AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS
between
XXXXX XXXXXX AND XXXXXX XXXXXX, Co-Trustees of the Silagi Family Trust,
CONEJO BUSINESS PARK, LLC, a California limited liability company,
MARIN CORPORATE CENTER LLC, a California limited liability company, and
EVERGREEN PLAZA LLC, a California limited partnership
as Seller
and
ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
as Buyer
TABLE OF CONTENTS
Page
1. DEFINITIONS 1
1.1 "Appurtenances 1
1.2 "Assignments of Intangible Property 1
1.3 "Assignments of Leases 2
1.4 "Bills of Sale 2
1.5 "Closing 2
1.6 "Closing Date 2
1.7 "Code 2
1.8 "Deeds 2
1.9 "Deposit 2
1.10 "Due Diligence Period 2
1.11 "Escrow Holder 2
1.12 "Fixtures 2
1.13 "Governmental Regulations 3
1.14 "Hazardous Materials 3
1.15 "Intangible Property" 3
1.17 "Land 3
1.18 "Leases 4
1.19 "Licenses and Permits 4
1.20 "Notices To Tenants 4
1.21 "Personal Property 4
1.22 "Property" or "Properties" 4
1.23 "Purchase Price 4
1.24 "Real Property 4
1.25 "Records and Plans 4
1.26 "Service Contracts 5
1.27 "Tenant Estoppels 5
1.28 "Title Company 5
1.29 "Title Policy 5
1.30 "Transferor's Certificate 5
1.31 "Warranties 5
1.32 "Thousand Oaks Xxxxxxx Xxxxx" 0
0.00 "Xxxxxx Xxxxx" 0
1.34 "Pennsfield Plaza" 5
1.35 "Conejo Business Park" 6
1.36 "Marin Corporate Center" 6
1.37 "Evergreen Plaza" 6
2. ESCROW 6
3. AGREEMENT TO SELL; PURCHASE PRICE 6
3.1 Deposit 6
3.2 Balance of Purchase Price 6
3.3 Adjustment of Purchase Price 7
4. DELIVERIES AT CLOSING; CLOSING PROCEDURES 7
4.1 By Seller 7
4.2 By Buyer 8
4.3 By Buyer and Seller 8
4.4 Closing Procedures 8
5. REPRESENTATIONS AND WARRANTIES 9
5.1 Seller's Representations and Warranties. 9
5.1.1 Organization 9
5.1.2 Non-foreign Person 9
5.1.3 Personal Property Owner 10
5.1.4 No Prior Transfers - Property 10
5.1.5 Agreements 10
5.1.6 No Litigation 10
5.1.7 Notice of Violations 10
5.1.8 Hazardous Materials 10
5.1.9 Use Permits and Other
Approvals 11
5.1.10 Compliance with Agreements 11
5.1.11 Financial Position 11
5.1.12 Agreements 11
5.1.13 Insolvency 11
5.1.14 Governmental Actions 11
5.1.15 Brokers 11
5.1.16 Leases 11
5.1.17 Exhibits; Schedules 12
5.1.18 Continuing Representation 12
5.2 Buyer's Representations and Warranties. 12
5.2.1 Organization 12
6. SELLER'S OBLIGATIONS 12
6.1 Further Liens and Encumbrances 12
6.2 Leases; Other Contracts; Interim
Activities 13
6.3 Property Management and Operation 13
6.4 Compliance with Laws 13
6.5 Actions Pending 13
6.6 Insurance Policies 13
6.7 Leasing Commissions 13
6.8 Cooperation with Representatives 14
6.9 No Removal of Personal Property 14
6.10 Obtaining Estoppels and Consents 14
6.15 Change in Condition 15
7. TITLE TO REAL PROPERTY 15
8. CONDITIONS PRECEDENT/CONCURRENT TO CLOSING; CLOSING
DATE 15
8.1 Buyer's Conditions 15
8.1.1 Representations, Warranties
and Covenants of Seller 15
8.1.2 Seller's Deliveries 15
8.1.3 No Material Changes 15
8.1.4 Delivery of Pre-Closing
Documents and Agreements 16
8.1.5 Title Insurance 16
8.1.6 Due Diligence Approval 17
8.1.7 Miscellaneous Information and
Documentation 17
8.1.8 Exhibits and Schedules 17
8.1.9 Estoppel Certificates 17
8.1.10 Loan Assumption 17
9. DUE DILIGENCE PERIOD 17
9.1 Matters To Be Reviewed 17
9.1.1 Title 17
9.1.2 Inspections and Studies 18
9.1.3 Indemnity 20
9.2 Notice of Objections 20
9.3 Election Not to Purchase One or More
Properties 20
10. PRORATIONS 21
10.1 Current Rent 21
10.2 Percentage Rent 21
10.3 Rent Arrears 21
10.4 Security Deposits 21
10.5 Other Tenant Charges 21
10.6 Utility Charges 21
10.7 Other Prorations 21
10.8 Free Rent 22
10.9 Preliminary Closing Adjustment 22
10.10 Post-Closing Reconciliation 22
10.11 Survival 22
11. COSTS AND EXPENSES 22
11.1 Seller 22
11.2 Other Closing Costs 22
11.3 Delivery of Possession 22
12. GENERAL INDEMNIFICATION. 23
13. CONDEMNATION AND DESTRUCTION 23
13.1 Eminent Domain or Taking 23
13.2 Damage or Destruction 24
14. REMEDIES 25
14.1 Buyer's Remedies 25
14.2 Seller's Remedies 26
15. LOAN ASSUMPTION 27
15.1 Loan Assumption Contingency 27
15.2 Defined Terms 27
16. MARKETING 27
17. BROKERAGE COMMISSIONS 27
18. NOTICE 28
19. MISCELLANEOUS 29
19.1 Survival 29
19.2 No Assumption by Buyer or Buyers 29
19.3 Parties in Interest 29
19.4 Section Headings 29
19.5 No Oral Modifications 29
19.6 Full Integration 29
19.7 Binding Effect 30
19.8 Seller's Advice of Counsel 30
19.9 Attorneys' Fees 30
19.10 Governing Law 30
19.11 Confidentiality 30
19.12 Captions 31
19.13 Severability 31
19.14 Time of the Essence 31
19.15 Non-Waiver 31
19.16 Assignment 31
19.17 Facsimile 31
19.18 Further Assurances 31
19.19 Counterparts 31
19.20 WAIVER OF JURY TRIAL 31
19.21 Arbitration 32
20. AS-IS 32
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW
INSTRUCTIONS ("Agreement") dated as of the 1st day of August,
1997 is by and between Xxxxx Xxxxxx and Xxxxxx Xxxxxx, Co-
Trustees of the Silagi Family Trust (the "Trust"), Conejo
Business Park, LLC, a California limited liability company
("Conejo LLC"), Marin Corporate Center LLC, a California limited
liability company ("Marin LLC"), and Evergreen Plaza LLC, a
California limited partnership ("Evergreen LLC") (collectively,
"Seller"), and Arden Realty Limited Partnership, a Maryland
limited partnership ("Buyer"). Capitalized terms used in the
Recitals below, not otherwise defined therein, shall have the
meanings ascribed to them in Section 1 of this Agreement.
R E C I T A L S
WHEREAS, this Agreement is made and entered into with
reference to the following facts:
WHEREAS, Seller is the owner of the Property (defined
below).
WHEREAS, Buyer desires to purchase, and Seller desires
to sell, the Property on the terms and conditions set forth in
this Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing
recitals, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Buyer
and Seller agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the
following terms shall have the following meanings:
1.1 "Appurtenances" means all Seller's interest
in all rights, privileges and easements appurtenant to the Land,
including, without limitation, all minerals, oil, gas and other
hydrocarbon substances in, on and under the Land, as well as all
development rights, air rights, water, water rights and water
stock relating to the Land and any other easements appurtenant to
the Land.
1.2 "Assignments of Intangible Property" means
the Assignments of Intangible Property and Service Contracts, to
be duly executed and delivered by Seller in accordance with
Section 4.1 of this Agreement, assigning to Buyer all of Seller's
right, title and interest in and to the Intangible Property and
Service Contracts. The Assignments of Intangible Property shall
each be in the form of, and upon the terms contained in,
Exhibit "B".
1.3 "Assignments of Leases" means the Assignments
of Leases, to be duly executed and delivered by Seller in
accordance with Section 4.1 of this Agreement, assigning to Buyer
all of Seller's right, title and interest in and to the Leases.
The Assignments of Leases shall each be in the form of, and upon
the terms contained in, Exhibit "C".
1.4 "Bills of Sale" means the Bills of Sale, to
be duly executed and delivered by Seller in accordance with
Section 4.1 of this Agreement, conveying to Buyer all of the
Personal Property. The Bills of Sale shall each be in the form
of, and upon the terms contained in, Exhibit "D".
1.5 "Closing" means the consummation of the
conveyances of the Property, the Leases and the other
transactions contemplated under this Agreement, all of which
shall occur on or before the Closing Date.
1.6 "Closing Date" means the later of (i) the
first business day which is three (3) days following the end of
the Due Diligence Period, or (ii) the first business day which is
two (2) days following the date the condition set forth in
Section 15 is fully satisfied, unless otherwise mutually agreed
to in writing by Buyer and Seller or extended pursuant to the
terms of this Agreement.
1.7 "Code" means the United States Internal
Revenue Code of 1986, as amended.
1.8 "Deeds" means the Grant Deeds, to be duly
executed, acknowledged and delivered in recordable form by Seller
in accordance with Section 4.1 of this Agreement, conveying to
Buyer good and marketable fee simple title to the Real Property.
The Deeds shall each be in the form of, and upon the terms
contained in, Exhibit "E".
1.9 "Deposit" means the sum of Two Hundred
Thousand Dollars ($200,000.00) to be delivered within one (1)
business day after the mutual execution of this Agreement by
Buyer and Seller and delivery of the same to Escrow Holder in
accordance with Section 3.1 of this Agreement.
1.10 "Due Diligence Period" means the period
commencing on the date this Agreement is executed and delivered
by both Buyer and Seller and ending at 6:00 p.m. (California
time) on the first business day which is thirty (30) days after
the date that this Agreement has been mutually executed and
delivered by both parties.
1.11 "Escrow Holder" means Chicago Title Insurance
Company, 000 X. Xxxxxx Xx., Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx,
Attention: Xx. Xxxxx Xxxxxx.
1.12 "Fixtures" means all fixtures placed on,
attached to, or located at and used in connection with the
operation of, the Land.
1.13 "Governmental Regulations" means any local,
state, and federal laws, ordinances, rules, requirements,
resolutions, policy statements and regulations (including, with
out limitation, those relating to land use, subdivision, zoning,
environmental, labor relations, notification of sale to employer,
Hazardous Materials, occupational health and safety, water,
earthquake hazard reduction and building and fire codes) bearing
on the construction, development, alteration, rehabilitation,
maintenance, use, operation, or sale of the Property.
1.14 "Hazardous Materials" means any hazardous or
toxic substance, material or waste which is or becomes regulated
by any local governmental authority, any agency of the State of
California or any agency of the United States Government. The
term "Hazardous Materials" includes, without limitation, any
material or substance which (a) contains petroleum or any
petroleum by-products, (b) contains asbestos, (c) contains urea
formaldehyde foam insulation, (d) is designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution
Control Act (33 U.S.C. ' 1317), (e) is defined as a "hazardous
waste" pursuant to Section 1004 of the Federal Resource
Conservation and Recovery Act, 42 U.S.C. ' 6901 (42 U.S.C.
' 6903), or (f) is defined as a "hazardous substance" pursuant to
Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. ' 9601 (42 U.S.C.
' 9601). Each reference to a statute or law in this definition
shall be deemed to include any amendments thereto which are
enacted from time to time.
1.15 "Intangible Property" means all of Seller's
right, title and interest in and to any and all intangible
personal property now and through the Closing Date owned by
Seller and/or used in connection with the ownership,
construction, development, use and/or operation of the Real
Property and/or Personal Property, including, without limitation,
the Service Contracts (to the extent approved in writing by
Buyer), the Licenses and Permits, the Intellectual Property and
the Records and Plans and the Warranties.
1.16 "Intellectual Property" means any and all
intellectual property owned by Seller or licensed to Seller and
used in connection with the ownership, use and/or operation of
the Real Property and/or Personal Property, including, without
limitation, trade names, logos, derivations, slogans and other
marks owned or used by or licensed to Seller and associated with
the Real Property and/or Personal Property.
1.17 "Land" collectively means the real property
located at (i) 0000 X. Xxxxxxxx Xxxx Xxxxxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx (commonly known as Thousand Oaks Tanning Plaza), (ii)
60 and 000 Xxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx (commonly known
as Rancho Plaza); (iii) 000 X. Xxxxxxxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx (commonly known as Pennsfield Plaza); (iv) 101, 123
and 000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx (commonly
known as Conejo Business Park); (v) 501 and 000 Xxxxx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxxxxxx (commonly known as Marin Corporate
Center); and (vi) 3653-3723 E. Thousand Oaks Boulevard, Thousand
Oaks, California (commonly known as Evergreen Plaza), as each
component of the Land is respectively described in Xxxxxxxx "X-
0," "X-0," "X-0," "X-0," "X-0" and "A-6."
1.18 "Leases" means all existing leases, rental
and occupancy agreements and lease commitments relating to the
Real Property, including those Leases which are listed on
Exhibits "F-1," "F-2," "F-3," "F-4," "F-5" and "F-6,"
respectively, together with any and all leases which are entered
into after the date of this Agreement in accordance with
Section 6.2 of this Agreement.
1.19 "Licenses and Permits" means all of Seller's
right, title, interests, privileges, benefits and remedies in, to
and under all authorizations, approvals, permits, certificates of
occupancy, licenses, agreements, variances, tentative maps, final
maps, plans and specifications and land use entitlements held by
Seller and/or relating to the construction, reconstruction,
occupancy, operation or use of any part of the Real Property or
Personal Property.
1.20 "Notices To Tenants" means notices from
Seller to all tenants who are parties to any of the Leases
whereby such tenants are notified that the Property has been
transferred by Seller to Buyer and instructing them to pay any
and all rents and other sums payable under the Leases from and
after the Closing directly to Buyer or as otherwise directed by
Buyer, in the form of Exhibit "G".
1.21 "Personal Property" means all personal
property of Seller located on or in or used in connection with
the Real Property, including those items set forth on Exhibits "H-
0," "X-0," "X-0," "X-0," "H-5" and "H-6," respectively.
1.22 "Property" or "Properties" collectively means
the Real Property, the Personal Property and the Intangible
Property.
1.23 "Purchase Price" means the sum of Thirty-Five
Million Five Hundred Fifty-Six Thousand Three Hundred Eighty
Seven Dollars ($35,556,387), subject to the terms of Section 3.3
below.
1.24 "Real Property" means the Land, the
improvements situated on the Land, the Fixtures and the Appurten
ances.
1.25 "Records and Plans" means (a) all books and
records maintained in connection with the ownership, development,
construction, maintenance or operation of the Property, (b) all
preliminary, final and "as-built" plans and specifications
respecting the Real Property, and (c) all structural reviews,
architectural drawings, topographical maps and engineering, soil,
seismic, environmental, asbestos, geologic and architectural
reports, studies and certificates and other documents pertaining
to the Real Property (including those which include comments by
any building or safety engineer, inspector or other person who
regularly makes such inspections) which are within the possession
of, under the control of, or reasonably available to, Seller.
1.26 "Service Contracts" means the maintenance
contracts, equipment leases, warranties, guarantees, management
contracts and bonds, and any other similar obligations,
commitments or arrangements, together with all supplements,
amendments and modifications thereto, relating to the
construction, development, marketing, operation, maintenance or
enjoyment of the Property, which are set forth on Exhibits "I-1",
"X-0," "X-0," "X-0", "X-0", and "I-6" respectively, attached to
this Agreement.
1.27 "Tenant Estoppels" means written statements
in the form of, and upon the terms contained in, Exhibit "J", in
favor of Buyer from each of the tenants who are parties to any of
the Leases, dated not earlier than fifteen (15) days prior to the
Closing Date.
1.28 "Title Company" means Chicago Title Company.
1.29 "Title Policy" means an ALTA owner's title
policy (Form B-1970) issued by the Title Company for the benefit
of Buyer, which Title Policy shall have a liability limit in the
amount of the Purchase Price, shall include those endorsements
requested by Buyer and shall show only those matters which
constitute Permitted Exceptions (defined below).
1.30 "Transferor's Certificate" means the
certificate, to be duly executed by Seller under penalty of
perjury and delivered by Seller in accordance with Section 4.1 of
this Agreement, certifying that Seller is not a "foreign person"
in accordance with the provisions of Section 1445 of the Code and
any similar provisions of applicable state law. The Transferor's
Certificate shall be in the form of, and upon the terms contained
in, Exhibit "K".
1.31 "Warranties" means all third party warranties
and guarantees relating to the Property, including any
instruction books (e.g., for vertical transportation, HVAC and
other building systems).
1.32 "Thousand Oaks Tanning Plaza" means the
Real Property, Personal Property and Intangible Property related
solely to the real property located at 0000 X. Xxxxxxxx Xxxx
Xxxx., Xxxxxxxx Xxxx, Xxxxxxxxxx.
1.33 "Rancho Plaza" means the Real Property,
Personal Property and Intangible Property related solely to the
real property located at 60 and 000 Xxxxxx Xxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx.
1.34 "Pennsfield Plaza" means the Real
Property, Personal Property and Intangible Property related
solely to the real property located at 000 X. Xxxxxxxxxx Xxxxx,
Xxxxxxxx Xxxx, Xxxxxxxxxx.
1.35 "Conejo Business Park" means the Real
Property, Personal Property and Intangible Property related
solely to the real property located at 101, 123 and 000 Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
1.36 "Marin Corporate Center" means the Real
Property, Personal Property and Intangible Property related
solely to the real property located at 501 and 000 Xxxx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxxxxxx.
1.37 "Evergreen Plaza" means the Real
Property, Personal Property and Intangible Property related
solely to the real property located at 3653-3723 E. Thousand Oaks
Boulevard, Thousand Oaks, California.
2. ESCROW. The purchase and sale of the Property
shall be consummated through an escrow at Escrow Holder. As soon
as reasonably practicable following the mutual execution of this
Agreement, but in no event later than three (3) days after the
date of this Agreement, the parties shall deliver to Escrow
Holder a fully executed counterpart of this Agreement, which
shall constitute its escrow instructions. The parties shall
execute such additional escrow instructions, not inconsistent
with this Agreement, as Escrow Holder shall deem reasonably
necessary for its protection. In the event of any conflict
between this Agreement and any additional escrow instructions,
the terms of this Agreement shall govern.
3. AGREEMENT TO SELL; PURCHASE PRICE. Seller agrees
to sell to Buyer, and Buyer agrees to purchase from Seller, the
Property in accordance with the terms, and subject to the
conditions, of this Agreement. The Purchase Price for the
Property will be paid as follows:
3.1 Deposit. Within one (1) business day after
the execution of this Agreement by Buyer and Seller and delivery
of the same to Escrow Holder, Buyer will deliver the Deposit to
Escrow Holder to hold in trust. Escrow Holder will invest the
Deposit in an interest bearing account with a responsible
federally-insured institutional lender approved by Buyer, and
interest will be for the account of Buyer except as otherwise
provided in this Agreement and will be credited against the
Purchase Price at Closing.
3.2 Balance of Purchase Price. The entire
balance of the Purchase Price less, if Buyer assumes the Existing
Loans (defined in Section 15 below), the outstanding principal
balance plus any accrued interest and other amounts due and owing
under the Existing Loans as of the Closing Date (after also
taking into account the adjustments described in Sections 10 and
11), shall be paid to Seller, through Escrow Holder, at Closing.
3.3 Allocation of Purchase Price. The Purchase
Price is allocated between the Properties as follows:
(a) Thousand Oaks Tanning Plaza: $1,926,055
(b) Rancho Plaza: $3,000,000
(c) Pennsfield Plaza: $3,114,355
(d) Conejo Business Park: $9,289,677
(e) Marin Corporate Center: $7,156,300
(f) Evergreen Plaza: $11,070,000
3.4 Loan Assumption Credit. If Buyer assumes
the Existing Loans, the Purchase Price shall be reduced by an
amount equal to $656,382 to reflect Buyer's obligation to pay any
loan assumption fees and comply with the terms of the Existing
Loans after the Closing Date. The aforementioned loan
assumption credit shall be allocated between the following
properties in accordance with the following breakdown:
Conejo Business Park - $384,771.13 (58.62%); and
Marin Corporate Center - $271,610.87 (41.38%).
4. DELIVERIES AT CLOSING; CLOSING PROCEDURES. The
Closing will take place on the Closing Date. Buyer may elect to
close escrow on an earlier date by giving written notice to
Seller and Escrow Holder of its intent to close escrow earlier at
least five (5) days in advance of such earlier date, but such
notice shall not be binding upon Buyer, and if Buyer is not in a
position to close on the earlier date, Buyer shall have until the
Closing Date to close.
4.1 By Seller. At least two (2) business days
prior to the Closing, Seller shall deliver or cause to be
delivered to Escrow Holder (unless otherwise indicated) the
following items, duly executed and, where appropriate,
acknowledged by Seller:
4.1.1 The Deeds.
4.1.2 The Bills of Sale.
4.1.3 The Assignments of Intangible Property.
4.1.4 The Assignments of Leases.
4.1.5 The Notices to Tenants.
4.1.6 The Transferor's Certificate.
4.1.7 The Tenant Estoppels (to be delivered
directly to Buyer).
4.1.8 Such resolutions, authorizations,
certificates of good standing and/or other corporate and
partnership documents relating to Seller as are reasonably
required by Buyer in connection with the transactions
contemplated under this Agreement.
4.1.9 All such further conveyances, assign
ments, confirmations, satisfactions, releases, instruments,
affidavits, approvals, consents and any and all such further
instruments and documents as may be reasonably necessary,
appropriate, expedient or proper in the reasonable opinion of
(i) Buyer in order to effectuate and complete any and all convey
ances, transfers, sales and assignments provided in this
Agreement, or (ii) Title Company in order to issue the Title
Policy.
4.2 By Buyer. At the Closing, Buyer will deliver
or cause to be delivered to Escrow Holder or the Seller the
following items, duly executed and, where appropriate,
acknowledged by Buyer:
4.2.1 The net balance of the Purchase Price,
to be paid in accordance with Sections 3.2 of this Agreement,
after deducting the Deposit plus any interest accrued thereon,
and after taking into account the adjustments and cost
allocations in accordance with Sections 10 and 11.
4.2.2 Counterparts of the Assignments
of Intangible Property and the Assignments of Leases.
4.2.3 Such corporate resolutions, certifi
xxxxx of good standing and/or other corporate and partnership
documents relating to Buyer as are reasonably required by Seller
in connection with the transactions contemplated under this
Agreement.
4.3 By Buyer and Seller. Buyer and Seller will
each deposit such other instruments consistent with this Agree
ment as are reasonably required to effectuate the transactions
contemplated under this Agreement.
4.4 Closing Procedures. Provided that Escrow
Holder has received the documents and funds described in
Sections 4.1 and 4.2 above and has not received notice from any
party hereto either that an agreement of another party hereunder
has not been performed, that a condition set forth herein has not
been satisfied or waived or that this Agreement has terminated
(by its terms or by an election duly made hereunder), and further
provided that the issuance of, or an unconditional commitment to
issue, the Title Policy has been obtained, Escrow Holder is
authorized and instructed at 8:00 a.m. on the Closing Date to:
4.4.1 Record the Deeds with the County
Recorder of Los Angeles County, California.
4.4.2 Cause the Title Policy to be
issued by the Title Company.
4.4.3 Deliver to Buyer: the Assignments of
Leases, the Assignments of Intangible Property, the Bills of
Sale, the Transferor's Certificate, all documents and items
required to be delivered by Seller pursuant to Sections 4.1
and 8.1.4 or any other provision of this Agreement, not otherwise
previously delivered directly to Buyer, all other items deposited
by Seller with Escrow Holder pertaining to the Property, and any
funds deposited by Buyer in excess of the amount to be paid by
Buyer under the terms of this Agreement.
4.4.4 Deliver to Seller: the Purchase Price
after taking into account the adjustments and cost allocations in
accordance with Sections 10 and 11, and the Assignments of Leases
and Assignments of Intangible Property executed in counterpart by
Buyer, and any other document deposited by Buyer with Escrow
Holder for delivery to Seller at the Closing.
4.4.5 Mail the Notices to Tenants to each of
the tenants under the Leases by certified mail, return receipt
requested.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Seller's Representations and Warranties.
Seller makes the following representations and warranties to
Buyer, upon which warranties and representations Buyer has relied
and will continue to rely, all of which are true as of the date
of this Agreement and will be true and correct as of the Closing:
5.1.1 Organization. Each of the constituent
entities comprising Seller is duly organized, validly existing
and in good standing under the laws of the State of California
and is duly qualified to do business in the State of California.
The execution and delivery of this Agreement and the other
documents contemplated this Agreement by Seller, and the
performance by Seller of the obligations under this Agreement and
the other documents contemplated in this Agreement (i) are within
the power of Seller; (ii) have been duly authorized by all
requisite corporate action; and (iii) will not violate any
provision of law, any order of any court or agency of government,
the charter documents of Seller, or any indenture, agreement or
any other instrument to which Seller is a party. This Agreement
and each of the other documents described in this Agreement when
executed and delivered to Buyer, will constitute legal, valid and
binding obligations enforceable against Seller in accordance with
the terms of such documents.
5.1.2 Non-foreign Person. Seller is not a
"foreign person" as that term is defined in Section 1445(f) of
the Code and the applicable provisions of the applicable state,
if any, and the regulations issued thereunder, as amended, or any
successor thereto.
5.1.3 Personal Property Owner. Seller is the
sole owner of all personal property situated on the Real Property
(other than personal property owned by tenants under the Leases)
free of any adverse claim of any kind whatsoever, except for the
liens or security interests expressly approved by Buyer in its
sole discretion.
5.1.4 No Prior Transfers - Property. Seller
has not transferred, by sale, assignment or otherwise, to any
person, partnership, corporation or other entity, all or any
portion of any right, title or interest which it may have in and
to the Property or the Leases.
5.1.5 Agreements.
5.1.5.1 There are no contracts for
deed, land contracts or any oral or written agreements or other
executory agreements whatsoever for the assignment or transfer of
any portion(s) of the Property in effect or in existence with
respect to the Property, except those previously disclosed to
Buyer.
5.1.5.2 There are no oral or written
agreements or executory agreements whatsoever for the use and
occupancy of the Real Property other than the Leases and there
are no tenants or occupants of the Real Property except pursuant
to the Leases.
5.1.5.3 There are no management,
service, maintenance, advance booking, employment or brokerage
agreements, obligations, commitments or arrangements, written or
oral, with respect to the Real Property, except for the Service
Contracts.
5.1.6 No Litigation. There (a) is no actual
or, to the best of Seller's knowledge, threatened suit, action or
legal, administrative, arbitration or other proceeding or
governmental investigation involving or affecting the Property or
the Leases, and (b) are no judgments, decrees, or orders against
Seller, except as previously disclosed to Buyer.
5.1.7 Notice of Violations. To the best of
Seller's knowledge, Seller has (a) not received notice of any
outstanding violations, past or present, of any Governmental
Regulations, and (b) no knowledge of any condition which con
stitutes such a violation.
5.1.8 Hazardous Materials. To the best of
Seller's actual knowledge, neither Seller nor any third
parties have disposed of, generated, handled, manufactured,
stored, used, transported or discharged of any Hazardous
Materials in or about the Real Property nor are there (a) any
violations under or actions taken with respect to violations
under any Governmental Regulations, or (b) any underground
storage tanks located on or under the Land.
5.1.9 Use Permits and Other Approvals. To
the best of Seller's knowledge, the Licenses and Permits and
easements and rights of way, including proof of dedication, are
all in full force and effect.
5.1.10 Compliance with Agreements.
To the best of Seller's knowledge, no default exists under any
covenant, restriction or agreement related to or affecting the
Property or the Leases, except as previously disclosed to Buyer.
5.1.11 Financial Position. The
financial statements and all financial data heretofore delivered
to Buyer relating to Seller or the Property, including, without
limitation, the Rent Roll (defined in Section 9.1.2.3 below) and
all operating statements, are true, correct and complete in all
material respects as of the date thereof. No material adverse
change has occurred in such financial position subsequent to the
date such statements are delivered to Buyer.
5.1.12 Agreements. The Licenses and
Permits, Records and Plans, Service Contracts, Warranties, and
all other (i) books and records relating to or affecting the
Property, and (ii) contracts or documents delivered to Buyer
pursuant to this Agreement or in connection with the execution
hereof, are true, correct and complete. The Records and Plans
and Licenses and Permits have been fully paid for and are not
subject to any liens, encumbrances or claims of any kind.
5.1.13 Insolvency. There are no
attachments, execution proceedings, assignments for the benefit
of creditors, insolvency, bankruptcy, reorganization or other
proceedings pending or threatened against Seller, nor are any
such proceedings contemplated by Seller.
5.1.14 Governmental Actions. To the
best of Seller's knowledge, there are no plans, studies or
efforts by any governmental authorities or agencies or by any
other persons or entities that in any way could affect the use of
the Property or any portion thereof.
5.1.15 Brokers. Except as set forth
on Exhibit "L" attached hereto, there are no brokers' commissions
or finder's fees currently due and payable in connection with the
Leases, any extension of the Leases, or any expansion of any
existing premises being leased pursuant to the Leases.
5.1.16 Leases. Except as otherwise
set forth on Exhibit "M" attached hereto, (i) there are no
uncured monetary defaults (with or without the giving of notice
or the passage of time) and, to the best of Seller's knowledge,
no uncured non-monetary defaults (with or without the giving of
notice or the passage of time), or outstanding notices of default
or termination under the Leases; (ii) Seller, as landlord, has
received no written notice from any tenant that Seller is in
default or not complying with Seller's obligations, as landlord,
under any Lease; (iii) there are no rights of first refusal or
other rights granted to tenants respecting the purchase of the
Property; and (iv) there is no free rent or other economic
concessions granted to tenants under the Leases.
5.1.17 Exhibits; Schedules. All
exhibits and schedules to this Agreement are true, correct and
complete as of the date of this Agreement and shall be true,
correct and complete as of the Closing Date.
5.1.18 Continuing Representation. No
representation, warranty or statement of Seller in this Agreement
or in any document, certificate, schedule or other matter
furnished or to be furnished to Buyer pursuant thereto or in
connection with the transactions contemplated in this Agreement
contains or will contain any untrue statement of a material fact
or omits or will omit to state a material fact necessary to make
the statements or facts contained therein not misleading.
Notwithstanding anything to the contrary contained
herein, as to each Property, the foregoing representations and
warranties shall be deemed to be respectively given by that
entity comprising Seller which owns the respective Property. By
way of example only and not by way of limitation, the
representation in Section 5.1.8 shall be deemed to be separately
given by (i) Conejo LLC with respect to Conejo Business Park,
(ii) Marin LLC with respect to Marin Corporate Center, (iii)
Evergreen LLC with respect to Evergreen Plaza, and (iv) the Trust
with respect to each of Thousand Oaks Tanning Plaza, Rancho Plaza
and Pennsfield Plaza. Furthermore, all references to "Seller's
knowledge" shall mean and refer to the actual knowledge of Xxxxx
Xxxxxx, who is actively involved in the operation and management
of the Properties. Seller acknowledges that Xx. Xxxxxx is the
Seller representative most likely to have specific knowledge of
the matters which are the subject of the representations
contained in this Section 5.1.
5.2 Buyer's Representations and Warranties.
Buyer makes the following representations and warranties to
Seller upon which warranties and representations Seller has
relied and will continue to rely, all of which are true as of the
date of this Agreement and will be true and correct as of the
Closing:
5.2.1 Organization. Buyer is duly organized,
validly existing and in good standing under the laws of the State
of Maryland and is duly qualified to do business in the State of
California. The execution and delivery of this Agreement and the
other documents contemplated this Agreement by Buyer, and the
performance by Buyer of the obligations under this Agreement and
the other documents contemplated in this Agreement (i) are within
the power of Buyer; (ii) have been duly authorized by all
requisite partnership action and corporate action on the part of
all of its constituent corporate partners; and (iii) will not
violate any provision of law, any order of any court or agency of
government, the charter documents of Buyer or its general
partners, or any indenture, agreement or any other instrument to
which Buyer is a party. This Agreement and each of the other
documents described in this Agreement when executed and delivered
to Buyer, will constitute legal, valid and binding obligations
enforceable against Buyer in accordance with the terms of such
documents.
6. SELLER'S OBLIGATIONS. Seller hereby covenants to
Buyer, upon which covenants Buyer has relied and will continue to
rely, that for the period from the date of this Agreement through
and including the Closing Date:
6.1 Further Liens and Encumbrances. Seller will
not subject the Property to any additional liens, encumbrances,
covenants, conditions, easements, rights of way or similar
matters after the date of this Agreement. Seller will not
hereafter modify, extend, renew, replace or otherwise change any
of the terms, covenants or conditions of any of such documents,
or enter into any new agreements affecting the Property without
the prior written consent of Buyer, which consent may be withheld
in Buyer's sole and absolute discretion.
6.2 Leases; Other Contracts; Interim Activities.
Seller will not hereafter terminate, modify, extend, renew,
replace or otherwise change any of the Leases or existing
contracts or enter into new leases or contracts affecting the
Property except with the prior written consent of Buyer, which
consent (a) will not be unreasonably withheld (with respect to
any such action prior to the expiration of the Due Diligence
Period), and (b) may be withheld in Buyer's sole and absolute
discretion (with respect to any such action after the expiration
of the Due Diligence Period). From and after the expiration of
the Due Diligence Period, Seller shall not apply for or otherwise
deal with any governmental authority regarding the development,
entitlement or subdivision of the Real Property without the prior
written consent of Buyer, which may be withheld in Buyer's sole
and absolute discretion. With respect to any proposed action
hereunder by Seller prior to the expiration of the Due Diligence
Period, Buyer's consent shall be deemed given if Buyer fails to
either approve or disapprove any proposed action by Seller prior
to 6:00 p.m. California time on the day which is one (1) business
day following the day Buyer receives a written request for
approval from Seller.
6.3 Property Management and Operation. Seller
shall maintain the operation of the Property in a good and
business-like manner. Seller shall provide all services and
operate, manage and maintain the Property (including mechanical
equipment of every kind used in the operation thereof) in such a
manner that the Property shall be in the same condition on the
Closing Date as on the date of this Agreement, ordinary wear and
tear excepted. Without limiting the foregoing, Seller shall
perform all of its obligations under the Leases and the Service
Contracts.
6.4 Compliance with Laws. Seller shall comply
with all Governmental Regulations.
6.5 Actions Pending. Seller shall notify Buyer
promptly of any lawsuits, condemnation proceedings, rezoning, or
other governmental order or action or any threat thereof known to
Seller which might affect the Property or any interest of Buyer
whatsoever.
6.6 Insurance Policies. Seller shall
(a) maintain in full force and effect all existing insurance
policies through and including the Closing Date and (b) use its
best efforts to arrange for Buyer to be named as an additional
insured or contract vendee, as applicable, on such policies from
and after the date this Agreement is executed and delivered by
Buyer and Seller.
6.7 Leasing Commissions. Prior to or on the
Closing Date, Seller shall, at its sole cost and expense, pay in
full all outstanding brokerage and leasing commissions, finders
fees or like sums pertaining to any and all Leases (other than
any new leases or lease amendments that Buyer has approved in
accordance with the terms of this Agreement).
6.8 Cooperation with Representatives. Seller
shall cooperate with Buyer and its accountants, counsel and/or
other representatives in providing information and materials
pertaining to the operation and marketing of the Property,
including access to the Property. Without limiting the
generality of the foregoing, from and after the execution and
delivery of this Agreement, Seller shall allow a representative
or representatives of Buyer access to the Property for the
purpose of (a) monitoring the operation of the Property,
(b) meeting with and interviewing tenants of the Property, which
tenants shall be made available for such interviewing process,
and (c) performing such investigations and analyses of the
Property as Buyer may reasonably require.
6.9 No Removal of Personal Property. Seller will
not remove any of the Personal Property unless the Personal
Property so removed is simultaneously replaced with substantially
similar Personal Property of similar quality or utilities.
6.10 Obtaining Estoppels and Consents. Seller
shall use its best efforts to obtain all written consents from
third parties required or reasonably requested by Buyer or its
accountants, counsel or other representatives in connection with
this Agreement, including, without limitation, the Tenant
Estoppels.
6.11 Service Contracts. Seller shall deliver
notices of termination to any vendors under the Service Contracts
which have been designated in writing by Buyer to be terminated
("Disapproved Service Contract List") provided that the
Disapproved Service Contract List is delivered by Buyer to Seller
on or before the expiration of the Due Diligence Period, and
provided further that any such termination shall be conditioned
upon and effective only as of the Closing. Seller shall, within
two (2) days following the later of the expiration of the Due
Diligence Period or Buyer's delivery of the Disapproved Service
Contract List, deliver termination notices to each of the vendors
with respect to the Service Contracts so designated by Buyer in
the Disapproved Service Contract List. Seller shall be solely
responsible for all costs and expenses associated with the
termination of any of the Service Contracts set forth by Buyer in
the Disapproved Service Contract List.
6.12 Post-Closing Financial Records. As
soon as reasonably practicable following the Closing Date, Seller
shall deliver to Buyer the following information with respect to
the Property: (a) a final income statement through the Closing
Date, (b) a final cumulative general ledger through the Closing
Date, and (c) a final aged delinquency listing, including all
security deposits received by Seller.
6.13 Audit Rights. At Buyer's request at
any time from and after the date hereof until the date that is
one (1) year after the Closing Date, Seller shall, at Buyer's
expense, provide to Buyer's designated independent auditor access
to the books and records of the Property, regarding the period
for which Buyer is required to have audited financial statements
prepared with respect to the Property as may be required by the
Securities and Exchange Commission, to the extent that such
books, records and related information are in Seller's possession
or control and relate to the period during which Seller held
title to the Property. Further, Seller agrees to provide to such
auditor a representation letter regarding the books and records
of the Property, in substantially the form of Exhibit "N"
attached hereto, in connection with the normal course of auditing
the Property in accordance with generally accepted auditing
standards.
6.14 Management and Listing Agreements.
Seller agrees to terminate, at Seller's sole cost and expense,
all property management agreements and brokerage leasing
agreements effective as of the Closing Date.
6.15 Change in Condition. Seller shall promptly
notify Buyer of any change in any material condition with respect
to the Property or any event or circumstance which makes any
representation or warranty of Seller under this Agreement
materially untrue or misleading, or any covenant of Buyer or
Seller under this Agreement incapable of being performed, it
being understood that Seller's obligation to provide notice to
Buyer shall in no way relieve Seller of any liability for a
breach by Seller of any of its representations, warranties or
covenants under this Agreement.
7. TITLE TO REAL PROPERTY. At Closing, title to the
Real Property will be conveyed to Buyer by Seller by the Deeds,
subject only to the following matters ("Permitted Exceptions"):
7.1 matters of title respecting the Real Property
approved or deemed approved by Buyer in accordance with this
Agreement; and
7.2 matters affecting the condition of title to
the Real Property created by or with the written consent of
Buyer.
8. CONDITIONS PRECEDENT/CONCURRENT TO CLOSING;
CLOSING DATE.
8.1 Buyer's Conditions. Buyer shall not be
required to close the transaction provided for under this
Agreement, unless and until Buyer deems that each and every one
of the following conditions has been fulfilled:
8.1.1 Representations, Warranties and
Covenants of Seller. Seller shall have duly and timely performed
each and every covenant to be performed by Seller under this
Agreement and the representations and warranties set forth in
this Agreement shall be true and correct as of the Closing in all
respects.
8.1.2 Seller's Deliveries. Seller shall have
duly and timely delivered to Buyer all of the items described in
Section 4.1 of this Agreement.
8.1.3 No Material Changes. At the Closing,
there will be no material adverse changes in the physical or
financial condition of the Property which were discovered by
Buyer after the Due Diligence Period.
8.1.4 Delivery of Pre-Closing Documents and
Agreements. Seller shall have delivered to Buyer on or before
the Closing Date the following:
8.1.4.1 Originals of all Leases and an
updated Rent Roll current as
of Closing;
8.1.4.2 Originals of all Records and
Plans;
8.1.4.3 Originals of all Licenses and
Permits;
8.1.4.4 Originals of all Service
Contracts;
8.1.4.5 Originals of all Warranties;
8.1.4.6 Final Certificates of
Occupancy respecting all
premises at the Property, to
the extent the same are in
Seller's possession or
control;
8.1.4.7 Copies of any and all other
written contracts, agreements
or documents and any other
matters affecting the
Property, and such other
documents and information as
Buyer may reasonably request;
and
8.1.4.8 Estoppel certificates or
consents in form and substance
as Buyer may require in its
sole and absolute discretion
relating to any Service
Contracts which are to remain
in effect after the Closing
Date.
8.1.4.9 All current real estate and
personal property tax bills
for the Property.
8.1.4.10Keys to all doors on any
structures and improvements
situated on the Land, and keys
to all Personal Property
located on the Real Property,
which keys shall be properly
tagged for identification.
8.1.5 Title Insurance. The Title Company
will have issued or have unconditionally and irrevocably
committed to issue the Title Policy to Buyer.
8.1.6 Due Diligence Approval. Buyer shall
have approved (or be deemed to have approved) all matters to be
reviewed in accordance with Section 9 of this Agreement.
8.1.7 Miscellaneous Information and
Documentation. Seller shall have delivered to Buyer all of the
information and documentation required by this Agreement and
Seller shall have satisfied and complied with all of its
covenants and agreements contained herein.
8.1.8 Exhibits and Schedules. On the Closing
Date, Seller shall have updated each of the Exhibits and
Schedules attached hereto, so that, the same are true and
accurate as of the Closing Date, and Buyer, as applicable, shall
have approved any changes therein at its sole and absolute
discretion.
8.1.9 Estoppel Certificates. Seller
shall have delivered to Buyer Tenant Estoppels executed by
tenants occupying (i) at least 85% of the total square feet of
leased space of the Property and (ii) rentable square footage in
excess of 3,500 square feet. Seller shall make a reasonable good
faith attempt to obtain such Tenant Estoppels from every tenant
of the Property.
8.1.10 Loan Assumption. The Existing
Lender (as defined in Section 15 below) shall have approved of
the assumption of the Existing Loans by Buyer or Buyer's assignee
hereunder, and the terms of and the documents effectuating such
assignment, assumption and consent shall be acceptable, in form
and substance, to Buyer, in its sole discretion, all in
accordance with the terms of Section 15.
9. DUE DILIGENCE PERIOD:
9.1 Matters To Be Reviewed. Buyer's obligation
to close the purchase of the Properties and to pay the Purchase
Price shall be subject to and conditioned upon Buyer's complete
satisfaction with all of the following items, each of which Buyer
shall have the right to review and approve or disapprove in
Buyer's sole and absolute discretion during the Due Diligence
Period:
9.1.1 Title. Buyer will have until 6:00 p.m.
(California time) on the expiration of the Due Diligence Period
to examine and approve all matters of title and to notify Seller
in writing of any defects in title, as determined by Seller in
its sole and absolute discretion. Seller shall, at its sole cost
and expense, within three (3) days following the date this
Agreement is executed and delivered by Buyer and Seller, deliver
to Buyer (i) a current preliminary title report issued by the
Title Company and relating to the Real Property, together with
all underlying documents relating thereto, and (ii) evidence that
the Property complies with the Subdivision Map Act of California.
If Buyer fails to notify Seller in writing of any objections to
title prior to the expiration of the Due Diligence Period, title
to the Property shall be conclusively deemed to be approved by
Buyer. If Buyer timely notifies Seller in writing of specific
objections to title prior to the expiration of the Due Diligence
Period, Seller will have three (3) business days after receipt of
Buyer's notification of any objection in which to advise Buyer
that:
9.1.1.1 Seller will remove any
objectionable exceptions on or before the Closing Date; or
9.1.1.2 Seller will not cause the
exceptions to be removed.
If Seller advises Buyer that it will not
cause the exceptions to be removed, Buyer will have five (5) days
from its receipt of Seller's notice to elect to:
(i) proceed with the purchase and
acquire the Property subject to such exceptions, but conditioned
upon Seller fulfilling each and every one of its other
obligations hereunder and all of the other conditions precedent
in favor of Buyer having been duly and timely satisfied; or
(ii) terminate this Agreement by
written notice to Seller, in which case all rights and
obligations of the parties existing hereunder shall terminate and
be of no further force or effect, except any rights and
obligations which are expressly stated to survive the termination
of this Agreement. If this Agreement is terminated, the Deposit,
and any interest thereon, will be immediately returned to Buyer
without further instructions from Seller.
If Buyer does not give Seller written notice
of its election within said five (5) day period, Buyer will be
conclusively deemed to have approved title to the Property.
If Seller commits to remove any objection to
title and fails to do so by the Closing Date, Seller will be in
material default under this Agreement and Buyer may, at Buyer's
election, terminate this Agreement and pursue its remedies as set
forth in Section 14 of this Agreement.
9.1.2 Inspections and Studies. Buyer will
have until 6:00 p.m. (California time) on the expiration of the
Due Diligence Period to conduct (as applicable) and review and
approve any and all inspections, investigations, tests, studies
(including feasibility studies and other economic models) and
appraisals as Buyer may have elected to make or obtain with
respect to the Property and/or the operation and financial
condition of the Property, including, without limitation,
calculations of floor areas, financial analyses of the books and
records, environmental inspections and studies, structural and
mechanical investigations, appraisals, and analyses of the
Property's compliance with Governmental Regulations. Buyer and
Buyer's representatives, agents and designees will have the right
to enter the Property at all reasonable times, upon reasonable
oral notice to Seller to perform all such investigations of the
Property and to conduct interviews with (i) tenants of the
Property, (ii) property management personnel of Seller, and (iii)
such other parties as Buyer may deem appropriate in its sole
discretion (provided that no such interview shall occur unless
Buyer has notified Seller of its interest in conducting any such
interview and provided Seller or a Seller representative with an
opportunity to be present for any such interview). Seller will
cooperate with Buyer and its representatives in that regard.
Seller shall deliver to Buyer at Seller's sole cost and expense,
within five (5) days (unless indicated otherwise below) following
the date this Agreement is executed and delivered by Buyer and
Seller, all information in Seller's possession or control which
is reasonably related to the Property, plus the following items:
9.1.2.1 To the extent in Seller's
possession, an ALTA "as-built" survey of the Real Property
prepared by a licensed surveyor;
9.1.2.2 Any and all Leases and all
modifications or amendments and guaranties relating thereto; all
tenant correspondence and all current financial statements of
tenants to the extent the same are in Seller's possession or
control; the Existing Loan and all documents evidencing, relating
to and/or securing the Existing Loan; all contracts (including
the Service Contracts), agreements and management agreements
(including, without limitation, parking, elevator, HVAC and
landscaping maintenance contracts); all "operating statements"
for the years during which Seller owned the respective
Property(ies); a balance sheet dated no earlier than December 31,
1996; an income statement for the last two (2) calendar years and
a year-to-date income statement for the calendar year 1997, each
such statement to be certified by Seller as being true, correct
and complete reports prepared by Seller in the ordinary course of
business; all "Base Year" information applicable to the Leases; a
cumulative general ledger for year-to-date 1997, reports
(including, to the extent in Seller's possession, all
environmental reports, soils reports, surveys and plans and
specifications affecting or relating to the Property, and all
modifications or amendments thereto); to the extent in Seller's
possession, all Records and Plans, Warranties, Licenses and
Permits and governmental approvals obtained or held by Seller and
relating to the development, construction, operation, use or
occupancy of any of the Property.
9.1.2.3 A current rent roll (to be
updated as of the expiration of the Due Diligence Period and as
of the Closing), prepared and certified by Seller as being true,
correct and complete on a form reasonably acceptable to Buyer
(the "Rent Roll").
9.1.2.4 Reports of insurance carriers
insuring the Property during the period of Seller's ownership of
the Property and each portion thereof respecting the claims
history of the Property; insurance policies or certificates of
Seller and tenants respecting the Property; to the extent in
Seller's possession, all correspondence, reports, and notices
pertaining to the existence of toxic or Hazardous Materials
and/or waste at the Property; all permits, reports, certificates
and notices pertaining to the existence, removal and/or
decommission of any and all storage tanks located on, at or
underneath the Property; to the extent in Seller's possession,
all certificates of occupancy; to the extent in Seller's
possession, all maps; to the extent in Seller's possession, all
brokerage and commission agreements; all agreements entered by
Seller and Seller's affiliates affecting the Property and/or
income and cash flow to be received from the Property that will
survive the Closing; tax bills and assessments for the current
year and the two (2) year period immediately preceding the
current year; copies of the most recently available utility bills
and similar records respecting the Property; any and all
information in Seller's possession respecting the
creditworthiness of the tenants under the Leases at the Property;
to the extent in Seller's possession, all written reports
respecting incidents of theft, burglary or crimes attempted or
committed at, on or to the Property or other such incidents which
are the subject of litigation; and such other information
reasonably requested by Buyer of Seller in writing during the Due
Diligence Period.
9.1.3 Indemnity. Buyer agrees to indemnify
and hold Seller harmless from any and all injuries, losses,
liens, claims, judgments, obligations, liabilities, costs,
expenses or damages (including reasonable attorneys' fees and
court costs) sustained by Seller to the extent same results from
or arises out of any inspections by Buyer or any of its
representatives pursuant to Section 9.1.2 above.
9.2 Notice of Objections.
9.2.1 If Buyer fails to notify Seller in
writing of any objections to the items set forth in Section 9.1.2
on or before the expiration of the Due Diligence Period, Buyer
shall be conclusively deemed to have approved such items.
9.2.2 If Buyer notifies Seller in writing of
any objections to the condition of one or more of the Properties
or any other matters relating to one or more of the Properties
and/or operation or financial condition of one or more of the
Properties as set forth in Section 9.1.2 on or before the
expiration of the Due Diligence Period, the parties will have
five (5) business days to agree upon a resolution of the
objection(s). If the parties cannot agree within the five (5)
business day period, then Buyer may terminate this Agreement by
delivering written notice to Seller (which notice must be given
within three (3) business days after the expiration of the five
(5) business day period), in which event all rights and
obligations of the parties existing hereunder shall terminate and
be of no further force or effect, except any rights and
obligations which are expressly stated to survive the termination
of this Agreement. If this Agreement is terminated, the Deposit
and any interest accrued thereon will be returned to Buyer.
10. PRORATIONS. The following are to be prorated as
of the Closing Date, as follows:
10.1 Current Rent. Current rent under the Leases
shall be prorated as of the Closing Date, regardless of whether
such rent has been paid to Seller.
10.2 Percentage Rent. Percentage rent under the
Leases, if any, shall be prorated to Buyer and Seller on the
basis of the applicable tenant's gross sales for each month of
Buyer's and Seller's respective ownership of the Property.
10.3 Rent Arrears. With respect to any rent
arrears arising under the Leases, Buyer shall pay to Seller any
rent actually collected that is applicable to the period
preceding the Closing Date, less reasonable collection charges;
provided, however, that it is hereby understood and agreed that
all rent collected by Buyer shall be applied first to unpaid rent
accruing after the Closing Date, and then, only after all such
past due rent has been collected, to unpaid rent accruing prior
to the Closing Date.
10.4 Security Deposits. Security deposits paid by
tenants pursuant to the Leases, and any interest required to be
paid thereon, shall be fully credited to Buyer at Closing.
10.5 Other Tenant Charges. If, pursuant to the
Leases, the tenants are entitled to payments by the landlord
(other than a return of security deposits) in excess of the
amounts credited to Buyer at Closing for the Lease year in which
the Closing Date falls, Seller shall be responsible for a portion
of such payment as determined on the basis of a fraction, the
denominator of which shall be twelve (12) and the numerator of
which shall be the number of months (or part thereof) in such
Lease year prior to the Closing Date. Prorations for any partial
months shall be calculated on a daily basis. Buyer shall be
responsible for the remainder.
10.6 Utility Charges. Seller shall cause the
utility and water meters to be read on the Closing Date, and
shall be responsible for the cost of all utilities and water used
prior to that time, except to the extent such utility charges are
billed to and paid by tenants directly.
10.7 Other Prorations. Liability for all real
property taxes, common area maintenance, Property operation
expenses, and other recurring costs shall be prorated as of the
Closing Date; provided, however, Buyer shall not be responsible
for any costs or expenses pertaining to Service Contracts or
other items of expense which Buyer has not approved in writing.
Seller shall remain liable for any supplemental taxes
attributable to any period prior to the Closing. If any such
supplemental taxes shall be billed to Buyer or levied against the
Property after the Closing, then Seller agrees to pay its
prorated share thereof to Buyer within thirty (30) days of demand
therefor by Buyer. Any such sums not paid when due may be
advanced by Buyer, and such amounts shall bear interest from the
date of advance by Buyer until paid by Seller at the maximum
contract rate permitted by law.
10.8 Free Rent. Buyer shall be credited
with the amount of any unexpired free rent, rental credit or
other economic concession in favor of any of the tenants under
any of the Leases as of the Closing Date.
10.9 Preliminary Closing Adjustment. Seller and
Buyer shall jointly prepare a preliminary closing adjustment
computation on the basis of the Leases and other sources, and
shall deliver such computation to the Escrow Holder prior to
Closing.
10.10 Post-Closing Reconciliation. All
items described in this Section 10 that are capable of being
prorated as of the Closing Date, shall be prorated as of the
Closing Date. All other items shall be reconciled within one
hundred eighty (180) days after the Closing Date to the extent
that such items may be reconciled within such one hundred eighty
(180) day period, or, to the extent such items may not be
reconciled within such one hundred eighty (180) day period, when
such items may first be reconciled after Closing.
10.11 Survival. The provisions of this
Section 10 shall survive Closing.
11. COSTS AND EXPENSES. The closing costs shall be
allocated as follows:
11.1 Seller. Seller shall pay all premiums for
the base portion of the Title Policy (e.g., CLTA), Seller's share
of prorations, all state and county transfer taxes, all sales
taxes, any other tax or assessment imposed as a result of the
transactions contemplated under this Agreement, and any document
recording charges and notary fees, including, without limitation,
any recording fees and notary charges with respect to the Deeds.
11.2 Other Closing Costs. Buyer and Seller will
share equally all escrow fees and each will pay their own legal
and professional fees and fees of other consultants incurred by
Buyer and Seller, respectively. Buyer shall be responsible for
the cost to update any existing surveys or obtain any new
surveys. Buyer shall be responsible for any additional title
insurance requested by Buyer, including all endorsements and the
additional cost to obtain an ALTA policy of title insurance, its
share of prorations and all other closing costs and expenses will
be allocated between Buyer and Seller in accordance with the
customary practice in the county in which the Property is
located.
11.3 Delivery of Possession. Simultaneously with
the Closing, Seller shall deliver possession and enjoyment of the
Property to Buyer and Buyer shall thereupon have the immediate
right to possess, develop, use, sell, encumber and/or transfer
the Property, or any part thereof for its own account to the
total exclusion of Seller.
12. GENERAL INDEMNIFICATION.
12.1 Seller Indemnification. Seller will
defend, indemnify and hold the Buyer, its officers, directors,
agents, shareholders, representatives, employees, attorneys,
affiliates, beneficiaries, subsidiaries, successors and assigns
(collectively, the "Buyer Indemnitees") harmless from and
against:
12.1.1 Any and all claims, demands,
liabilities, liens, costs, expenses, penalties, damages and
losses (including, but not limited to, attorneys' fees and costs)
of every kind and nature incurred or accrued prior to the Closing
Date with respect to the Property, whether arising from acts or
omissions of Seller, its agents or employees or otherwise;
12.1.2 Any and all liabilities and
obligations arising from any breach of the warranties,
representations, covenants and agreements of Seller or its agents
contained in this Agreement or in any agreements between Seller
and any third parties relating to the Property or the Leases; and
12.1.3 Any and all liabilities and
obligations arising after the Closing Date as a result of
Seller's failure to pay all taxes, assessments, fees and other
government charges levied upon Seller's assets and income or
otherwise relating or attributable to the Property or the
operations conducted thereon and due as of the Closing Date.
12.2 Buyer Indemnification. Buyer will
defend, indemnify and hold the Seller, its officers, directors,
agents, shareholders, representatives, employees, attorneys,
affiliates, beneficiaries, subsidiaries, successors and assigns
(collectively, the "Seller Indemnitees") harmless from and
against:
12.2.1 Any and all claims, demands,
liabilities, liens, costs, expenses, penalties, damages and
losses (including, but not limited to) attorneys' fees and costs)
of every kind and nature incurred or accrued after the Closing
Date with respect to the Property, whether arising from acts or
omissions of Buyer, its agents or employees or otherwise; and
12.2.2 Any and all liabilities and
obligations arising from any breach of the warranties or
representations of Buyer contained in this Agreement.
The foregoing indemnifications shall survive the
Closing.
13. CONDEMNATION AND DESTRUCTION:
13.1 Eminent Domain or Taking. If proceedings
under a power of eminent domain relating to the Property or any
part thereof are commenced prior to the Closing Date, Seller
shall promptly inform Buyer in writing.
13.1.1 If such proceedings involve
the taking of title to all or any Material (defined below)
interest in the Property, Buyer may elect to terminate this
Agreement by notice in writing sent within thirty (30) days of
Seller's written notice to Buyer, in which case the Deposit, and
any interest thereon, will be returned to Buyer and neither party
shall have any further obligation to or rights against the other
except any rights or obligations of either party which are
expressly stated to survive termination of this Agreement.
13.1.2 If the proceedings do not
involve the taking of title to all or a Material interest in the
Property or if Buyer does not elect to terminate this Agreement,
this transaction will be consummated as described in this
Agreement and any award or settlement payable with respect to
such proceeding will be paid or assigned to Buyer upon the
Closing.
13.1.3 For purposes of this Section
13.1, "Material" shall mean a taking which Buyer reasonably
determines materially and adversely affects the value or
operations of the Property.
13.2 Damage or Destruction. Except as provided in
this paragraph, prior to the Close of Escrow the entire risk of
loss of damage by earthquake, flood, hurricane, landslide, fire
or other casualty is borne and assumed by Seller. If, prior to
the Closing Date, any part of the Property is damaged or
destroyed by earthquake, flood, landslide, fire or other
casualty, Seller will promptly inform Buyer of such fact in
writing and advise Buyer as to the extent of the damage.
13.2.1 If such damage or destruction
is Material (as defined below), Buyer has the option to terminate
this Agreement upon written notice to the Seller given not later
than thirty (30) days after receipt of Seller's written notice to
Buyer advising of such damage or destruction.
13.2.2 If this Agreement is so
terminated, Buyer will be entitled to the return of the Deposit
together with any interest thereon.
13.2.3 If Buyer does not timely
exercise this option to terminate this Agreement, or if the
casualty is not Material, Seller will assign to Buyer all of
Seller's right, title and interest in and to any and all
insurance proceeds under Seller's insurance policies relating to
such damage or destruction, and shall reduce the Purchase Price
by the amount of the deductible and any other amount less than
$100,000 which is not covered by insurance under such policies
(including reasonably anticipated post-Closing rental loss,
except to the extent covered by insurance, through to completion
of such repair and restoration resulting from such casualty), and
this transaction will close pursuant to the terms of this
Agreement. If the cost to repair any uninsured casualty exceeds
$100,000, Seller's consent must be obtained before the Purchase
Price is reduced under this Section 13.2.3 by the amount of such
repair cost. If Seller does not so consent to such a reduction
in the Purchase Price, Buyer shall have the right to purchase the
Property without any such reduction or terminate this Agreement.
13.2.4 For purposes of this Section
13.2, "Material" is deemed to be any damage or destruction to the
Property where the cost of repair or replacement is estimated to
be more than 10% of the Purchase Price (determined on an
aggregate basis and on a per property basis based upon the
purchase price allocation set forth in Section 3.3 above).
13.2.5 Survival. The provisions of
this Section 13 shall survive the Closing.
14. REMEDIES:
14.1 Buyer's Remedies. IN THE EVENT THAT SELLER
SHALL FAIL TO CONSUMMATE THIS AGREEMENT FOR ANY REASON, EXCEPT
BUYER'S DEFAULT OR A TERMINATION OF THIS AGREEMENT BY BUYER OR
SELLER PURSUANT TO A RIGHT TO DO SO UNDER THE PROVISIONS HEREOF,
BUYER SHALL HAVE THE FOLLOWING REMEDIES, WHICH SHALL BE BUYER'S
SOLE AND EXCLUSIVE REMEDIES BASED UPON A DEFAULT BY SELLER. SUCH
REMEDIES SHALL NOT BE CUMULATIVE, MEANING BUYER MAY EXERCISE ONE
(1) BUT NOT BOTH OF SUCH REMEDIES. BUYER SHALL DELIVER TO SELLER
AND ESCROW HOLDER NOTICE OF ITS ELECTION OF REMEDIES WITHIN TWO
(2) DAYS AFTER SELLER'S DEFAULT. THE SOLE REMEDIES AVAILABLE TO
BUYER ARE AS FOLLOWS:
(i) BUYER MAY TERMINATE THIS AGREEMENT, IN
WHICH CASE SELLER SHALL IMMEDIATELY RETURN THE DEPOSIT, TOGETHER
WITH ANY INTEREST EARNED THEREON, TO BUYER, UPON EXECUTION OF
CANCELLATION INSTRUCTIONS BY BUYER, AND SELLER SHALL PAY ANY
ESCROW CANCELLATION CHARGES. IN ADDITION, SUBJECT TO THE TERMS
OF SECTION 18.20 BELOW, BUYER SHALL HAVE THE RIGHT TO PURSUE AN
ACTION AGAINST SELLER FOR ALL ACTUAL OUT-OF-POCKET (BUT NOT
CONSEQUENTIAL) DAMAGES SUFFERED BY BUYER; OR
(ii) BUYER MAY BRING AN ACTION FOR SPECIFIC
PERFORMANCE AGAINST SELLER WITH RESPECT TO THIS AGREEMENT BUT
ONLY UNDER THE FOLLOWING CONDITIONS AND CIRCUMSTANCES:
(a) BUYER SHALL HAVE FULLY
PERFORMED ALL OBLIGATIONS OF BUYER UNDER THIS AGREEMENT, EXCEPT
THAT WITH RESPECT TO DEPOSITING THE BALANCE OF THE PURCHASE
PRICE, BUYER SHALL HAVE EVIDENCED TO SELLER'S REASONABLE
SATISFACTION THAT BUYER IS READY, WILLING AND ABLE TO TIMELY
DEPOSIT SAID FUNDS IN ESCROW;
(b) THE ACTION SHALL BE COMMENCED,
AND SERVICE OF PROCESS UPON SELLER MADE, NOT LATER THAN FORTY-
FIVE (45) DAYS AFTER SELLER'S DEFAULT; AND
(c) ALL OF THE ISSUES IN SUCH
ACTION, WHETHER OF FACT OR LAW, SHALL BE HEARD BY A REFERENCE
PROCEEDING PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE,
SECTION 638, ET. SEQ. WITHIN TEN (10) DAYS FOLLOWING THE
COMMENCEMENT OF ANY SUCH ACTION, THE PARTIES SHALL MAKE
APPLICATION TO THE COURT IN WHICH THE ACTION IS PENDING FOR THE
APPOINTMENT OF A RETIRED SUPERIOR COURT JUDGE OR COURT OF APPEAL
JUSTICE FROM THE THEN CURRENT LIST OF RETIRED JUDGES AVAILABLE TO
SERVE AS REFEREES IN THE COUNTY IN WHICH SUCH ACTION IS COMMENCED
TO SERVE AS THE REFEREE. THE REFEREE CHOSEN SHALL BE DEEMED
QUALIFIED ONLY IF HE IS WILLING TO AGREE TO HEAR THE SUBJECT
ACTION WITHIN TWENTY (20) DAYS FOLLOWING THE DATE OF APPLICATION
TO THE COURT, TO HEAR THE SUBJECT ACTION ON CONSECUTIVE DAYS AND
TO RENDER A DECISION WITHIN A FURTHER FIFTEEN (15) DAY PERIOD.
THE PARTIES SHALL ADVANCE, IN EQUAL SHARES, THE FEES AND EXPENSES
OF THE REFEREE SELECTED PURSUANT TO THIS PROVISION, BUT THE
LOSING PARTY IN ANY SUCH ACTION SHALL REIMBURSE THE PREVAILING
PARTY FOR ANY AND ALL FEES AND EXPENSES PREVIOUSLY ADVANCED BY
SUCH PREVAILING PARTY FOR THE REFEREE.
14.2 Seller's Remedies. IF BUYER SHOULD FAIL TO
CONSUMMATE THIS AGREEMENT AS A RESULT OF BUYER'S DEFAULT UNDER
THE TERMS OF THIS AGREEMENT, THEN SELLER, AS ITS SOLE AND
EXCLUSIVE REMEDY, MAY TERMINATE THIS AGREEMENT BY NOTIFYING BUYER
THEREOF AND RECEIVE OR RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES.
THE PARTIES AGREE THAT SELLER WILL SUFFER DAMAGES IN THE EVENT OF
BUYER'S DEFAULT ON ITS OBLIGATIONS. ALTHOUGH THE AMOUNT OF SUCH
DAMAGES IS DIFFICULT OR IMPOSSIBLE TO DETERMINE, THE PARTIES
AGREE THAT THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF
SELLER'S LOSS IN THE EVENT OF BUYER'S DEFAULT. THUS, SELLER
SHALL ACCEPT AND RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES BUT NOT
AS A PENALTY. SELLER HEREBY ACKNOWLEDGES AND AGREES SUCH
LIQUIDATED DAMAGES SHALL CONSTITUTE SELLER'S SOLE AND EXCLUSIVE
REMEDY AND SELLER HEREBY WAIVES THE PROVISIONS OF CALIFORNIA
CIVIL CODE SECTION 3389 AND ANY OTHER APPLICABLE EXISTING OR
FUTURE LAW PERMITTING A CONTRACT TO BE ENFORCED EVEN THOUGH
DAMAGES ARE LIQUIDATED FOR ITS BREACH.
SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND
UNDERSTAND THE PROVISIONS OF THE FOREGOING PROVISION AND BY THEIR
INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
Seller:/s/ MS Buyer: /s/VJC
150 LOAN ASSUMPTION.
15.1 Loan Assumption Contingency. Buyer's
obligation to close the purchase of one or more of the Properties
in accordance with the terms of this Agreement is expressly
subject to and conditioned upon (i) the consent by the Existing
Lender to the assignment to and assumption by Buyer (or Buyer's
assignee hereunder) of those obligations of Seller under the
Existing Loans accruing from and after the Closing Date; and
(ii) Buyer's approval, in its sole and absolute discretion, of
the Existing Loans and of the terms and conditions governing and
the documents effectuating such assignment, assumption and
consent (including, without limitation, a beneficiary statement
from the Existing Lender acceptable to Buyer). Notwithstanding
anything to the contrary contained in this Agreement, if the
conditions set forth in subparagraphs (i) and (ii) above have not
been fully satisfied on or before October 1, 1997, Buyer shall
have the right to terminate this Agreement as to [one or more of]
the Properties by written notice to Seller, in which case all
rights and obligations of the parties existing hereunder shall
terminate as to such Property(ies) and be of no further force or
effect, except any rights and obligations which are expressly
stated to survive the termination of this Agreement. If this
Agreement is terminated as to all of the Properties, the Deposit
and any interest thereon will be immediately returned to Buyer
without further instructions from Seller.
15.2 Defined Terms. The term "Existing
Lender" shall mean Union Central Life Insurance Co. The term
"Existing Loans" shall mean and refer to those certain loans made
by the Existing Lender with outstanding principal balances as of
the date of this Agreement in the amounts of $1,456,208.00,
$3,317,012.00 and $3,368,985.00 (respectively secured by two (2)
first lien deeds of trust on Conejo Business Park and a first
lien deed of trust on Marin Corporate Center), and all documents
and instruments evidencing, relating to and/or securing said
loans.
15.3 Representation regarding Existing
Loans. Seller hereby represents and warrants that (i) a
breakdown of the Existing Loans is attached hereto as Exhibit
"O", (ii) a complete schedule of all of the documents evidencing,
relating to and/or securing the Existing Loans is attached hereto
as Exhibit "O", and (iii) there are no other documents
evidencing, relating to and/or securing the Existing Loans except
as set forth on Exhibit "O".
16. MARKETING. Subject to the terms of Section 6.2
above, Seller shall not, without Buyer's prior written approval,
enter into, amend or terminate any of the Leases or contracts
affecting the Property or take any other actions affecting the
Property (other than in the ordinary course of ownership) from
the date of this Agreement through the earlier of (a) the
Closing, or (b) the termination of this Agreement as to the
Property. Notwithstanding the foregoing, Buyer will have the
right to market the Property for lease during this period.
17. BROKERAGE COMMISSIONS. Each party hereby
represents and warrants to the other that it has not incurred any
obligation to any third party for the payment of any real estate
commission, finder's fee or other like sum in connection with the
sale of the Property to Buyer, except for a commission which
Seller agrees to pay to Told Partners, Inc. and Marcus &
Millichap in accordance with the terms of a separate agreement
between Seller and said brokers, and each party hereby agrees to
indemnify and hold the other party harmless from and against any
and all claims, demands, causes of action and costs, including
attorneys' fees and costs, made, brought or sought against or
from the other arising out of any agreement for the payment of a
real estate commission, finder's fee or other like sum entered
into between either party and a third party in connection with
the sale of the Property to Buyer.
18. NOTICE. All notices, requests, demands or
documents which are required or permitted to be given or served
hereunder shall be in writing and (a) delivered personally,
(b) delivered by a national overnight courier (i.e., FedEx), or
(c) transmitted by facsimile, addressed as follows:
To Seller at: Silagi Development & Management
000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Polston, Schwartz, Xxxxxxxx & Xxxxxxx
0000 Xxxxx Xxxxxx Xxxx., Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile:
To Buyer at: Arden Realty Limited Partnership
0000 Xxxxxxxx Xxxx., Xxxxx 000 X
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Mr. Xxxxxx Xxxxxxx
Xx. Xxxxxxxx Xxxx
Facsimile: (000) 000-0000
with a copy to:
Jeffer, Mangels, Xxxxxx & Xxxxxxx LLP
2121 Avenue of the Stars, Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
Notice shall be deemed to have been delivered only upon actual
delivery to the intended addressee in the case of either
personal, courier, or facsimile delivery. The addresses for
purposes of this paragraph may be changed by giving written
notice of such change in the manner provided herein for giving
notices. Unless and until such written notice is delivered, the
latest information stated by written notice, or provided herein
if no written notice of change has been delivered, shall be
deemed to continue in effect for all purposes hereunder.
19. MISCELLANEOUS:
19.1 Survival. The recitals set forth at the
beginning of this Agreement are deemed incorporated herein, and
the parties to this Agreement warrant and represent that they do
not omit to state any material fact necessary to make the
statements or Exhibits, as the case may be, materially
misleading. The representations and warranties contained in this
Agreement shall survive for a period of twelve (12) months
following the Closing Date. The covenants, acknowledgments,
agreements, certifications and indemnities contained in this
Agreement and the Exhibits, or in any of the documents or
agreements executed and/or delivered and/or exchanged pursuant to
the terms of this Agreement shall survive the Closing Date, and
shall not be deemed to have merged or terminated upon the Closing
Date.
19.2 No Assumption by Buyer or Buyers. By
accepting the Deeds, the Bills of Sale, the Assignments of Leases
and the Assignments of Intangible Property, Buyer does not intend
to assume any obligations of Seller in connection with the
Property or otherwise, except as expressly provided to the
contrary in such documents. For purposes of any successor
liability, Buyer shall not be deemed to be the business successor
of Seller, and is not continuing the business of Seller. Buyer
shall not be liable for any debts, contracts, obligations or
liabilities of Seller from and after the date hereof, unless
Buyer specifically agrees to be liable therefor pursuant to a
separate written agreement with the appropriate party.
19.3 Parties in Interest. As and when used
herein, the terms, "Seller" and "Buyer" mean and include, and
this Agreement their respective successor and assigns and shall
be binding upon and inure to the benefit of, the above-named
Seller and Buyer and their respective successors and permitted
assigns.
19.4 Section Headings. The headings of sections
are inserted only for convenience and shall in no way define,
describe or limit the scope or intent of any provision of this
Agreement.
19.5 No Oral Modifications. This Agreement may
not be amended or modified except in writing executed by all
parties hereto.
19.6 Full Integration. Buyer and Seller each
acknowledge that there are no other agreements or representa
tions, either oral or written, express or implied, that are not
embodied in this Agreement, and this Agreement, the Exhibits
attached to this Agreement, and the transfer documents, represent
a complete integration of all the prior and contemporaneous
agreements and understandings and documents.
19.7 Binding Effect. This Agreement shall be
binding upon and inure to the benefit of the parties hereto, and
their respective successors and assigns, and no other party shall
be a beneficiary hereunder.
19.8 Seller's Advice of Counsel. Seller
acknowledges that (a) Buyer has not made any representation as to
the Federal or State tax implications relating to the
transactions contemplated herein, (b) Seller has thoroughly read
and reviewed the terms and provisions of this Agreement and the
Exhibits attached hereto and is familiar with the terms of this
Agreement, (c) the terms and provisions contained in this
Agreement are clearly understood by Seller and have been fully
and unconditionally consented to by it, (d) Seller has had full
benefit and advice of counsel of its own selection, in regard to
understanding the terms, meaning and effect of this Agreement,
(e) the execution of this Agreement and of the other documents
executed pursuant to this Agreement is done freely, voluntarily,
with full knowledge, and without duress, (f) in executing this
Agreement, Seller is relying on no other representations, either
written or oral, express or implied, made to it by any other
party to this Agreement, and the consideration received by it
under this Agreement has been actual and adequate.
19.9 Attorneys' Fees. If an action is commenced
by a party hereto resulting from a dispute with respect to the
transactions contemplated herein, the prevailing party shall be
entitled to recover its attorneys' fees and costs from the other
party in such action. As used herein, the term "attorneys' fees"
means attorneys' fees whether or not litigation ensues and if
litigation ensues whether incurred at trial, on appeal, on
discretionary review or otherwise.
19.10 Governing Law. This Agreement will be
governed by, interpreted under, and construed and enforced in
accordance with the laws of the State of California, with venue
in the city and County of Los Angeles, California. Each of the
parties hereto acknowledge and agree that the laws of the State
of California and the selection of venue in the city and County
of Los Angeles were freely chosen by Buyer and Seller.
19.11 Confidentiality. Unless otherwise
agreed to in writing by Seller and Buyer, each party will use
reasonable efforts to keep confidential the terms of this
Agreement, the possible sale of the Property, and all documents,
financial statements, reports or other information provided to,
or generated by the other party relating to the Property, and
will use reasonable efforts to not disclose any such information
to any person other than (a) all of the constituent entities
comprising Seller (and all of the members of such constituent
entities) and all of the employees of such constituent entities
(and all of the members of each such constituent entity) as well
as the employees of Buyer; (b) those who are actively and
directly participating in the evaluation of the Property and the
negotiation and execution of this Agreement or financing of the
purchase of the Property; and (c) governmental, administrative,
regulatory or judicial authorities in the investigation of the
compliance of the Property with applicable legal requirements;
and (d) third parties as required under applicable law. The
provisions of this paragraph will survive the termination of this
Agreement other than by Closing.
19.12 Captions. The captions contained in
this Agreement are for convenience only and are not intended to
limit or define the scope or effect of any provision of this
Agreement.
19.13 Severability. The invalidity,
illegality or unenforceability of any provision of this Agreement
shall not affect the enforceability of any other provision of
this Agreement, all of which shall remain in full force and
effect.
19.14 Time of the Essence. Time is of the
essence of this Agreement and of the obligations required
hereunder.
19.15 Non-Waiver. No delay or failure by any
party to exercise any right hereunder, and no partial or single
exercise of any such right, shall constitute a waiver of that or
any other right, unless otherwise expressly provided herein.
19.16 Assignment. Notwithstanding anything
to the contrary contained in this Agreement, Buyer shall have the
right to designate a buyer to take title to the Property and such
Buyer shall succeed to all of the rights and remedies of Buyer
and shall be treated as if such party were the original Buyer
under this Agreement, including, but not limited to, the specific
performance of this Agreement, at which time Buyer shall be
automatically released from any further liability hereunder.
19.17 Facsimile. The parties hereto and
their respective successors and assigns are hereby authorized to
rely upon the signatures of each person and entity on this
Agreement which are delivered by facsimile as constituting a duly
authorized, irrevocable, actual, current delivery of this
Agreement with original ink signatures of each person and entity.
19.18 Further Assurances. Buyer and Seller
agree to execute all documents and instruments reasonably
required in order to consummate the purchase and sale
contemplated in this Agreement.
19.19 Counterparts. This Agreement may be
executed in any number of counterparts and each such counterpart
shall be deemed to be an original, but all of which, when taken
together, shall constitute one Agreement.
19.20 WAIVER OF JURY TRIAL. EACH PARTY
HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION SEEKING
SPECIFIC PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT, FOR
DAMAGES FOR ANY BREACH UNDER THIS AGREEMENT, OR OTHERWISE FOR
ENFORCEMENT OF ANY RIGHT OR REMEDY HEREUNDER.
19.21 Arbitration. Except as otherwise
provided in Section 14.1 above, any controversy or claim arising
out of or relating to this Agreement or breach thereof shall be
resolved by arbitration before a retired judge of the Superior
Court of the State of California for the County of Los Angeles
(the "Los Angeles Superior Court") in the following manner:
(a) The arbitration shall begin by one
party serving a complaint and a demand for arbitration upon other
parties. The party serving the demand shall include with the
demand a list of five retired judges of Los Angeles Superior
Court from the then available list of retired judges willing to
act as private judges. The responding party shall then have ten
days to select the arbitrator from the list of five. If the
selected arbitrator is unavailable, the responding party may
choose another name; with the process repeated until the list of
five is exhausted. If none of the five judges is available, the
responding party may select a judge from the list of available
retired judges.
(b) The arbitration shall take place in Los
Angeles, California at a time and place selected by the
arbitrator.
(c) The parties to the arbitration may have
all rights and powers afforded to a civil litigant in Los Angeles
Superior Court, including the ability to conduct full discovery.
The arbitrator shall be governed by the rules of civil procedure
for actions filed in California Superior Courts as set forth in
California Code of Civil Procedure ("CCP"). The arbitrator may
deviate from the rules by stipulation of the parties.
(d) The parties shall evenly divide the
cost of the arbitrator's fees. The arbitrator shall have the
power, as part of any award, to include these fees as an element
of recovery.
(e) Should the arbitrator at any time prior
to the commencement of the arbitration hearing become
incapacitated or otherwise unable to fulfill his or her duties,
the parties agree to seek a mutually agreeable replacement.
(f) The procedure for implementing or
challenging the arbitrator's decision shall be that set forth in
CCP Section 1285, et seq., relating to the confirmation,
correction, or vacation of arbitration awards. Except as set
forth by that procedure, the arbitrator's award shall be
considered final, and not subject to appeal or collateral attack.
20. AS-IS. Except as specifically set forth in this
Paragraph and the representations set forth in Paragraph 5 above,
the sale of the Property hereunder is and will be made on an "as
is" basis, without representations and warranties of any kind or
nature, express, implied or otherwise, including but not limited
to, any representation or warranty concerning title to any of the
Properties, the physical condition of any of the Properties
(including, but not limited to, the condition of the soil or the
improvements) , the environmental condition of the Properties
(including, but not limited to, the presence or absence of
hazardous substances on or respecting any of the Properties) ,
the compliance of any of the Properties with applicable laws and
regulations (including, but not limited to, zoning and building
codes or the status of development or use rights respecting any
of the Properties), the financial condition of the Properties or
any other representation or warranty respecting any income,
expenses, charges, liens or encumbrances, rights or claims on,
affecting or pertaining to any of the Properties or any party
thereof. Buyer acknowledges that Buyer will examine, review and
inspect all matters which in Buyer's judgment bear upon the
Properties and its value and suitability for Buyer's purposes,
and Seller shall cooperate with Buyer in making such information
available to Buyer for such examination. Except as to matters
specifically set forth in this Paragraph and the representations
set forth in Paragraph 5 above, Buyer will acquire the Properties
solely on the basis of its own physical and financial
examinations, reviews and inspections and the title insurance
protection afforded by the Title Policy.
21. 1031 Exchange. Buyer agrees to cooperate with
Seller in completing an exchange qualifying for non-recognition
under Internal Revenue Code Section 1031 and the applicable
provisions of the California Revenue and Taxation Code, as may be
amended from time to time. Seller and Buyer agree, however, that
the consummation of the transactions contemplated by this
Agreement are not predicated or conditioned upon completion of
such an exchange. If Seller elects to complete and exchange,
Buyer, shall execute all escrow instructions, documents,
agreements, or instruments reasonably requested by the Seller to
complete the exchange. Buyer shall incur no additional
liabilities, expenses or costs as a result of or connected with
the exchange. Seller agrees to indemnify, defend and hold Buyer
harmless from any liability, damages or costs (including, but not
limited to, reasonable attorneys' fees and costs) that may arise
from Buyer's participation in the exchange. Seller's liability
to Buyer for Buyer's attorneys fees for reviewing the applicable
documents with regard to Buyer's participation in the exchange
shall not exceed $500.00 per exchange.
Buyer and Seller have executed this Agreement as of the
date written above.
"Seller"
/s/ Xxxxx Xxxxxx
XXXXX XXXXXX, Co-Trustee of the
Silagi Family Trust
/s/ Xxxxxx Xxxxxx
XXXXXX XXXXXX, Co-Trustee of the
Silagi Family Trust
CONEJO BUSINESS PARK, LLC, a
California limited liability company
By:/s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: General Member
MARIN CORPORATE CENTER, LLC, a
California limited liability
company
By:/s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title:General Member
EVERGREEN PLAZA, LLC, a California
limited liability company
By:/s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: General Member
"BUYER"
ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: ARDEN REALTY, INC., a Maryland
corporation, its general
partner
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Its: President and COO
