AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
for
1970 and 0000 Xxxx Xxxxx Xxxxxx
Xx Xxxxxxx, Xxxxxxxxxx
By and Between
CONTINENTAL GRAND COMPANY,
A CALIFORNIA LIMITED PARTNERSHIP
as Seller
and
ARDEN REALTY GROUP LIMITED PARTNERSHIP,
A MARYLAND LIMITED PARTNERSHIP
as Buyer
Dated as of November 6, 1996
TABLE OF CONTENTS
Page
RECITALS
1. Agreement to Sell
2. Purchase Price
2.1 Payment of Purchase Price
3. Conditions Precedent
3.1
3.2 Exceptions to Title
3.3 Due Diligence Matters
4. Escrow Matters
4.1 Deliveries to Escrow by Seller
4.2 Deliveries Outside of Escrow
4.3 Deliveries to Escrow by Buyer
5. The Closing
5.1 Distribution of Funds and Documents
5.2 Closing Costs
6. Prorations
6.1 Items to be Prorated
6.2 Calculation
7. Condemnation or Destruction of Property
8. Representations, Warranties and Covenants
8.1 Representations, Warranties and
Covenants of Seller
8.2 Representations and Warranties of Buyer.
8.3 Survival
8.4 Interim Covenants
9. Indemnification
9.1 By Buyer
9.2 By Seller
9.3 Generally
10. Certain Remedies.
10.1 DISPOSITION OF ESCROW DEPOSIT
10.2 Post-Closing Matters
11. Brokers
11.1 Warranties
11.2 Commissions and Broker Waiver
11.3 Commissions and Broker Representation
12. Miscellaneous
12.1 Entire Agreement
12.2 Time of the Essence
12.3 Interpretation
12.4 Governing Law
12.5 Successors and Assigns
12.6 Notices
12.7 Third Parties
13. ARBITRATION OF CERTAIN DISPUTES
14. Legal Costs.
ESCROW HOLDER'S ACKNOWLEDGMENT
PURCHASE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
1970 and 0000 Xxxx Xxxxx Xxxxxx
Xx Xxxxxxx, Xxxxxxxxxx
THIS AGREEMENT is made and entered into as of the 6th day of
November, 1996, by and between CONTINENTAL GRAND COMPANY, A
CALIFORNIA LIMITED PARTNERSHIP (hereinafter called "Seller") and
ARDEN REALTY GROUP LIMITED PARTNERSHIP, A MARYLAND LIMITED
PARTNERSHIP (hereinafter called "Buyer").
RECITALS
A. Seller is the owner of that certain real property
located at 1970 and 0000 Xxxx Xxxxx Xxxxxx in El Segundo,
California, consisting of land and the improvements thereon
including two office buildings containing approximately eighty
four thousand five hundred (84,500) square feet and a parking lot
consisting of approximately three hundred three (303) parking
spaces (collectively, the "Premises").
B. Buyer desires to purchase the Premises on the terms and
conditions hereinafter documented.
NOW, THEREFORE, in consideration of the mutual undertakings
of the parties hereto, it is hereby agreed as follows:
1. Agreement to Sell
Seller shall sell and Buyer shall purchase, subject to all
the terms and conditions hereof, all of the following described property
(collectively the "Property"):
(a) Land. That certain real property located at 1970 and
0000 Xxxx Xxxxx Xxxxxx in the City of El Segundo, California, as
more particularly described on Exhibit "A" attached hereto and
made a part hereof ("Land")
(b) Improvements. All buildings, structures, improvements
and fixtures on the Land belonging to Seller ("Improvements");
(c) Easements. All easements, interests in roadways,
strips and rights appurtenant to the Land if any;
(d) Licenses. To the extent assignable, all of Seller's
right, title and interest in and to all licenses, permits,
rights, contracts, water rights, mineral rights, privileges and
appurtenances pertaining to any of the foregoing; and
(e) Personal Property. All of Seller's right, title and
interest in and to all furniture, equipment, supplies, tools and
machinery, together with all of Seller's right, title and
interest in and to any plans, permits or drawings located on or
pertaining to the Property and belonging to Seller ("Personal
Property"). The Personal Property on or pertaining to the
Property shall not be removed from the date hereof and shall
become the property of the Buyer upon the Close of Escrow.
2. Purchase Price
The purchase price ("Purchase Price") for the Property
shall be the sum of Three Million Five Hundred Fifty Thousand
Dollars ($3,550,000); provided, however, that the Purchase Price
shall be increased to Three Million Six Hundred Thousand Dollars
($3,600,000) in the event that Buyer elects to extend the Closing
pursuant to subsection 3.3 and Section 4 below.
2.1 Payment of Purchase Price. The Purchase Price shall be
paid to Seller by Buyer as follows:
(a) Deposit. Buyer shall deliver Two Hundred Thousand
Dollars ($200,000) to Escrow Holder (defined below) as follows:
(i) Concurrently with the "Opening of Escrow" (as hereinafter
defined) Buyer shall deliver an initial deposit ("Initial
Deposit") in the form of a wire transfer, cash, or bank or
cashier's check in an amount equal to Fifty Thousand Dollars
($50,000) to Chicago Title Insurance Company ("Escrow Holder"),
(ii) Upon the expiration of the "Due Diligence Period" as defined
below in Section 3.1, Buyer shall deliver an additional deposit
("Additional Deposit") in an amount equal to One Hundred Fifty
Thousand Dollars ($150,000) to Escrow Holder. The Initial
Deposit and Additional Deposit shall together with all interest
accrued thereon constitute the deposit ("Deposit"). Escrow
Holder shall credit such Deposit plus interest against the
Purchase Price in accordance with the terms and provisions of
this Agreement. The Deposit shall be at all times invested by
Escrow Holder in the following investments ("Approved
Investments"): (i) United States Treasury obligations, (ii)
United States Treasury-backed repurchase agreements issued by a
major money center banking institution reasonably acceptable to
Seller, or (iii) such other manner as may be reasonably
acceptable to Buyer. The Deposit shall be disposed of by Escrow
Holder only as provided in this Agreement.
(b) Extension Deposit. In the event Buyer exercises
Buyer's Election (as described below) to extend the Due Diligence
Period and Closing Date as provided in Section 3.3(b) hereof,
Buyer shall increase the Deposit to Two Hundred Thousand Dollars
($200,000).
(c) Closing Payment. The Purchase Price, as adjusted by
the application of the Escrow Deposit and by the prorations and
credits specified herein, shall be paid in cash on the Closing
Date.
3. Conditions Precedent
The obligation of Buyer to purchase and Seller to sell
the Property as contemplated by this Agreement is subject to
satisfaction of each of the following conditions precedent (any
of which may be waived in writing by the party in whose favor
such condition exists) on or before the applicable date specified
for satisfaction of the applicable condition. If any of such
conditions are not fulfilled pursuant to the terms of this
Agreement on or before the Closing Date, then this Agreement
shall terminate and, in connection with any such termination made
in accordance with this paragraph 3, 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) and Buyer
shall be entitled to a return of the Escrow Deposit. In the
event that the Escrow is cancelled by the Buyer because of non-
approval of conditions precedent hereto, Buyer agrees to execute
any and all required documents of the Escrow Holder or Seller to
confirm that the Escrow and this Agreement are terminated. Close
of Escrow shall constitute approval by each party of all matters
to which such party has a right of approval and a waiver of all
conditions.
3.1 Title Report. Seller shall cause a preliminary title
report ("Title Report") covering the Property issued by Chicago
Title Company in its capacity as title insurer hereunder ("Title
Company") to be delivered to Buyer within ten (10) days of the
date of this Agreement. In addition, Seller shall provide Buyer
with an updated ALTA Survey ("Updated Survey") of the Property
which Updated Survey shall be prepared to the Title Company's
standards for an extended coverage ALTA owner's title insurance
policy, showing the legal description and boundary lines of, and
all Improvements on, the Land, and all easements of record.
Unless Buyer shall deliver written notice of disapproval of the
Title Report ("Title Objections") prior to the later of (i)
expiration of the Due Diligence Period or (ii) ten (10) budiness
days after delivery of the Title Report and updated Survey, Buyer
shall be deemed to have approved the title exceptions disclosed
by the Title Report, and Updated Survey. Approval by Buyer of
any additional exceptions to title or survey matters which may be
disclosed by the Title Company after Buyer's receipt of the Title
Report or Updated Survey shall be a further condition precedent
to Buyer's obligation to purchase the Property. If any such
additional exceptions to title or survey matters are disclosed,
then unless Buyer gives written notice that it disapproves such
additional exceptions to title or survey matters, stating the
additional exceptions or survey matters so disapproved, on or
before the sooner to occur of the Closing Date or ten (10)
business days after receipt of written notice of such additional
exceptions or survey matters, Buyer shall be deemed to have
disapproved said additional title exceptions or survey matters.
If, for any reason, on or before the Closing Date Seller does not
cause any exceptions to title or survey matters which Buyer
disapproves to be removed at no cost or expense to Buyer, or
Buyer does not waive such disapproved exceptions or survey
matters on or before the Closing Date, then this Agreement shall
terminate. Notwithstanding anything to the contrary contained
herein, Seller shall be obligated to remove (or cause the Title
Company to insure over) any encumbrances securing any mortgage
loan obtained by Seller and any mechanics' liens for work
performed by Seller at the Property prior to the Closing.
3.2 Exceptions to Title Buyer shall accept title to the
Property, subject to the following exceptions (the "Permitted
Exceptions") to title:
(a) Real estate taxes and assessments not yet due and
payable;
(b) The printed exceptions which appear in the standard
form ALTA owner's policy of title insurance issued by Title
Company; and
(c) Such other exceptions to title as may be approved by
Buyer pursuant to the provisions of subparagraph 3.1 above.
Conclusive evidence of the availability of such title shall
be the willingness of Title Company to issue to Buyer on the
Closing Date a standard ALTA extended coverage owner's title
insurance policy ("Owner's Policy"), with such endorsements as
may be specified by Buyer in writing within the Title Review
Period, in the face amount of the Purchase Price, which policy
shall show (i) title to the Property to be vested of record in
Buyer, and (ii) the Permitted Exceptions to be the only
exceptions to title.
3.3 Due Diligence Matters
(a) Due Diligence Period. Except as otherwise provided
herein, on or before 5:00 p.m. (Pacific Standard Time) on
November 11, 1996 (the "Due Diligence Period"), Buyer shall have
completed all of Buyer's due diligence examinations, reviews and
inspections of all matters respecting the Property, including
such environmental and engineering tests and reports (including a
Phase I environmental audit and a structural engineering report)
and other inspections of the Property and review of applicable
federal, state and local laws, ordinances, rules, regulations,
permits, licenses, appraisals, financing documents, approvals and
orders and any other matters as Buyer shall deem necessary or
appropriate in its sole discretion, in order to determine whether
the Property is suitable for Buyer's intended use and purpose.
In the event Buyer determines that the condition of the Property
is not suitable, Buyer may terminate this Agreement by written
notice ("Termination Notice") to Seller and Escrow Holder on or
before the end of the Due Diligence Period. Failure by Buyer to
deliver a Termination Notice on or before the expiration of the
Due Diligence Period shall constitute approval by Buyer of its
due diligence examinations, reviews and inspections and its
election to proceed with the acquisition of the Property in
accordance with the terms of this Agreement unless the Buyer and
Seller agree to extend the Due Diligence Period.
(b) Extension of Due Diligence Period. Buyer, in its sole
discretion, may elect to extend the Due Diligence Period for an
additional ten (10) days by notifying the Seller on or before
5:00 p.m., on November 11, 1996 that Buyer elects to extend the
Due Diligence Period and pay to Seller ("Buyer's Election") an
increased Purchase Price for the Property of Three Million Six
Hundred Thousand Dollars ($3,600,000) ("Increased Purchase
Price"). Upon Buyer's Election, the Due Diligence Period shall
expire on November 21, 1996 at 5:00 p.m. and the Closing Date (as
defined in Section 4) shall be extended to December 10, 1996.
(c) Conduct of Due Diligence Reviews. Buyer shall
diligently and in good faith pursue its due diligence reviews
hereunder. Within five (5) days of the date of this Agreement,
Seller shall provide Buyer with copies of the following (to the
extent in Seller's possession or control): the original and as-
built plans and specifications for all Improvements on the
Property, including structural drawings, architectural,
mechanical, electrical, landscape, plumbing and fire sprinkler
drawings and specifications, soils, structural, environmental,
and hazardous materials reports relating to subsurface
conditions, grade plans, topographical maps, asbestos reports and
other plans and reports relating to the Property, copies of all
leases, licenses, service contracts (including parking, elevator,
heating and air conditioning, landscape maintenance, management
and brokerage agreements, warranties and instructions books for
all equipment at the Property, permits, variances, insurance
policies, maps, subdivision plans, certificates of occupancy,
building permits and other documentation and evidence that the
construction, present use, occupancy and operation of the
Property is authorized by and in compliance with all government
regulations, copies of Property tax bills and business tax bills
for the Property for the last two (2) years, copies of the most
recent utility bills for the Property and all other similar
records for the Property, to the extent available to Seller,
shall be provided to Buyer by Seller, for the of Buyer's due
diligence review. All due diligence examinations, reviews and
inspections conducted or to be conducted by Buyer have been and
shall be at Buyer's sole cost and expense (including, without
limitation, those related to appraisers, inspectors, auditors and
environmental and engineering consultants). Buyer shall have the
right to conduct all inspections and tests on the Property which
Buyer deems necessary. Buyer shall conduct its due diligence and
environmental reviews, inspections and examinations in a manner
so as to not cause damage, loss, cost or expense to Seller or the
Property, and Buyer will indemnify, defend and hold Seller and
the Property harmless from and against any such damage, loss,
cost or expense. The foregoing indemnification obligation shall
survive the closing of the transactions contemplated herein or
the earlier termination of this Agreement. Buyer shall promptly
return to Seller all documents and other materials furnished by
Seller to Buyer. Buyer shall keep all information or data
received or discovered in connection with any of the inspections,
reviews or examinations strictly confidential.
4. Escrow Matters
Upon execution of this Agreement, the parties shall
deposit an executed copy of this Agreement with Escrow Holder and
Buyer shall, concurrently therewith, place the Escrow Deposit
with Escrow Holder. Escrow Holder shall promptly execute this
Agreement upon receipt of this Agreement and an escrow shall be
established ("Escrow"). This Agreement shall serve as the
instructions to Escrow Holder to consummate the purchase and sale
contemplated hereunder. 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. If there is any conflict between the provisions
of this Agreement and any such additional or supplementary escrow
instructions, however, the terms of this Agreement shall control.
"Closing Date" means November 21, 1996, or such earlier date as
may be agreed upon by Buyer and Seller; provided, however, in
accordance with Section 2 and subsection 3.3(a), should Buyer
elect hereto to pay the Increased Purchase Price, to Seller for
the Property, then the Closing Date shall be extended to December
10, 1996. "Close of Escrow" shall occur on the Closing Date and
shall mean the day the transfer documents, required to be
recorded hereunder are in fact recorded in the Recorder's Office
of the County of Los Angeles.
4.1 Deliveries to Escrow by Seller. Prior to the Closing
Date, Seller shall deliver or cause to be delivered to Escrow
Holder the following:
(a) A duly executed and acknowledged grant deed ("Grant
Deed") in the form of Exhibit "B" attached hereto and made a part
hereof;
(b) A duly executed and acknowledged Xxxx of Sale ("Xxxx of
Sale") in the form of Exhibit "C" attached hereto and made a part
hereof;
(c) A duly executed and acknowledged certificate regarding
the "non-foreign" status of Seller satisfying the requirements of
Section 1445 of the Internal Revenue Code of 1986, as amended,
and the regulations thereunder;
(d) A "Withholding Exemption Certificate, Form 590" or in
the event that Seller is a non-California resident, a certificate
issued by the California Franchise Tax Board, pursuant to the
Revenue and Taxation Code Sections 18805 and 26131, stating
either the amount of withholding required from Seller's proceeds
or that Seller is exempt from such withholding requirement;
(e) A certificate ("Seller's Closing Certificate") updating
the representations and warranties of Seller contained in
subsection 8.1 hereof as of the Closing Date (with any changes
thereto being noted on such certificate); and
(f) Evidence reasonably satisfactory to Buyer and Escrow
Holder respecting the due organization of Seller as a limited
partnership and the due authorization and execution of this
Agreement and the documents required to be delivered hereunder
including a copy of this Agreement signed by all four of Seller's
general partners;
4.2 Deliveries Outside of Escrow.
On or before the Closing Date, Seller shall
deliver or cause to be delivered to Buyer the following:
(a) To the extent they are then in Seller's possession, and
have not been delivered to Buyer, all documents required by Buyer
in accordance with Section 3.3 above;
(b) All keys in Seller's possession for all improvements on
the Property;
(c) The originals of all Contracts which 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 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);
(d) Such additional documents as may be reasonably required
by Buyer and Escrow Holder in order to consummate the
transactions hereunder (provided the same do not materially
increase the costs to, or liability or obligations of, Seller in
a manner not otherwise provided for herein).
4.3 Deliveries to Escrow by Buyer
Prior to the Closing Date, Buyer shall deliver or
cause to be delivered to Escrow Holder the following:
(a) The Closing Payment, which amount shall be delivered to
Escrow Holder by wire transfer of immediately available federal
funds in accordance with separate wire instructions to be given
by Escrow Holder prior to the Closing Date;
(b) A duly executed and acknowledged Assignment and
Assumption Agreement;
(c) Evidence reasonably satisfactory to Seller and Escrow
Holder respecting the due organization of Buyer and the due
authorization and execution of this Agreement and the documents
required to be delivered hereunder; and
(d) Such additional documents as may be reasonably required
by Seller and Escrow Holder in or to consummate the transactions
hereunder (provided the same do not materially increase the costs
to, or liability or obligations of, Buyer in a manner not
otherwise provided for herein).
5. The Closing.
Escrow Holder shall close the Escrow on the Closing
Date by (i) causing the Grant Deed to be recorded in the
Recorder's Office of the County of Los Angeles at 8:00 a.m. on
the Closing Date, (ii) delivering the Closing Payment and the
Escrow Deposit to Seller and the other funds and documents as
provided in subparagraph 5.1 below, WHEN AND ONLY WHEN each of
the following conditions have been satisfied:
(a) All funds of Buyer and all documents of Seller
described in subparagraphs 4.1(a) through (d) above have been
delivered to Escrow Holder; and
(b) Title Company is prepared to deliver the Title Policy.
5.2 Distribution of Funds and Documents.
(a) All funds received by Escrow Holder under this
paragraph 5.1 shall be, until Close of Escrow, invested in
Approved Investments. Interest accruing to such account prior to
the Close of Escrow shall be for the account of Buyer, and
interest accruing on all sums due Seller after the Close of
Escrow shall be for the account of Seller.
(b) Upon Close of Escrow, Escrow Holder shall disburse the
Closing Payment and the Escrow Deposit to Seller.
(c) Escrow Holder shall cause the recorded Grant Deed to be
delivered to Buyer.
5.3 Closing Costs. Seller shall pay (i) one-half of the
escrow fees of Escrow Holder, (ii) the title insurance premium
(at a rate not in excess of standard issue rates) attributable to
a CLTA Owner's Policy of title insurance, (iii) the costs of the
Updated Survey, and (iv) documentary transfer taxes attributable
to the Grant Deed. Buyer shall pay (i) one-half of the escrow
fees of Escrow Holder, (ii) all costs and expenses related to
Buyer's due diligence examinations, reviews and inspections,
(iii) all recording charges attributable to the recordation of
any documents contemplated in this Agreement, and (iv) the
difference in cost between a standard CLTA Owner's Policy of
title insurance and an extended coverage ALTA Owner's Policy of
title insurance. Seller and Buyer shall each pay their
respective shares of prorations as hereinafter provided.
6. Prorations.
6.1 Items to be Prorated. The following shall be prorated
between Seller and Buyer as of the Closing Date (on the basis of
the actual number of days elapsed over the applicable period):
(a) All real estate and personal property taxes and
assessments on the Property for the current year.
(b) All customary operating expenses incurred in the
ordinary course of management and operation of the Property.
6.2 Calculation The prorations and payments shall be made
on the basis of a written statement submitted to Buyer and Seller
by Escrow Holder prior to the Close of Escrow and approved by
Buyer and Seller (which statement shall include a list of
delinquent rental amounts as of the Closing Date). In the event
any prorations or apportionments made under Section 6 shall prove
to be incorrect for any reason, then any party shall be entitled
to an adjustment to correct the same. Any item which cannot be
finally prorated because of the unavailability of information
shall be tentatively prorated on the basis of the best data then
available and reprorated when the information is available. In
the event that the transactions contemplated in this Agreement
are not closed in time for Seller to receive the funds to be paid
to Seller hereunder by 5:00 p.m., Pacific Standard Time, on the
Closing Date, then appropriate adjustments to compensate Seller
for any loss of interest and the like shall be made by the
parties.
7. Condemnation or Destruction of Property
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 $250,000 or otherwise
materially and adversely affect access to or parking at the
Property, or (ii) the cost of repair of damage to the Property on
account of a casualty, shall equal or exceed $250,000 or
otherwise materially and adversely interfere with the operations
of the Property, Buyer may, at its option, terminate this
Agreement by notice to Seller, given on or before the Closing
Date.
8. Representations, Warranties and Covenants
8.1 Representations, Warranties and Covenants of. Seller
hereby represents and warrants that the following are true and
correct as of the date hereof:
(a) Leases. There are no Leases, occupancy rights,
licenses, amendments or agreements, oral or written, now in
effect with respect to occupancy at the Property. The prior
tenant occupied the Property pursuant to a net lease at the
rental rate of $108,298.49 per month and was responsible for
all maintainance and occupancy costs.
(b) Litigation. There is no pending nor, to Seller's
knowledge without the necessity of due diligence or
investigation, any threatened action, litigation, arbitration,
condemnation, administrative or other proceeding against the
Property or against Seller with respect to the Property before
any court, agency of government official.
(c) Compliance. Seller has received no notice from any
governmental authority having jurisdiction over the Property to
the effect that the Property is not in compliance with applicable
laws and ordinances or that Seller, with respect to the Property
is in violation of any government statutes, regulations,
restrictions, permits or approvals.
(d) Service Agreements. Seller has not entered into any
service agreements or contracts ("Service Agreements") or other
agreements, oral or written (other than as set forth in this
Agreement or provided to Buyer pursuant to subsection 3.3)
relating to the Property which will be in force on the Closing
Date, except as described herein, and Seller has not received any
notice of any material default thereunder that remains uncured.
Notwithstanding the foregoing, Seller has a month-to-month
landscaping service agreement for the Property, a security
service agreement for the Property which may be cancelled on
three days' notice to the security service and has maintained the
air conditioning equipment for the Property.
(e) Hazardous Substances. Seller has continuously leased
the Property to Xxxxxx Aircraft and has no knowledge of any
conditions relating to Hazardous Material or any Environmental
Claim or any Environmental Compliance obligation, except as may
be reflected in the following documents heretofore submitted to
the Buyer:
i) PHASE I ENVIRONMENTAL SITE ASSESSMENT dated
August 1, 1996 prepared by Fugro West, Inc.;
ii) UNDERGROUND STORAGE TANK REMOVAL REPORT dated
August 1, 1996 prepared by Xxxxx Environmental
Technologies Corporation;
iii) HAZARDOUS MATERIALS UNDERGROUND STORAGE CLOSURE
CERTIFICATION dated August 19, 1996 prepared by the
County of Los Angeles, Department of Public Works;
iv) ASBESTOS SURVEY REPORT dated August 1995 prepared by
Fugro West, Inc.; and
v) WALLBOARD AND JOINT COMPOUND INVESTIGATION REPORT
dated August 1996 prepared by Fugro West, Inc.
The term "Hazardous Material" means: (I)
asbestos, PCB, urea formaldehyde, any chemicals, flammable
substances or explosive, any radioactive materials (including
radon), any hazardous wastes or substances, any toxic wastes or
substances, or any other materials or pollutants which have, as
of the date of this Agreement, been determined to be hazardous by
any applicable Federal, state or local law, or, by regulations of
the U.S. Environmental Protection Agency, the U.S. Department of
Energy, the U.S. Department of Labor, the U.S. Department of
Transportation, and/or any instrumentality authorized to regulate
materials and substances in the environment which has
jurisdiction over the Property ("Environmental Agency"), or (II)
any oil, petroleum or petroleum or petroleum derived substance,
any drilling fluids, produced waters and other wastes associated
with the exploration, development, or production of crude oil,
which materials listed under items (I) and (II) above cause the
Property to be in material violation of any applicable
environmental laws or the regulations of any Environmental
Agency. The term "Hazardous Material" does not include the
following (the "Excluded Items") : (1) motor oil and gasoline
contained in vehicles not used primarily for the transport of
motor oil or gasoline, or (2) materials which are stored or used
in the ordinary course of a tenant's occupancy at (or Seller or
Seller's managing agents' operation of) the Property, or which
are stored, used, held, or disposed of in compliance with all
applicable laws or ordinance. The term "Environmental Claim"
means any third-party claim for personal injury, death and/or
property damage (other than property damage to the Property
itself) made, asserted or prosecuted by or on behalf of any
person or entity, including, without limitation, any governmental
entity, or any present or former tenant, and arising or allegedly
arising out of any Hazardous Material which was present or
released in, on, under, or about the Property (or any part). The
term "Environmental Compliance Obligation" means any requirement
imposed by an Environmental Agency to bring the Property into
compliance with applicable Federal, state, and local laws and
regulations directly relating to the existence in, on, under or
about the Property of any Hazardous Material.
(f) Due Authority. Seller is a limited partnership, duly
organized and validly existing under the laws of the State of
California, duly qualified to conduct its business and in good
standing in the State of California. Seller has the legal power,
right and authority to enter into this Agreement and the
instruments and documents referenced herein, and to consummate
the transactions contemplated hereby. The individual(s) executing
this Agreement and the instruments referenced herein on behalf of
Seller have the power, right and authority to bind Seller.
(g) Actions. All requisite action has been taken by Seller
and all requisite consents have been obtained in connection with
the entering into of this Agreement and the instruments and
documents referenced herein, and the consummation of the
transactions contemplated hereby, and no consent of any other
party is required.
(h) 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. Notwithstanding
the foregoing, Seller's sale of the Property will accelerate the
balance due under any existing first deed of trust on the
Property which will be paid off at the Closing.
(i) Binding Obligations. This Agreement, is, and the other
Closing documents shall be at the time of their execution and
delivery, legal, valid, and binding obligations of Seller.
(j) "As Is" Sale Disclaimer. IT IS EXPRESSLY UNDERSTOOD
AND AGREED THAT BUYER IS ACQUIRING THE PROPERTY "AS IS" AND
"WHERE IS," IN ITS PRESENT STATE AND CONDITION AND WITH ALL
FAULTS, WITHOUT ANY REPRESENTATIONS OR WARRANTIES FROM SELLER
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT. IN
PARTICULAR, AND NOT BY WAY OF LIMITATION EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT, SELLER MAKES NO REPRESENTATION OR
WARRANTY WITH RESPECT TO THE QUALITY, TITLE, PHYSICAL CONDITION,
VALUE, OPERATION OR MANAGEMENT OF THE PROPERTY, THE INCOME OR
EXPENSES FROM OR OF THE PROPERTY, THE COMPLIANCE OF THE PROPERTY
WITH APPLICABLE LAWS OR REGULATIONS, INCLUDING, WITHOUT
LIMITATION, ANY LAWS RELATING TO ZONING, SUBDIVISION, PLANNING,
BUILDING, FIRE SAFETY, EARTHQUAKE, HEALTH OR ENVIRONMENTAL
MATTERS, THE PRESENCE OR ABSENCE OF HAZARDOUS SUBSTANCES, OR THE
COMPLIANCE OF THE PROPERTY WITH ANY COVENANTS, CONDITIONS OR
RESTRICTIONS (WHETHER OR NOT OF RECORD). DURING THE INSPECTION
PERIOD, BUYER WILL HAVE MADE ALL OF THE INVESTIGATIONS BUYER
DEEMS NECESSARY IN PURCHASING THE PROPERTY. IF THIS AGREEMENT IS
NOT TERMINATED AND BUYER ACQUIRES THE PROPERTY AS PROVIDED
HEREIN, BUYER SHALL HAVE THEREBY APPROVED ALL ASPECTS OF THE
PROPERTY AND THIS TRANSACTION AND THEREBY WAIVES ANY CLAIM OR
LIABILITY AGAINST SELLER RESPECTING THE PROPERTY EXCEPT IN
CONNECTION WITH ANY REPRESENTATION OR WARRANTY OF SELLER HEREIN
WHICH WILL SURVIVE THE CLOSING BY SIX (6) MONTHS UNDER SECTION
8.3. ANY SPECIFIC KNOWLEDGE OF THE PROPERTY WHICH ACTUALLY COMES
TO THE ATTENTION OF BUYER PRIOR TO THE CLOSING, EITHER IN WRITING
BY SELLER OR DUE TO BUYER'S OWN INVESTIGATIONS, SHALL BE DEEMED
TO LIMIT ANY EXPRESS REPRESENTATIONS AND WARRANTIES MADE BY
SELLER IN THIS AGREEMENT SO AS TO REDUCE OR ELIMINATE ANY
LIABILITY WHICH SELLER MAY OTHERWISE HAVE HAD AS A RESULT OF SUCH
REPRESENTATIONS AND WARRANTIES. NOTWITHSTANDING THE FOREGOING,
AND NOTWITHSTANDING THE FACT THAT BUYER INTENDS TO CONDUCT ITS
OWN INVESTIGATION OF THE PROPERTY, SELLER AGREES THAT NOTHING
HEREIN SHALL RELIEVE SELLER OF ANY OBLIGATIONS WHICH SELLER HAS
UNDER ANY OTHER PROVISIONS OF THIS AGREEMENT, OR UNDER OTHER
DOCUMENTS ENTERED INTO CONCURRENTLY HEREWITH, OR IMPLIED BY LAW,
NOR SHALL ANY INSPECTION OR REVIEW CONSTITUTE A WAIVER BY BUYER
OF ITS RIGHTS TO ENFORCE ANY OF THE SAME.
8.2 Representations and Warranties of Buyer.
(a) Organization. Buyer is a limited partnership duly
organized, validly existing and in good standing under the laws
of the State of Maryland. Buyer has the legal power, right and
authority to enter in to this Agreement and the instruments and
documents referenced herein, and to consummate the transactions
contemplated hereby. The individual(s) executing this Agreement
and the instruments referenced herein on behalf of Buyer have the
power, right and authority to bind Buyer.
(b) Actions. All requisite action has been taken by Buyer
and all requisite consents have been obtained in connection with
the entering into of this Agreement and the instruments and
documents referenced herein, and the consummation of the
transactions contemplated hereby, and no consent of any other
party is required.
(c) 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
or 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.
(d) Binding Obligations. This Agreement is, and the other
Closing Documents shall be at the time of their execution and
delivery, legal, valid, and binding obligations of Buyer.
8.3 Survival. Any cause of action of a party for a breach
of the foregoing representations and warranties shall survive for
a period of six (6) months from the Closing Date, at which time
such representations and warranties (and any cause of action
resulting from a breach thereof not then in litigation) shall
terminate (such three year period being herein called the
("Survival Period").
8.4 Interim Covenants Until the Closing Date or the sooner
termination of this Agreement:
(a) Buyer and Seller acknowledge that the Property is
currently unoccupied and that Seller is doing the minimum
maintenance required pending the Closing. Notwithstanding the
foregoing, Seller shall maintain the Property in the same manner
as Seller maintained the Property prior to Seller's execution of
this Agreement, pursuant to Seller's normal course of business,
(such maintenance obligations not including extraordinary capital
expenditures or expenditures not incurred in such normal course
of business) subject to reasonable wear and tear and further
subject to destruction by casualty or other events beyond the
control of Seller.
(b) Seller shall not enter into any additional service
contracts, leases or other similar agreements without the prior
consent of Buyer, except those deemed reasonably necessary by
Seller which are cancelable on 30 days' notice.
(c) Seller has not actively offered the Property for lease
prior to Seller's execution of this Agreement, and pursuant to
Seller's normal course of business, will not actively offer the
Property for lease, but shall keep Buyer informed as to the
status of leasing prior to the Closing Date. From and after the
date hereof, Seller shall not enter into any new leases or
material modifications of existing leases without the consent of
Buyer in Buyer's sole discretion. Buyer shall also be permitted
to market the Property for lease during the Escrow period.
(d) Seller shall keep the Current Insurance (or insurance
containing substantial similar coverage) in full force and
effect.
(e) Seller shall not remove any fixtures, equipment or
personal property to be transferred to Buyer.
(f) If prior to Closing, Seller discovers any information
or facts which would materially change the representations and
warranties of Seller contained in this Agreement, Seller shall
reasonably promptly thereafter give notice to Buyer of such
information or facts.
9. Indemnification.
9.1 By Buyer. Buyer shall hold harmless, indemnify and
defend Seller from and against: (1) any and all third party
claims for Buyer's torts or breaches of contract related to the
Property and occurring on or after the Closing Date, (2) any and
all loss, damage or third party claims arising out of Buyer's
inspections or examinations of the Property prior to the Closing
Date.
9.2 By Seller. Seller shall hold harmless, indemnify and
defend Buyer from and against: (1) any and all third party claims
for Seller's torts or breaches of contract related to the
Property and occurring prior to the Closing Date; and (2) all
costs and expenses, including reasonable attorney's fees,
incurred by the Buyer as a result of such claims.
9.3 Generally. Each indemnification under this Agreement
shall be subject to the following provisions: The indemnitee
shall notify indemnitor of any such claim against indemnitee
within 30 days after it has notice of such claim, but failure to
notify indemnitor shall in no case prejudice the rights of
indemnitee under this Agreement unless indemnitor shall be
prejudiced by such failure and then only to the extent of such
prejudice. Should indemnitor fail to discharge or undertake to
defend indemnitee against such liability within 10 days after the
indemnitee gives the indemnitor written notice of the same, then
indemnitee may settle such liability, and indemnitor's liability
to indemnitee shall be conclusively established by such
settlement, the amount of such liability to include both the
settlement consideration and the reasonable costs and expenses,
including attorneys' fees, incurred by indemnitee in effecting
such settlement.
10. Certain Remedies.
10.1 DISPOSITION OF ESCROW IF THE TRANSACTION HEREIN
PROVIDED SHALL NOT BE CLOSED BY REASON OF SELLER'S DEFAULT (THE
PARTIES ACKNOWLEDGE THAT THEY ARE AWARE THAT THIS TRANSACTION IS
AN "AS IS" "WHERE IS" TRANSACTION SUBJECT TO BUYER'S DUE
DILIGENCE REQUIREMENTS) UNDER THIS AGREEMENT OR THE FAILURE OF
SATISFACTION OF THE CONDITIONS DESCRIBED IN PARAGRAPH 3 HEREOF OR
THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH THE TERMS
HEREOF, AND BUYER SHALL NOT HAVE DEFAULTED UNDER THIS AGREEMENT,
THEN THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYER, AND NEITHER
PARTY SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE
OTHER; PROVIDED, HOWEVER, IF THE TRANSACTIONS HEREUNDER SHALL
FAIL TO CLOSE BY REASON OF SELLER'S DEFAULT, AND BUYER SHALL HAVE
FULLY PERFORMED ITS OBLIGATIONS HEREUNDER AND SHALL BE READY,
WILLING AND ABLE TO CLOSE, THEN BUYER SHALL BE ENTITLED TO
SPECIFICALLY ENFORCE THIS AGREEMENT (BUT NO OTHER ACTION, FOR
DAMAGES OR OTHERWISE, SHALL BE PERMITTED). IN THE EVENT THE
TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE DUE TO DEFAULT OF
BUYER, THEN THE ESCROW DEPOSIT SHALL BE RETAINED BY OR DELIVERED
TO SELLER, AS APPLICABLE, AS FULL COMPENSATION AND LIQUIDATED
DAMAGES UNDER AND IN CONNECTION WITH THIS AGREEMENT. IN THE
EVENT THE TRANSACTION HEREIN PROVIDED SHALL CLOSE, THE ESCROW
DEPOSIT SHALL BE APPLIED AS A PARTIAL PAYMENT OF THE PURCHASE
PRICE. IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE
THAT SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY WILL BE
REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY DIFFICULT
AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER
CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND THE
FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY
THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD
RECEIVE AS A RESULT OF BUYER'S BREACH OR DEFAULT. IN THE EVENT
THE SALE OF THE PROPERTY SHALL NOT BE CONSUMMATED ON ACCOUNT OF
BUYER'S DEFAULT, THEN THE RETENTION OF THE ESCROW DEPOSIT SHALL
BE SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY
REASON OF SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF PARAGRAPH 3
HEREOF.
/s/ MA /s/ EA /s/ HA /s/ EM /s/ RSZ
Seller's Initials Buyer's Initials
10.2 Post-Closing Matters. Nothing contained in paragraph
10.1 above shall limit either party's rights or remedies
respecting any breach, default or other obligation of a party
following the Close of Escrow hereunder; provided, however, the
foregoing shall not modify or amend any other limitation or
provision contained herein.
11. Brokers.
11.1 Warranties. Except as provided in paragraph 11.2
below, Seller represents and warrants to Buyer, and Buyer
represents and warrants to Seller, that other than CB Commercial
Real Estate Group, Inc. and Xxxxx Xxxxxxxxx, no broker or finder
has been engaged by it, respectively, in connection with any of
the transactions contemplated by this Agreement or to its
knowledge is in any way connected with any of such transactions.
In the event of any other claim for broker's or finder's fee or
commissions in connection herewith, then Seller shall indemnify
and defend Buyer from the same if it shall be based upon any
statement or agreement alleged to have been made by Seller, and
Buyer shall indemnify and defend Seller from the same if it shall
be based upon any statement or agreement alleged to have been
made by Buyer. The indemnification obligations under this
subsection 11.1 shall survive the closing of the transactions
hereunder or the earlier termination of this Agreement.
11.2 Commissions and Broker Waiver. If and only if the sale
contemplated herein closes, Seller agrees to pay a commission to
CB Commercial Real Estate Group, Inc. and Xxxxx Xxxxxxxxx. The
foregoing payments shall be the sole commissions, fees or
payments payable to the Brokers in connection with the
transactions hereunder. No commission, fee or payment shall be
payable to the Brokers except in the event of a sale hereunder
and if such sale does not close for any reason (including by
reason of a default by Seller or Buyer hereunder), no commission,
fee or other payment of any kind shall be payable to any of the
Brokers by Seller. Each of the Brokers shall produce evidence
satisfactory to Buyer of a valid and current broker's license
issued by the Department of Real Estate of the State of
California. It is expressly understood that no Brokers shall,
under any circumstances, be deemed a third party beneficiary of
this Agreement.
11.3 Commissions and Broker Representation. Buyer is
represented exclusively in this transaction by CB Commercial Real
Estate Group, Inc., a licensed California real estate broker, and
Seller is represented exclusively in this transaction by Xxxxx
Xxxxxxxxx, a licensed California real estate broker.
12. Miscellaneous.
12.1 Entire Agreement. This Agreement contains the entire
agreement between the parties respecting the matters herein set
forth and supersedes all prior agreements between the parties
hereto respecting such matters. This Agreement may not be
modified or amended except by written agreement signed by both
parties.
12.2 Time of the Essence. Time is of the essence of this
Agreement.
12.3 Interpretation. Paragraph headings shall not be used
in construing this Agreement. Each party acknowledges that such
party and its counsel, after negotiation and consultation, have
reviewed and revised this Agreement. As such, the terms of this
Agreement shall be fairly construed and the usual rule of
construction, to the effect that any ambiguities herein should be
resolved against the drafting party, shall not be employed in the
interpretation of this Agreement or any amendments, modifications
or exhibits hereto or thereto.
12.4 Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of California.
12.5 Successors and Assigns. Buyer may assign or transfer
its rights or obligations under this Agreement without the prior
written consent of Seller (in which event such transferee shall
assume in writing all of the transferor's obligations hereunder.
Subject to the foregoing, this Agreement and the terms and
provisions hereof shall inure to the benefit of and be binding
upon the successors and assigns of the parties.
12.6 Notices. Any notice which a party is required or may
desire to give the other shall be in writing and shall be sent by
personal delivery or by mail (either [i] by United States
registered or certified mail, return receipt requested, postage
prepaid, [ii] by facsimile transmission (followed by overnight
delivery pursuant to clause [iii] hereafter, or [iii] by Federal
Express or similar generally recognized overnight carrier
regularly providing proof of delivery), addressed as follows
(subject to the right of a party to designate a different address
for itself by notice similarly given):
To Seller: Continental GrandCompany
00000 Xxxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xx. Xxxxx Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: Astor & Xxxxxxxx
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
To Escrow Holder: Chicago Title Insurance Company
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
To Buyer: Arden Realty Group Limited Partnership
c/o Arden Realty Group, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: Christensen, White, Miller, Fink,
Xxxxxx, Xxxxxx & Xxxxxxx, LLP
2121 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxxx
Telephone: 000-000-0000
Facsimile: 310-556-2920
Any notice so given by mail shall be deemed to have been given as
of the date of delivery (whether accepted or refused) established
by U.S. Post Office return receipt or the overnight carrier's
proof of delivery, as the case may be. Any such notice not so
given shall be deemed given upon receipt of the same by the party
to whom the same is to be given.
12.7 Third Parties. Nothing in this Agreement, whether
expressed or implied, is intended to confer any rights or
remedies under or by reason of this Agreement on any other person
other than the parties hereto and their respective successors and
assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any
party to this Agreement, nor shall any provision give any third
parties any right of subrogation or action over or against any
party to this Agreement. This Agreement is not intended to and
does not create any third party beneficiary rights whatsoever.
13. ARBITRATION OF CERTAIN DISPUTES. 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 OTHER THAN THE "EXCLUDED MATTERS" (AS HEREINAFTER
DEFINED) 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
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 INITIALLING 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 INITIALLING 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/ MA /s/ EA /s/ HA /s/ EM /s/ RSZ
Seller's Initials Buyer's Initials
As used herein, "Excluded Matters" means any controversy,
claim or proceeding with respect to or otherwise related to a
breach or default of any representation or warranty contained in
this Agreement (which matters shall not be subject to the
arbitration provisions contained herein).
14. Legal Costs. The parties hereto agree that they shall
pay directly any and all legal costs which they have incurred on
their own behalf in the preparation of this Agreement, all deeds
and other agreements pertaining to this transaction and that such
legal costs shall not be part of the closing costs. In addition,
if either Buyer or Seller brings any suit or other proceeding
(including arbitration) with respect to the subject matter or the
enforcement of this Agreement, the prevailing party (as
determined by the court, agency or other authority before which
such suit or proceeding is commenced), in addition to such other
relief as may be awarded, shall be entitled to recover reasonable
attorneys' fees, expenses and costs of investigation actually
incurred. The foregoing includes, but is not limited to,
attorneys' fees, expenses and costs of investigation (including,
without limitation, those 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 the Bankruptcy Code.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
Seller
CONTINENTAL GRAND COMPANY,
a California limited partnership
By: /s/ Xxxxxx X. Xxxxxxxx
Its: General Partner
By: /s/ Xxxxxxxxx Xxxxxxxx
Its: General Partner
By: /s/ Xxxxx Xxxxxxxx
Its: General Partner
By: /s/ Xxxxx Xxxxxxxxx
Its: General Partner
Buyer:
ARDEN REALTY GROUP LIMITED PARTNERSHIP,
a Maryland Limited Partnership
By: ARDEN REALTY GROUP, INC.,
a Maryland corporation,
its General Partner
By: /s/ Xxxxxxx Xxxxx
Its: Chairman & CEO
ESCROW HOLDER'S ACKNOWLEDGMENT
The undersigned hereby executes this Agreement to evidence
its agreement to act as Escrow Holder in accordance with the
terms of this Agreement.
Date: November 7, 1996 Chicago Title Insurance Company
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Sr. Escrow Officer
The Company hereby agrees to furnish supplementally the omitted exhibits
and schedule to the Commission upon request.
