AGREEMENT OF PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
BETWEEN
BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
SELLER
AND
ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
BUYER
for
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx
and
Mariner Court
0000 Xxx Xxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx
INDEX
ARTICLE SUBJECT MATTER PAGE
1. SALIENT TERMS
2. AGREEMENT OF PURCHASE AND SALE.
3. SECURITY DEPOSIT.
4. CLOSING DATE.
5. TERMS.
6. DELIVERY OF INFORMATION AND CONDITION OF PROPERTY.
7. CONTINGENCY PERIOD.
8. SATISFACTION OF CONDITIONS.
9. TENANTS.
10. ESCROW.
11. TITLE.
12. COSTS AND PRORATIONS.
13. OPERATION OF PROPERTY PENDING CLOSING.
14. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE ESCROW.
15. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE ESCROW.
16. CLOSING PROCEDURE.
17. REPRESENTATIONS AND WARRANTIES.
18. REMEDIES UPON DEFAULT.
19. DAMAGE AND DESTRUCTION.
20. CONDEMNATION.
21. COMMISSIONS.
22. NOTICES.
23. OCCUPANCY AND POSSESSION.
24. ATTORNEY'S FEES.
25. ENTIRE AGREEMENT.
26. TIME OF THE ESSENCE.
27. MODIFICATIONS TO BE IN WRITING.
28. SURVIVAL.
29. SUCCESSORS.
30. ASSIGNMENT.
31. CHOICE OF LAWS.
32. PUBLIC ANNOUNCEMENT OF SALE.
33. CONDITION OF PROPERTY.
34. COUNTERPARTS.
35. FACSIMILE SIGNATURES.
36. MEANING OF TERMS.
37. SECTION HEADINGS.
38. FURTHER ASSURANCES ON OR AFTER CLOSING.
39. FURTHER ASSURANCES PRIOR TO CLOSING.
40. OTHER PARTIES.
41. NO SOLICITATION.
42. WAIVER OF JURY TRIAL.
43. SELLER'S EXCULPATION.
AGREEMENT OF PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS
("Agreement") is made and entered into as of the "Date" set forth
in Section 1.1, below, by and between BEDFORD PROPERTY INVESTORS,
INC., a Maryland corporation ("Seller"), and ARDEN REALTY LIMITED
PARTNERSHIP, a Maryland limited partnership ("Buyer"), with
reference to the following facts.
R E C I T A L S:
A. Seller is the fee owner of two separate parcels of real
property and the improvements thereon, as described below.
B. Seller desires to sell, and Buyer desires to purchase,
all of the real and personal property owned by Seller located at
or forming part of the "Property," as that term is described
below, including, but not limited to, the "Improvements," and all
appurtenant easements and rights on the terms, covenants and
conditions hereinafter set forth.
A G R E E M E N T:
NOW, THEREFORE, with reference to the foregoing recitals and
in reliance thereon and in consideration of the purchase price
hereinbelow set forth, and the other terms, covenants and
conditions set forth below, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, it is mutually covenanted and agreed by Seller and
Buyer as follows.
1. SALIENT TERMS
1.1 Date: May 13, 1997
1.2 Parties:
(a) Seller: BEDFORD PROPERTY INVESTORS,
INC., a Maryland corporation
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Phone No.: 510/000-0000
Fax No.: 510/000-0000
Attn: Xxxxxx Xxxxxx
(b) Buyer: ARDEN REALTY LIMITED
PARTNERSHIP, a Maryland
limited partnership
0000 Xxxxxxxx Xxxx., Xxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Phone No.: 310/000-0000
Fax No.: 310/000-0000
Attn: Mr. Xxxxxx Xxxxxxx
1.3 Purchase Price: Twenty-Five Million Seven
Hundred Fifty Thousand Dollars
($25,750,000.00)
(Section 5)
1.4 General Location
of the Property: The office building located at
0000 Xxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxx, and the office
building known as "Mariner
Court,") and located at 0000
Xxx Xxx Xxxxxxxxx, Xxxxxxxx,
Xxxxxxxxxx
1.5 Security Deposit: (a) Initial Deposit: Two
Hundred Fifty Thousand
Dollars ($250,000.00)
Cash;
(b) Increased Deposit: An
additional Seven Hundred
Fifty Thousand Dollars
($750,000.00) in form of
Buyer's note (the
"Deposit Note") at
termination of
Contingency Period.
(Section 3)
1.6 Scheduled Closing Date: On or before sixty (60) days
after expiration of
Contingency Period, to be
designated at Seller's option
upon minimum fifteen (15) days
prior written notice from
Seller to Buyer.
(Section 4)
1.7 LIQUIDATED DAMAGES
IN THE EVENT The entire Deposit, including
OF BUYER'S DEFAULT: the Deposit Note.
(Section 18)
1.8 Escrow Holder: FIRST AMERICAN TITLE COMPANY
0000 Xx. Xxxxxx Xxxx., Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxx
Phone No.: 510/000-0000
Fax No.: 510/
1.9 Contingency Period Thirty (30) days after the
Expiration: date (the "Effective Date") of
full execution and delivery of
this Agreement by both
parties.
(Section 6)
1.10 Real Estate Commission
Payable If 1.5% of Sale Price to:
Purchase Closes: Xxxxxxx & Xxxxxxxxx of
California, Inc. (by Seller)
1.12 Definitions: The terms listed below shall have the
following definitions:
"Improvements" the improvements on the Real Property
for informational purposes only, are, as to the First Property,
an office building , and, as to the Second Property, an office
building, and other facilities, fixtures, paving and surfacing
thereon or associated therewith, with automobile parking;
"Intangibles" all right, title and interest of Seller
constituting part and parcel of the Property (as hereinafter
defined), including, but not limited to, trade names, logos,
easements, licenses, permits, air rights, certificates of
occupancy, warranties, rights-of-way, signs, trademarks,
telephone listings and numbers, sewer agreements, water line
agreements, utility agreements, water rights and oil, gas and
mineral rights, to the extent assignable or transferable;
"Options Commissions" Any unpaid leasing commission
with respect to such Tenant Lease (including potential
obligations in connection with the exercise of any unexercised
options to expand or extend);
"Preliminary Title Report" a CLTA Preliminary Title
Report covering the Real Property and the Improvements, which may
state that it is subject to any matter that would be disclosed by
a survey;
"Property" all of the Real Property, Improvements
and Intangibles;
"Real Property" collectively that certain parcel of
real property located in the City of Oxnard, County of Ventura,
State of California and further described on Exhibit A-1,
attached hereto located at 1000 Town Center (the "First
Property"), and that certain parcel of real property located in
the City of Torrance, County of Los Angeles, State of California
and further described on Exhibit A-2 attached hereto (the "Second
Property");
"Rent Roll" That document attached hereto as Exhibit
"B", and incorporated by this reference. [WE ARE VERIFYING THE
CONTENT OF THE RENT ROLL]
"Service Contract" complete copies of all service and
other contracts pertaining to the Property (including, but not
limited to, HVAC, elevator, landscape, management, leasing
brokerage and parking) in respect to which Seller is obligated;
"Survey" ALTA Survey of the Real Property and
Improvements;
"Tenant Deposits" an amount equal to all security
deposits, prepaid rentals, cleaning fees and other deposits, plus
any interest accrued thereon for the benefit of Tenant, as set
forth in the "Tenant Leases," as that term is defined below, paid
by Tenants to Seller or any other person relative to the Project;
"Tenant Leases" All documents, agreements and other
writings referenced in or affecting all leases, licenses, rental
agreements or occupancy agreements, and all amendments and
supplements thereto, relating to all or any portion of the
Property (together with all rents, issues and profits
thereunder); and
"Tenants" any person who is named tenant or lessee
under a Tenant Lease.
2. AGREEMENT OF PURCHASE AND SALE.
The Buyer specified in Section 1.2(b) agrees to buy and the
Seller specified in Section 1.2(a), the fee owner of the
Property, agrees to sell the Property on all the terms and
conditions stated herein. The Property shall include all Real
Property, the Improvements, the Intangibles, the Tenant Leases,
the Service Contracts, and all appurtenances, licenses, permits
and contracts affecting the Property, which, subject to the
provisions of Section 12.1.64, below, regarding the contracts,
shall be assigned by Seller to Buyer at Close of Escrow.
3. SECURITY DEPOSIT.
As an inducement to Seller to enter into this contract,
Buyer shall deposit with the Escrow Holder upon the opening of
the Escrow described in Section 10 below, a Security Deposit
(also known as the "Deposit" or the "Initial Deposit") in the
amount of the sum specified in Section 1.5(a), which deposit
shall be held by the Escrow Holder to secure the performance of
the Buyer hereunder. Escrow Holder shall place the Initial
Deposit in an interest bearing account insured by the FDIC or
such other manner as may reasonably be approved by Seller and
Buyer, with the interest accruing to Buyer, and shall hold the
Initial Deposit and all interest accrued therein in the Escrow,
subject to terms of this Agreement. The amount of the Initial
Deposit shall be applied to the Purchase Price on Close of
Escrow. The Deposit Note shall be in the form attached hereto as
Exhibit C, and shall be held by Escrow Holder as part of the
Deposit, to be delivered to Seller together with the cash portion
of the Deposit upon Buyer's breach in accordance with Section
18.1 of this Agreement, or be returned to Buyer upon payment of
the entire Purchase Price in cash at Closing or, along with the
Initial Deposit, in connection with Section 18.2, below, along
with the Initial Deposit. Should Buyer not terminate this
Agreement at end of the Contingency Period, as provided for in
this Agreement, the entire Deposit shall become nonrefundable
(subject only to the satisfaction of the remaining conditions of
Closing. The Deposit Note shall be a part of the nonrefundable
Deposit.
4. CLOSING DATE.
"Close of Escrow," or the "Closing Date," is the date upon
which the Grant Deeds conveying title of the Property to Buyer
areis recorded with the County Recorder of the Counties in which
the Property is located, and shall occur on or before the date
specified in Section 1.6. Seller shall designate a Closing Date
which shall occur after the Contingency Period and prior to sixty
(60) days after the expiration of the Contingency Period by
fifteen (15) days prior written notice to Buyer of Seller's
designated Closing Date.
5. TERMS.
The purchase price shall be the sum specified in Section 1.3
(the "Purchase Price"), and shall be paid to Seller at Close of
Escrow in cash, plus or minus the net amount of all costs,
expenses, adjustments and prorations to be credited (or debited)
to Buyer pursuant to this Agreement.
6. DELIVERY OF INFORMATION AND CONDITION OF PROPERTY.
6.1 As soon as practicable after the date hereof, but in no
event later than five (5) business days after the Effective Date,
except as otherwise set forth, Seller shall have delivered or
shall have caused to be delivered or made available to Buyer at
Seller's Lafayette, California office or Tustin, California
office, the relevant location of the Property to the extent they
are in Seller's possession or under its control, all books and
records relating to or regarding the relevant Property, including
but not limit to the Tenant Leases, a current Rent Roll,
documents relating to the condition of the Property, electricity
and Property tax bills, and Service Contracts.
6.2 Inspections and Approval by Buyer.
6.2.1 Subject to the terms and conditions of this
Agreement, including the exhibits attached hereto, Buyer accepts
the Property "as is" without representation or warranty by Seller
as to physical condition, provided however, between the Effective
Date and the date specified in Section 1.9 (the "Contingency
Period"), Buyer, at its own risk, and expense, upon reasonable
notice to Seller, and subject to such conditions as Seller may
impose, may survey the Property and physically inspect the
Property including and not limited to electrical, plumbing,
mechanical, structural, and roof. Buyer has relied upon its own
inspection and its own professional advisors in its examination
of the Property and all improvements thereon. Buyer hereby
represents, warrants, and covenants to Seller that Buyer has
conducted, or prior to expiration of the Contingency Period will
conduct, Buyer's own investigation of the Property and the
physical condition thereof, including, without limitation,
accessibility and location of utilities, Use of Hazardous
Materials on, from, or under the Property, earthquake
preparedness of the property, all matters concerning the Property
with respect to taxes, assessments, income and expense data,
bonds, permissible uses, zoning, covenants, conditions and
restrictions, and other matters which in Buyer's judgment are
necessary or advisable or might affect or influence Buyer's use
of the Property, or bear upon the value and suitability of the
Property, for Buyer's intended purposes, or Buyer's willingness
to enter into this Agreement. Buyer recognizes that Seller would
not sell the Property except on an "as is" basis, and
acknowledges that Seller has made no representations or
warranties of any kind in connection with the Property other than
those, if any, which are expressly set forth in this Agreement.
Buyer's representations and warranties, as set forth above, shall
survive the closing of this transaction without limitation of
time. Buyer shall repair all damage to the Property resulting
from Buyer or Buyer's representatives coming upon the Property to
perform any surveys, inspections, tests or analyses. From and
after the Effective Date, Buyer and its agents, employees and
contractors shall be afforded full access to the Property during
normal business hours and upon twenty-four (24) hours prior
notice for the purpose of making such investigations as Buyer
deems prudent with respect to the physical condition of the
Property. From and after the Effective Date until Closing, Buyer
and its agents shall be afforded full opportunity by Seller
during normal business hours and upon twenty-four (24) hours
prior notice to examine all operating books, files and records
that relate to the Property (including all specifications and as-
built drawings to the extent they are in Seller's possession),
all building permits, certificates of occupancy, soil reports,
engineers' reports and studies, and similar information relating
to the Property or its management, operation, maintenance or use,
and all warranties and operating annuals that Seller may have
from vendors, contractors or servicing agents with respect to the
physical condition of the Property or any portion thereof or the
equipment located thereon. Inspections of the Property by Buyer
and its agents shall not allow for or permit physical
penetrations or intrusive testing of any of the improvements on
the real property without Seller's prior written consent in each
instance. All inspections shall be subject to the terms of
applicable leases and shall be conducted in such a manner so as
not to interfere with any tenant's quiet enjoyment of the
Property, take place in accordance with the schedule pre-approved
by Seller (as reasonably established by Buyer and Seller) and be
observed by Seller or its designee at Seller's election.
6.2.2 Buyer shall indemnify, defend by counsel
reasonably acceptable to Seller, and hold Seller harmless from
and against any cost, claims, damages or liabilities, including,
but not limited to, attorneys' fees and court costs, that may
arise in connection with any testing done on the Property. If
Buyer does not elect to proceed with the purchase of the Property
as provided herein, Buyer shall: (i) cause the property to be
returned to the same condition as it was prior to any testing
done on or with respect to the Property; and (ii) deliver to
Seller copies of all physical tests, reports or inspections that
Buyer has conducted on or with respect to the Property. Buyer's
obligations under this Section 6.2.2 shall survive the
termination of this Agreement until such obligations have been
fully performed and approved by Seller in writing.
6.3 Buyer shall have until 5:00 P.M. of the last day of the
Contingency Period (also known as the "Approval Period") in which
to approve or disapprove all matters and things that are subject
to Buyer's rights or review, inspection and approval hereunder as
set forth in Sections 6.1 and 6.2, above. Buyer's failure either
to approve or disapprove all matters and things that are subject
to Buyer's rights of review, inspection and approval hereunder
before the expiration of the Approval Period, shall be deemed its
approval thereof. If Buyer disapproves any of said information,
Buyer shall notify Seller in writing thereof within the time
period specified above whereupon, this Agreement shall terminate,
however, notwithstanding the foregoing, if Buyer disapproves any
Service Contract, this Agreement shall not terminate and Seller
shall lawfully terminate such Service Contract not later than
thirty (30) days after the Closing, to the extent the same can be
so terminated and provided Seller shall pay all cancellation or
termination penalties, fees or costs in connection therewith.
Buyer's disapproval shall be in writing and shall be delivered to
Seller prior to the expiration of the Contingency Period.
Failure to deliver such written disapproval shall be deemed
Buyers approval of said matters.
7. CONTINGENCY PERIOD.
If, during the Contingency Period, Buyer gives Seller
written notification (the "Termination Notice") that Buyer elects
not to consummate the purchase of Property in accordance with the
terms of this Agreement, this Agreement shall terminate. If the
Termination Notice is given, Buyer shall be entitled to the
immediate return of the Deposit and neither party shall have any
further liability as to the other under this Agreement, except as
provided in Sections 6.2.2. If Buyer fails to give or elects not
to give the Termination Notice prior to the expiration of the
Contingency Period, this Agreement shall remain in full force and
effect and the Deposit shall be dealt with as provided in Section
3. At any time prior to the expiration of the Contingency
Period, Buyer may give Seller a written notice waiving its rights
to terminate this Agreement under this Section 7 (but without
prejudice to its right to terminate this Agreement under any
other provision of this Agreement).
8. SATISFACTION OF CONDITIONS.
Upon failure to satisfy any of the conditions stated herein,
unless there is a waiver of said condition by the party in whose
favor the condition has been included, all Deposits hereunder
shall be returned to Buyer, the parties shall be returned to
their original position as existed prior to the execution hereof,
and unless otherwise expressly stated in this Agreement, this
Agreement shall be null and void and of no further force or
effect (excepting Sections 6.2.2, 24, 28, 29, 31, 32 and 42,
inclusive hereof), provided that Buyer, if Buyer is the party in
whose favor the condition runs, has timely notified Seller of the
failure of the condition. Should the party in whose favor the
failed condition has been included waive the condition, the
contract shall remain in force as if the condition had not been
included herein. Each party shall use reasonable diligence in
obtaining the removal of all conditions herein running in its
favor.
9. TENANTS.
Buyer takes the Property subject to the rights of tenants.
Seller represents that the Leases are the only leases or rental
agreements which affect the Property. Unless otherwise specified
in Exhibit B, each Lease is in full force and effect and has not
been modified. Buyer shall assume all obligations of "landlord"
thereunder accruing after Close of Escrow and the Leases shall be
then assigned to Buyer under the terms of an Assignment and
Assumption of Leases in the form attached hereto, marked Exhibit
E.
10. ESCROW.
Within five (5) business days after the Effective Date an
escrow shall be opened (the "Escrow") by Buyer depositing a
signed copy of this Agreement and the Initial Deposit with the
Escrow Holder designated in Section 1.8. Escrow fees shall be
paid one-half (.50) by Buyer and one-half (.50) by Seller. Escrow
Holder is hereby authorized and instructed to act in accordance
with the provisions of this Agreement, which Agreement together
with Escrow Holder's standard General Provisions, to the extent
that the same is consistent with the terms hereof, and are
reasonably approved by Seller and Buyer, shall constitute Escrow
Holder's escrow instructions. Seller and Buyer shall each
deposit such other instruments and funds as are necessary to
close the Escrow and complete the sale and purchase of the
Property in accordance with the terms hereof, provided that all
of Buyer's conditions precedents to Closing as set forth in
Section 14 have been satisfied. The obligations of each party
which are herein agreed to be undertaken by each party in the
Escrow shall be and are hereby made agreements of such party in
and under this Agreement independent of the Escrow. If any
requirements relating to the duties or obligations of Escrow
Holder hereunder are not acceptable to Escrow Holder, or if
Escrow Holder requires additional instructions, the parties agree
to make such deletions, substitutions and additions to these
escrow instructions relating to such duties or obligations of
Escrow Holder or clarification of these instructions as counsel
for Seller and for Buyer shall mutually approve, and which do not
substantially change this Agreement or its intent. Seller and
Buyer agree to perform, observe and fulfill the requirements of
this Agreement notwithstanding said deletions, substitutions or
additions to said escrow instructions. The term "Closing" as
used herein shall be deemed to be the date upon which the
respective conditions precedent to Buyer's obligation to close
escrow (set forth in Section 14 below) and the conditions
precedent to Seller's obligations to close escrow (set forth in
Section 15 below) have been satisfied, and the Closing Procedures
have been satisfied (as set forth in Section 16, below). If the
Closing as provided herein does not occur, this Agreement and the
Escrow shall be cancelled and terminated and thereafter neither
party shall have any further obligation or liability to the other
party, except as expressly set forth in this Agreement.
11. TITLE.
Within two (2) days of execution hereof by all parties
Buyer shall order a preliminary title report on the Property
("Preliminary Report") from Escrow Holder, together with true and
legible copies of all documents evidencing matters of record
shown as exceptions to title thereon. Buyer shall have the
right, by the expiration of the Contingency Period, to either
approve the report or, in the alternative, to specify in writing
those exceptions to title which it requests be removed prior to
Close of Escrow. If Seller elects not to remove such exceptions
to the title and so informs Buyer, or, if Seller cannot remove
such exceptions to title within the earlier of sixty (60) days
from the date of receipt of notice from Buyer and fifteen (15)
days before the Closing Date, Buyer may, at its option, terminate
this Agreement by written notice to Seller within five (5) days
following notice from Seller that the exceptions will not be
removed, any Deposit shall be returned to Buyer, and this
Agreement shall be of no further force or effect, except as
otherwise expressly stated herein. There shall be no other
remedy at law, equity or otherwise for failure by Seller to
deliver title in the manner herein agreed except for a willful
clouding of title by Seller. Evidence of marketable title shall
be in the form of an American Land Title Association ("ALTA")
extended form owners policy of title, the cost of which shall be
paid as follows: Seller shall pay the cost of California Land
Title Association standard form owners policy coverage ("CLTA
Premium") and Buyer shall pay all survey costs and all title
insurance cost which is in excess of the CLTA Premium. The
Title Policy shall be in the amount of the Purchase Price. Buyer
agrees to obtain the necessary Survey of the Property as soon as
possible after the opening of the Escrow., and approve or
disapprove the survey within the Contingency Period.. Buyer's
failure to timely notify Seller of those exceptions to title, or
any item shown by the Survey, of which it does not approve,
except as set forth above in this Section 11, within the
Contingency Period shall constitute approval of all exceptions
contained in the Preliminary Report. Notwithstanding anything to
the contrary set forth in this Agreement, Seller shall at Closing
(but shall not be obligated prior thereto) remove of record all
tax and mechanic's liens (except only for the liens of the taxes
and assessments to be prorated under Section 12.1), and pay and
discharge all deeds of trustliens and encumbrances on the
Property.
12. COSTS AND PRORATIONS.
Costs and prorations at Close of Escrow shall be as follows:
12.1 Prorations. All revenues, income, receivables,
costs, expenses and payables of the Property shall be apportioned
equitably between the parties as of Closing on the basis of the
actual number of days in a particular month, and with respect to
the items enumerated below where a particular manner of
apportionment is provided, then apportionment of such item shall
be made in such manner. The obligation to make apportionments
shall survive Closing. Without limitation, the following items
shall be so apportioned:
12.1.1 Monthly rents and percentage rent and
"passthroughs" of real estate taxes and operating expenses due
from occupancy tenants under Tenant Leases, as and when
collected. If at Closing there are any past due rents or charges
owed by occupancy tenants, they shall notinto be prorated until
received; Buyer shall include such delinquencies in its normal
billing and shall pursue the collection thereof in good faith
after the Closing Date (but Buyer shall not be required to
litigate or declare a default in any Tenant Lease). To the
extent Buyer receives amounts on account of Tenant Leases on or
after the Closing Date, such payments shall be applied first
toward the delinquentthen current rent owed to SellerBuyer in
connection with the applicable Tenant Lease for which such
payments are received, and any excess monies received shall be
applied toward the payment of any then currentdelinquent rents
owed to Buyer, with Seller's share thereof being promptly
delivered to Seller. Buyer may not waive any delinquent rents
nor modify a Tenant Lease so as to reduce or otherwise affect
amounts owed thereunder for any period in which Seller is
entitled to receive its share of charges or amounts without first
obtaining Seller's written consent. Seller hereby reserves the
right to pursue any remedy against any tenant owing delinquent
rents and any other amounts or other rights of any kind
respecting tenants who are no longer tenants of the Property as
of the Closing Date.
12.1.2 Real estate and personal property taxes
and any special assessments, taking into consideration discounts
for the earliest permitted payment, based upon the latest
previous tax levies.
12.1.3 Transferable annual permits, licenses,
and/or inspection fees, if any, on the basis of the duration of
the same;
12.1.4 Deposits. The amount of all security
deposits and other tenant deposits as shown in the Rent Roll
shall be credited to Buyer in the Escrow, and the Buyer shall
hold Seller harmless from any claim by any tenant for the return
of such deposits.
12.1.5 Utilities. Seller shall be responsible
for all utility services to the Property and payment therefor
until midnight on the day preceding the Closing Date and Buyer
shall be responsible for utility services and payment therefor
thereafter. Seller shall be entitled to a return of any deposits
posted by it with any utility company and Buyer shall be
obligated to post its own deposits. Seller shall notify each
utility company of the change in ownership but Buyer shall
execute all forms necessary to assume responsibility for utility
services after the Close of Escrow.
12.1.6 Service and Maintenance Contracts.
Seller shall be responsible for payment of all service and
maintenance contracts prior to the Close of Escrow and Buyer
shall be responsible for such payment thereafter. On or before
the expiration of the Contingency Period, Buyer shall notify
Seller in writing of any Service Contracts which Buyer wishes to
assume as of the Closing Date. Provided such contracts are
assignable by Seller without charge, fee or penalty, Seller shall
assign its rights under such contracts to Buyer at the Closing,
under the terms of that form of assignment attached hereto,
marked Exhibit D. Except for such Service Contracts that are to
be assigned to Buyer at Closing in accordance with this Section,
Seller shall terminate contracts with third party service
providers related to the Property as of the Closing Date at
Seller's sole cost and expense.
12.1.7 Tenant improvement costs and leasing
commissions for leases signed after the Effective Date shall be
paid by Buyer if approved by Buyer in accordance with
Sections 13.1 and 13.2, below.
12.1.8 All other operating expenses incurred in
management and operation of the Property.
No insurance policies shall be assigned hereunder, and
accordingly there shall be no proration of insurance premiums.
12.2 Closing Charges. Buyer and Seller shall each pay one-
half (.50) of all recording fees, the cost of revenue and
documentary stamps, sales, excise and/or transfer taxes, all
other impositions of a similar nature and all other Closing costs
not otherwise provided for in this Agreement. Seller shall pay
the cost of securing the CLTA standard coverage portion of the
Title Policy that is attributable to the required ALTA Owner's
Coverage. Buyer shall pay the cost of the Title Policy
attributable to the ALTA portion and the cost of the Survey.
13. OPERATION OF PROPERTY PENDING CLOSING.
13.1 Tenant Leases. Seller has leased portions of the
Property to various occupancy tenants. From and after the
Effective Date and until the Closing DateFrom and after the
Effective Date until the date occurring five (5) days before the
end of the Contingency Period, Seller shall not enter into any
new leases or amend or extend, terminate or accept the surrender
of any existing tenancies or approve any subleases (collectively,
"Lease Transactions") without the prior written consent of Buyer
(which consent, until the end of the Contingency Period, shall
not be unreasonably delayed or withheld; provided that upon
notice to Buyer, on or before the date occurring five (5) days
before the end of the Contingency Period, Seller may enter into
new lease of space for less than 5,000 rentable square feet
without the consent of Buyer, provided that the rental rate and
other terms, conditions and concessions for such space,
(including commissions, improvement allowances, and free rent)
(collectively, the "Terms") are no less favorable to Seller from
the Terms for deals now being consummated in comparable buildings
located in the vicinity of the building. and Following the
Contingency Period, Seller must request Buyer's consent to any
Lease Transaction and Buyer may withhold its consent in its sole
discretion). In requesting such consent, Seller shall inform
Buyer in writing of the amount, if any, proposed to be required
to pay for, or any allowance proposed to be given for, tenant
improvements work, any leasing commissions and fees, in
connection with such lease and any rent concessions. Also
included in the request for consent, shall be Seller's proposed
draft of the lease or amendment agreement. The failure of Buyer
to respond within five (5) business days after written request
for any such approval shall be deemed to constitute approval.
Seller shall not collect in advance any rent or other sum due
under any of the Tenant Leases, except for collection of current
rents no more than one month in advance.
13.2 Leasing Commissions; Tenant Improvements and Rent
Concessions. Seller covenants and agrees to be responsible for
all leasing commissions, tenant improvement costs and unamortized
rent concessions with respect to any leases (including amendments
and renewals) entered into on or before the Effective Date.
Buyer covenants and agrees to be responsible for all leasing
commissions, tenant improvement costs and unamortized rent
concessions with respect to any new leases, extensions of
existing leases and renewals occurring after the Effective Date,
provided that (a) Buyer has approved or is deemed to have
approved such action or event by Seller and (b) Seller has
delivered to Buyer copies of the proposed lease and other
agreement with respect thereto and to which any brokerage
commissions are payable. Failing such delivery and approval (or
deemed approval), Seller shall remain responsible for all of
costs and expenses including commissions.
13.3 Insurance Policies. Seller shall keep all of the
insurance policies covering the Property (or substantially
equivalent coverage) in full force and effect between the date of
this Agreement and Closing (the "Insurance Policies").
13.4 Property Management. Prior to the Closing, Seller
shall maintain the Property in the same manner as prior hereto
pursuant to its normal course of business (such maintenance
obligations not including extraordinary capital expenditures or
expenditures not incurred in such normal course of business),
subject to reasonable wear and tear and further subject to
destruction by casualty or other events beyond the reasonable
control of Seller.
14. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE ESCROW.
The obligation of Buyer to consummate the transactions
contemplated hereby; is subject to the following conditions,
inserted for Buyer's sole benefit and that may be waived by Buyer
only in writing at its sole option. Said conditions are as
follows.
14.1 Representations and Warranties True at Closing.
The representations and warranties of Seller contained in
Section 17.1 of this Agreement shall be true on the date of
Closing in all material respects and though such representations
and warranties were made on and as of such date.
14.2 Delivery of Tenant Estoppels. Seller shall have
delivered to Buyer estoppel letters dated within thirty (30) days
of the Closing Date (the "Tenant Estoppels") from tenants
representing 85% of the leased area of each of the First Property
and the Second Property and from all tenants leasing more than
3,500 square feet in the Improvements in substantially the form
of Exhibit "F" attached hereto and forming a part hereof.
14.3 Compliance with this Agreement. Seller shall have
performed and complied with in all material respects all
agreements and conditions required by this Agreement to be
performed or complied with by it on or prior to Closing.
14.4 Title Policy. Title Company shall be ready,
willing and able to issue the Title Policy required by
Section 11.1.
15. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE ESCROW.
The obligation of Seller to consummate the transactions
contemplated hereby is subject to the following conditions,
inserted for Seller's sole benefit and that may be waived solely
by Seller only in writing at its sole option. Said conditions
are as follows:
15.1 Representations and Warranties True at Closing.
The representations and warranties of Buyer contained in this
Agreement, or in any certificate or document signed by Buyer
pursuant to the provisions hereof, shall be true on and as of
Closing in all material respects as though such representations
and warranties were made on and as of such date.
15.2 Delivery of Purchase Price and Documents. Buyer
shall have delivered all funds and documents to Escrow Holder
required by it hereunder to enable it to close the Escrow.
15.3 Compliance with This Agreement. Buyer shall have
performed and complied with all agreements and conditions
required by this Agreement to be performed or complied with by it
on or prior to Closing.
16. CLOSING PROCEDURE.
16.1 At least one business day prior to the date of
Closing, Buyer shall have delivered to Escrow Holder counterpart
executed originals of the following documents and the following
sums of money required to be delivered by Buyer hereunder:
16.1.1 The Purchase Price in the manner set
forth in Section 5;
16.1.2 Such funds as may be necessary to comply
with Buyer's obligations hereunder regarding prorations, costs
and expenses; and
16.1.3 A signed counterpart of the Assignment
and Assumption of Leases (the "Assignment of Leases") and a
ssigned counterpart of the Assignment and Assumption of Contracts
(the "Assignment of Contracts").
16.2 At least one business day prior to the date of
Closing, Seller shall have delivered to Escrow Holder counterpart
executed originals of the following documents:
16.2.1 The Grant Deed in the form of
Exhibit "G" attached hereto and forming a part hereof;
16.2.2 A transferor's certification of non-
foreign status ("FIRPTA Certificate") duly executed by Seller in
the form of, and upon the terms contained in, Exhibit "H"
attached hereto;
16.2.3 Notices to each of the tenants and
occupants (Tenant Notification Letter) of the Property of the
transfer of the Property to Buyer in the form attached hereto as
Exhibit "I";
16.3 Upon delivery of the foregoing sums and documents,
Escrow Holder shall cause Title Company to cause Grant Deed to be
recorded (by a special recording if necessary) in the Official
Records of Los Angeles County and Ventura County, California, and
immediately to issue each Title Policy.
16.4 At least one business day prior to the date of
Closing, Seller shall deliver to Buyer, outside of Escrow, the
following documents:
16.4.1 An original of each of the Service
Contracts, Leases and keys to the Property if in Seller's
possession or under its control;
16.4.2 To the extent they are in Seller's
possession, a complete set of all plans, specifications and as-
built drawings, and all building permits, certificate of
occupancy, third-party soil reports, and environmental reports
and studies relating to the Improvements;
16.4.3 All warranties and operating manuals
that Seller may have from vendors, contractors or servicing
agents with respect to the physical condition of the Property or
any portion thereof or the equipment located thereon; and
16.4.4 A certified Rent Roll, updated within
three (3) days of the Closing.
17. REPRESENTATIONS AND WARRANTIES.
17.1 Representations or Warranties by Seller. Seller hereby
makes the following representations, warranties and covenants,
each of which is deemed to be material and each of which is
stated by Seller to be true and correct on the date hereof and on
the Closing Date and each of which shall survive the Closing,
subject to Section 28, below:
17.1.1 Seller is a Maryland corporation, duly
formed, validly existing and in good standing under the laws of
the state of its incorporation and of California.
17.1.2 Seller has full power and authority to enter
into and carry out the terms and provisions of this Agreement and
to execute and deliver all documents which are contemplated by
this Agreement, and all actions of Seller necessary to confer
such authority upon the persons executing this Agreement and such
other documents have been taken.
17.1.3 To the best of Seller's "current actual
knowledge" (which for the purposes of this Section 17.1 shall
mean the actual knowledge of Xxxxxx Xxxxxx, Seller's head of real
estate and acquisitions, the leasing agents for the Property, the
managers for the Property, and the engineers for the Property,
who is the individual with direct responsibility for the
operation, management or disposition of the Property, and without
inquiry of third parties or any independent investigation):
(a) Seller has received no written notice of any
pending or threatened litigation or other legal or administrative
action, proceeding, claim, arbitration or suit pending before any
court, agency or official, nor of any such claim or action
threatened in writing, regarding the Property; and
(b) Seller has received no written notice of any
existing violation of any applicable zoning regulation, ordinance
or other law, order, ordinance, permit, rule, regulation or
requirement, or any covenant, condition or restriction affecting
or relating to the use, operation or occupancy of the Property.
(c) The Rent Roll, as updated pursuant to the
terms of this Agreement, is true and complete in all respects.
17.1.4 Seller is not a foreign person and is a
"United States Person" as such term is defined in the Internal
Revenue Code of 1986, as amended.
17.1.5 The closing of the various transactions
contemplated by this Agreement will not constitute or result in
any default or event that with a notice or lapse of time, or
both, would be a default, breach or violation of any lease,
mortgage, deed of trust, covenant or other agreement, instrument
or arrangement by which Seller or the Property is bound.
17.2 Representations and Warranties of Buyer. Buyer hereby
makes the following representations and warranties, each of which
is deemed to be material and each of which is stated by Buyer to
be true and correct on the date hereof:
17.2.1 Buyer has full legal power and authority to
enter into and perform this Agreement in accordance with its
terms. This Agreement constitutes the valid and binding
obligation of Buyer, enforceable in accordance with its terms,
except as such enforcement may be affected by bankruptcy,
insolvency and other laws affecting the rights of creditors
generally. The execution, delivery and performance of this
Agreement and all documents in connection therewith are not in
contravention of or in conflict with any agreement or undertaking
to which Buyer is a party or by which Buyer may be bound or
affected;
17.2.2 The execution and delivery of this Agreement
and the payment and performance by Buyer of its payments and
obligations hereunder require no further action or approval in
order to constitute this Agreement as a binding and enforceable
obligation of Buyer, and all such actions have been duly taken by
Buyer; and
17.2.3 As of the expiration of the Contingency
Period and as of the Closing Date (a) Buyer has received and
reviewed all materials provided to Buyer by Seller pursuant to
Sections 6.1 above (collectively, the "Due Diligence Materials"),
(b) Buyer has inspected the Property, (c) Buyer has made such
investigation of the information contained in the Due Diligence
Materials as it deems appropriate, and (d) Buyer is satisfied
based upon its examination of the Due Diligence Materials and its
investigation of all other aspects of the Property which Buyer
deems material to its purchase thereof, including, without
limitation, the condition of title to the Property, the zoning of
the Property, and condition and physical aspects of all
structures located on the Real Property (including the
Improvements) and the presence or absence of Hazardous Substances
on the Property.
18. REMEDIES UPON DEFAULT.
18.1 Remedies of Seller. If the purchase described herein
is not completed by the Closing Date due to a default by Buyer,
Seller shall be relieved from its obligation to sell the subject
property and may proceed against Buyer upon any claim and/or any
remedy which Buyer may have in law or equity; provided, however,
by inserting their initials belowat Section 1.7, BUYER AND SELLER
AGREE THAT IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX
ACTUAL DAMAGES IN CASE OF BUYER'S DEFAULT, THAT THE PARTIES HAVE
NEGOTIATED IN GOOD FAITH AS TO THEIR BEST REASONABLE ESTIMATE OF
DAMAGES TO SELLER, AND AGREE THAT THE AMOUNT DESCRIBED IN SECTION
1.7 (INCLUDING THE CASH AMOUNT OF THE DEPOSIT AND THE DEPOSIT
NOTE AMOUNT) REPRESENTS THE RESULTS OF SUCH NEGOTIATION AND THAT
SELLER MAY, AT ITS OPTION,SHALL TAKE THAT AMOUNT FROM ESCROW AS
LIQUIDATED DAMAGES AND ESCROW HOLDER IS HEREBY SO INSTRUCTED.
/s/ VJC
Seller's Initials Buyer's Initials
18.2 Remedies of Buyer. In the event that Seller fails
to keep and perform each and every obligation, covenant and
agreement herein by Seller to be kept or performed, then Buyer
may pursue such rights it may have against Seller and the
Property either at law or in equity, including specific
performance.
19. DAMAGE AND DESTRUCTION.
If, prior to Closing, the Property (when viewed separately
as two different office building complexes) shall sustain damage
caused by fire or other casualty that is insured and that would
cost Three Hundred Fifty Thousand Dollars ($350,000) or more to
repair or if any uninsured loss or casualty occurs that would
cost Three Hundred Fifty Thousand Dollars ($350,000) or more to
repair, Buyer may elect to terminate this Agreement by written
notice to Seller within fifteen (15) days after notice of such
event, or at Closing, whichever is earlier. If Buyer does not so
elect to terminate its obligations under this Agreement, or if
the loss or casualty would cost less than Three Hundred Fifty
Thousand Dollars ($350,000) to repair, the Closing shall take
place as provided herein and Buyer shall receive an assignment of
Seller's rights to insurance proceeds with respect to any
unrepaired damage (including any rental loss proceeds with
respect to any unrepaired damage (for periods after the Closing),
loss or casualty in question and a credit to the Purchase Price
for any deductible amount under any such policy. Seller shall
retain all interest in and to the insurance proceeds that may be
payable to Seller on account of repaired and completed damage,
but Seller shall have no obligation of repair or replacement.
20. CONDEMNATION.
In the event that the Property (when viewed separately as
two different office building complexes) or any part thereof
becomes the subject of a condemnation proceeding which prevents
the Property from being operated for its present use (a "Material
Condemnation"), Seller agrees to immediately advise Buyer
thereof. In the event of such Material Condemnation, Buyer shall
have the option to (a) take title in accordance with the terms
and conditions of this Agreement and negotiate with the said
condemning authority for the condemnation award and receive the
benefits thereof without affecting the Purchase Price, or
(b) terminate this Agreement and declare its obligations
thereunder null and void and of no further effect, in which event
all sums theretofore paid to Seller or to Escrow agent hereunder
shall be returned to Buyer as set forth herein. Notice of the
exercise of such option hereunder shall be in writing, delivered
to Seller at the address set forth in Section 22 of this
agreement (or such other address as Seller may have theretofore
designated in writing) at least two days prior to Closing.
21. COMMISSIONS.
Commissions, if any, payable in connection with this
transaction shall be deemed earned, due and payable when the sale
closes and in that event only, and are set forth in Section 1.10.
Such commissions shall be paid by Seller.
22. NOTICES.
All notices, demands, requests, elections, approvals,
disapprovals, consents or other communications which this
agreement contemplates, shall be in writing and shall be (i)
personally delivered, or (ii) sent by telephone facsimile upon
which date and final time is imprinted in the course of
transmission, or (iii) sent by reputable courier who presents
evidence of receipt of delivery, addressed to the respective
parties as set forth in Section 1.2,
With a copy to Buyer's Counsel: Allen, Matkins, Xxxx, Xxxxxx & Xxxxxxx LLP
1800 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000;
and Escrow Holder, if applicable.
23. OCCUPANCY AND POSSESSION.
Occupancy and possession shall be delivered to Buyer at
Close of Escrow, subject to rights of Tenants.
24. ATTORNEY'S FEES.
If either party hereto prevails against the other in
litigation concerning any part of this Agreement, such successful
party shall be entitled to its reasonable attorney's fees,
including costs of investigation, discovery, and court costs in
addition to all other recovery or relief. The term "successful
party" shall include a party (a) who brings an action or
proceeding against the other by reason of the other's breach or
default and obtains substantially the relief sought by judgment
or award or (b) who successfully defends an action or proceeding
brought by the other party and against whom no material damages
or specific performance are awarded.
25. ENTIRE AGREEMENT.
This Agreement, which includes this instrument and its
exhibits, embodies the entire agreement and understanding between
the parties relating to the subject matter hereof and supersedes
all prior agreements, representations and memoranda. No other
representations, warranties or covenants have been made, relied
upon or survive the execution of this Agreement. The invalidity
of any one of the covenants, agreements, conditions or provisions
of this Agreement or any portion thereof shall not affect the
remaining portions hereof, and this Agreement shall be construed
as if such covenant, agreement, condition or provision had not
been inserted herein.
26. TIME OF THE ESSENCE.
Time is of the essence of this Agreement and every provision
hereof. The failure of Buyer to close Escrow within the precise
time specifications of this Agreement shall constitute a material
breach entitling Seller, at its option, to terminate this
Agreement in addition to having available to it all other
remedies at law and equity.
27. MODIFICATIONS TO BE IN WRITING.
All waivers, amendments or modifications of any term or
condition of this Agreement hereof shall be in writing signed by
both Buyer and Seller or by the party against whom such waiver is
sought to be enforced. No waiver by any party of any breach
hereunder shall be deemed a waiver of any other or subsequent
breach..
28. SURVIVAL.
Except as may be otherwise specified herein, any warranties
and representations made herein survive the closing of this
transaction for a period of nine (9) monthsone (1) year.
29. SUCCESSORS.
The terms, covenants and conditions of this Agreement shall
be binding upon and shall inure to the benefit of the heirs,
executors, administrators and assigns of the respective parties
hereto.
30. ASSIGNMENT.
Buyer may not assign its rights hereunder to any party other
than its own affiliate or wholly owned subsidiary without the
prior written consent of the Seller, which consent shall not be
unreasonably withheld. Seller may assign its rights hereunder so
long as it covenants to remain responsible for the full
performance hereof through Close of Escrow.
31. CHOICE OF LAWS.
This Agreement shall be governed by the laws of the State of
California and any question arising hereunder shall be construed
or determined according to such law.
32. PUBLIC ANNOUNCEMENT OF SALE.
Except to the extent required by law, or as to either
party's consultants, attorneys, accountants, or agents, Buyer and
Seller agree that neither party shall issue any press release or
otherwise disclose the existence of this Agreement or any term
thereof to any third party, except upon prior written approval of
both Buyer and Seller. Each party, including any of their
respective agents, representatives or employees, shall use
diligent efforts to keep the contents of this Agreement and the
specific economic terms hereof confidential. This Section 32
shall survive any termination of this Agreement.
33. CONDITION OF PROPERTY.
Buyer acknowledges that it will inspect and examine the
Property and, except as expressly provided in this Agreement,
will rely solely on its own investigation of the Property and not
on any information provided or to be provided by or on behalf of
Seller. Except as otherwise expressly provided in this
Agreement, the sale of the Property to Buyer is made on as "AS
IS" "WHERE IS" and "WITH ALL FAULTS" basis. Buyer acknowledges
that in consideration of entering into this Agreement, that,
except as expressly provided in this Agreement, Seller makes no
warranty or representation, with respect to the Property, or any
portion thereof, express or implied, or arising by operation of
law, including, but not limited to, any warranty of condition
(physical, environmental or otherwise), title (other than the
limited warranties of title contained in the grant deed),
habitability or fitness for a particular purpose or otherwise.
34. COUNTERPARTS.
This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an
original; such counterparts shall together constitute but one
agreement.
35. FACSIMILE SIGNATURES.
Buyer and Seller each (a) has agreed to permit the use,
from time to time and where appropriate, of telecopied signatures
in order to expedite the transaction contemplated by this
Agreement, (b) intends to be bound by its respective telecopied
signature, (c) is aware that the other party will rely on the
telecopied signature, and (d) acknowledges such reliance and
waives any defenses to the enforcement of the documents and
notices effecting the transaction contemplated by this Agreement
based on the fact that a signature or notice was sent by
telecopy.
36. MEANING OF TERMS.
When necessary herein, all terms used in the singular
shall apply to the plural and vice versa; and all terms used in
the masculine shall apply to the neuter and feminine genders.
37. SECTION HEADINGS.
The headings of the several paragraphs of this
Agreement are inserted solely for convenience of reference and
are not a part of and are not intended to govern, limit or aid in
the construction of any term or provision hereof.
38. FURTHER ASSURANCES ON OR AFTER CLOSING.
Each party hereto agrees to do all acts and things and
to make, execute and deliver such written instruments as shall be
reasonably necessary to carry out the terms and provisions of
this Agreement. This covenant of further assurances shall
survive Closing.
39. FURTHER ASSURANCES PRIOR TO CLOSING.
Seller and Buyer shall, prior to Closing, execute any
and all documents and perform any and all acts reasonably
necessary, incidental or appropriate to effect the purchase and
sale and the transactions contemplated in this Agreement.
40. OTHER PARTIES.
Nothing in this Agreement shall be construed as giving
any person, firm, corporation and other entity, other than the
parties hereto, their successors and permitted assigns, any
right, remedy or claim under or with respect to this Agreement or
any provision hereof.
41. NO SOLICITATION.
Seller agrees that upon its execution of this Agreement
neither it nor its agents or employees will, prior to the
expiration of the Contingency Period, enter into any binding
agreement with any third party with respect to a sale or transfer
of the Property or any part thereof, except an agreement which is
contingent upon the termination of this Agreement, and, after the
expiration of the Contingency Period, enter into any binding or
non-binding agreement with any third party with respect to the
Property or any part thereof until such time, if any, that this
Agreement is terminated.
42. WAIVER OF JURY TRIAL.
SELLER AND BUYER, TO THE EXTENT THEY MAY LEGALLY DO SO,
HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING ARISING UNDER OR
WITH RESPECT TO THIS AGREEMENT, OR IN ANY WAY CONNECTED WITH, OR
RELATED TO, OR INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO
WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO
OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT,
OR OTHERWISE. TO THE EXTENT THEY MAY LEGALLY DO SO, SELLER AND
BUYER HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF
ACTION, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A
JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS
OR THEIR RIGHT TO TRIAL BY JURY.
43. SELLER'S EXCULPATION.
Neither the Seller nor any officer, director, shareholder,
trustee, agent or representative of the Seller shall be held to
any personal liability hereunder, nor shall resort be had to
their private property for satisfaction of any claim hereunder or
in connection with the affairs of the Seller, and only the
Property herein and the sales proceeds related thereto (up to a
maximum of $400,000.00 for each of the First Property and the
Seccond Property) shall be liable for satisfaction of any such
claim. This limitation shall extend to any agreement, covenant,
assignment, assumption or action made, delivered, executed or
done under or in connection with this Agreement. The provisions
of this Section 18 shall survive the termination of this
Agreement and the Closing.
IN WITNESS WHEREOF, Buyer and Seller have executed this
Agreement as of the date first above written.
BUYER: SELLER:
ARDEN REALTY LIMITED PARTNERSHIP, BEDFORD PROPERTY INVESTORS, INC.,
a Maryland limited partnership a Maryland corporation
By:/s/ Xxxxxx X. Xxxxxxx By:
By: Xxxxxx X. Xxxxxxx By:
