyer
and Seller are unable to agree on a neutral third party, either party may apply
to the court to appoint a neutral structural engineer with experience in
projects similar to the Retrofit Work.
5. Release of Other Funds.
----------------------
(a) Seller shall have the right to withdraw from time to time any
interest accrued on funds resident in the Escrow Account.
(b) Seller shall have the right to a release of all funds then
resident in the Escrow Account with respect to the Sony Payment Amount following
the final monthly release of funds by Escrow Holder to Buyer on account of the
Sony Lease on December 1, 1997.
6. Termination. This Agreement shall terminate upon the written
-----------
instruction of each of the parties to this Agreement.
7. Hold Harmless. Buyer and Seller jointly and severally hereby
-------------
agree to protect, defend, indemnify and hold harmless Escrow Holder from and
against any and all liability, claims, including without limitation demands,
losses, damages, actions and causes of action, and to reimburse expenses, costs
and reasonable attorneys' fees which Escrow Holder, at any time, may sustain or
incur in connection with this Agreement, excepting claims, demands, losses,
damages, actions and causes of action caused by the negligence or willful
misconduct of Escrow Holder. Escrow Holder may act upon any instrument or other
writing believed by it in good faith to be genuine and to have been signed or
presented by the proper person and shall not be liable to any party hereto in
connection with the performance of its duties hereunder, except for its own
negligence or willful misconduct. Escrow Holder's duties shall be determined
only with reference to this Escrow Agreement and applicable laws, and Escrow
Holder is not charged with knowledge of or any duties or responsibilities in
connection with any other document or agreement. If in doubt as to its duties
and responsibilities hereunder, Escrow Holder may (i) consult with counsel of
its choice and shall be protected in any action taken or omitted in connection
with the written advice or opinion of such counsel; or (ii) place the matter
before any court of competent jurisdiction, transferring to the court the entire
balance of the Escrow Account, whereupon Escrow Holder shall be relieved of any
further obligations hereunder.
8. Escrow Costs and Fees. All fees and costs of Escrow Holder in
---------------------
connection with the escrow contemplated by this Agreement shall be shared
equally by Seller and Buyer.
9. Notices. All notices or other communications required or provided
-------
to be sent by either party shall be in writing and shall be sent by United
States Postal Service, postage prepaid or certified mail, return receipt
requested, by any nationally
-4-
known overnight delivery service, by courier, facsimile or in person. All
notices shall be deemed to have been given forty-eight (48) hours following
deposit in the United States Postal Service or upon delivery (as evidenced by a
courier receipt or facsimile transmission confirmation) if sent by overnight
delivery service, facsimile, courier or personally delivered. All notices shall
be addressed to the party at the address below:
To Seller: Xxxx Enterprises
00000 Xxx Xxxxxxx Xxxx. #000
Xxx Xxxxxxx, XX 00000
Attn: Mr. Xxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to: x/x XXX Xxxxxxx Xxxxxxxxxx, X.X.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attn: Xx. Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
and with a copy to: Heller, Ehrman, White & XxXxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
To Buyer: Xxxxxx Realty L.P.
0000 Xxxx Xxxxxxxx Xxxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxx & Associates
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
To Escrow Holder: Chicago Title Insurance Company
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxxx
Facsimile: (000) 000-0000
Any address or name specified above may be changed by notice given to the
addressee by the other party in accordance with this Section 7. The inability to
deliver because of a changed address of which no notice was given, or rejection
or other refusal to accept any notice, shall be deemed to be the receipt of the
notice as of the date of such
-5-
inability to deliver or rejection or refusal to accept. Any notice to be given
by any party hereto may be given by the counsel for such party.
10. Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California.
11. Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the parties and their respective successors and assigns.
12. Attorneys' Fees. In the event any dispute between Buyer and
---------------
Seller should result in litigation, the prevailing party shall be reimbursed for
all reasonable costs incurred in connection with such litigation, including,
without limitation, reasonable attorneys' fees.
13. Miscellaneous. This Agreement may be executed in two or more
-------------
counterparts, each of which shall be a duplicate original and all of which shall
constitute one and the same agreement. No amendment or modification of this
Agreement shall be effective unless in writing and executed by each of the
parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
BUYER:
SELLER:
XXXXXX REALTY L.P., a Delaware
SANTA XXXXXX NUMBER SEVEN limited partnership
ASSOCIATES L.P., a Delaware limited
partnership
By: Xxxxxx Realty Corporation,
By: COLORADO PHASE III, L.P.,a Maryland corporation
California limited partnership Its General Partner
Its General Partner
By:___________________________
By: COLORADO PHASE III, Name:_________________________
INC., a California Title:________________________
corporation
Its General Partner
By:___________________________
By: ___________________ Name:_________________________
Title:________________________
Name:__________________
Title:_________________
-6-
ESCROW HOLDER:
CHICAGO TITLE INSURANCE COMPANY
By: _______________________
Its:_______________________
-7-
EXHIBIT J
FORM OF SONY ESTOPPEL
-1-
ESTOPPEL CERTIFICATE
TO: XXXXXX REALTY, L.P.
0000 Xxxx Xxxxxxxx Xxxxxxx
Xx Xxxxxxx, XX 00000
Attn; Xx. Xxxxxxx X. Xxxxxx
LEASE: OFFICE LEASE by and between SANTA XXXXXX NUMBER SEVEN ASSOCIATES, L.P.
("Landlord") and SONY MUSIC ENTERTAINMENT INC.("Tenant") dated January
1, 1997 (the "Lease"), regarding the real property and improvements
located at 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx (the
"Premises")
XXXXXX REALTY L.P., a Maryland limited partnership ("Purchaser") has
entered into a purchase agreement with Landlord for the purchase of the real
property and improvements located at 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx,
Xxxxxxxxxx, along with the assignment of Landlord's leasehold interest in the
Lease. In connection with the purchase and assignment, Tenant's certification
to the terms and conditions of the Lease are necessary.
The undersigned hereby certifies to Purchaser as follows, with the
understanding that Purchaser has agrees to purchase the real property and
improvements, which includes the Premises, and that Purchaser and Purchaser's
lenders and successors and assigns will be relying on this certificate in
connection with such purchase:
1. Attached to this certificate is a true, correct and complete copy of the
Lease covering the Premises. The Lease is in full force and effect and has not
been amended, modified or supplemented, and constitutes a legally enforceable
and legally binding obligation of Tenant. The Lease represents the entire
agreement between Tenant and Landlord with respect to the Premises.
2. The commencement date of the Lease was JANUARY 1, 1997 and the term will
expire on DECEMBER 31, 2003. Tenant has TWo (2) options to extend the term of
the Lease for an additional term of FIVE (5) YEARS each. Tenant does not have
any other rights to renew or extend the term of the Lease.
3. The monthly rent, not including any additional rent, presently payable
under the terms of the Lease is equal to one-twelfth (1/12) of the annual Base
Rent as noted on the Base Rent Schedule attached hereto to this Estoppel
Certificate. The monthly rent, not including any additional rent, has been paid
through JUNE 30, 1997. No rent or other charges under the Lease have been paid
for more than thirty (30) days in advance of its due date. Tenant has no right
to any free rent, tenant improvement allowance or other concession (rental or
otherwise) or similar compensation.
4. There has been no security deposit or any other deposit of funds held by
Landlord under the terms of the Lease.
Estoppel Certificate
Page 2
5. The Landlord under the Lease is not in default of any provision under the
Lease and no event has occurred which, with the passage of time or giving of
notice or both, would constitute a default by the Landlord under the Lease. As
of the date hereof, Tenant has no right of setoff or counterclaim against the
Landlord under the Lease.
6. Tenant is obligated under the terms of the Lease to lease and pay for 230
reserved, subterranean parking spaces, and 45 uncovered, unreserved, surface
parking spaces. Tenant is being provided 230 reserved, subterranean parking
spaces in the parking garage. Tenant is presently paying One Hundred Twenty-Five
Dollars ($125) per month for each subterranean parking space and Sixty Dollars
($60) per month for each surface parking space. Tenant has not presently
exercised the option to lease an additional 38 uncovered, unreserved surface
parking spaces.
7. This Estoppel Certificate may be relied upon by Purchaser and Purchaser's
lenders, successors and assigns.
8. The provisions of this Estoppel Certificate shall be binding on the
undersigned and its successors and assigns and shall inure to the benefit of the
Purchaser and its successors and assigns.
IN WITNESS WHEREOF, this Estoppel Certificate has been duly executed and
delivered by the Tenant as of ________________ 1997.
"Tenant"
SONY MUSIC ENTERTAINMENT INC.,
a Delaware corporation
By:_______________________
Name:_____________________
Title:____________________
By:_______________________
Name:_____________________
Title:____________________
Estoppel Certificate
Page 3
The Lease and the obligations of Tenant are guaranteed by SONY CORPORATION OF
AMERICA ("Guarantor") for the benefit of the Landlord, its successors or
assigns, pursuant to EXHIBIT C - GUARANTY OF LEASE by Guarantor dated January 1,
-----------------------------
1997 (the "Guaranty"). Guarantor has read the foregoing Estoppel Certificate and
hereby certifies to Purchaser that (i) the foregoing information contained in
this Estoppel Certificate is true, correct, and complete, (ii) a true, correct,
and complete copy of the Guaranty is attached hereto, (iii) the Guaranty is in
full force and effect, and (iv) further, that there are no defaults on behalf of
the Landlord or defenses on the part of Guarantor that would affect the
obligations of Guarantor under the Guaranty or the Lease.
Signed this __ day of _______________, 1997
"Guarantor"
SONY CORPORATION OF AMERICA
a New York corporation
By: _________________________
Name:________________________
Title:_______________________
By: _________________________
Name:________________________
Title:_______________________
EXHIBIT K
FORM OF DEVELOPMENT AGREEMENT ESTOPPEL
-1-
ESTOPPEL CERTIFICATE
--------------------
TO: Santa Xxxxxx Number Seven Associates, L.P.
c/o Lowe Enterprises Commercial Group
00000 Xxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Xx. ("Owner")
-----
FROM: City of Santa Xxxxxx ("City)
----
0000 Xxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
The undersigned understands that Owner is the fee owner of that
certain real property known as the Sony Music Campus located within the City of
Santa Xxxxxx and, more particularly, constituting a portion of the Real
Property, as such term is defined in that certain Development Agreement dated as
of December 16, 1987, by and between Owner, as successor-in-interest to SoPac
Properties, Inc. (with respect to a portion of the Real Property described
therein), and City (as amended and modified to date, the "Development
-----------
Agreement"). City hereby certifies the following information with respect to the
---------
Development Agreement:
1. The Development Agreement is in full force and effect and
constitutes a binding obligation of the parties.
2. The Development Agreement has not been amended or modified,
either orally or in writing, except by the following written amendments:
a. Memorandum of Clarification dated as of December 16, 1987,
between the City and SoPac Properties, Inc.
b. Second Memorandum of Clarification dated as of December 16,
1987, between the City, and SoPac Properties, Inc. and SoPac Development Co.
c. Amendment Number One to Development Agreement dated as of
December 28, 1988, between the City and SoPac Properties, Inc., which was
recorded in the Official Records of the County of Los Angeles on January 5, 1989
as Instrument Number 89-15234.
d. Amendment Number Two to Development Agreement dated as of
March 16, 1995, between the City and Arboretum Development Partners, L.P., which
was recorded in the Official Records of the County of Los Angeles on April 11,
1995 as Instrument Number 95-504419.
3. Owner is not in default in the performance of its obligations
under the Development Agreement, except as described on Attachment "1" attached
hereto and incorporated herein by this reference.
4. City acknowledges that this Estoppel Certificate may be relied
upon by Owner, by any transferee of Owner's interest in the Development
Agreement, or any Mortgagee (as such term is defined in the Development
Agreement).
This Estoppel Certificate has been executed by the City as of
____________________________, 1997.
Approved as to form: CITY OF SANTA XXXXXX, a Municipal corporation
____________________________ By:__________________________________________
City Attorney
Attest:______________________________________
Attachment "1"
Nature and Amount of Default
EXHIBIT L
FORM OF MTA LEASE ESTOPPEL
LESSOR'S ESTOPPEL CERTIFICATE
TO XXXXXX REALTY L.P.
0000 Xxxx Xxxxxxxx Xxxxxxx
Xx Xxxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
LEASE: Commercial Lease by and between METROPOLITAN TRANSIT AUTHORITY OF LOS
ANGELES ("Lessor"), successor in interest to SOUTHERN PACIFIC
TRANSPORTATION COMPANY and SANTA XXXXXX PLUMBER SEVEN ASSOCIATES
("Lessee"), successor in interest to XXXXXX MANUFACTURING COMPANY,
dated March 12, 1979, as amended (the "Lease"), concerning that
certain real property located in the City of Santa Xxxxxx, County of
Los Angeles, California, as illustrated on Lessor's Los Angeles
Division Drawing No. A-12498, Sheet 2, as revised September 21, 1978
(the "Premises").
The undersigned, Lessor, hereby certifies to Purchaser as follows, with the
understanding that Purchaser has agreed to purchase the leasehold interest as
Lessee in the Lease, and that Purchaser and Purchaser's lenders and successors
and assigns will be relying on this certificate in connection with such
purchase:
1. Attached to this certificate is a true, correct and complete copy of the
Lease covering the Premises. The Lease is in full force and effect and has not
been amended, modified or supplemented, except as follows:
ASSIGNMENT OF LEASE 187808, DATED FEBRUARY 11,1986; AND
ASSIGNMENT DATED FEBRUARY 22, 1989,
and the Lessee under the Lease has no other obligations to or agreements with
Lessor. True, correct and complete copies of such assignments are attached. The
Lease and the foregoing documents represent the entire agreement between Lessor
and Lessee with respect to the Premises.
2. Lessor is the successor in interest to the prior lessor, Southern Pacific
Transportation Company. Lessor's interest in the Lease or the Premises has not
been assigned, sublet, licensed, or hypothecated, and Lessor has not agreed to
do any of the foregoing.
3. The commencement date of the Lease was JUNE l, 1979 and the term will
expire on MAY 31. 2004. Lessee under the Lease has THREE (3) options to extend
the term of the Lease for an additional term of FIVE (S) YEARS each.
4. The monthly rent presently payable under the terms of the Lease is
S2,300.00. The
Estoppel Certificate
Page 2
monthly rent has been paid through JUNE 30, 1997, and is current The monthly
rent shall increase to $2,990.00 per month commencing JUNE 1, 1999 through MAY
31, 2004. The rent during the option periods shall be the reasonable and fair
rental value established bY the parties pursuant to the terms of the Lease.
5 The Lessee is not in, and the use of the Premises by Lessee does not
constitute, a default of any provision under the Lease. No event has occurred
which, with the passage of time or giving of notice or both, would constitute a
default by Lessee under the Lease.
6. The provisions of this certificate shall be binding on the undersigned and
its successors and assigns and shall inure to the benefit of Purchaser and its
successors and assigns.
7. This certificate may be relied upon by Purchaser and Purchaser's lenders,
successors and assigns.
IN WITNESS WHEREOF, this certificate has been duly executed and delivered
by the Lessor as of________ 1997.
"Lessor"
METROPOLITAN TRANSIT AUTHORITY OF LOS ANGELES
a municipal corporation
By:_____________________
Name:___________________
Title:__________________
By:_____________________
Name:___________________
Title:__________________
EXHIBIT M
FORM OF THETFORD ASSIGNMENT
-2 -
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Xxxxx & Associates
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
________________________________________________________________________________
ASSIGNMENT [OF] AND ASSUMPTION
---
OF
WASTEWATER TREATMENT AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF WASTEWATER TREATMENT AGREEMENT (the
"ASSIGNMENT") is entered into as of this _ day of_________, 1997, by and between
SANTA XXXXXX NUMBER SEVEN ASSOCIATES, L.P., a Delaware limited partnership
("ASSIGNOR") and XXXXXX REALTY L.P., a Maryland limited partnership ("ASSIGNEE")
with reference to the following facts:
1. Recitals.
---------
1.1 Assignor is the owner of that certain real property located in the
City of Santa Xxxxxx, County of Los Angeles, State of California, as more fully
described in EXHIBIT A, attached hereto, together with all buildings and other
---------
improvements thereon ("the PROPERTY"). The Property is being conveyed to
Assignee pursuant to the terms and conditions of that certain Agreement for
Purchase and Sale of 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx (the
"PURCHASE AGREEMENT") by and between Assignor and Assignee.
1.2 Assignor succeeded to the interest of Santa Xxxxxx Xxxx partners,
L.P., a Delaware limited partnership ("SMLP") in that certain Wastewater
Treatment Agreement (the "Agreement") dated August 21, 1991 by and between SMLP
and THETFORD SYSTEMS, INC., a Michigan corporation ("THETFORD"), a memorandum of
which was recorded January 6, 1992 as Instrument No. 92-20062 in the official
records of the Los Angeles County Recorder's Office. The Agreement provides for
the construction, operation and maintenance of a wastewater treatment facility
to be located on the adjoining Property by Thetford, and further, that Thetford
would
accept, treat, filter and recycle wastewater from the site for renewable four
(4) year terms.
1.3 The Purchase Agreement contemplates that Assignor will assign its
rights, obligations and interests in and to the Agreement to Assignee and that
Assignee will assume Assignor's obligations thereunder.
1.4 Accordingly, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree
as follows.
2. The effective date of this Assignment shall be the date first above
written.
3. Assignor is the successor in interest to SMLP, and Assignor has the proper
authority, power and right to assign all of SMLP's interests in the Agreement to
Assignee.
4. Assignor hereby assigns, transfers and conveys to Assignee all of its
rights, obligations, and interests in and to the Agreement. Assignor hereby
covenants and warrants to Assignee that Assignor shall remain liable for all of
its obligations accruing prior to the effective date of this Assignment.
Assignor shall indemnify and defend Assignee, and hold Assignee, its successor
and assigns, harmless against any and all claims, demands, liabilities, costs,
judgments, or expenses of any kind or nature arising out of any matter relating
to the Agreement prior to the effective date of the Assignment hereof.
5. Assignee hereby acknowledges that the Assignment of the Agreement is
subject to the terms, covenants, and conditions of the Purchase Agreement.
6. Assignee hereby accepts all of the rights, obligations, and interests of
Assignor in the Agreement, and assumes all of Assignor's obligations arising
from and after the effective date of this Assignment. Assignee specifically
---------------------
assumes all of Assignor's obligations with respect to the cost of upgrading the
-------------------------------------------------------------------------------
wastewater treatment facility so that it is fully operational. Assignee shall
--------------------------------------------------------------
indemnify and defend Assignor, and hold Assignor harmless against any and all
claims, demands, liabilities, costs, judgments, or expenses of any kind or
nature arising out of any matter relating to the Agreement subsequent to the
effective date of the Assignment hereof.
7. The provisions of this Assignment shall be binding upon and inure to the
benefit of Assignor and Assignee, and their respective successors and permitted
assigns.
8. This Assignment may be executed in counterparts, all of which when taken
- ------------------------------------------------------------------------
together shall
--------------
2
CONSTITUTE ONE AGREEMENT
------------------------
IN WITNESS WHEREOF, the parties have executed this Assignment effective as
of the date first above written.
"Assignor"
SANTA XXXXXX NUMBER SEVEN ASSOCIATES, L.P.
a Delaware Limited partnership
By: COLORADO PLACE PHASE III, L.p.,
-------------------------------
A CALIFORNIA LIMITED PARTNERSHIP
-------------------------------
ITS GENERAL PARTNER
-------------------
BY: COLORADO PLACE PHASE III, INC.,
-----------------------------------
A CALIFORNIA CORPORATION
-------------------------------
ITS GENERAL PARTNER
-------------------------
BY:
-----------------------------------
PRINT NAME:
-----------------------------------
ITS:
-----------------------------------
BY:----------------------------
PRINT NAME:--------------------
ITS:---------------------------
"Assignee"
XXXXXX REALTY L.P.,
A DELAWARE LIMITED PARTNERSHIP
BY: XXXXXX REALTY CORPORATION.
-----------------------------
A MARYLAND CORPORATION.
---------------------------
ITS GENERAL PARTNER
-----------------------
BY:
-----------------------------------
PRINT NAME:
-----------------------------------
ITS:
-----------------------------------
BY:
-----------------------------------
PRINT NAME:
-----------------------------------
Its:
-----------------------------------
0
Xxxxx xx Xxxxxxxxxx
Xxxxxx xx Xxx Xxxxxxx
On__________ before me_______________________________), personally
appeared______________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature__________________(Seal)
State of California
County of Los Angeles
On__________________before me_________________________), personally
appeared ________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s)) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s),acted, executed the instrument.
WITNESS my hand and official seal.
Signature__________________(Seal)
4
CONSENT TO ASSIGNMENT
The undersigned, THETFORD SYSTEMS. INC., hereby consents to the Assignment of
the Wastewater Treatment Agreement from Assignor to Assignee, and Assignee being
substituted as the facility user in the Agreement, subject to all of the terms,
covenants and conditions as set forth in the Agreement.
THETFORD SYSTEMS, INC.,
a Michigan corporation
By:_______________________________
Name:_____________________________
Title:____________________________
By:_______________________________
Name:_____________________________
Title:____________________________
State of California
County of Los Angeles
On_______________before me______________________), personally appeared
________________________, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed thE instrument.
WITNESS my hand and official seal.
Signature___________________(Seal)
6
EXHIBIT A
---------
LEGAL DESCRIPTION
-----------------
