AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS
between
ECHO USA, INC.,
a Hawaii corporation
as Seller
and
Arden Realty Limited Partnership,
a Maryland limited partnership
as Buyer
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT
ESCROW INSTRUCTIONS ("Agreement") dated as of the 8th day of
April, 1997 is by and between Echo USA, Inc., a Hawaii
corporation ("Seller"), and Arden Realty Limited
Partnership, a Maryland limited partnership ("Buyer").
Capitalized terms used in the Recitals below, not otherwise
defined therein, shall have the meanings ascribed to them in
Section 1 of this Agreement.
R E C I T A L S
WHEREAS, this Agreement is made and entered into
with reference to the following facts:
WHEREAS, Seller is the owner of the Property. The
Property is leased to the successor to Toko Medical
Corporation on a triple net basis.
WHEREAS, Buyer desires to purchase, and Seller
desires to sell, the Property on the terms and conditions
set forth in this Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing
recitals, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Buyer and Seller agree as follows:
1. DEFINITIONS. For purposes of this Agreement,
the following terms shall have the following meanings:
1.1 "Appurtenances" means all rights,
privileges and easements appurtenant to the Land, including,
without limitation, all minerals, oil, gas and other
hydrocarbon substances in, on and under the Land, as well as
all development rights, air rights, water, water rights and
water stock relating to the Land and any other easements
appurtenant to the Land.
1.2 "Assignment of Intangible Property"
means the Assignment of Intangible Property, to be duly
executed and delivered by Seller in accordance with
Section 4.1 of this Agreement, assigning to Buyer all of
Seller's right, title and interest, if any, in and to the
Intangible Property. The Assignment of Intangible Property
shall be in the form of, and upon the terms contained in,
Exhibit "B".
1.3 "Assignment of Lease" means the
Assignment of Lease, to be duly executed and delivered by
Seller in accordance with Section 4.1 of this Agreement,
assigning to Buyer all of Seller's right, title and interest
in and to the Lease. The Assignment of Lease shall be in
the form of, and upon the terms contained in, Exhibit "C".
1.4 "Xxxx of Sale" means the Xxxx of Sale,
to be duly executed and delivered by Seller in accordance
with Section 4.1 of this Agreement, conveying to Buyer all
of the Personal Property. The Xxxx of Sale shall be in the
form of, and upon the terms contained in, Exhibit "D".
1.5 "Closing" means the consummation of the
conveyances of the Property, the Lease and the other
transactions contemplated under this Agreement, all of which
shall occur on or before the Closing Date.
1.6 "Closing Date" means June 30, 1997,
unless otherwise mutually agreed to in writing by Buyer and
Seller or extended pursuant to the terms of this Agreement.
1.7 "Code" means the United States Internal
Revenue Code of 1986, as amended.
1.8 "Deed" means the Grant Deed, to be duly
executed, acknowledged and delivered in recordable form by
Seller in accordance with Section 4.1 of this Agreement,
conveying to Buyer good and marketable fee simple title to
the Real Property. The Deed shall be in the form of, and
upon the terms contained in, Exhibit "E".
1.9 "Deposit" means the sum of One Hundred
Thousand Dollars ($100,000.00) to be delivered within two
(2) business days after the mutual execution of this
Agreement by Buyer and Seller and delivery of the same to
Escrow Holder in accordance with Section 3.1 of this
Agreement.
1.10 "Due Diligence Period" means the period
commencing on the date this Agreement is executed and
delivered by both Buyer and Seller and ending at 6:00 p.m.
(California time) on the date which is thirty (30) days
following the date that an escrow is opened with Escrow
Holder for the consummation of the transaction contemplated
hereby.
1.11 "Escrow Holder" means Chicago Title
Company, 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxxx.
1.12 "Fixtures" means all fixtures placed on,
attached to, or located at and used in connection with the
operation of, the Land and which are owned by Seller.
1.13 "Governmental Regulations" means any
local, state, and federal laws, ordinances, rules,
requirements, resolutions, policy statements and regulations
(including, without limitation, those relating to land use,
subdivision, zoning, environmental, labor relations,
notification of sale to employer, Hazardous Materials,
occupational health and safety, water, earthquake hazard
reduction and building and fire codes) bearing on the
construction, development, alteration, rehabilitation,
maintenance, use, operation, or sale of the Property.
1.14 "Hazardous Materials" means any
hazardous or toxic substance, material or waste which is or
becomes regulated by any local governmental authority, any
agency of the State of California or any agency of the
United States Government. The term "Hazardous Materials"
includes, without limitation, any material or substance
which (a) contains petroleum or any petroleum by-products,
(b) contains asbestos, (c) contains urea formaldehyde foam
insulation, (d) is designated as a "hazardous substance"
pursuant to Section 311 of the Federal Water Pollution
Control Act (33 U.S.C. 1317), (e) is defined as a
"hazardous waste" pursuant to Section 1004 of the Federal
Resource Conservation and Recovery Act, 42 U.S.C. 6901 (42
U.S.C. 6903), or (f) is defined as a "hazardous substance"
pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. 9601
(42 U.S.C. 9601). Each reference to a statute or law in
this definition shall be deemed to include any amendments
thereto which are enacted from time to time.
1.15 "Intangible Property" means all of
Seller's right, title and interest in and to any and all
intangible personal property now and through the Closing
Date owned by Seller and used in connection with the
ownership, construction, development, use and/or operation
of the Real Property and/or Personal Property, including,
without limitation, the Service Contracts (to the extent
approved in writing by Buyer), the Licenses and Permits, the
Intellectual Property and the Records and Plans and the
Warranties.
1.16 "Land" means the real property located
at 0000 X. Xxxx Xxxx, Xxxxx Xxx, Xxxxxxxxxx, as legally
described in Exhibit "A".
1.17 "Lease" means the existing lease
relating to the Real Property, which Lease is listed on
Exhibit "F".
1.18 "Licenses and Permits" means all of
Seller's right, title, interests, privileges, benefits and
remedies in, to and under all authorizations, approvals,
permits, certificates of occupancy, licenses, agreements,
variances, tentative maps, final maps, plans and
specifications and land use entitlements held by Seller
and/or relating to the construction, reconstruction,
occupancy, operation or use of any part of the Real Property
or Personal Property (e.g., all building permits and
certificates and occupancy).
1.19 "Notice To Tenant" means the notice from
Seller to the tenant under the Lease whereby such tenant is
notified that the Property has been transferred by Seller to
Buyer and instructing it to pay any and all rents and other
sums payable under the Lease from and after the Closing
directly to Buyer or as otherwise directed by Buyer, in the
form of Exhibit "G".
1.20 "Personal Property" means all personal
property of Seller located on or in or used in connection
with the Real Property.
1.21 "Property" means the Real Property, the
Personal Property and the Intangible Property.
1.22 "Purchase Price" means the sum of Seven
Million Two Hundred Thousand Dollars ($7,200,000).
1.23 "Real Property" means the Land, the
improvements situated on the Land, the Fixtures and the
Appurtenances.
1.24 "Records and Plans" means (a) all books
and records maintained in connection with the ownership,
development, construction, maintenance or operation of the
Property, (b) all preliminary, final and "as-built" plans
and specifications respecting the Real Property, and (c) all
structural reviews, architectural drawings, and engineering,
soil, seismic, geologic and architectural reports, studies
and certificates and other documents pertaining to the Real
Property (including those which include comments by any
building or safety engineer, inspector or other person who
regularly makes such inspections) which are within the
possession of, under the control of, or reasonably available
to (without cost or expense) Seller.
1.25 "Service Contracts" means the management
agreement together with all supplements, amendments and
modifications thereto, relating to the management of the
Property, which is set forth on Exhibit "H" attached to this
Agreement.
1.26 "Tenant Estoppel" means the written
statement in the form of, and upon the terms contained in,
Exhibit "I", in favor of Buyer from the tenant which is a
party to the Lease, dated not earlier than fifteen (15) days
prior to the Closing Date.
1.27 "Title Company" means Chicago Title Company.
1.28 "Title Policy" means an ALTA owner's
title policy (Form B-1970) issued by the Title Company for
the benefit of Buyer, which Title Policy shall have a
liability limit in the amount of the Purchase Price, shall
include those endorsements requested by Buyer and shall show
only those matters which constitute Permitted Exceptions
(defined below).
1.29 "Transferor's Certificate" means the
certificate, to be duly executed by Seller under penalty of
perjury and delivered by Seller in accordance with
Section 4.1 of this Agreement, certifying that Seller is not
a "foreign person" in accordance with the provisions of
Section 1445 of the Code and any similar provisions of
applicable state law. The Transferor's Certificate shall be
in the form of, and upon the terms contained in,
Exhibit "J".
1.30 "Warranties" means all third party
warranties and guarantees relating to the Property.
2. ESCROW. The purchase and sale of the
Property shall be consummated through an escrow at Escrow
Holder. As soon as reasonably practicable following the
mutual execution of this Agreement, but in no event later
than three (3) days after the date of this Agreement, the
parties shall deliver to Escrow Holder a fully executed
counterpart of this Agreement, which shall constitute its
escrow instructions. The parties shall execute such
additional escrow instructions, not inconsistent with this
Agreement, as Escrow Holder shall deem reasonably necessary
for its protection. In the event of any conflict between
this Agreement and any additional escrow instructions, the
terms of this Agreement shall govern.
3. AGREEMENT TO SELL; PURCHASE PRICE. Seller
agrees to sell to Buyer, and Buyer agrees to purchase from
Seller, the Property in accordance with the terms, and
subject to the conditions, of this Agreement. The Purchase
Price for the Property will be paid as follows:
3.1 Deposit. Within two (2) business days
after the execution of this Agreement by Buyer and Seller
and delivery of the same to Escrow Holder, Buyer will
deliver the Deposit to Escrow Holder to hold in trust.
Escrow Holder will invest the Deposit in an interest bearing
account with a responsible federally-insured institutional
lender approved by Buyer and Seller, and interest will be
for the account of Buyer except as otherwise provided in
this Agreement and will be credited against the Purchase
Price at Closing.
3.2 Balance of Purchase Price. The entire
balance of the Purchase Price (after taking into account the
adjustments described in Sections 10 and 11), shall be paid
to Seller, in immediately available funds, through Escrow
Holder, at Closing.
4. DELIVERIES AT CLOSING; CLOSING PROCEDURES.
The Closing will take place on the Closing Date. Buyer may
elect to close escrow on an earlier date by giving written
notice to Seller and Escrow Holder of its intent to close
escrow earlier at least five (5) days in advance of such
earlier date, but such notice shall not be binding upon
Buyer, and if Buyer is not in a position to close on the
earlier date, Buyer shall have until the Closing Date to
close.
4.1 By Seller. At least one (1) business
day prior to the Closing, Seller shall deliver or cause to
be delivered to Escrow Holder (unless otherwise indicated)
the following items, duly executed and, where appropriate,
acknowledged by Seller:
4.1.1 The Deed.
4.1.2 The Xxxx of Sale.
4.1.3 The Assignment of Intangible Property.
4.1.4 The Assignment of Lease.
4.1.5 The Notices to Tenant.
4.1.6 The Transferor's Certificate.
4.1.7 The Tenant Estoppels (to be delivered directly to Buyer).
4.1.8 All such further confirmations, satisfactions, releases,
approvals, consents and any and all such further instruments as may be
reasonably necessary,appropriate, expedient or proper in the reasonable
opinion of Title Company in order to issue the Title Policy.
4.2 By Buyer. At the Closing, Buyer will
deliver or cause to be delivered to Escrow Holder or the
Seller the following items, duly executed and, where
appropriate, acknowledged by Buyer:
4.2.1 The net balance of the Purchase
Price, to be paid in accordance with Sections 3.2 of this
Agreement, after deducting the Deposit plus any interest
accrued thereon, and after taking into account the
adjustments and cost allocations in accordance with Sections
10 and 11.
4.2.2 Counterparts of the Assignment of
Intangible Property and the Assignment of Lease.
4.3 By Buyer and Seller. Buyer and Seller
will each deposit such other instruments consistent with
this Agreement as are reasonably required to effectuate the
transactions contemplated under this Agreement.
4.4 Closing Procedures. Provided that
Escrow Holder has received the documents and funds
described in Sections 4.1 and 4.2 above and has not received
notice from any party hereto either that an agreement of
another party hereunder has not been performed, that a
condition set forth herein has not been satisfied or waived
or that this Agreement has terminated (by its terms or by an
election duly made hereunder), and further provided that the
issuance of, or an unconditional commitment to issue, the
Title Policy has been obtained, Escrow Holder is authorized
and instructed at 8:00 a.m. on the Closing Date to:
4.4.1 Record the Deed with the County Recorder of
Orange County, California.
4.4.2 Cause the Title Policy to be issued by the Title Company.
4.4.3 Deliver to Buyer: the Assignment of Lease, the Assignment of
Intangible Property, the Xxxx of Sale, the Transferor's Certificate, all
documents and items required to be delivered by Seller pursuant to
Sections 4.1 and 8.1.4 or any other provision of this Agreement, not
otherwise previously delivered directly to Buyer, all other
items deposited by Seller with Escrow Holder pertaining to
the Property, and any funds deposited by Buyer in excess of
the amount to be paid by Buyer under the terms of this Agreement.
4.4.4 Deliver to Seller: the Purchase
Price after taking into account the adjustments and cost
allocations in accordance with Sections 10 and 11, and the
Assignment of Lease and Assignment of Intangible Property
executed in counterpart by Buyer, and any other document
deposited by Buyer with Escrow Holder for delivery to Seller at the Closing.
4.4.5 Mail the Notice to Tenant to the tenant under the Lease by
certified mail, return receipt requested.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Seller's Representations and Warranties.
Seller makes the following representations and warranties to
Buyer, upon which warranties and representations Buyer has
relied and will continue to rely, all of which are true as
of the date of this Agreement and will be true and correct
as of the Closing:
5.1.1 Organization. Seller is duly
organized, validly existing and in good standing under the
laws of the State of Hawaii and is duly qualified to do
business in the State of California. The execution and
delivery of this Agreement and the other documents
contemplated this Agreement by Seller, and the performance
by Seller of the obligations under this Agreement and the
other documents contemplated in this Agreement (i) are
within the power of Seller; (ii) have been duly authorized
by all requisite corporate action; and (iii) will not
violate any provision of law, any order of any court or
agency of government, the charter documents of Seller or its
shareholders, or any indenture, agreement or any other
instrument to which Seller is a party. This Agreement and
each of the other documents described in this Agreement when
executed and delivered to Buyer, will constitute legal,
valid and binding obligations enforceable against Seller in
accordance with the terms of such documents.
5.1.2 Seller has full legal power and
authority to enter into and perform this Agreement in
accordance with its terms. The execution, delivery and
performance of this Agreement and all documents in
connection therewith are not in contravention of or in
conflict with any deed of trust, agreement or undertaking to
which Seller is a party or by which Seller or any of its
property, including the Property, may be bound or affected
following the Closing. The execution and delivery of this
Agreement and the performance by Seller of its obligations
hereunder require no further action or approval in order to
constitute this Agreement as a binding and enforceable
obligation of Seller, and all such actions have been duly
taken by Seller;
5.1.3 Seller is the owner of the Personal Property and has good
title thereto, free and clear of all liens, claims and security interests
whatsoever. Seller knows of no encroachments onto the Property or by the
improvements thereon onto any adjoining property except as
disclosed in the ALTA survey of the Property delivered to
the Buyer pursuant to Section 9.1.2 below;
5.1.4 Except as disclosed to Buyer
during the Due Diligence Period or as contained in the
materials delivered to Buyer during the Due Diligence
Period, Seller has no actual knowledge of any:
a. Governmental notification from any
governmental authority notifying Seller of any (a) violation
of any city, County, State, Federal, building, zoning, fire,
health code, regulation, ordinance or covenant, filed or
issued against the Property; and (b) impending or threatened
special assessments on the Property;
b. Existing, proposed or contemplated
plan to modify or realign any existing street or highway or
any existing, proposed or contemplated eminent domain
proceeding that would result in the taking of all or any
part of the Property;
c. Litigation or legal proceeding
pending or threatened in writing against Seller or the
Property that could reasonably be expected to materially and
adversely affect Seller's or Buyer's ability to perform
their respective obligations hereunder, or Buyer's use of
the Property for its existing purposes;
d. Storage or disposal on the
Property of any material amounts of toxic or hazardous
waste, material or substance, and Seller has received no
notice from any governmental authority requiring the removal
of any toxic or hazardous waste, material or substance from
the Property.
e. Lease, tenancy or other right of
occupancy or use for any portion of the Property under which
any party has a right to occupy the Property (other than
pursuant to the Lease).
f. Maintenance contract, equipment
lease, warranty or guaranty relating to the operation or
maintenance of the Property (other than Service Contracts).
5.2 Buyer's Representations and Warranties.
Buyer makes the following representations and warranties to
Seller upon which warranties and representations Seller has
relied and will continue to rely, all of which are true as
of the date of this Agreement and will be true and correct
as of the Closing:
5.2.1 Organization. Buyer is duly organized, validly existing
and in good standing under the laws of the State of Maryland and is
duly qualified to do business in the State of California. The execution
and delivery of this Agreement and the other documents
contemplated this Agreement by Buyer, and the performance by
Buyer of the obligations under this Agreement and the other
documents contemplated in this Agreement (i) are within the
power of Buyer; (ii) have been duly authorized by all
requisite partnership action and corporate action on the
part of all of its constituent corporate partners; and
(iii) will not violate any provision of law, any order of
any court or agency of government, the charter documents of
Buyer or its general partners, or any indenture, agreement
or any other instrument to which Buyer is a party. This
Agreement and each of the other documents described in this
Agreement when executed and delivered to Buyer, will
constitute legal, valid and binding obligations enforceable
against Buyer in accordance with the terms of such documents.
6. SELLER'S OBLIGATIONS. Seller hereby
covenants to Buyer, upon which covenants Buyer has relied
and will continue to rely, that for the period from the date
of this Agreement through and including the Closing Date:
6.1 Further Liens and Encumbrances. Seller
will not subject the Property to any additional liens,
encumbrances, covenants, conditions, easements, rights of
way or similar matters after the date of this Agreement.
Seller will not hereafter modify, extend, renew, replace or
otherwise change any of the terms, covenants or conditions
of any of such documents, or enter into any new agreements
affecting the Property without the prior written consent of
Buyer, which consent may be withheld in Buyer's sole and
absolute discretion.
6.2 Lease; Other Contracts; Interim
Activities. Seller will not hereafter terminate, modify,
extend, renew, replace or otherwise change the Lease or
existing contracts or enter into new leases or contracts
affecting the Property except with the prior written consent
of Buyer, which consent (a) will not be unreasonably
withheld (with respect to any such action prior to the
expiration of the Due Diligence Period), and (b) may be
withheld in Buyer's sole and absolute discretion (with
respect to any such action after the expiration of the Due
Diligence Period). From and after the expiration of the Due
Diligence Period, Seller shall not apply for or otherwise
deal with any governmental authority regarding the
development, entitlement or subdivision of the Real Property
without the prior written consent of Buyer, which may be
withheld in Buyer's sole and absolute discretion.
6.3 Property Management and Operation.
Seller shall maintain the operation of the Property in a
good and business-like manner. Seller shall provide all
services and operate, manage and maintain the Property
(including mechanical equipment of every kind used in the
operation thereof) in such a manner that the Property shall
be in the same condition on the Closing Date as on the date
of this Agreement, ordinary wear and tear excepted. Without
limiting the foregoing, Seller shall perform all of its
obligations under the Lease and the Service Contracts.
6.4 Cooperation with Representatives.
Seller shall cooperate with Buyer and its accountants,
counsel and/or other representatives in providing
information and materials pertaining to the operation and
marketing of the Property, including access to the Property.
Without limiting the generality of the foregoing, from and
after the execution and delivery of this Agreement, Seller
shall allow a representative or representatives of Buyer
access to the Property for the purpose of (a) monitoring the
operation of the Property, (b) meeting with and interviewing
tenants of the Property, which tenants shall be made
available for such interviewing process, and (c) performing
such investigations and analyses of the Property as Buyer
may reasonably require.
6.5 No Removal of Personal Property. Seller
will not remove any of the Personal Property unless the
Personal Property so removed is simultaneously replaced with
substantially similar Personal Property of similar quality
or utilities.
6.6 Obtaining Estoppels and Consents.
Seller shall use its best efforts to obtain all written
consents from third parties required or reasonably requested
by Buyer or its accountants, counsel or other
representatives in connection with this Agreement,
including, without limitation, the Tenant Estoppel. Seller
hereby acknowledges and agrees that the obtaining of the
Tenant Estoppel is a condition precedent to Buyer's
obligations under this Agreement.
6.7 Service Contracts. Seller shall deliver
notices of termination to any vendors under the Service
Contracts which have been designated in writing by Buyer to
be terminated ("Disapproved Service Contract List") provided
that the Disapproved Service Contract List is delivered by
Buyer to Seller on or before the expiration of the Due
Diligence Period. Seller shall, within two (2) days
following the later of the expiration of the Due Diligence
Period or Buyer's delivery of the Disapproved Service
Contract List, deliver termination notices to each of the
vendors with respect to the Service Contracts so designated
by Buyer in the Disapproved Service Contract List. Seller
shall be solely responsible for all costs and expenses
associated with the termination of any of the Service
Contracts set forth by Buyer in the Disapproved Service
Contract List.
6.8 Post-Closing Financial Records. As soon
as reasonably practicable following the Closing Date, Seller
shall deliver to Buyer the following: (a) a final income
statement through the Closing Date, (b) a final cumulative
general ledger through the Closing Date, and (c) a final
aged delinquency listing, including all security deposits
received by Seller.
6.9 Audit Rights. At Buyer's request at any
time from and after the date hereof until the date that is
one (1) year after the Closing Date, Seller shall, at
Buyer's expense, provide to Buyer's designated independent
auditor access to the books and records of the Property,
regarding the period for which Buyer is required to have
audited financial statements prepared with respect to the
Property as may be required by the Securities and Exchange
Commission, to the extent that such books, records and
related information are in Seller's possession or control
and relate to the period during which Seller held title to
the Property. Further, Seller agrees to provide to such
auditor a representation letter regarding the books and
records of the Property, in substantially the form of
Exhibit "K" attached hereto, in connection with the normal
course of auditing the Property in accordance with generally
accepted auditing standards.
6.10 Management and Listing Agreements.
Seller agrees to terminate, at Seller's sole cost and
expense, any property management agreement and brokerage
leasing agreement effective as of the Closing Date.
6.11 For-Lease Signs. In the event the
tenant under the Lease exercises its right to terminate the
Lease, Seller shall promptly notify Buyer of such
termination election and Buyer shall thereafter have the
right to place a "For Lease" sign at the Property exhibiting
the Property for lease to prospective tenants.
7. TITLE TO REAL PROPERTY. At Closing, title to
the Real Property will be conveyed to Buyer by Seller by the
Deed, subject only to the following matters ("Permitted
Exceptions"):
7.1 matters of title respecting the Real
Property approved or deemed approved by Buyer in accordance
with this Agreement; and
7.2 matters affecting the condition of title
to the Real Property created by or with the written consent
of Buyer.
8. CONDITIONS PRECEDENT/CONCURRENT TO CLOSING; CLOSING DATE.
8.1 Buyer's Conditions. Buyer shall not be
required to close the transaction provided for under this
Agreement, unless and until Buyer deems that each and every
one of the following conditions has been fulfilled:
8.1.1 Representations, Warranties and
Covenants of Seller. Seller shall have duly and timely
performed each and every covenant to be performed by Seller
under this Agreement and the representations and warranties
set forth in this Agreement shall be true and correct as of
the Closing in all respects.
8.1.2 Seller's Deliveries. Seller shall
have duly and timely delivered to Buyer all of the items
described in Section 4.1 of this Agreement.
8.1.3 No Material Changes. At the
Closing, there will be no material adverse changes in the
physical or financial condition of the Property which were
discovered by Buyer after the Due Diligence Period.
8.1.4 Delivery of Pre-Closing Documents
and Agreements. Seller shall have delivered to Buyer on or
before the Closing Date the following (to the extent in
Seller's possession, control or otherwise reasonably
available [at no cost or expense] to Seller):
8.1.4.1 An original of the Lease;
8.1.4.2 Originals of all Records and Plans;
8.1.4.3 Originals of all Licenses and Permits; and
8.1.4.4 Originals of all Warranties.
8.1.5 Title Insurance. The Title
Company will have issued or have unconditionally and
irrevocably committed to issue the Title Policy to Buyer.
8.1.6 Due Diligence Approval. Buyer
shall have approved (or be deemed to have approved) all
matters to be reviewed in accordance with Section 9 of this Agreement.
9. DUE DILIGENCE PERIOD:
9.1 Matters To Be Reviewed. Buyer's
obligation to close the purchase of the Property and to pay
the Purchase Price shall be subject to and conditioned upon
Buyer's complete satisfaction with all of the following
items, each of which Buyer shall have the right to review
and approve or disapprove in Buyer's sole and absolute
discretion during the Due Diligence Period:
9.1.1 Title. Buyer will have until 6:00
p.m. (California time) on the expiration of the Due
Diligence Period to examine and approve all matters of title
and to notify Seller in writing of any defects in title.
Seller shall, at its sole cost and expense, within three (3)
days following the date this Agreement is executed and
delivered by Buyer and Seller, deliver to Buyer a current
preliminary title report issued by the Title Company and
relating to the Real Property, together with all underlying
documents relating thereto. If Buyer fails to notify Seller
in writing of any objections to title prior to the expira
tion of the Due Diligence Period, title to the Property
shall be conclusively deemed to be approved by Buyer. If
Buyer timely notifies Seller in writing of specific
objections to title prior to the expiration of the Due
Diligence Period, Seller will have three (3) business days
after receipt of Buyer's notification of any objection in
which to advise Buyer that:
9.1.1.1 Seller will remove any objectionable exceptions
on or before the Closing Date; or
9.1.1.2 Seller will not cause the exceptions to be removed.
If Seller advises Buyer that it will not
cause the exceptions to be removed, Buyer will have five (5)
days from its receipt of Seller's notice to elect to:
(i) proceed with the purchase
and acquire the Property subject to such exceptions, but
conditioned upon Seller fulfilling each and every one of its
other obligations hereunder and all of the other conditions
precedent in favor of Buyer having been duly and timely
satisfied; or
(ii) terminate this Agreement by
written notice to Seller, in which case the Deposit, and any
interest thereon, will be immediately returned to Buyer
without further instructions from Seller, and all rights and
obligations of the parties existing hereunder shall
terminate and be of no further force or effect, except any
rights and obligations which are expressly stated to survive
the termination of this Agreement.
If Buyer does not give Seller written
notice of its election within said five (5) day period,
Buyer will be conclusively deemed to have elected to
terminate this Agreement as described in (ii) above.
If Seller commits to remove any
objection to title and fails to do so by the Closing Date,
Seller will be in material default under this Agreement and
Buyer may, at Buyer's election, terminate this Agreement and
pursue its remedies as set forth in Section 14 of this
Agreement.
9.1.2 Inspections and Studies. Buyer
will have until 6:00 p.m. (California time) on the
expiration of the Due Diligence Period to conduct (as
applicable) and review and approve any and all inspections,
investigations, tests, studies (including feasibility
studies and other economic models) and appraisals as Buyer
may have elected to make or obtain with respect to the
Property and/or the operation and financial condition of the
Property, including, without limitation, financial analyses
of the books and records, environmental inspections and
studies, structural and mechanical investigations,
appraisals, and analyses of the Property's compliance with
Governmental Regulations. Buyer and Buyer's
representatives, agents and designees will have the right to
enter the Property at all reasonable times, upon reasonable
oral notice to perform all such investigations of the
Property, and to conduct interviews with (i) tenants of the
Property, (ii) property management personnel of Seller, and
(iii) such other parties as Buyer may deem appropriate in
its sole discretion. Seller will cooperate with Buyer and
its representatives in that regard. Seller shall deliver to
Buyer at Seller's sole cost and expense, within five (5)
days (unless indicated otherwise below) following the date
this Agreement is executed and delivered by Buyer and
Seller, all information in Seller's possession or control
which is reasonably related to the Property, plus the
following items:
9.1.2.1 To the extent in Seller's possession, an ALTA "as-built"
survey of the Real Property prepared by a licensed surveyor;
9.1.2.2 The Lease and all
modifications or amendments and guaranties relating thereto;
all tenant correspondence and all current financial
statements of the tenant to the extent the same are in
Seller's possession or control; all contracts (including the
Service Contracts), agreements and management agreements;
all "operating statements" for the last three (3) calendar
years for the Property and a year-to-date operating
statement for the calendar year 1997, a balance sheet dated
no earlier than December 31, 1996; an income statement for
the last two (2) calendar years and a year-to-date income
statement for the calendar year 1997, each such statement to
be certified by Seller as being true, correct and complete
reports prepared by Seller in the ordinary course of
business; a cumulative general ledger for year-to-date 1997,
reports (including all environmental reports, soils reports,
surveys and plans and specifications affecting or relating
to the Property, and all modifications or amendments
thereto); all Records and Plans, Warranties, Licenses and
Permits and governmental approvals obtained or held by
Seller and relating to the development, construction,
operation, use or occupancy of any of the Property.
9.1.2.3 Reports of insurance
carriers, if any, insuring the Property during the period of
Seller's ownership of the Property and each portion thereof
respecting the claims history of the Property; insurance
certificates of Seller and tenants respecting the Property;
all correspondence, reports, and notices pertaining to the
existence of toxic or Hazardous Materials and/or waste at
the Property; all permits, reports, certificates and notices
pertaining to the existence, removal and/or decommission of
any and all storage tanks located on, at or underneath the
Property; all brokerage and commission agreements; all
agreements entered by Seller and Seller's affiliates
affecting the Property and/or income and cash flow to be
received from the Property that will survive the Closing;
tax bills and assessments for the current year and the three
(3) year period immediately preceding the current year; any
and all information in Seller's possession respecting the
creditworthiness of the tenant under the Lease at the
Property; all written reports respecting incidents of theft,
burglary or crimes attempted or committed at, on or to the
Property or other such incidents which are the subject of
litigation; and such other information reasonably requested
by Buyer of Seller in writing during the Due Diligence
Period.
9.1.3 Indemnity. Buyer agrees to
indemnify and hold Seller harmless from any and all
injuries, losses, liens, claims, judgments, obligations,
liabilities, costs, expenses or damages (including
reasonable attorneys' fees and court costs) sustained by
Seller to the extent same results from or arises out of any
inspections by Buyer or any of its representatives pursuant
to Section 9.1.2 above.
9.1.4 Insurance. Prior to any entry,
Buyer shall obtain, maintain and provide Seller, or shall
cause any consultant, contractor or other person entering
the Property to obtain, maintain and provide Seller, with
proof of comprehensive general liability insurance in the
amount of at least $1,000,000 combined, single limit
coverage, naming Seller as an additional insured.
9.2 Notice of Objections.
9.2.1 If Buyer fails to notify Seller in
writing of any objections to the items set forth in
Section 9.1.2 on or before the expiration of the Due
Diligence Period, Buyer shall be conclusively deemed to have
approved such items.
9.2.2 If Buyer notifies Seller in
writing of any objections to the condition of the Property
or any other matters relating to the Property and/or
operation or financial condition of the Property as set
forth in Section 9.1.2 on or before the expiration of the
Due Diligence Period, the parties will have five (5)
business days to agree upon a resolution of the
objection(s). If the parties cannot agree within the five
(5) business day period, then Buyer may terminate this
Agreement by delivering written notice to Seller (which
notice must be given within three (3) business days after
the expiration of the five (5) business day period), in
which event the Deposit and any interest accrued thereon
will be returned to Buyer, and all rights and obligations of
the parties existing hereunder shall terminate and be of no
further force or effect, except any rights and obligations
which are expressly stated to survive the termination of
this Agreement.
10. PRORATIONS. The following are to be prorated
as of the Closing Date, as follows:
10.1 Current Rent. Current rent under the
Lease shall be prorated as of the Closing Date, regardless
of whether such rent has been paid to Seller.
10.2 Rent Arrears. With respect to any rent
arrears arising under the Lease, Buyer shall pay to Seller
any rent actually collected that is applicable to the period
preceding the Closing Date, less reasonable collection
charges; provided, however, that it is hereby understood and
agreed that all rent collected by Buyer shall be applied
first to unpaid rent accruing after the Closing Date, and
then, only after all such past due rent has been collected,
to unpaid rent accruing prior to the Closing Date.
10.3 Security Deposits. The security deposit
paid by the tenant pursuant to the Lease, and any interest
required to be paid thereon, shall be fully credited to
Buyer at Closing.
10.4 Other Prorations. Liability for all
real property taxes, common area maintenance, Property
operation expenses, and other recurring costs which are not
otherwise paid directly by tenants shall be prorated as of
the Closing Date; provided, however, Buyer shall not be
responsible for any costs or expenses pertaining to Service
Contracts or other items of expense which Buyer has not
approved in writing. Seller shall remain liable for any
supplemental taxes attributable to any period prior to the
Closing. If any such supplemental taxes shall be billed to
Buyer or levied against the Property after the Closing, then
Seller agrees to pay its prorated share thereof to Buyer
within thirty (30) days of demand therefor by Buyer. Any
such sums not paid when due may be advanced by Buyer, and
such amounts shall bear interest from the date of advance by
Buyer until paid by Seller at the maximum contract rate
permitted by law.
10.5 Preliminary Closing Adjustment. Seller
and Buyer shall jointly prepare a preliminary closing
adjustment computation on the basis of the Lease and other
sources, and shall deliver such computation to the Escrow
Holder prior to Closing.
10.6 Post-Closing Reconciliation. All items
described in this Section 10 that are capable of being
prorated as of the Closing Date, shall be prorated as of the
Closing Date. All other items shall be reconciled within
one hundred eighty (180) days after the Closing Date to the
extent that such items may be reconciled within such one
hundred eighty (180) day period, or, to the extent such
items may not be reconciled within such one hundred eighty
(180) day period, when such items may first be reconciled
after Closing.
10.7 Survival. The provisions of this
Section 10 shall survive Closing.
11. COSTS AND EXPENSES. The closing costs shall
be allocated as follows:
11.1 Buyer. Buyer shall pay all premiums for
the Title Policy, Buyer's share of prorations, all state and
county transfer taxes, all sales taxes, any other tax or
assessment imposed as a result of the transactions
contemplated under this Agreement, and any document
recording charges and notary fees, including, without
limitation, any recording fees and notary charges with
respect to the Deed.
11.2 Other Closing Costs. Buyer shall pay
all escrow fees but each party will pay their own legal and
professional fees and fees of other consultants incurred by
Buyer and Seller, respectively. Seller shall be responsible
for its share of prorations.
11.3 Delivery of Possession. Simultaneously
with the Closing, Seller shall deliver possession and
enjoyment of the Property to Buyer and Buyer shall thereupon
have the immediate right to possess, develop, use, sell,
encumber and/or transfer the Property, or any part thereof
for its own account to the total exclusion of Seller.
12. AS-IS. Except as specifically set forth in
this Paragraph and the representations set forth in
Paragraph 5 above, the sale of the Property hereunder is and
will be made on an "as is" basis, without representations
and warranties of any kind or nature, express, implied or
otherwise, including but not limited to, any representation
or warranty concerning title to the Property, the physical
condition of the Property (including, but not limited to,
the condition of the soil or the improvements) , the
environmental condition of the Property (including, but not
limited to, the presence or absence of hazardous substances
on or respecting the Property) , the compliance of the
Property with applicable laws and regulations (including,
but not limited to, zoning and building codes or the status
of development or use rights respecting the Property), the
financial condition of the Property or any other
representation or warranty respecting any income, expenses,
charges, liens or encumbrances, rights or claims on,
affecting or pertaining to the Property or any party
thereof. Buyer acknowledges that Buyer will examine, review
and inspect all matters which in Buyer's judgment bear upon
the Property and its value and suitability for Buyer's
purposes, and Seller shall cooperate with Buyer in making
such information available to Buyer for such examination.
Except as to matters specifically set forth in this
Paragraph and the representations set forth in Paragraph 5
above, Buyer will acquire the Property solely on the basis
of its own physical and financial examinations, reviews and
inspections and the title insurance protection afforded by
the Title Policy.
13. CONDEMNATION AND DESTRUCTION:
13.1 Eminent Domain or Taking. If
proceedings under a power of eminent domain relating to the
Property or any part thereof are commenced prior to the
Closing Date, Seller shall promptly inform Buyer in writing.
13.1.1 f such proceedings involve the
taking of title to all or any Material (defined below)
interest in the Property, Buyer may elect to terminate this
Agreement by notice in writing sent within thirty (30) days
of Seller's written notice to Buyer, in which case the
Deposit, and any interest thereon, will be returned to Buyer
and neither party shall have any further obligation to or
rights against the other except any rights or obligations of
either party which are expressly stated to survive
termination of this Agreement.
13.1.2 If the proceedings do not involve
the taking of title to all or a Material interest in the
Property or if Buyer does not elect to terminate this
Agreement, this transaction will be consummated as described
in this Agreement and any award or settlement payable with
respect to such proceeding will be paid or assigned to Buyer
upon the Closing.
13.1.3 For purposes of this Section 13.1,
"Material" shall mean a taking which Buyer reasonably
determines materially and adversely affects the value or
operations of the Property.
13.2 Damage or Destruction. Except as
provided in this paragraph, prior to the Close of Escrow the
entire risk of loss of damage by earthquake, flood,
hurricane, landslide, fire or other casualty is borne and
assumed by Seller. If, prior to the Closing Date, any part
of the Property is damaged or destroyed by earthquake,
flood, landslide, fire or other casualty, Seller will
promptly inform Buyer of such fact in writing and advise
Buyer as to the extent of the damage.
13.2.1 If such damage or destruction is
Material (as defined below), Buyer has the option to
terminate this Agreement upon written notice to the Seller
given not later than thirty (30) days after receipt of
Seller's written notice to Buyer advising of such damage or destruction.
13.2.2 If this Agreement is so terminated, Buyer will be entitled to
the return of the Deposit together with any interest thereon.
13.2.3 If Buyer does not timely exercise
this option to terminate this Agreement, or if the casualty
is not Material, Seller will assign to Buyer all of Seller's
right, title and interest in and to any and all insurance
proceeds under Seller's insurance policies relating to such
damage or destruction, and shall reduce the Purchase Price
by the amount of the deductible and any other amount not
covered by insurance under such policies (including
reasonably anticipated post-Closing rental loss, except to
the extent covered by insurance, through to completion of
such repair and restoration resulting from such casualty),
and this transaction will close pursuant to the terms of
this Agreement.
13.2.4 For purposes of this Section 13.2,
"Material" is deemed to be any damage or destruction to the
Property where the cost of repair or replacement is
estimated to be more than 10% of the Purchase Price.
13.2.5 Survival. The provisions of this
Section 13 shall survive the Closing.
14. REMEDIES:
14.1 Buyer's Remedies. IN THE EVENT THAT
SELLER SHALL FAIL TO CONSUMMATE THIS AGREEMENT FOR ANY
REASON, EXCEPT BUYER'S DEFAULT OR A TERMINATION OF THIS
AGREEMENT BY BUYER OR SELLER PURSUANT TO A RIGHT TO DO SO
UNDER THE PROVISIONS HEREOF, BUYER SHALL HAVE THE FOLLOWING
REMEDIES, WHICH SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDIES
BASED UPON A DEFAULT BY SELLER. SUCH REMEDIES SHALL NOT BE
CUMULATIVE, MEANING BUYER MAY EXERCISE ONE (1) BUT NOT BOTH
OF SUCH REMEDIES. BUYER SHALL DELIVER TO SELLER AND ESCROW
HOLDER NOTICE OF ITS ELECTION OF REMEDIES WITHIN TWO (2)
DAYS AFTER SELLER'S DEFAULT. THE SOLE REMEDIES AVAILABLE TO
BUYER ARE AS FOLLOWS:
(i) BUYER MAY TERMINATE THIS
AGREEMENT, IN WHICH CASE SELLER SHALL IMMEDIATELY RETURN THE
DEPOSIT, TOGETHER WITH ANY INTEREST EARNED THEREON, TO
BUYER, UPON EXECUTION OF CANCELLATION INSTRUCTIONS BY BUYER,
AND SELLER SHALL PAY ANY ESCROW CANCELLATION CHARGES. IN
ADDITION, BUYER SHALL HAVE THE RIGHT TO PURSUE AN ACTION
AGAINST SELLER FOR ALL ACTUAL OUT-OF-POCKET (BUT NOT
CONSEQUENTIAL) DAMAGES SUFFERED BY BUYER; OR
(ii) BUYER MAY BRING AN ACTION FOR
SPECIFIC PERFORMANCE AGAINST SELLER WITH RESPECT TO THIS
AGREEMENT BUT ONLY UNDER THE FOLLOWING CONDITIONS AND
CIRCUMSTANCES:
(a) BUYER SHALL HAVE FULLY
PERFORMED ALL OBLIGATIONS OF BUYER UNDER THIS AGREEMENT,
EXCEPT THAT WITH RESPECT TO DEPOSITING THE BALANCE OF THE
PURCHASE PRICE, BUYER SHALL HAVE EVIDENCED TO SELLER'S
REASONABLE SATISFACTION THAT BUYER IS READY, WILLING AND
ABLE TO TIMELY DEPOSIT SAID FUNDS IN ESCROW;
(b) THE ACTION SHALL BE
COMMENCED, AND SERVICE OF PROCESS UPON SELLER MADE, NOT
LATER THAN FORTY-FIVE (45) DAYS AFTER SELLER'S DEFAULT; AND
(c) ALL OF THE ISSUES IN SUCH
ACTION, WHETHER OF FACT OR LAW, SHALL BE HEARD BY A
REFERENCE PROCEEDING PURSUANT TO CALIFORNIA CODE OF CIVIL
PROCEDURE, SECTION 638, ET. SEQ. WITHIN TEN (10) DAYS
FOLLOWING THE COMMENCEMENT OF ANY SUCH ACTION, THE PARTIES
SHALL MAKE APPLICATION TO THE COURT IN WHICH THE ACTION IS
PENDING FOR THE APPOINTMENT OF A RETIRED SUPERIOR COURT
JUDGE OR COURT OF APPEAL JUSTICE FROM THE THEN CURRENT LIST
OF RETIRED JUDGES AVAILABLE TO SERVE AS REFEREES IN THE
COUNTY IN WHICH SUCH ACTION IS COMMENCED TO SERVE AS THE
REFEREE. THE REFEREE CHOSEN SHALL BE DEEMED QUALIFIED ONLY
IF HE IS WILLING TO AGREE TO HEAR THE SUBJECT ACTION WITHIN
TWENTY (20) DAYS FOLLOWING THE DATE OF APPLICATION TO THE
COURT, TO HEAR THE SUBJECT ACTION ON CONSECUTIVE DAYS AND TO
RENDER A DECISION WITHIN A FURTHER FIFTEEN (15) DAY PERIOD.
THE PARTIES SHALL ADVANCE, IN EQUAL SHARES, THE FEES AND
EXPENSES OF THE REFEREE SELECTED PURSUANT TO THIS PROVISION,
BUT THE LOSING PARTY IN ANY SUCH ACTION SHALL REIMBURSE THE
PREVAILING PARTY FOR ANY AND ALL FEES AND EXPENSES
PREVIOUSLY ADVANCED BY SUCH PREVAILING PARTY FOR THE
REFEREE.
14.2 Seller's Remedies. IF BUYER SHOULD FAIL
TO CONSUMMATE THIS AGREEMENT AS A RESULT OF BUYER'S DEFAULT
UNDER THE TERMS OF THIS AGREEMENT, THEN SELLER, AS ITS SOLE
AND EXCLUSIVE REMEDY, MAY TERMINATE THIS AGREEMENT BY
NOTIFYING BUYER THEREOF AND RECEIVE OR RETAIN THE DEPOSIT AS
LIQUIDATED DAMAGES. THE PARTIES AGREE THAT SELLER WILL
SUFFER DAMAGES IN THE EVENT OF BUYER'S DEFAULT ON ITS
OBLIGATIONS. ALTHOUGH THE AMOUNT OF SUCH DAMAGES IS
DIFFICULT OR IMPOSSIBLE TO DETERMINE, THE PARTIES AGREE THAT
THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF
SELLER'S LOSS IN THE EVENT OF BUYER'S DEFAULT. THUS, SELLER
SHALL ACCEPT AND RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES
BUT NOT AS A PENALTY. SELLER HEREBY ACKNOWLEDGES AND AGREES
SUCH LIQUIDATED DAMAGES SHALL CONSTITUTE SELLER'S SOLE AND
EXCLUSIVE REMEDY AND SELLER HEREBY WAIVES THE PROVISIONS OF
CALIFORNIA CIVIL CODE SECTION 3389 AND ANY OTHER APPLICABLE
EXISTING OR FUTURE LAW PERMITTING A CONTRACT TO BE ENFORCED
EVEN THOUGH DAMAGES ARE LIQUIDATED FOR ITS BREACH.
SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ
AND UNDERSTAND THE PROVISIONS OF THE FOREGOING PROVISION AND
BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS
TERMS.
Seller: /s/ JM Buyer:/s/ VJC
15. RIGHT OF FIRST NEGOTIATION FOR 000 XXXXX
XXXXXX PROPERTY. If at any time after the closing of the
transaction contemplated herein and while Buyer continues to
own the Property, Seller elects to sell or market for sale
the 000 Xxxxx Xxxxxx Property (defined below), Seller hereby
grants to Buyer the right of first negotiation to purchase
the 000 Xxxxx Xxxxxx Property in accordance with the terms
of this Section 15. Seller shall notify Buyer in writing as
soon as Seller elects to sell or market for sale the 000
Xxxxx Xxxxxx Property. Within five (5) business days after
Buyer's receipt of such written notice from Seller, Buyer
shall have the right to notify Seller in writing that Buyer
is interested in negotiating with Seller for the purchase of
the 000 Xxxxx Xxxxxx Property. If Buyer fails to so notify
Seller, Seller may thereafter sell the 000 Xxxxx Xxxxxx
Property to any other entity on any terms and conditions.
If Buyer does so notify Seller, Buyer and Seller shall have
a thirty (30) day period following such notification during
which they shall each negotiate in good faith the terms of a
purchase and sale agreement for the sale of the 000 Xxxxx
Xxxxxx Property to Buyer. If Buyer and Seller fail to agree
upon the terms of a purchase and sale agreement within such
thirty (30) day period, Seller may thereafter sell the 000
Xxxxx Xxxxxx Property to any other person on any terms and
conditions. For purposes of this Section 15, the term
"200 Xxxxx Street Property" shall mean that certain real
property and improvements situated thereon, located at 000
Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx, as more particularly
described on Exhibit "L" attached hereto.
16. BROKERAGE COMMISSIONS. Each party hereby
represents and warrants to the other that it has not
incurred any obligation to any third party for the payment
of any real estate commission, finder's fee or other like
sum in connection with the sale of the Property to Buyer,
and each party hereby agrees to indemnify and hold the other
party harmless from and against any and all claims, demands,
causes of action and costs, including attorneys' fees and
costs, made, brought or sought against or from the other
arising out of any agreement for the payment of a real
estate commission, finder's fee or other like sum entered
into between either party and a third party in connection
with the sale of the Property to Buyer.
17. NOTICE. All notices, requests, demands or
documents which are required or permitted to be given or
served hereunder shall be in writing and (a) delivered
personally, (b) delivered by a national overnight courier
(i.e., FedEx), or (c) transmitted by facsimile, addressed as
follows:
To Seller at: Echo USA, Inc.
c/o Fushimiya Co., Ltd.
0 X Xxxxx-Xxxxxxxxx Xxxxxxxx
0-0, Xxxxx-Xxxxxxxxx 0-Xxxxx
Xxxxxx-Xx, Xxxxx, Xxxxx 105
Attn: Jun Masuyama, President
Facsimile: (011) 00-0 0000 0000
with a copy to:
Kono Law Xxxxxx
Xxxx Xxxxxxxx - 0xx Xxxxx
0-00-0 Xxxxx-Xxxxxxxxx
Xxxxxx-Xx, Xxxxx, Xxxxx 105
Attn: Xxxxx Xxxx, Esq.
Facsimile: (011) 00-0 0000 0000
with a copy to:
Xxxx & Xxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
To Buyer at: Arden Realty Limited Partnership
0000 Xxxxxxxx Xxxx., Xxxxx 000 X
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Mr. Xxxxxx Xxxxxxx
Xx. Xxxxxxxx Xxxx
Facsimile: (000) 000-0000
with a copy to:
Jeffer, Mangels, Xxxxxx & Xxxxxxx LLP
2121 Avenue of the Stars, Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
Notice shall be deemed to have been delivered only upon
actual delivery to the intended addressee in the case of
either personal, courier, or facsimile delivery. The
addresses for purposes of this paragraph may be changed by
giving written notice of such change in the manner provided
herein for giving notices. Unless and until such written
notice is delivered, the latest information stated by
written notice, or provided herein if no written notice of
change has been delivered, shall be deemed to continue in
effect for all purposes hereunder.
18. MISCELLANEOUS:
18.1 Survival. The representations and
warranties contained in this Agreement shall survive for a
period of twelve (12) months following the Closing Date.
18.2 Intentionally Omitted.
18.3 Parties in Interest. As and when used
herein, the terms, "Seller" and "Buyer" mean and include,
and this Agreement their respective successor and assigns
and shall be binding upon and inure to the benefit of, the
above-named Seller and Buyer and their respective successors
and permitted assigns.
18.4 Section Headings. The headings of
sections are inserted only for convenience and shall in no
way define, describe or limit the scope or intent of any
provision of this Agreement.
18.5 No Oral Modifications. This Agreement
may not be amended or modified except in writing executed by
all parties hereto.
18.6 Full Integration. Buyer and Seller each
acknowledge that there are no other agreements or representa
tions, either oral or written, express or implied, that are
not embodied in this Agreement, and this Agreement, the
Exhibits attached to this Agreement, and the Transfer
Documents, represent a complete integration of all the prior
and contemporaneous agreements and understandings and documents.
18.7 Binding Effect. This Agreement shall be
binding upon and inure to the benefit of the parties hereto,
and their respective successors and assigns, and no other
party shall be a beneficiary hereunder.
18.8 Seller's Advice of Counsel. Seller
acknowledges that (a) Buyer has not made any representation
as to the Federal or State tax implications relating to the
transactions contemplated herein, (b) Seller has thoroughly
read and reviewed the terms and provisions of this Agreement
and the Exhibits attached hereto and is familiar with the
terms of this Agreement, (c) the terms and provisions
contained in this Agreement are clearly understood by Seller
and have been fully and unconditionally consented to by it,
(d) Seller has had full benefit and advice of counsel of its
own selection, in regard to understanding the terms, meaning
and effect of this Agreement, (e) the execution of this
Agreement and of the other documents executed pursuant to
this Agreement is done freely, voluntarily, with full
knowledge, and without duress, (f) in executing this
Agreement, Seller is relying on no other representations,
either written or oral, express or implied, made to it by
any other party to this Agreement, and the consideration
received by it under this Agreement has been actual and adequate.
18.9 Attorneys' Fees. If an action is
commenced by a party hereto resulting from a dispute with
respect to the transactions contemplated herein, the
prevailing party shall be entitled to recover its attorneys'
fees and costs from the other party in such action. As used
herein, the term "attorneys' fees" means attorneys' fees
whether or not litigation ensues and if litigation ensues
whether incurred at trial, on appeal, on discretionary
review or otherwise.
18.10 Governing Law. This Agreement will be
governed by, interpreted under, and construed and enforced
in accordance with the laws of the State of California, with
venue in the city and County of Orange, California. Each of
the parties hereto acknowledge and agree that the laws of
the State of California and the selection of venue in the
city and County of Orange were freely chosen by Buyer and Seller.
18.11 Confidentiality. Unless otherwise
agreed to in writing by Seller and Buyer, each party will
use reasonable efforts to keep confidential the terms of
this Agreement, the possible sale of the Property, and all
documents, financial statements, reports or other
information provided to, or generated by the other party
relating to the Property, and will use reasonable efforts to
not disclose any such information to any person other than
(a) those employed by Seller or Buyer; (b) those who are
actively and directly participating in the evaluation of the
Property and the negotiation and execution of this Agreement
or financing of the purchase of the Property; and
(c) governmental, administrative, regulatory or judicial
authorities in the investigation of the compliance of the
Property with applicable legal requirements; and (d) third
parties as required under applicable law. The provisions of
this paragraph will survive the termination of this
Agreement other than by Closing.
18.12 Captions. The captions contained in
this Agreement are for convenience only and are not intended
to limit or define the scope or effect of any provision of
this Agreement.
18.13 Severability. The invalidity,
illegality or unenforceability of any provision of this
Agreement shall not affect the enforceability of any other
provision of this Agreement, all of which shall remain in
full force and effect.
18.14 Time of the Essence. Time is of the
essence of this Agreement and of the obligations required
hereunder.
18.15 Non-Waiver. No delay or failure by any
party to exercise any right hereunder, and no partial or
single exercise of any such right, shall constitute a waiver
of that or any other right, unless otherwise expressly
provided herein.
18.16 Facsimile. The parties hereto and their
respective successors and assigns are hereby authorized to
rely upon the signatures of each person and entity on this
Agreement which are delivered by facsimile as constituting a
duly authorized, irrevocable, actual, current delivery of
this Agreement with original ink signatures of each person and entity.
18.17 Further Assurances. Buyer and Seller
agree to execute all documents and instruments reasonably
required in order to consummate the purchase and sale
contemplated in this Agreement.
18.18 Joint and Several Liability. The
obligations of Seller under this Agreement and the other
documents executed pursuant to this Agreement shall be joint
and several.
18.19 Counterparts. This Agreement may be
executed in any number of counterparts and each such
counterpart shall be deemed to be an original, but all of
which, when taken together, shall constitute one Agreement.
Buyer and Seller have executed this Agreement as
of the date written above.
"SELLER"
ECHO USA, INC.,
a Hawaii corporation
/s/ Jun Masayaha
Name:Jun Masayaha
Title: President
"BUYER"
ARDEN REALTY LIMITED
PARTNERSHIP,
a Maryland limited partnership
By: Arden Realty, Inc.,
a Maryland corporation,
its general partner
By:/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Its: President and COO
