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EXHIBIT 10.8
AGREEMENT OF PURCHASE AND SALE
AND
JOINT ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS
(this "Agreement") is made and entered into as of this 20th day of October,
1997, by and between SP ASSOCIATES, LTD., a California limited partnership
("Seller"), and ARDEN REALTY LIMITED PARTNERSHIP, a Maryland limited
partnership ("Buyer"), with reference to the following facts:
A. Seller is the owner of the Property (as hereinafter defined).
B. Buyer desires to purchase from Seller, and Seller desires to
sell to Buyer, the Property (as hereinafter defined), on the terms and
conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the foregoing and the mutual
covenants and agreements herein set forth, and other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer
hereby agree as follows:
ARTICLE 1
PROPERTY
Seller hereby agrees to sell and convey to Buyer, and Buyer hereby
agrees to purchase from Seller, subject to the terms and conditions set forth
herein, the following:
1.1 Land. That certain land (the "Land") containing approximately
3.14 acres of land area, located in the City of Newhall, State of California
commonly known as Sunset Pointe Plaza, 25129 The Old Road, Newhall, California
and more particularly described on Exhibit A hereto;
1.2 Appurtenances. All rights, privileges and easements
appurtenant to the Land, to the extent owned by Seller, if any, including,
without limitation, all minerals, oil, gas and other hydrocarbon substances on
and under the Land, as well as all development rights and air rights relating
to the Land, and all water, water rights and water stock relating to the Land,
and any and all easements, rights-of-way or appurtenances used in connection
with the beneficial use and enjoyment of the Land (all of which are sometimes
collectively referred to as the "Appurtenances");
1.3 Improvements. All improvements and fixtures located upon the
Land, including, without limitation, an approximately 58,105 square foot
three-story office building, and all other structures and surface parking
presently located on the Land, all fixtures, apparatus,
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equipment, and appliances used in connection with the operation or occupancy
thereof to the extent owed by Seller, if any (all of which are collectively
referred to as the "Improvements");
1.4 Leases. All interest of Seller, as landlord, in and to the
leases of space in the Improvements as described on Exhibit B hereto
(collectively, the "Leases");
1.5 Personal Property. All personal property of Seller, if any,
located on or in or used in connection with the operation, maintenance or
management of the Land and/or the Improvements (collectively, the "Personal
Property");
1.6 Service Contracts. Those service contracts and other
agreements, lease rights, warranties, guarantees, agreements, utility contracts
and other rights relating to the ownership, use and operation of all or any
part of the Property, pursuant to Section hereof (collectively, the "Service
Contracts"); and
1.7 Intangible Property. All right, title and interest of Seller
in and to any and all intangible property owned by Seller and used in the
ownership, use and/or operation of the Land or the Improvements, including,
without limitation, the right to use any trade name now used in connection with
the Land or the Improvements, the books and records relating to the Property,
including computer discs, tapes and other data bases or software, inventory
records, building management records, payroll records and all other books and
records and all other books and records relating to the operation and
management of the Real Property (collectively, the "Intangible Property").
The Land, the Appurtenances, the Improvements and the Leases are
sometimes referred to herein collectively as the "Real Property." The Real
Property, Personal Property, Service Contracts and the Intangible Property are
sometimes referred to herein collectively as the "Property."
ARTICLE 2
PURCHASE PRICE
2.1 Purchase Price. The total purchase price for the Property shall
be the sum of Eight Million, Three Hundred Thousand Dollars ($8,300,000) (the
"Purchase Price").
2.2 Payment of Purchase Price. The Purchase Price shall be paid as
follows:
(a) Deposit. Upon the Opening of Escrow (as hereinafter
defined), Buyer shall deliver to Chicago Title Insurance Company ("Escrow
Holder"), 000 Xxxxx Xxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000
the sum of One Hundred Fifty Thousand Dollars ($150,000) (the "Deposit"). In
the event the sale of the Property is consummated, the sum of (i) the Deposit,
(ii) all interest accrued thereon, while such Deposit is held in Escrow, and
(iii) an amount equal to interest accruing on the Deposit at a rate of eight
percent (8%) per
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annum from the date the Deposit is released to Seller to the Closing Date (the
"Implied Interest Amount"), shall be credited towards the Purchase Price. In
the event that Buyer does not terminate this transaction at or prior to the
end of the Contingency Period (as hereinafter defined) the Deposit shall be
released to Seller subject to the provisions of this Agreement. If the
Deposit is released to Seller, Buyer shall receive as a credit against the
Purchase Price, an amount equal to the Implied Interest Amount. In the event
the transactions contemplated hereby are not consummated for reasons other than
a default solely on the part of Buyer, the Deposit, together with all interest
earned thereon, and, if previously released to Seller, including interest at a
rate of eight percent (8%) per annum from the date released to Seller to the
date returned to Buyer, shall be returned, upon Buyer's request, immediately to
Buyer.
(c) Balance of Purchase Price. The Purchase Price, less
the sum of the Deposit (the "Purchase Price Balance") shall be deposited with
Escrow Holder by Buyer in immediately available funds not later than the
Closing Date (as hereinafter defined). In the event the sale of the Property
is consummated, such amounts to be paid as set forth herein shall be credited
towards the Purchase Price. In the event the sale of the Property is not
consummated because of the failure of any condition or the default by Seller,
all such amounts, together with interest thereon, shall be returned immediately
to Buyer.
2.3 Investment of Deposit; Liquidated Damages
2.3.1 Investment of Deposit. The Deposit shall be placed in
an interest-bearing account or other investment acceptable to Buyer, with all
interest accruing to the benefit of Buyer. The Deposit shall be disposed of by
Escrow Holder only as provided in this Agreement.
2.3.2 Liquidated Damages. IN THE EVENT THAT, FOLLOWING THE
EXPIRATION OF THE CONTINGENCY PERIOD, THE TRANSACTIONS CONTEMPLATED HEREBY ARE
NOT CONSUMMATED DUE TO A DEFAULT SOLELY ON THE PART OF BUYER, THE AMOUNT OF THE
DEPOSIT, TOGETHER WITH ALL INTEREST EARNED THEREON, SHALL BE RETAINED BY SELLER
AS LIQUIDATED DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY. THE PARTIES
ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT THE TRANSACTIONS
CONTEMPLATED HEREBY ARE NOT CONSUMMATED FOLLOWING THE EXPIRATION OF THE
CONTINGENCY PERIOD DUE TO A DEFAULT SOLELY ON THE PART OF BUYER WOULD BE
EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR
SIGNATURES BELOW, THE PARTIES ACKNOWLEDGE THAT THE AMOUNT OF THE DEPOSIT HAS
BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF
SELLER'S DAMAGES.
Seller:/s/ MK /s/ GSC Buyer: /s/ VJC
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ARTICLE 3
ESCROW
3.1 Deposit with Escrow Holder and Escrow Instructions. Within three
(3) days following the execution of this Agreement by the parties hereto, the
parties hereto shall deposit a fully executed original of this Agreement with
Escrow Holder, and this greement shall serve as the instructions to Escrow
Holder for consummation of the transactions contemplated hereby. Seller and
Buyer agree to execute such additional and supplementary escrow instructions as
may be appropriate to enable Escrow Holder to comply with the terms of this
Agreement; provided, however, that in the event of any conflict between the
terms and provisions of this Agreement and the terms and provisions of any
supplementary escrow instructions, the terms and provisions of this Agreement
shall control.
3.2 Confirmation of the Opening of Escrow. Upon receipt of a
fully executed copy of this Agreement, Escrow Holder shall immediately execute
this Agreement to evidence Escrow Holder's agreement to act in compliance with
the terms and provisions hereof. Escrow Holder shall immediately notify Buyer
and Seller in writing of the date on which escrow was established with Escrow
Holder (the "Opening of Escrow"), which date shall thereafter be the Opening of
Escrow date for purposes of this Agreement.
ARTICLE 4
TITLE TO PROPERTY
4.1 Real Property. At the Closing, Seller shall convey to Buyer
fee simple title to the Real Property by duly executed and acknowledged grant
deed in the form of Exhibit C hereto (the "Grant Deed"). Evidence of delivery
of fee simple title to the Real Property shall be the issuance by Chicago Title
Insurance Company (the "Title Company") of an ALTA Owner's Policy of Title
Insurance (extended coverage) (the "Title Policy") in the amount of the
Purchase Price, insuring fee simple title to the Real Property in Buyer, free
and clear of monetary liens and subject only to the Permitted Exceptions (as
hereinafter defined) and including the Endorsements (as hereinafter defined).
4.2 Leases. At the Closing, Seller shall transfer all of its
right, title and interest in and to the Leases by an Assignment of Leases in
the form of Exhibit D hereto (the "Assignment of Leases"), free and clear of
any liens, encumbrances or interests of third parties.
4.3 Personal Property. At the Closing, Seller shall transfer
title to the Personal Property, if any, by a xxxx of sale in the form of
Exhibit E hereto (the "Xxxx of Sale"), free and clear of any liens,
encumbrances or interests of third parties.
4.4 Service Contracts. At the Closing, Seller shall transfer all
of its right, title and interest in and to the Service Contracts, if any, by an
Assignment of Service Contracts,
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Warranties and Guarantees in the form of Exhibit F hereto (the "Assignment of
Service Contracts"), free and clear of any liens, encumbrances or interest of
third parties.
4.5 Intangible Property. At the Closing, Seller shall transfer
all of its right, title and interest in and to all Intangible Property, if any,
by an Assignment of Intangible Property in the form of Exhibit G hereto (the
"Assignment of Intangible Property"), free and clear of any liens, encumbrances
or interests of third parties.
ARTICLE 5
BUYER'S CONDITIONS TO CLOSING
The following conditions are conditions precedent to Buyer's
obligation to purchase the Property:
5.1 Review and Approval of Title. Concurrently with the execution
and delivery of this Agreement, Seller shall deliver to Buyer all of the
following:
5.1.1 at Seller's sole cost and expense, a current extended
coverage preliminary title report (the "Preliminary Title Report") with respect
to the Property issued by the Title Company, accompanied by copies of all
documents referenced in such report; and
5.1.2 at Seller's sole cost and expense, copies of all
existing and proposed easements, covenants, restrictions, agreements or other
documents which affect the Real Property, including, without limitation, any
and all documents relating to any variance, conditional use permits or land-use
restrictions that are within Seller's possession or recoverable from the Title
Company as recorded documents relating to or affecting the Real Property, or if
no such documents exist, a certification of Seller to that effect.
Title to the Property shall be subject only to such exceptions in the
Preliminary Title Report as Buyer shall approve, in Buyer's sole and absolute
discretion (collectively, the "Permitted Exceptions"). Buyer shall have until
thirty (30) days following the Opening of Escrow (the "Contingency Period") in
which to notify Seller, in writing, as to those items which are Permitted
Exceptions, those matters which Buyer disapproves, and which endorsements Buyer
will be requiring (collectively, the "Endorsements"). Buyer's failure to
provide such written notice to Seller shall constitute disapproval of all
matters shown in the Preliminary Title Report
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in which event this Agreement shall terminate, the Deposit, together with any
interest earned thereon, shall be returned to Buyer, and the parties hereto
shall be relieved of all further rights and obligations hereunder.
5.2 Delivery of Reports and Documents. Within ten (10) days after
the execution and delivery of this Agreement, Seller shall deliver to Buyer,
copies of any and all of the following documents in Seller's possession:
(a) a rent roll of the Property for the current month;
(b) intentionally omitted;
(c) copies of the Leases, and all licenses, service contracts
(including parking, elevator, HVAC and landscaping maintenance contracts),
management contracts, brokerage agreements and (to the extent they are in
Seller's possession) copies of all permits, variances, insurance policies,
maps, certificates of occupancy, building permits;
(d) warranties and instruction books (e.g., for vertical
transportation, HVAC and other building systems); operating statements for
calendar years 1995, 1996 and 1997 monthly statements through the most recently
completed month;
(e) all available plans, structural drawings, architectural
and "as built" drawings, including, but not limited to, mechanical, electrical,
air conditioning, landscape and sprinkler drawings and specifications regarding
the improvements, and any soils, structural, geological, environmental,
hazardous materials and asbestos studies or reports relating to subsurface
conditions, grading plans, topographical maps and similar data respecting the
Property;
(f) copies of property tax bills for the last two (2) years
and copies of the most recently available utility bills respecting the
Property;
(g) a list of all personal property owned by or leased by
Seller and used in connection with the ownership or operation of the Property;
(h) a certificate of Seller certifying to Seller's knowledge
that there is no legal or administrative action, proceeding, claim, arbitration
or suit pending before any court, agency or official, nor any such claim or
action threatened in writing, relating to the Seller or the Property; and
(i) any and all other reports, plans or studies relating to
the Property that Buyer shall specifically request.
(collectively, the "Reports and Documents"). Buyer shall have until the
expiration of the Contingency Period in which to review the Reports and
Documents heretofore delivered and approve or disapprove any of the foregoing,
in Buyer's sole and absolute discretion. In the
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event Buyer disapproves any of the Reports and Documents, Buyer shall deliver
Seller written notice of Buyer's disapproval prior to the expiration of the
Contingency Period, in which event this Agreement shall terminate, the Deposit,
together with any interest thereon, shall be returned to Buyer, and the parties
hereto shall be relieved of all further rights and obligations hereunder. In
the event Buyer fails to deliver said written notice to Seller prior to the
expiration of the Contingency Period, Buyer shall be deemed to have disapproved
the Reports and Documents. Buyer agrees to return the Reports and Documents to
Seller in the event for any reason this Agreement is terminated and the
transactions contemplated herein are not consummated.
5.3 Buyer's Independent Review. Buyer shall have the right,
during the Contingency Period, to conduct such further inspections and/or tests
of the Property as Buyer deems necessary and/or desirable, to enable Buyer to
satisfy itself as to all matters relating to the Property, including, without
limitation, a Phase 1 environmental assessment of the Property,
asbestos-containing-materials studies, Americans with Disabilities Act
compliance studies, soils testing, engineering studies, zoning and intended use
reviews, the physical, structural, mechanical condition of the Property,
seismic studies, and other surveys and studies of the Property (collectively,
"Buyer's Inspections and Reports"). Buyer's right to conduct Buyer's
Inspections and Reports shall be subject to and conducted in accordance with
Buyer's right of access to the Property as set forth in Section hereof. In
the event that, based upon Buyer's independent review of the Property, Buyer
determines, in Buyer's sole and absolute discretion, that Buyer is unwilling to
proceed with the purchase of the Property, Buyer may elect to terminate the
Agreement by so notifying Seller in writing of Buyer's election prior to the
expiration of the Contingency Period, and this Agreement shall terminate, the
Deposit, together with any interest earned thereon, shall be returned to Buyer,
and the parties hereto shall be relieved of all further rights and obligations
hereunder. In the event Buyer fails to deliver said written notice to Seller
prior to the expiration of the Contingency Period, Buyer shall be deemed to
have disapproved Buyer's Inspections and Reports.
5.4 Estoppel Certificates. Buyer shall receive, prior to the
expiration of the contingency period, an estoppel certificate from (i) each
tenant occupying not less than 2500 net rentable square feet, and (ii) a
sufficient number of other tenants at the Property such that estoppel
certificates shall have been received pursuant to clauses (i) and (ii) hereof
with respect to not less than eighty five percent (85%) of the aggregate net
rentable square feet of the Property (i.e. 49,389 square feet), in the form of
Exhibit H hereto and in substance satisfactory to Buyer, in Buyer's sole and
absolute discretion (collectively, the "Estoppel Certificates"). In the event
that Buyer disapproves of any Estoppel Certificate Buyer may elect to terminate
the Agreement by so notifying Seller in writing of Buyer's election prior to
the expiration of the Contingency Period, in which event this Agreement shall
terminate, the Deposit, together with any interest earned thereon, shall be
returned to Buyer, and the parties hereto shall be relieved of all further
rights and obligations hereunder.
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5.5 Representations and Warranties of Seller. All of Seller's
representations and warranties contained in or made pursuant to this Agreement
shall have been true and correct when made and shall be true and correct as of
the Closing Date.
5.6 Covenants of Seller. Seller shall have complied with all of
Seller's covenants and agreements contained in or made pursuant to this
Agreement.
5.7 Delivery of Documents. Seller shall have delivered into
Escrow the documents and instruments described in Section 7.2 hereof and shall
have delivered to Buyer the documents and instruments described in Section 7.3
hereof.
5.8 Condition of Property. The condition of the Property shall
not have materially changed from the date of this Agreement to the Closing
Date, ordinary wear and tear excepted.
5.9 Conditions for the Benefit of Buyer. The foregoing conditions
are for the sole benefit of Buyer. If any of the foregoing conditions
described in this Article 5 is not satisfied for any reason whatsoever, Buyer
shall have the right at its sole election either to waive such condition and
proceed with the transactions contemplated hereby, or, in the alternative, to
terminate this Agreement, in which event Buyer shall be entitled to a return of
the Deposit, together with all interest earned thereon, and Seller and Buyer
shall be released from further obligation or liability hereunder (except for
those obligations and liabilities which, pursuant to the terms of this
Agreement, survive such termination).
ARTICLE 6
SELLER'S CONDITIONS TO CLOSING
The following conditions are conditions precedent to Seller's
obligation to sell the Property:
6.1 Representations and Warranties of Buyer. All of Buyer's
representations and warranties contained in or made pursuant to this Agreement
shall have been true and correct when made and shall be true and correct as of
the Closing Date.
6.2 Covenants of Buyer. Buyer shall have complied with all of
Buyer's covenants and agreements contained in or made pursuant to this
Agreement.
6.3 Delivery of Documents and Funds. Buyer shall have delivered
into Escrow the documents, instruments and funds described in Section 7.4
hereof.
6.4 Conditions for the Benefit of Seller. The foregoing
conditions are for the sole benefit of Seller. If any of the foregoing
conditions described in this Article 6 is not satisfied for any reason
whatsoever, Seller shall have the right at its sole election either to waive
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condition and proceed with the transactions contemplated hereby, or, in the
alternative, to terminate this Agreement, in which event Buyer shall be
entitled to a return of the Deposit, together with all interest earned thereon,
and Seller and Buyer shall be released from further obligation or liability
hereunder (except for those obligations and liabilities which, pursuant to the
terms of this Agreement, survive, such termination).
ARTICLE 7
CLOSING
7.1 Closing. The closing hereunder (the "Closing") shall mean the
recording of the Grant Deed conveying title to the Property from Seller to
Buyer and shall be held and delivery of all items to be made at the Closing
shall be made at the offices of Escrow Holder on January 6, 1998 (the "Closing
Date"), or such other date prior thereto and/or at such other laoction as Buyer
and Seller may mutually agree in writing. In the event the Closing Date does
not fall on a Business Day (as hereinafter defined), the Closing Date shall be
moved to the next succeeding Business Day. Such date may not otherwise be
modified without the written approval of both Seller and Buyer. In the event
the Closing does not occur on or before the Closing Date, Escrow Holder shall,
unless it is notified by both parties to the contrary within five (5) days
after the Closing Date, return to the depositor thereof items which may have
been deposited hereunder. Any such return shall not, however, relieve either
party hereto of any liability it may have for its wrongful failure to close.
7.2 Deliveries by Seller to Escrow Holder. Not later than one (1)
business day prior to the Closing Date, Seller shall deposit with Escrow Holder
the following:
7.2.1 The Grant Deed, duly executed and acknowledged by
Seller, in recordable form, and ready for recordation on the Closing Date;
7.2.2 An Affidavit of Non-Foreign Status in the form of
Exhibit I hereto, duly executed by Seller pursuant to Section 1445 of the
Internal Revenue Code of 1986, as amended;
7.2.3 California Form 590-RE, duly executed by Seller;
7.2.4 The Xxxx of Sale;
7.2.5 The Assignment of Leases;
7.2.6 The Assignment of Service Contracts; and
7.2.7 Any and all other documents, instruments, data,
records, correspondence or agreements called for hereunder which have not been
previously delivered.
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Buyer may waive compliance on Seller's part under any of the foregoing items by
an instrument in writing.
7.3 Deliveries by Seller Outside of Escrow. On or before the
Closing Date, Seller shall deliver or cause to be delivered to Buyer the
following:
7.3.1 To the extent they are then in Seller's possession,
and have not heretofore been delivered to Buyer, the original and as-built
plans and specifications for all Improvements on the Property;
7.3.2 To the extent in Seller's possession, all unexpired
warranties and guarantees which Seller has received in connection with any work
or services performed with respect to, or equipment installed in, the
improvements on the Property;
7.3.3 All keys in Seller's possession (properly tagged
for identification) for all improvements on the Property;
7.3.4 To the extent they are within Seller's possession,
the originals of all Leases and Estoppel Certificates (if not previously
delivered), all correspondence to or from any tenants, relating to the Leases
and all guarantees, certificates of deposit or other security associated
therewith;
7.3.5 The originals of all Service Contracts which are
being assumed by Buyer and will remain in effect after the Closing and all
correspondence and existing records prepared by Seller in its normal course of
operations specifically for the Property (and which are not otherwise
confidential) relating to, and necessary for, the on-going operations and
maintenance of the Property (which materials may be either delivered at Closing
or left at the management office at the Property);
7.3.6 An inventory list of all Seller's personal property on
the Property; and
7.3.7 Copies of all insurance policies obtained or maintained
by Seller and containing coverage applicable to the Property, including all
additional insured endorsements in which Seller is named as an additional
insured on an insurance policy concerning the Property. For purposes of this
agreement, policies of insurance include, but are not limited to, policies of
commercial general liability, fire, earthquake, flood, hazard, bodily injury,
lost rents, theft, condemnation, casualty loss and any umbrella policies
concerning the Property;.
Buyer may waive compliance on Seller's part under any of the foregoing items by
an instrument in writing.
7.4 Deliveries by Buyer. Not later than one business day prior to
the Closing Date, Buyer shall deposit with Escrow Holder the following:
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7.4.1 The Purchase Price Balance, for disbursement to Seller
in accordance with the terms and provisions hereof, to be held by Escrow Holder
pursuant to joint closing instructions reasonably acceptable to Buyer and
Seller; and
7.4.2 Any other documents, instruments, data, records,
correspondence or agreements called for hereunder which have not previously
been delivered.
Seller may waive compliance on Buyer's part under any of the foregoing items by
an instrument in writing.
7.5 Other Instruments. In addition to the documents and instruments
to be delivered as herein provided, each of the parties hereto shall, from time
to time at the request of the other party, execute and deliver to the other
party such other instruments of transfer, conveyance and assignment and shall
take such other action as may be reasonably required to effectively carry out
the terms of this Agreement.
7.6 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:
(i) Monthly rents and percentage rent and "passthroughs"
of real estate taxes and operating expenses due from occupancy tenants under
Leases, as and when collected. If at Closing there are any past due rents or
charges owed by occupancy tenants, they shall not be prorated until received;
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 Lease). To the extent
Buyer receives amounts on account of Leases on or after the Closing Date, such
payments shall be applied first toward then current rent owed to Buyer in
connection with the applicable Lease for which such payments are received, and
any excess monies received shall be applied toward the payment of any
delinquent rents, with Seller's share thereof being promptly delivered to
Seller. Buyer may not waive any delinquent rents nor modify a Lease so as to
reduce or otherwise affect amounts owed thereunder for any period in which
Seller is entitled to receive its share of charges or amounts without first
obtaining Seller's written consent. Seller hereby reserves the right to pursue
any remedy against any tenant owing delinquent rents and any other amounts to
Seller. Buyer shall reasonably cooperate with Seller in any collection efforts
hereunder (but shall not be required to litigate or declare a default in any
Lease). With respect to delinquent rents and any other amounts or other rights
of any kind respecting tenants who are no longer tenants of the Property as of
the Closing Date, Seller shall retain all rights relating thereto;
(ii) Real estate and personal property taxes and any
special assessments, taking into consideration discounts for the earliest
permitted payment, based upon the latest
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previous tax levies. Such items shall be reapportioned between Seller and
Buyer if current tax rates differ from the latest previous tax rates as soon as
the same are known. Seller agrees that to the extent any additional taxes,
assessments or levies are imposed, assessed or levied against the Property, or
any portion thereof, the Seller or the Buyer at any time subsequent to Closing
but with reference to any period prior thereto during Seller's ownership
thereof, Seller shall promptly pay to Buyer an amount equal to such additional
assessments or levies. Similarly, if tax refunds become payable for periods
during Seller's ownership of the Property, such amounts (subject to adjustments
for the potential claims of occupancy tenants that paid tax increases by way of
rent escalations to Seller) shall be promptly paid over to Seller. In the
event that any assessments on the Property are payable in installments, then
the installment for the current period shall be prorated (with Buyer assuming
the obligation to pay any installment due after the Closing Date). In no event
shall Seller be charged with or be responsible for any increase in the taxes on
the Property resulting from the sale of the Property or from any improvements
made or lease entered into on or after the Closing Date;
(iii) Transferable annual permits, licenses, and/or
inspection fees, if any, on the basis of the duration of the same;
(iv) Security deposits, plus accrued interest, if any,
payable thereon to tenants, and any other deposits and prepaid rent, shall be
credited (or assigned) to Buyer;
(v) Utility charges levied against Seller or the
Property, and Buyer shall transfer all such utility services to its name and
account immediately upon Closing;
(vi) Service Contracts on the basis of the charge or
premium for the period involved;
No insurance policies shall be assigned hereunder, and accordingly there shall
be no proration of insurance premiums.
7.7 Costs and Expenses. Buyer and Seller shall each pay one-half
(1/2) of Escrow Holder's escrow fee. Seller shall pay all documentary transfer
taxes, transfer or conveyance taxes imposed by the City and/or County in which
the Property is located. Seller shall pay any and all delinquent real property
taxes or assessments, and the cost of recording the Grant Deed. Seller shall
pay that portion of the premium for the Title Policy attributable to the
issuance of a CLTA standard coverage title policy and Buyer shall pay the
balance of the premium for the Title Policy, and the cost of the Endorsements,
if any.
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ARTICLE 8
REPRESENTATIONS AND WARRANTIES OF SELLER
As a material inducement to Buyer to enter into this Agreement, Seller
hereby represents and warrants to and agrees with Buyer as follows:
8.1 Condition of Property. To the best of Seller's knowledge,
without any duty to investigate, there are now, and at the Closing Date there
will be, no material physical or mechanical defects of the Property, including,
without limitation, the plumbing, heating, air conditioning, ventilating, life
safety and electrical systems, and all such items are in good operating
condition and repair and in compliance with all applicable governmental laws,
ordinances, regulations and requirements.
8.2 Use and Operation. To the best of Seller's knowledge, without
any duty to investigate, the use and operation of the Property now are, and at
the time of Closing will be, in full compliance with applicable building codes,
environmental, zoning and land use laws, and other applicable local, state and
federal laws, ordinances, regulations and requirements.
8.3 Reports, Contracts and Other Documents. The survey,
mechanical and structural plans and specifications, soil reports, certificates
of occupancy, warranties, and all other books and records relating to or
affecting the Property and all other contracts or documents delivered to Buyer
pursuant to this Agreement or in connection with the execution hereof,
including, without limitation, the Reports and Documents, are and at the time
of Closing will be true and correct copies, to the extent such document was
prepared by Seller, and contain no material inaccuracies or misstatements of
fact, and all such contracts and other documents relating to or affecting the
Property have been or will be delivered to Buyer pursuant to this Agreement.
8.4 Condemnation; Land-Use Regulation. To the best of Seller's
knowledge, there are no condemnation, environmental, zoning or other land-use
regulation proceedings, either instituted or planned to be instituted, which
could detrimentally affect the use or operation of the Property for its
intended purpose or the value of the Property, nor has Seller received notice
of any special assessment proceedings affecting the Property.
8.5 Leases. Except as set forth on Exhibit B, Seller has not
executed or otherwise entered into any written or unwritten leases, tenancies,
occupancy agreements, or other agreements with respect to the Property or
affecting possession thereof or any portion thereof or any rights thereto and
there are no such agreements entered into or executed by any third party. There
is no default on the part of Seller, as lessor, or, except as described on
Schedule 8.5 hereto, on the part of any lessee, and, to the best of Seller's
knowledge, without any duty to investigate, there exists no condition that with
the passage of time or the giving of notice or both would constitute such a
default. No event or transaction contemplated by this Agreement will conflict
with, violate any provision of, or constitute a default under (with or
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without the giving of notice and/or the lapse of time) any of the Leases.
Except as disclosed on Schedule 8.5, there is no conflict between the rights of
tenants to space in the Improvements, nor is any conflict between the terms of
this Agreement and any Lease, whether by original leasing, options to extend,
expand or renew, rights of first refusal, or otherwise.
8.6 Service Contracts, Mechanic's Liens and Other Agreements. Other
than those which are cancelable on thirty (30) day's notice, Seller has not
entered into any service agreements or contracts or other agreements, oral or
written (other than as set forth in this Agreement) relating to the Property
which will be in force on the Closing Date, except as disclosed on Schedule 8.6
hereto, and Seller has not received any notice of any material default
thereunder that remains uncured. Seller shall provide Buyer with true, correct
and complete copies of all agreements listed on Schedule 8.6 pursuant to Section
5.2 hereof. There will be no contractors, subcontractors, sub-subcontractors,
materialmen or any persons or entities who will be entitled to a mechanic's lien
against the Property. There is no obligation of Seller under the terms of any
contract, lease or other instrument relating to or affecting the Property to
assume any obligation thereof other than the obligations contained in the
contracts, leases and other documents required to be disclosed to Buyer pursuant
to this Agreement. There will be as of the Closing Date no obligation of Buyer
under the terms of any contract, lease or other instrument affecting the
Property other than the obligations contained in the contracts, leases and other
documents which Buyer assumes pursuant to this Agreement.
8.7 Brokerage Commissions. There are no commissions, finder's
fees or other compensation owing or which may become owing to any broker or any
other person or entity with respect to any tenant lease or occupancy agreement
including, without limitation, any such compensation with respect to any future
renewals, extensions or expansions thereof.
8.8 Labor Disputes. There is no current labor dispute with any
maintenance or other personnel or employees of Seller or any contracts with
respect to the Property which could adversely affect the use, operation or
value of the Property.
8.9 Absence of Other Agreements Affecting the Property. There are
no easements, encumbrances or other agreements affecting the Property except as
may be shown in the Preliminary Title report.
8.10 Default in Respect of Appurtenances. There is no default
under or in respect of any of the Appurtenances on the part of any party
thereto and no condition exists that with the passage of time or giving of
notice or both would constitute such a default.
8.11 Litigation. To the best knowledge of Seller, without any duty
to investigate, there is no litigation pending or, to Seller's knowledge
threatened, against Seller that arises out of the ownership or operation of the
Property or that might detrimentally affect the use or operation of the
Property for its intended purpose or the value of the Property or is likely to
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materially and adversely affect the ability of Seller to perform its
obligations under this Agreement.
8.12 Utilities. All water, sewer, gas, electric, telephone, and
drainage facilities and all other utilities required by law or by the current
use and operation of the Property are, and at the time of Closing will be,
connected and operating pursuant to valid permits, and are and at the time of
Closing will be adequate to service the Property as it is currently used, and
to permit full compliance with all requirements of law and normal usage of the
Property by the tenants thereof and their licensees and invitees.
8.13 Use Permits and Other Approvals. To the best of Seller's
knowledge, without any duty to investigate, Seller has obtained all licenses,
permits, approvals, easements and rights of way, including proof of dedication,
required from all governmental authorities having jurisdiction over the
Property or from private parties for the normal use and operation of the
Property and to ensure free and unimpeded vehicular and pedestrian ingress to
and egress from the Property as required to permit the normal intended usage of
the Property by the tenants thereof, their invitees and customers.
8.14 Authority of Seller. This Agreement and all documents
executed by Seller which are to be delivered to Buyer at or prior to the
Closing are or at the time of Closing will be duly authorized, executed, and
delivered by Seller, are or at the time of Closing will be legal, valid, and
binding obligations of Seller enforceable in accordance with their terms, and
are and at the time of Closing will be sufficient to convey title (if they
purport to do so).
8.15 No Conflict. The execution and delivery of this Agreement,
the consummation of the transactions herein contemplated, and compliance with
the terms of this Agreement shall not conflict with or result in a breach of
any of the terms of provisions of, or constitute a default under, any
instrument or agreement to which Seller is a party or, to Seller's knowledge,
by which any of the Property is or may be bound, or any applicable regulation
of any governmental agency, or any judgment, order or decree of any court
having jurisdiction over Seller or, to Seller's knowledge, the Property.
8.16 Use and Operation of Property. Seller knows of no facts nor
has Seller failed to disclose to Buyer any fact which would prevent Buyer from
using, leasing and operating the Property after Closing in the normal manner in
which similar properties in the area are used, operated and leased or in the
manner in which the Property has been used, leased and operated prior to the
Closing Date.
8.17 Other Contracts to Convey Property. Seller has not committed
nor obligated itself in any manner whatsoever to sell the Property to any party
other than Buyer.
8.18 Hazardous Substances and Environmental Matters. Neither
Seller, nor to the best knowledge of Seller, any other person or entity, has
ever used, generated, manufactured, produced, stored, released, discharged or
disposed of on, under or about the Property, or
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transported to or form the Property any Hazardous Substance (as hereinafter
defined) or allowed any other person or entity to do so. No proceeding or
inquiry by any governmental authority with respect to the presence of any
Hazardous Substance on the Property or the migration thereof from or to other
property is pending or threatened, nor have any claims been made or threatened
by any third party against Seller or the Property relating to any loss or
injury resulting form any Hazardous Substance. Except as may be disclosed in
any environmental reports delivered by Seller to Buyer pursuant to this
Agreement, there is no occurrence or condition on any real property adjoining
or in the vicinity of the Property that could cause the Property or any part
thereof to be subject to any restrictions on the ownership, occupancy,
transferability or use of the Property under any Environmental Law (as
hereinafter defined). The term "Environmental Law" shall include, without
limitation, any federal, state or local law, statute, ordinance or regulation
pertaining to health, industrial hygiene or the environment (collectively
referred to as "Environmental Laws"), including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA") as amended, 42 U.S.C. Sections 9601 et seq., and the Resource
Conservation and Recovery Act of 1976 ("RCRA") as amended, 42 U.S.C. Sections
9601 et seq. The term "Hazardous Substance" shall include, without limitation,
(i) those substances included within the definitions "hazardous substances,"
"hazardous materials," "toxic substances," or "solid waste" in CERCLA, RCRA and
the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801 et seq., as
amended, and in the regulations promulgated pursuant to said laws; (ii) those
substances defined as "hazardous wastes" in Section 25117 of the California
Health & California Health & Safety Code, or as "hazardous substances" in
Section 25316 of the California Health & Safety Code, and in the regulations
promulgated pursuant to said laws; (iii) those substances listed in the United
States Department of Transportation Table (49 CFR 172.101 and amendments
thereto) or by the Environmental Protection Agency (or any successor agency) as
hazardous substances (40 CFR Part 302 and amendments thereto); and (iv) such
other substances, materials, and wastes which are or become regulated under
applicable local, state or federal law, or which are classified as hazardous or
toxic under local, state or federal law, rules or regulations.
8.19 Transactions with Affiliates. Except as disclosed on Schedule
8.19 hereto, there are no agreements between Seller and any Affiliate (as
hereinafter defined) of Seller respecting the Property, including the use,
operation and maintenance thereof. Without limiting the foregoing, there are no
Leases, Service Contracts, or brokerage agreements between Seller and any
Affiliate of Seller respecting the Property or any portion thereof except as
disclosed on Schedule 8.19. As used herein "Affiliate" shall mean and refer to
any entity which controls, is controlled by, or is under common control with
Seller.
The foregone representations and warranties of Seller shall survive
the Closing for a period of two (2) years following the Closing.
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ARTICLE 9
REPRESENTATIONS AND WARRANTIES OF BUYER
As a material inducement to Seller to enter into this Agreement, Buyer
hereby represents and warrants to and agrees with Seller as follows:
9.1 Authority of Buyer. This Agreement and all documents executed by
Buyer which are to be delivered to Seller at or prior to the Closing are or at
the time of Closing will be duly authorized, executed, and delivered by Buyer,
are or at the time of Closing will be legal, valid, and binding obligations of
Buyer enforceable in accordance with their terms.
9.2 Litigation. There is no litigation pending or, to Buyer's
knowledge threatened, against Buyer that is likely to materially and adversely
affect the ability of Buyer to perform its obligations under this Agreement.
9.3 No Conflict. The execution and delivery of this Agreement,
the consummation of the transactions herein contemplated, and compliance with
the terms of this Agreement shall not conflict with or result in a breach of
any of the terms of provisions of, or constitute a default under, any
instrument or agreement to which Buyer is a party or any applicable regulation
of any governmental agency, or any judgment, order or decree of any court
having jurisdiction over Buyer.
ARTICLE 10
COVENANTS OF SELLER
Seller agrees and covenants with Buyer, from the date hereof through
the Closing Date, as follows:
10.1 Maintenance and Operation of the Property. Seller shall
maintain the Property in good order, condition and repair, reasonable wear and
tear excepted, and shall make all repairs, maintenance and replacements as is
necessary to so maintain the Property.
10.2 No Leases or Other Contracts. Seller shall not enter into or
modify any leases, service contracts or other similar agreements with respect
to the Property without the prior written consent of Buyer, which shall not be
unreasonably withheld or delayed. Buyer agrees to respond to Seller's request
for approval within two (2) business days following request therefore.
10.3 No Other Encumbrances. Seller shall not enter into any
agreements respecting the sale of the Property or any portion thereof, and
shall not enter into any agreements which encumber or subject to lien the
Property or any portion thereof.
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10.4 Insurance. Seller shall keep its existing policies of insurance
in full force and effect.
10.5 Disclosure of Changes. If Seller discovers any information or
facts which would materially or adversely change the representations and
warranties of Seller contained in this Agreement, Seller shall promptly give
notice to Buyer of such information or facts.
ARTICLE 11
DAMAGE OR DESTRUCTION; CONDEMNATION
In the event that, after the date hereof but prior to the Closing
Date, either any portion of the Property is taken pursuant to eminent domain
proceedings or any of the improvements on the Property are damaged or destroyed
by any casualty, Seller shall have no obligation to repair or replace any such
damage or destruction. Seller shall, upon consummation of the transaction
herein provided, assign to Buyer all claims of Seller respecting any
condemnation or casualty insurance coverage, as applicable, and all
condemnation proceeds or proceeds from any such casualty insurance received by
Seller on account of any casualty (the damage from which shall not have been
repaired by Seller prior to the Closing Date) as applicable, and Seller shall
give Buyer a credit equal to the deductible portion of Seller's insurance
policy attributable to the Property. In the event (i) the condemnation award
shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise
materially and adversely affect the Property, as reasonably determined by
Buyer, or (ii) the cost of repair of damage to the Property on account of a
casualty, shall equal or exceed One Hundred Thousand Dollars ($100,000) or
otherwise materially and adversely interfere with the operations of the
Property, as reasonably determined by Buyer, Buyer may, at its option,
terminate this Agreement by notice to Seller, given on or before the Closing
Date, in which event this Agreement shall terminate, the Deposit, together with
all interest earned thereon, shall be returned to Buyer, and each party shall
be relieved of all further obligations hereunder.
ARTICLE 12
DELIVERY OF POSSESSION AND ENTRY ON PROPERTY
12.1 Delivery of Possession. Possession of the Property shall be
delivered to Buyer on the Closing Date.
12.2 Buyer's Obligation to Maintain Insurance . Prior to any entry
onto the Property pursuant to this Agreement by Buyer or any person or entity
acting on behalf of Buyer, Buyer shall provide Seller with a certificate of
insurance confirming the effectiveness of a policy of liability insurance in
favor of Buyer, which names Seller as additional insureds, with a combined
single limit coverage in an amount of not less than One Million Dollars
($1,000,000) per occurrence and which is not amendable or cancelable on less
than thirty (30) days prior written notice.
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12.3 Entry on Property. From the date hereof until the Closing,
Seller shall afford Buyer reasonable access to the Property for the purpose of
conducting Buyer's Inspections. Buyer agrees to coordinate all such visits to
the Property with a representative of Seller, and to conduct all such visits in
a commercially reasonable manner which minimizes any unnecessary disruption to
tenants. Buyer agrees to keep the Property free and clear of any mechanic's
liens or other liens in connection with Buyer's Inspections and Reports, and
Buyer indemnifies and holds Seller harmless from and shall defend on Seller's
behalf and against any and all liability, loss, cost, damage and/or expense,
including, without limitation, attorneys' fees and costs, resulting directly
from Buyer's or Buyer's agents' entry onto the Property. Should the
transaction contemplated herein fail to close for any reason, Buyer shall, at
Buyer's expense, repair any damage resulting directly from Buyer's or Buyer's
agents' entry onto the Property.
ARTICLE 13
INDEMNIFICATION
13.1 Indemnification by Seller. Seller hereby agrees to indemnify
Buyer and hold Buyer harmless from and against any and all claims, demands and
losses, including, without limitation, reasonable attorneys' fees and costs
suffered by Buyer as a direct or indirect result of:
(a) Any misrepresentation or breach of warranty or breach
of covenant made by Seller in this Agreement or any document, certificate, or
exhibit given by Seller or delivered by Seller to Buyer pursuant to or in
connection with this Agreement; and
(b) Any and all obligations, liabilities, claims, liens
or encumbrances, whether direct, contingent or consequential and no matter how
arising, and in any way related to the Property and arising or accruing on or
before the Closing Date, or in any way related to or arising from any act,
conduct, omission, contract or commitment of Seller (or any of its agents or
employees) at any time or times on or before the Closing Date.
13.2 Indemnification by Buyer. Buyer hereby agrees to indemnify
Seller and hold Seller harmless from and against any and all claims, demands
liabilities, liens, costs, expenses, penalties, damages and losses, including,
without limitation, reasonable attorneys' fees and costs suffered by Seller as
a direct or indirect result of:
(a) Any misrepresentation or breach of warranty or breach
of covenant made by Buyer in this Agreement or any document, certificate, or
exhibit given by Buyer or delivered by Buyer to Seller pursuant to or in
connection with this Agreement; and
(b) Any and all obligations, liabilities, claims, liens
or encumbrances, whether direct, contingent or consequential and no matter how
arising, and in any way related to the Property and arising or accruing after
the Closing Date, or in any way related to or
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arising from any act, conduct, omission, contract or commitment of Buyer (or
any of its agents or employees) at any time or times after the Closing Date.
13.3 Warranty and Indemnity Regarding Estoppels. If Seller has
failed to deliver to Buyer any estoppel certificates required to be delivered
pursuant to Section 5.4 hereof on or before the Closing Date and Buyer
nevertheless elects to close the transaction, Seller shall indemnify Buyer with
respect to any claim made by any tenant or other party which is based upon
facts not consistent with the representations and warranties of Seller herein
or set forth on the respective unmodified form of estoppel certificate to have
been provided by such tenant.
The provisions of this Article 13 shall survive the execution and
delivery of this Agreement, the delivery of the Grant Deed and transfer of
title.
ARTICLE 14
MISCELLANEOUS
14.1 Notices. Any notice or other communication required or
permitted to be given under this Agreement shall be in writing and sent by
commercial courier service, United States mail, registered or certified mail,
postage prepaid, return receipt requested, and addressed as follows:
If to Buyer: Arden Realty Limited Partnership
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000 Xxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxx, Esq.
with a copy to: Christensen, Miller, Fink, Jacobs,
Xxxxxx, Weil & Xxxxxxx, LLP
2121 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
If to Seller: SP Associates Ltd. c/o Three Springs
Corporation
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
with a copy to: Irell & Xxxxxxx
1800 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
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If to Escrow Holder: Chicago Title Insurance Company
000 Xxxxx Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx Xxxx
If to the Title Company: Chicago Title Insurance Company
000 Xxxxx Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx Xxxx
or such other address as either party may from time to time specify in writing
to the other in the manner aforesaid. If personally delivered, such notices or
other communications shall be deemed delivered upon delivery. If sent by
commercial courier service, United States mail, registered or certified mail,
postage prepaid, return receipt requested, such notices or other communications
shall be deemed delivered upon delivery or refusal to accept delivery as
indicated on the return receipt.
14.2 Brokers and Finders. In connection with the transactions
contemplated by this Agreement (a) Seller hereby represents and warrants to
Buyer that Seller has not, and shall not, incur any obligation to any third
party for the payment of any broker's fee, finder's fee, commission or other
similar compensation, and (b) Buyer hereby represents and warrants to Seller
that Buyer has not, and shall not, incur any obligation to any third party for
the payment of any broker's fee, finder's fee, commission or other similar
compensation other than to Xxxxx X. Xxxxxx (Landmark Commercial Group). In the
event of a claim for broker's fee, finder's fee, commission or other similar
compensation in connection herewith, Buyer, if such claims is based upon any
agreement alleged to have been made by Buyer, hereby agrees to indemnify and
hold Seller harmless from and against any and all liability, loss, cost, damage
and/or expense (including, without limitation, reasonable attorneys' fees and
expenses) which Seller may sustain or incur by reason of such claim, and
Seller, if such claims is based upon any agreement alleged to have been made by
Seller, hereby agrees to indemnify and hold Buyer harmless from and against any
and all liability, loss, cost, damage and/or expense (including, without
limitation, reasonable attorneys' fees and expenses) which Buyer may sustain or
incur by reason of such claim. The provisions of this Section shall survive
the Closing for a period of two (2) years following the Closing.
14.3 Successors and Assigns. This Agreement shall be binding upon,
and inure to the benefit of, the parties hereof and their respective
successors, heirs, administrators and assigns; provided, however, that Buyer
may not assign its rights or obligations under this Agreement without the prior
written consent of Seller, which consent shall not be unreasonably withheld or
delayed. In addition, Buyer may assign its rights in this Agreement to an
entity which controls, is controlled by, or is under common control with,
Buyer.
14.4 Amendments. This Agreement may be amended or modified only by
a written instrument executed by the parties hereto.
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14.5 Continuation and Survival of Representations and Warranties.
All representations and warranties by the respective parties contained herein
or made in writing pursuant to this Agreement are intended to be and shall
remain true and correct as of the time of Closing, shall be deemed to be
material, and shall survive the execution and delivery of this Agreement, and
the execution and delivery of the Deed and the transfer of title to the
Property for a period of two (2) years following the Closing.
14.6 Interpretation. Whenever used herein, the term "including"
shall be deemed to be followed by the words "without limitation." Words used in
the singular number shall include the plural, and vice-versa, and any gender
shall be deemed to include each other gender.
14.7 Captions. The captions and headings of the Articles and
Sections of this Agreement are for convenience of reference only, and shall not
be deemed to define or limit the provisions hereof.
14.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
14.9 Merger of Prior Agreements. This Agreement, including the
exhibits and schedules hereto, constitutes the entire agreement between the
parties with respect to the purchase and sale of the Property and supersedes
all prior agreements and understandings between the parties hereto relating to
the subject matter hereof.
14.10 Attorneys' Fees. In the event either Buyer or Seller brings
any suit or other proceeding with respect to the subject matter or enforcement
of this Agreement, the prevailing party (as determined by the court, agency or
other authority before which such suit or proceeding is commenced) shall, in
addition to such other relief as may be awarded, be entitled to recover
attorneys' fees, expenses and costs of investigation as actually incurred
(including, without limitation, attorneys' fees, expenses and costs of
investigation incurred in appellate proceedings, costs incurred in establishing
the right to indemnification, or in any action or participation in, or in
connection with, any case or proceeding under Chapter 7, 11 or 13 of the
Bankruptcy Xxxx, 00 Xxxxxx Xxxxxx Code Sections 101 et seq., or any successor
statutes).
14.11 Time of the Essence. Time is of the essence of this Agreement.
14.12 Election of Remedies. Except as otherwise specifically
provided herein to the contrary in Section hereof, no right or remedy
conferred upon either party in this Agreement is intended to be exclusive of
any other right or remedy contained herein or now or hereafter available to
either part at law or in equity, and every such right and remedy shall be
cumulative and shall be in addition be every other right or remedy contained in
this Agreement or now or hereafter available to either party at law or in
equity.
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14.13 Authority. The parties signing below represent and warrant
that they have the requisite authority to bind the entities on whose behalf
they are signing.
14.14 Exhibits. The exhibits and schedules attached hereto are
hereby incorporated by reference herein.
14.15 Severability. The invalidity or unenforceability of any one or
more of the provisions of this Agreement shall not affect the validity or
enforceability of any of the other provisions of this Agreement.
14.16 Further Assurances. The parties hereto agree to execute,
acknowledge and deliver any and all additional papers, documents and other
assurances and shall perform any and all acts and things reasonably necessary
in connection with the performance of the obligations hereunder and to carry
out the intent of the parties hereto.
14.17 Effect of Waiver. A waiver by either party hereto shall not
affect either party's right to enforce the provisions contained herein, nor
shall nay extension or waiver be held to be an extension of time or waiver of
any prior or subsequent breach of the same or any other obligation under this
Agreement.
14.18 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14.19 No Third Parties Benefitted. This Agreement is made and
entered into solely for the benefit of Seller and Buyer, their successors and
assigns, and no other person or entity shall have any rights hereunder.
14.20 Specific Performance. The parties understand and agree that
the Property is unique and for that reason, among others, Buyer will be
irreparably damaged in the event that this Agreement is not specifically
enforced. Accordingly, in the event of any breach or default in or of this
Agreement or any of the warranties, terms or provisions hereof by Seller, Buyer
shall have, in addition to a claim for damages for such breach or default, and
in addition and without prejudice to any right or remedy available at law or in
equity, the right to demand and have specific performance of this Agreement.
14.21 [INTENTIONALLY OMITTED]
14.22 Business Day. As used herein, Business Day shall mean and
refer to any day in which banking institutions are open for business and the
County Recorder's Office of Los Angeles County, California is accepting
documents for recordation in their real estate records.
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14.23 Furnishing of Audit Letter. Seller agrees to furnish, from
time to time upon the request of Buyer, an Audit Letter substantially in the
form of Exhibit K hereto, to Buyer's accountants.
14.24 Tax Deferred Exchange. Buyer and Seller acknowledge that
either party may wish to structure this transaction as a tax deferred exchange
of like-kind property within the meaning of Section 1031 of the Code. Each
party agrees to reasonably cooperate with the other party to effect such an
exchange; provided, however, that (i) the cooperating party shall not be
required to acquire or take title to any exchange property, (ii) the
cooperating party shall not be required to incur any expense or liability
whatsoever in connection with the exchange, including, without limitation, any
obligation for the payment of any escrow, title, brokerage or other costs
including attorneys' fees incurred with respect to the exchange, (iii) no
substitution of the effectuating party shall release said party from any of its
obligations, warranties or representations set forth in this Agreement or from
liability for any prior or subsequent default under this Agreement by the
effectuating party, its successors, or assigns, which obligations shall
continue as the obligations of a principal and not of a surety or guarantor,
(iv) the effectuating party shall give the cooperating party at least five (5)
business days prior notice of the proposed changes required to effect such
exchange and the identity of any party to be substituted in the escrow, (v) the
effectuating party shall be responsible for preparing all additional
agreements, documents and escrow instructions (collectively, the "Exchange
Documents") required by the exchange, at its sole cost and expense, (vi) the
effectuating party shall be responsible for making all determinations as to the
legal sufficiency, tax considerations and other considerations relating to the
proposed exchange, the Exchange Documents and the transactions contemplated
thereby, and the cooperating party shall in no event be responsible for, or in
any way be deemed to warrant or represent any tax or other consequences of the
exchange transaction, (vii) the effectuating party shall indemnify, defend and
hold the cooperating party harmless from and against any and all adverse tax
consequences and administrative or judicial Internal Revenue Service
proceedings arising by reason of the cooperating party's performance of the
acts required hereby, and (viii) the election to effect such an exchange shall
not delay the Closing of the transaction as defined herein.
14.25 Arbitration. ANY CONTROVERSY OR CLAIM ARISING UNDER OR
RELATING TO THE TERMS OF THIS AGREEMENT OR ANY OF THE EXHIBITS ATTACHED TO IT,
AND ANY PROCEEDINGS TO ENFORCE THIS AGREEMENT OR RIGHTS UNDER THIS AGREEMENT
AND ITS EXHIBITS SHALL BE SETTLED BY ARBITRATION IN THE CITY OF LOS ANGELES, IN
ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION
ASSOCIATION. THE ARBITRATOR(S) SHALL HAVE THE RIGHT TO DETERMINE THE SCOPE OF
THEIR JURISDICTION AND GRANT EQUITABLE RELIEF, INCLUDING, WITHOUT LIMITATION,
THE RIGHT TO ORDER THE EXPUNGEMENT OF ANY LIS PENDENS WHICH THE ARBITRATOR(S)
DEEM IMPROPER. THE PREVAILING PARTY SHALL BE ENTITLED TO REASONABLE ATTORNEYS'
FEES AND OTHER REASONABLE COSTS INCURRED IN CONNECTION WITH THE ARBITRATION OR
ANY OTHER LITIGATION PLUS INTEREST ON THE AMOUNT OF ANY AWARD. JUDGMENT
24
25
UPON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION THEREOF. THIS PARAGRAPH MUST BE INITIALED BELOW IN ORDER FOR THIS
PARAGRAPH OF THE AGREEMENT TO BE BINDING.
NOTICE: BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO
HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE
"ARBITRATION OF DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS
PROVIDED BY CALIFORNIA LAW, AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT
POSSESS TO HAVE THE DISPUTE LITIGATION IN A COURT OR JURY TRIAL. BY
INITIALING IN THE SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS
TO DISCOVERY AND APPEAL, UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED
IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO
ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION TO NEUTRAL ARBITRATION.
/s/ MK /s/ GSC /s/ VJC
----------------------- -----------------------
Seller's Initials Buyer's Initials
[SIGNATURE PAGE FOLLOWS]
25
26
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Seller: SP Associates, Ltd.,
a California Limited Partnership
By: Three Springs Corporation
Its General Partner
By: /s/ Xxxxxxx St. Clair
----------------------------------
Its: Vice President
By: Larwin Company, a California
corporation
Its General Partner
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Its: CEO
-------------------------------
Buyer:Arden Realty Limited Partnership,
a Maryland corporation
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Its: President and COO
-------------------------------
26
27
LIST OF EXHIBITS
Exhibit A: Description of the Land
Exhibit B: Leases
Exhibit C: Grant Deed
Exhibit D: Assignment of Leases
Exhibit E: Xxxx of Sale
Exhibit F: Assignment of Service Contracts
Exhibit G: Assignment of Intangible Property
Exhibit H: Form of Estoppel Certificate
Exhibit I: Affidavit of Non-Foreign Status
Exhibit J: INTENTIONALLY OMITTED
Exhibit K: Form of Audit Letter
28
LIST OF SCHEDULES
Schedule 7.5: Lease Disclosures
Schedule 7.6: Service Contract Disclosures
Schedule 7.19: Disclosures Regarding Affiliates
29
EXHIBIT A
LEGAL DESCRIPTION
PARCEL XX. 0 XX XXXXXX XXX XX. 00000, IN THE COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP FILED IN BOOK 198, PAGES 79 THROUGH 85 INCLUSIVE OF
PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM A PORTION OF SAID LAND AN UNDIVIDED 2 1/2 PERCENT INTEREST OF
ALL OIL, GAS, NATURAL GASOLINE AND OTHER HYDROCARBON SUBSTANCES, INCLUDING
HELIUM AND CARBON-DIOXIDE, IN AND UNDER SAID LAND, AS GRANTED TO X. X. XXXX, IN
THE DEED RECORDED FEBRUARY 26, 1940, IN BOOK 17290, PAGE 227, OF OFFICIAL
RECORDS, BUT WITHOUT THE RIGHT OF SURFACE ENTRY TO A DEPTH OF 500 FEET BELOW THE
SURFACE OF SAID LAND BY A QUITCLAIM DEED RECORDED MARCH 25, 1981 AS INSTRUMENT
NO. 81-300512, OFFICIAL RECORDS.
ALSO EXCEPT THEREFROM A PORTION OF SAID LAND AN UNDIVIDED ONE-HALF OF ALL OIL,
GAS AND OTHER HYDROCARBON AND MINERAL SUBSTANCES IN, UNDER OR THAT MAY BE
PRODUCED, SAVED, SOLD OR REMOVED FROM THE HEREINABOVE DESCRIBED LAND OR ANY PART
THEREOF OR THAT MAY BE PRODUCED OR REMOVED BY MEANS OF A WELL OR WELL BORE
PENETRATING OR TRAVERSING THE SAID LAND OR ANY PART THEREOF, TOGETHER WITH THE
RIGHT TO EXTRACT SAID OIL, GAS AND OTHER HYDROCARBON AND MINERAL SUBSTANCES AND
TOGETHER WITH ALL PROCEEDS, RENTS, ROYALTIES, BONUSES AND OTHER CONSIDERATIONS
ALLOCABLE TO, OR WHICH MAY ACCRUE OR BE PAYABLE WITH RESPECT TO THE SAID RIGHTS,
TITLE, INTEREST AND ESTATE IN AND TO SAID OIL, GAS AND OTHER HYDROCARBON AND
MINERAL SUBSTANCES, EXCEPTED BY AND RETAINED IN GRANTORS HEREUNDER, WHETHER
UNDER OR PURSUANT TO ANY LEASE FOR THE DEVELOPMENT AND PRODUCTION OF OIL OR GAS,
COMMUNITY OIL AND GAS LEASE, ANY POOLING OR UNITIZING ARRANGEMENT OR AGREEMENT,
OPERATING AGREEMENT, AGREEMENT PERMITTING PROSPECTING FOR AND PRODUCTION OF OIL
OR GAS OR OTHERWISE; PROVIDED, HOWEVER, THAT GRANTORS DO HEREBY WAIVE AND
RELINQUISH ANY AND ALL RIGHTS TO USE AND OCCUPY THE SURFACE OR SUBSURFACE TO A
DEPTH OF 500 FEET BELOW THE SURFACE OF THE SAID LAND, FOR ANY PURPOSE
WHATSOEVER, THE RIGHTS, INTEREST AND ESTATE HEREIN EXCEPTED BY AND RETAINED IN
GRANTORS ARE OVER IN ADDITION TO THAT CERTAIN GROSS ROYALTY OF 2 PERCENT AND
RIGHTS WITH RESPECT THERETO EXCEPTED AND RESERVED BY GRANTOR UNDER THAT CERTAIN
GRANT DEED DATED DECEMBER 15, 1954 FROM XXXX X. XXXXX, A MARRIED MAN AS HIS SOLE
AND SEPARATE PROPERTY AND XXXX X. XXXXX, HIS WIFE, TO XXXXX X. XXXXXXXX AND
XXXXX XXXXXXXX, HUSBAND AND WIFE, AS JOINT TENANTS, RECORDED IN BOOK 46467, PAGE
214, OFFICIAL RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, AS EXCEPTED AND
RESERVED BY XXXXX X. XXXXXXXX AND XXXXX X. XXXXXXXX, IN DEED RECORDED OCTOBER 4,
1963 AS INSTRUMENT NO. 2005, IN BOOK D2206, PAGE 799, OFFICIAL RECORDS.
Preliminary Title Report and Underlying documents delivered to Xxxxxxxx Xxxx,
Senior Vice President, Arden ReaLty during the site visit with Seller
on Tuesday, October 14
30
EXHIBIT B
SCHEDULE OF LEASES
Suite Tenant SF
----- ------ --
1 100 Centex Homes 5,755
2 101 Xxxxxxx & Xxxxxxx 847
3 104 Schering Plough 1,624
4 105 Investor's Title Company 1,604
5 110 North American Mortgage Inc 2,300
6 000 Xxxxx Xxxx Xxxxxxx Hospital 3,776
7 200 Consumer Credit Counsel 954
8 201 Manpower 1,140
9 202 Xxxx-Xxxxxx/Xxxx 823
10 203 National Pacific Mortgage 700
11 207 Paradise & Associates 1,273
12 208 Universal Health Employment 1,494
13 210 Taxatron 1,679
14 215 Pacific Mortgage 820
15 220 Xxxxxx Xxxxxx Insurance 1,932
16 212 First Community Financial 2,829
17 222 Greystone Homes 5,783
18 300 Rosemont 1,650
19 302 Franklin Equity Leasing 916
20 303 CPR Technologies 1,592
21 304 Chicago Title Company 2,060
22 307 Xxxx Xxxxx 925
23 310 Del Guyer 2,244
24 312 Dodge-Chrysler Dealers 2,115
25 316 Primerica/Rolls 2,413
26 322 Huntway Partners 5,385
Lease Out for Signature - Draft Delivered to Buyer
27 000 Xxxxx Xxxx Xxxxxxx Hospital 989
Lease copies delivered to Xxxxxxxx Xxxx, Arden Realty
during the site visit with Seller on Tuesday, October 14
31
RECORDING REQUESTED BY AND
WHEN RECORDED, MAIL THIS DEED
AND TAX STATEMENTS TO:
Christensen, Miller, Fink, Jacobs,
Xxxxxx, Xxxx & Xxxxxxx, LLP
2121 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxx, Esq.
--------------------------------------------------------------------------------
GRANT DEED
A.P.N.________
The undersigned grantor(s) declare(s):
Documentary transfer tax is SEE SEPARATE DECLARATION.
( ) computed on full value of property conveyed, or
( ) computed on full value less value of liens and encumbrances remaining at
time of sale.
( ) Unincorporated area: ( ) City of_________________, and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
SP ASSOCIATES, LTD., A CALIFORNIA LIMITED PARTNERSHIP, hereby GRANT(S) to
ARDEN REALTY LIMITED PARTNERSHIP, A MARYLAND LIMITED PARTNERSHIP,
the following described real property in the City of Newhall, County of Los \
Angeles, State of California:
AS PER LEGAL DESCRIPTION ATTACHED HERETO, MADE A PART HEREOF AND
ATTACHED HERETO AS EXHIBIT A.
Signature of Grantor
SP ASSOCIATES, LTD.,
a California limited partnership
By: Three SPRINGS Corporation
Its GENERAL Partner
By:_______________________________
Its:______________________________
Exhibit C
32
ASSIGNMENT OF LEASES AND SECURITY DEPOSITS
THIS ASSIGNMENT OF LEASES AND SECURITY DEPOSITS is made this day of
__, ____________, 1998, by and between SP ASSOCIATES, LTD., A CALIFORNIA
LIMITED PARTNERSHIP, ("Assignor"), and ARDEN REALTY LIMITED PARTNERSHIP, a
Maryland limited partnership ("Assignee") with reference to the following
facts:
C. Assignor, as Lessor, and each of the lessees named in Exhibit
"A" attached hereto, have entered into a lease for the space indicated on said
Exhibit "A" comprising a portion of the improvements constructed upon that
certain parcels of real property situated in the City of Newhall, State of
California (the "Property"), more particularly described in Exhibit "B"
attached hereto (all of said leases referred to in Exhibit "A" as amended to
the date hereof being hereinafter collectively referred to as the "Leases").
B. Assignor has received rent security deposits and rents prepaid
more than one (1) month in advance from lessees under some of the Leases, in
the total amount of $__________ in cash referred to in Exhibit "A" attached
hereto and made a part hereof (collectively the "Security Deposits").
C. Assignor now desires to assign and transfer to Assignee all of
Assignor's interest as lessor in the Leases and the Security Deposits, subject
to the rentals, terms, covenants, obligations, easements and restrictions set
forth therein.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions hereinbelow set forth, it is agreed:
1. Assignor hereby assigns and transfers to Assignee, and its
successor and assigns, all of Assignor's interest as Lessor in and to the
Leases and the Security Deposits, subject to said rentals, terms, covenants,
obligations, easements and restrictions therein provided.
2. Assignee hereby (a) accepts the assignment of the Leases and
the Security Deposits, shall be entitled to all rights and benefits accruing to
the lessor thereunder, and (b) agrees to assume and be bound by the terms of
the Leases subject to the terms and provisions of each of the Leases, from and
after the date hereof, and (c) agrees to defend and indemnify Assignor to the
extent of Assignee's interest in the Property from all obligations of landlord
under the Leases or obligations as landlord which accrue from and after the
date hereof.
Exhibit D
33
3. This instrument is given pursuant to that certain Agreement of
Purchase and Sale and Escrow Instructions dated as of October 20, 1997, between
Seller and Arden Realty Limited Partnership and the covenants, agreements and
limitations contained therein are incorporated herein by reference as if herein
set out in full.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Leases and Security Deposits as of the day and year first above
written.
"Assignor":
SP Associates, Ltd.,
a California Limited Partnership
By: Three Springs Corporation
Its General Partner
By:________________________
Its:_______________________
By: Larwin Company, a California corporation
Its General Partner
By:________________________
Its:_______________________
"Assignee":
ARDEN REALTY LIMITED PARTNERSHIP,
Its: Vice President
a Maryland limited partnership
By: Arden Realty, Inc.,
a Maryland corporation
Its: General Partner
By:________________________
Its:_______________________
34
XXXX OF SALE
SP ASSOCIATES, LTD., A CALIFORNIA LIMITED, ("SELLER"), for good and
valuable consideration heretofore paid by ARDEN REALTY LIMITED PARTNERSHIP, a
Maryland limited partnership ("Buyer"), the receipt and sufficiency of which
are hereby acknowledged, hereby sells, transfers, grants, bargains, conveys,
assigns, and delivers to Purchaser, its successors and assigns free and clear
of all liens and encumbrances: All fixtures, fittings, appliances, apparatus,
equipment, machinery, chattels and personal property, to the extent owned by
Seller, and listed in Exhibit "A" attached hereto, including all building
maintenance supplies and heating, ventilating and air conditioning, electrical,
mechanical and plumbing equipment and facilities which are used in connection
with the operation or maintenance of the improvements erected upon the land
described in Exhibit "B" attached hereto.
This instrument is given pursuant to that certain Agreement of
Purchase and Sale and Escrow Instructions dated as of October 17, 1997, between
Seller and Buyer and the covenants, agreements and limitations contained
therein are incorporated herein by reference as if herein set out in full.
IN WITNESS WHEREOF, Seller has executed this instrument
this ___ day of January, 1998.
"SELLER"
SP Associates, Ltd.,
a California Limited Partnership
By: Three Springs Corporation
Its General Partner
By:________________________
Its:_______________________
By: The Larwin Company, a California corporation
Its General Partner
By:________________________
Its:_______________________
Exhibit E
35
ASSIGNMENT OF SERVICE CONTRACTS, WARRANTIES
AND GUARANTEES
THIS ASSIGNMENT OF SERVICE CONTRACTS, WARRANTIES AND GUARANTEES is
made this ____ day of ____________, by and between SP ASSOCIATES, LTD., A
CALIFORNIA LIMITED LIABILITY COMPANY ("Assignor"), and ARDEN REALTY LIMITED
PARTNERSHIP, a Maryland limited partnership ("Assignee"), with reference to the
following facts:
A. Assignor is the owner of the benefits of, subject to the
burdens contained in, those certain service agreements currently in effect in
connection with the business of Assignor related to the Property being
purchased by Assignee concurrently herewith, all of which service contracts and
agreements (the "Service Agreements") are annexed hereto as a part of, or are
described in, Exhibit "A" attached hereto and made a part hereof.
B. Assignor has heretofore used or acquired (or may have
acquired) certain intangible rights in connection with the Property and/or the
Improvements including but not limited to various trade names, logos,
easements, licenses, permits, air rights, certificates of occupancy,
warranties, rights of way, signs, sewer agreements, water line agreements,
utility agreements, water rights and oil, gas and mineral rights and other
intangible property (collectively the "Intangibles").
C. Assignor is the owner, or entitled to the benefit, of the
warranties and guaranties, express and implied, covering the fixtures and
equipment located on the Property ("Warranties and Guaranties").
D. Assignor now desires to assign and transfer to Assignee all of
its right, title and interest in the Service Agreements, Intangibles and the
Warranties and Guaranties subject to all of the payments, terms, covenants,
obligations, agreements and restrictions therein set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions hereinbelow set forth, it is agreed:
1. Assignor hereby assigns and transfers to Assignee and its
successors and assigns, all Assignor's right, title and interest in the Service
Agreements, Intangibles and the Warranties and Guaranties subject to said
payments, terms, covenants, obligations, agreements and restrictions.
2. Assignee hereby (a) accepts the assignment of the
Guaranties, shall be entitled to all rights and benefits accruing to the
Assignor thereunder, (b) agrees to assume and be bound by the terms thereof
from and after the date hereof, and (c) agrees to defend and indemnify Assignor
to the extent of Assignee's
Exhibit F
36
interest in the Property from all obligations of Assignor under the Service
Contracts, Intangibles and the Warranties and Guaranties or from any which
accrue from and after the date hereof.
3. This instrument is given pursuant to that certain Agreement of
Purchase and Sale and Escrow Instructions dated as of October 20, 1997, between
Seller and Arden Realty Limited Partnership and the covenants, agreements and
limitations contained therein are incorporated herein by reference as if herein
set out in full.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Service Contracts, Warranties and Guarantees as of the day and
year first hereinabove written.
"Assignor":
SP Associates, Ltd.,
a California Limited Partnership
By: Three Springs Corporation
Its General Partner
By:________________________
Its:_______________________
By: Larwin Company, a California corporation
Its General Partner
By:________________________
Its:_______________________
"Assignee":
ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Arden Realty, Inc.,
a Maryland corporation
Its: General Partner
By:________________________
Its:_______________________
37
ASSIGNMENT OF INTANGIBLE PROPERTY
THIS ASSIGNMENT OF INTANGIBLE PROPERTY (this "Assignment") is made as
of ___________ __, 1998 by SP Associates, Ltd., a California limited liability
company ("Assignor"), to Arden Realty Limited Partnership, a Maryland limited
partnership ("Assignee") pursuant to the provisions of that certain Agreement
of Purchase and Sale dated as of October 20, 1997, (the "Purchase Agreement"),
by and between Assignor and Assignee.
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, subject to the terms and provisions of the
Purchase Agreement, Assignor hereby sells, transfers, conveys and assigns to
Assignee the Intangible Property, as such term is defined in the Purchase
Agreement, including those items set forth on Schedule A attached hereto and
made a part hereof.
IN WITNESS WHEREOF, this Assignment has been executed by Assignor on
the date set forth above.
"Assignor":
SP Associates, Ltd.,
a California Limited Partnership
By: Three Springs Corporation
Its General Partner
By:________________________
Its:_______________________
By: Larwin Company, a California corporation
Its General Partner
By:________________________
Its:_______________________
"Assignee":
ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Arden Realty, Inc.,
a Maryland corporation
Exhibit G
38
TENANT ESTOPPEL CERTIFICATE
Arden Realty Limited Partnership
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Ms. Brig Troy
Re: Tenant Lease for ________________
_______________, California
Suite _________
Ladies and Gentlemen:
We understand that you are the proposed purchaser of an ______________
building complex located at ____________________, California (the "Property")
in which the undersigned is a tenant. We further understand that in connection
with your purchase of the Property it is necessary that you understand the
precise nature of our tenancy and in order to so do, we hereby warrant and
represent to you that with respect to our lease, as amended (the "Lease") and
more particularly described in Schedule "A" attached hereto (the "Schedule")
the following is true and correct:
1. The Lease constitutes the entire agreement between the
undersigned and the landlord thereunder with respect to the subject matter
thereof and the Lease has not been modified, amended or supplemented in any way
except by the amendments or other agreements described in the Schedule.
2. The summary of the basic terms of the Lease contained in the
Schedule is true and correct.
3. Except as provided in the Schedule, the undersigned has not
assigned, transferred or hypothecated the Lease or any interest therein or
entered into a sublease for any portion of the premises covered by the Lease
and no person or firm other than the undersigned or its employees is in
possession of such premises or any portion thereof.
4. The undersigned is not in default (or with the giving of
notice or the passage of time or both will not be in default) under the Lease
and the undersigned has no claim against, off-set, credit, defense,
counterclaim or deductions against the landlord thereunder, or any rent or
other sums due or payable under the Lease, and the landlord thereunder is not
in default (or with the giving of notice or the passage of time or both will
not be in default) under the Lease.
Exhibit H
39
5. The undersigned has no option, right of first refusal or
otherwise to purchase the Property or any portion thereof or any interest
therein and the only interest of the undersigned in the Property is that of a
tenant pursuant to the terms of the Lease.
6. The undersigned does not engage in the generation, storage or
disposal of "Hazardous Materials" on the Property and to the best of the
undersigned's knowledge, there are no Hazardous Materials located in, on, under
or in the vicinity of the Premises demised by the Lease except for normal
office supplies. The undersigned agrees not to use, store, or permit the use,
storage or release of any Hazardous Materials on, under or about the Premises
or the Property other than what is permitted by applicable law, codes,
regulations or restrictions and used by the undersigned in accordance with
applicable laws and in amounts as dictated by the normal conduct of the
undersigned's business. The term "Hazardous Material" means any toxic or
hazardous substance, material or wastes which if or becomes regulated by any
local government, the State of California, the United States government or any
agency or division thereof.
7. The undersigned is not the subject of any bankruptcy,
insolvency, debtor's relief, reorganization, receivership or other similar
proceedings.
8. The person executing this Certificate hereby warrants and
represents that he or she has the power and authority to execute and deliver
this Certificate on behalf of the tenant named herein.
9. The undersigned as tenant hereby ratifies and confirms the
Lease and the tenancy created thereby and upon consummation of sale and notice
thereof, agrees to accept you or your assignees and your lenders as the
landlord thereunder.
10. The undersigned agrees to notify your lenders at the address
designated by such lenders of any default on the part of Landlord under the
Lease, and further agrees that notwithstanding any provisions of the Lease, no
notice, cancellation or termination thereof shall be effective unless Lender
shall have received such notice and have failed to cure or commence to cure
such default within a reasonable time following receipt of such notice and the
expiration of any cure period applicable thereto.
40
We understand that the current owner, ____________________, you and/or
any other purchaser(s) and their respective lenders will, if you proceed with
the purchase of the Property, rely on this Certificate.
Very truly yours,
___________________________________
Name of Tenant
___________________________________
Signature
___________________________________
Date
41
AFFIDAVIT OF NON-FOREIGN STATUS
To inform Arden Realty Limited Partnership, a Maryland limited
partnership ("Transferee"), that withholding of tax under Section 1445 of the
Internal Revenue Code of 1986, as amended ("Code") will not be required upon
the transfer of certain real property to the Transferee by SP Associates, Ltd.,
a California limited partnership("Transferor"), the undersigned hereby
certifies the following on behalf of Transferor:
1. The Transferor is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in
the Code and the Income Tax Regulations promulgated thereunder).
2. The Transferor's employer identification number/social
security number is ___________________________.
3. The Transferor's office/personal residence address is
__________________________________________________________.
The Transferor understands that this Affidavit may be disclosed to the
Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
The Transferor understands that the Transferee is relying on this
Affidavit in determining whether withholding is required upon said transfer.
Under penalty of perjury I declare that I have examined this Affidavit
and it is true, correct and complete, and I further declare that I have
authority to sign this document on behalf of the Transferor.
Date:_______________________________, 199__
TRANSFEROR:
SP Associates, Ltd.,
a California Limited Partnership
By: Three Springs Corporation
Its General Partner
By:________________________
Its:_______________________
42
By: Larwin Company, a California corporation
Its General Partner
By:________________________
Its:_______________________
Exhibit I
43
AUDIT LETTER
Ernst & Young, LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Dear Sir:
We are writing at your request to confirm our understanding that your
audit of the statement of operating income for the year ended
_________________, 1996, was made for the purpose of expressing an opinion as
to whether the statement of operating income presents fairly, in all material
respects, the results of operations of [Name of Project] in conformity with
generally accepted accounting principles. These representations are made
exclusively to [Auditor] and not to the buyer of the Project or to any third
party. In connection with your ______________________, 199_ audit we confirm,
to the best of our knowledge and belief, with respect to our daily operations
and without independent investigation or inquiry, the following representations
made during your audit:
A. We have made available to you all financial records and
related data concerning this Project, which are in our possession.
B. We are not aware of any:
1. Irregularities involving any member of management or
employees that could have a materially adverse effect on the statement of
operating income.
2. Notices of violations of laws or regulations, the
effect of which should be considered for disclosure in the financial statements
or as a basis for recording a loss contingency.
3. Material liabilities, gain or loss contingencies or
other transactions (including oral and written guarantees) that are required to
be but have not been accrued or disclosed.
4. Material events that have occurred subsequent to
___________________, 199_ that would require material adjustment to the
statement of operating income.
Exhibit K
44
C. The Company has complied with all material aspects of
contractual agreements relating to the Project (e.g., management contracts)
that would have a material effect on the statement of operating income in the
event of noncompliance.
D. All significant payments to affiliated companies of the
undersigned have been property recorded or disclosed in the financial
statements.
By:________________________
45
SCHEDULE "A"
Summary of Lease Terms
(1) Name of Tenant:_______________________________________________________
(2) Lease Date:___________________________________________________________
(3) Amendment Dates, Separate Agreements, if any:_________________________
(4) Suite No.:____________; Estimated Square Footage:_____________________
(5) Lease Start Date:______________; Lease End:___________________________
(6) Remaining Option(s) to Extend:________________________________________
(7) Option(s) for Additional Space:_______________________________________
(8) Monthly Base Rent: $_______________;
Escalations/CAM Charge: $_______________;
Total Monthly Rent: $_______________;
(9) Tenant's Percentage Share of Increased Operating Costs:______________%
(10) Security Deposit: $_____________; Prepaid Rent:_______________________
(11) Assignees/Subtenants:_________________________________________________
(12) Parking Spaces:_______________________________________________________
(13) Lease Guarantor(s):___________________________________________________
(14) Uncured Defaults by Landlord: None____________________________________
(15) Exclusive Uses:_______________________________________________________
(16) Free or Reduced Rent Months remaining after __/01/__:_________________
(17) Tenant Improvements or other allowances due Tenant $:_________________
46
(18) Comments, if any:_____________________________________________________
______________________________________________________________________
______________________________________________________________________
________________________
Name of Tenant
By:_____________________
Date:___________________
47
SCHEDULE 7.5
------------
LEASE DISCLOSURES
-----------------
None of the Tenant leases contain any restrictions on the sale of the property.
The following lease agreements contain cancellation provisions in favor of the
Lessee
Ste. 101 1 time right at month 18 with 4 months written notice
Xxxxxxx & Xxxxxxx and payment of 3 months rent upon notice
Ste. 104 1 time right at month 36 with no less than 180 days
Schering Plough written notice and payment of $14,000
The following lease agreements contain expansion rights in favor of the Lessee
Ste. 110 Right of first refusal, adjacent suite 114
North American
Mortgage
Ste. 201 Right of first refusal, adjacent suites
Manpower
Ste. 208 Right of first refusal, adjacent suite, expiring 11/97
Universal Health
Employment
There are no other lease disclosure matters.
48
SCHEDULE 7.6
------------
SERVICE CONTRACT DISCLOSURE
---------------------------
All service contracts are administered by Seller's agent and have been disclosed
in the Vendor List entitled Exhibit A.
49
PROPERTY #650EQ
00000 XXX XXX XXXX
XXXXXXXXX XXXXX, XX 00000
VENDOR LIST
Revised 10/09/97 cb
----------------------------------------------------------------------------------------------------------------------------------
SERVICE TYPE COMPANY NAME & BEGIN/END ANNUAL TERM CONTACT NAME DETAILS OF
ADDRESS CONTRACT CANCELLATION & PHONE NO. SERVICE
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Architecture Architecture & Interior Design Tel: 000-000-0000
00000 Xxxxxx Xxx
Xxxxxxxx, Xx 00000
----------------------------------------------------------------------------------------------------------------------------------
Backflow Testing Xxxxxx Backflow Xxxxxx Xxxxxx
P.O. Box 220114 000-000-0000
Xxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Carpet Cleaning Peerless Building Maintenance Xxx Xxxxxx - owner
00000 Xxxxxx Xxxx
Xxx Xxxxxxxx, Xx 000-000-0000
91340 000-000-0000
000-000-0000 fax Pig. cleaning
----------------------------------------------------------------------------------------------------------------------------------
Directory Sign Berloc Signs Xxxx Tenant Signage
Shipping Address: 000-000-0000 and directories
0000 Xxxxxxxxx Xxx. 000-000-0000 Fax
X. Xxxxxxxxx, XX 00000 000-000-0000
Mailing Address
X.X. Xxx 0000
X. Xxxxxxxxx, XX 00000
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Electrician Shamma Electric Xxxx Xxxxxx
00000 Xxxxxxx Xxx. 818-363-9595
Xxxxxxx Xxxxx, Xx 00000 000-000-0000 Mobile
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50
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Elevator Maint. Dover Elevator 7/1/97 to 11/1/01 90 days written 000-000-0000 24 hrs. service
00000 Xxxxxxxx Xxxxxx notice. 000-000-0000 Fax customer #0000000
Xxxxxx, Xx 00000 Agreement not Monthly service and
fully executed repairs.
$407.60 per month
Emergency phone
goes directly to Dover
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Fire Alarm Maint. Tele-Fire of Calif. Inc. 11/30/89-M-to-M 30 days before the Xxxxx Maint. & Monitoring
& Monitor 0000 X. Xxxxxxxx Xxxxxx next inspection 000-000-0000 Acct. # 180
Xxx Xxxxxxx, Xx 00000 period.
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Fire Panel Phone 000-000-0000
000-000-0000
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Fire Sprinkler Conejo Fire Protection Inc. Xxxxx
System/Repairs 0000 0xx Xx. #000 000-000-0000
Xxxx Xxxxxx, Xx 00000
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Fire Xxxx Xxxxx Fire Protection 000-000-0000
Extinguishers X.X. Xxx 00000
Xxx Xxxxxxx, Xx 00000
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Flags Flags & Banners 818-348-9880
00000 Xxxxxxx Xxxx.
Xxxxxxxx Xxxxx, Xx 00000
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Glass Chaparral Glass & Screen Xxx
38917 00xx Xx. X., #000X 000-000-0000
Xxxxxxxx, Xx 00000
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HVAC Mission Air Xxxxx Monthly Contract and
0000 Xxxxx Xxx. 000-000-0000 service/repairs needed
Xxxxxx, Xx 00000 000-000-0000
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Janitorial Peerless Building Maintenance 3/29/94-M-to-M 30 days written Xxx Xxxxxx - owner Monthly Contract
00000 Xxxxxxxx Xxxx., Xxxx X notice Xxxx nightly service
Xxxxxxx, XX 00000 000-000-0000 Sunday to Thursdays
000-000-0000 $2,956 per month
000-000-0000 fax Mano-P-542-8575
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51
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Landscaping L&W Landscape 6/1/96 M-to-M 30 days written notice. Xxxx Xxxxxxx Monthly Contract
Exterior 0000 Xxxx Xxxx 000-000-0000
Xxxx Xxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
Landscaping Mrs. Greenjeans 2/1/90 M-to-M 30 days written notice. Xxxx $100 per month
Interior 00000 Xxxxxxxx Xx. 000-000-0000
Xxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
Lighting Amtech Lighting 2/1/97 to 2/1/98 60 days written notice. Xxxxxx Xxxxxxxx Monthly contract
0000 Xxxxx Xxxxxx 000-000-0000 exterior lights
Xxxxx Xx Xxxxx, XX 00000 000-000-0000 fax
---------------------------------------------------------------------------------------------------------------------------------
Locksmith Clarks Locksmith Services Xxxx Xxxxx General Locksmith
X.X. Xxx 0000 000-000-0000 Has master key
Xxxxx Xxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
Pest Control Chemco Pest Control 6/4/97 to 6/4/98 60 days written notice. 000-000-0000 Acct. #20276
0000 Xxxxxxxx Xxxxxxx 000-000-0000 Service on 3rd Fri.
X. Xxxxxxxxx, XX 00000 Xxx - Technician of month
000-000-0000 pager Route #14
Amber (Serv.) $131.30 per month
Xxxxx (Tech.)
---------------------------------------------------------------------------------------------------------------------------------
Plumbing Heys Plumbing Xxx Xxxx or Xxxx
24730 Ave. Xxxxxxx, #120 000-000-0000
Xxxxxxxx, XX 00000 000-000-0000 Fax
818-362-4570 Alt.
---------------------------------------------------------------------------------------------------------------------------------
Reg 4 Testing JCW Fire Systems 818-842-3860
000 Xxxxxxxxx Xxxxx, #00 000-000-0000 Fax
Xxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
Roofing GES Roofing Xxxxx Xxxxx or Contract for semi-
000 Xxxxx Xxxxxx Xxxxxx Xxxx Xxxxxxx annual maintenance
Xxxxxxx, XX 00000 000-000-0000 and free leak calls
000-000-0000 Fax and repairs.
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52
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Rubbish Valencia Disposal 1/10/97 to 1/10/98 30 days written notice. Xxx Xxxxx or Mon,Wed,Fri.-
P.O. Box 1163 Xxxxx pickups
Xxxxxx Xxxxx, XX 00000- 000-000-0000 (Two 3 yd bins)
1163 $319 per month
Recycle - Mon. &
Thu.
---------------------------------------------------------------------------------------------------------------------------------
Security Golden West K-9 3/5/97 to 8/5/98 30 days written notice. Xxx Xxxxxxx - Rep 4 patrols per 12
12502 Van Nuys Blvd., Pager 000-000-0000 hour period seven
Suite 215 Xxx Page - Manager days a week
Xxxxxxx, XX 00000 000-000-0000 $462.00 per month.
000-000-0000 fax
000-000-0000 24
hour #
---------------------------------------------------------------------------------------------------------------------------------
Sweeping Nobil's Power Sweeper Xxxxx Xxxxx Monthly sweeping
00000 Xxxxxxxxx Xxxxxx 000-000-0000 $72.00 per month
Xxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
Window Wash The New Xxxxxx 4/11/97 - M-to-M Cancel at anytime. 000-000-0000 Semi-Annual
0000 X. 00xx Xxxxxx 000-000-0000 Fax cleaning
Xxxxx Xxx, XX 00000
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53
SCHEDULE 7.19
-------------
DISCLOSURES REGARDING AFFILIATES
--------------------------------
Seller has no Affiliate Disclosures.
54
SCHEDULE 8.5
------------
NONE
55
SCHEDULE 8.6
NONE
56
SCHEDULE 8.19
NONE
