AGREEMENT OF PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
Between
OVERLAND PLAZA PARTNERSHIP
Seller
and
ARDEN REALTY LIMITED PARTNERSHIP
Purchaser
Covering
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
AGREEMENT OF PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUC
TIONS ("Agreement") is made and entered into this 1st day
of April 1997 by and between OVERLAND PLAZA PARTNERSHIP,
a California general partnership ("Seller"), and ARDEN
REALTY LIMITED PARTNERSHIP, a Maryland limited partnership
("Purchaser"), with reference to the following facts:
A. Seller is the fee owner of that certain parcel of
real property (the "Real Property") and the improvements
thereon, for informational purposes only, are a five-story
office building containing approximately 77,220 rentable
square feet, other facilities, fixtures, paving and
surfacing thereon or associated therewith, with automobile
parking with a total of approximately _____ marked parking
spaces (collectively, the "Improvements"). The Real
Property and Improvements are located at 000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, and is more particularly
described in Exhibit "A" attached hereto and forming a part
hereof.
B. Seller desires to sell, and Purchaser desires to
purchase, all of the real and personal property owned by
Seller located at or forming part of the Real Property,
including, but not limited to, the Improvements, and all
appurtenant easements and rights, and the Personal Property
(as hereinafter defined) on the terms, covenants and condi
tions hereinafter set forth.
NOW, THEREFORE, with reference to the foregoing reci
tals and in reliance thereon and in consideration of the pur
chase price hereinbelow set forth, and the other terms, cov
enants and conditions set forth below, and other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, it is mutually covenanted and
agreed by Seller and Purchaser as follows:
1. Purchase and Sale. Subject to all of the terms
and conditions of this Agreement and for the consideration
set forth, on Closing (as hereinafter defined), Seller shall
convey, or cause to be conveyed, to Purchaser or to
Purchaser's assignee pursuant to paragraph 15(g) below, and
Purchaser or its assignee shall purchase from Seller, all of
the following:
(a) The Real Property and the Improvements,
together with all easements, hereditaments and appurtenances
thereto, subject only to such easements, agreements and
exceptions as may have been approved by Purchaser in
accordance with Paragraph 4(a) hereof and any tenancies and
occupancies;
(b) All of the personal property of Seller (the
"Personal Property") located at, attached or appurtenant to,
or used in connection with the operation or maintenance of
the Real Property and/or the Improvements (the "Inventory");
(c) Any leases to tenants leasing space in the
Improvements (the "Tenant Leases");
(d) To the extent assignable, those certain
service and other agreements more particularly described in
Exhibit "D" attached hereto and made a part hereof; and
(e) All other right, title and interest of Seller
constituting part and parcel of the Property (as hereinafter
defined), including, but not limited to, trade names, logos,
easements, licenses, permits, air rights, certificates of
occupancy, warranties, rights-of-way, signs, trademarks,
telephone listings and numbers, sewer agreements, water line
agreements, utility agreements, water rights and oil, gas
and mineral rights (collectively, the "Intangibles") to the
extent assignable or transferable.
Reference herein to the "Property" shall include all of the
real, personal and intangible property described in
subparagraphs (a) through (e) hereof.
2. Purchase Price and Payment. The purchase price
(the "Purchase Price") to be paid by Purchaser to Seller for
the Property is the sum of Seven Million and No/100 Dollars
($7,000,000.00), payable as follows:
(a) Upon the opening of Escrow (as hereinafter
set forth) Purchaser shall deliver to Escrow Agent (as
hereinafter defined) cash in the sum of One Hundred Thousand
Dollars ($100,000.00), ("Deposit") which shall be held by
Escrow Agent as security for the full performance by
Purchaser of its obligations hereunder and on account of the
Purchase Price payable at Closing, subject to the following
terms and conditions:
(i) If Closing occurs, then the Deposit shall be
applied to the Purchase Price;
(ii) If Closing does not occur and Seller shall be
entitled to liquidated damages as provided in Paragraph
10(b) hereof, Seller shall be entitled to the Deposit; and
(iii) If the Closing does not occur and Purchaser
shall be entitled to the return of the Deposit as provided
in this Agreement, the same shall be returned to Purchaser.
(b) Prior to the Close of Escrow, Purchaser shall
deliver into Escrow a promissory note payable to Seller in
the original principal amount of Five Million and No/100
Dollars ($5,000,000.00) in the form of Exhibit "B" attached
hereto and incorporated herein by this reference ("Note"), a
Deed of Trust, Assignment of Rents and Leases, Security
Agreement and Fixture Filing securing the Note in favor of
Seller in the form of Exhibit "C" attached hereto and
incorporated herein by this reference ("Deed of Trust").
(c) Purchaser shall pay to Seller through Escrow
Agent at Closing in immediately available funds an amount
equal to the balance of the Purchase Price, plus (or minus)
the net amount of all costs, expenses, adjustments and
prorations to be credited (or debited) to Purchaser pursuant
to this Agreement. If Seller fails to forward to Purchaser
a Qualifying Statement provided under 1445 of the Internal
Revenue Code and an equivalent Form 590RE provided under the
Revenue and Taxation Code of the State of California, Escrow
Agent shall be entitled to withhold and pay to the Internal
Revenue Service and the Franchise Tax Board such withholding
required of Purchaser pursuant to Internal Revenue Code 1445
and equivalent form provided under the Revenue and Taxation
Code of the State of California.
(d) The Deposit shall be at all times invested by
Escrow Agent in the following investments ("Approved Invest
ments"): (i) United States Treasury obligations, (ii)
United States Treasury-backed repurchase agreements issued
by a major money center banking institution reasonably
acceptable to Seller, (iii) Certificates of Deposit or Money
Market Accounts of institutions whose deposits are insured
by the FDIC or (iv) such other manner as may be reasonably
agreed to by Seller and Purchaser. The Deposit shall be
disposed of by Escrow Agent only as provided in this
Agreement.
(e) All payments required to be made under this
Agreement shall be made in U.S. funds.
3. Escrow.
(a) Opening of Escrow. As soon as commercially
reasonable after their complete execution of this Agreement
("Effective Date") and in any event not later than three (3)
business days thereafter, Seller and Purchaser shall open an
escrow (the "Escrow") with Commerce Escrow Company,
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxx Xxxxxx ("Escrow Agent"), through
which the purchase and sale of the Property shall be
consummated. A fully executed copy of this Agreement shall
be deposited with Escrow Agent, duly executed by Seller, Pur
chaser and Escrow Agent, to serve as Escrow instructions to
Escrow Agent, and Escrow Agent shall be and is hereby
authorized and instructed to deliver pursuant to the terms
of this Agreement the documents and monies to be deposited
into the Escrow. Escrow Agent may attach to this Agreement
Escrow Agent's standard form escrow agreement, to the extent
that the same is consistent with the terms hereof, and are
reasonably approved by Seller and Purchaser. Escrow Agent
shall immediately, upon receipt of such duly executed copy
of this Agreement, notify Seller and Purchaser of the
opening of Escrow. Should either party fail to open Escrow
in accordance with the provisions of this Paragraph 3(a),
such failure shall constitute a material breach of this
Agreement.
(b) Closing of Escrow. Escrow shall close on or
after June 2, 1997 and upon three (3) business days prior
notice from Purchaser, but in all events not later than
July 1, 1997, provided all of Purchaser's Conditions
Precedent to Closing as set forth in Paragraph 8 hereof have
been satisfied. The term "Closing" as used herein shall be
deemed to be the date upon which the respective Conditions
Precedent to Purchaser's Obligation to Close Escrow (set
forth in Paragraph 8 below) and the Conditions Precedent to
Seller's Obligation to Close Escrow (set forth in Paragraph
9 below) have been satisfied, the Grant Deed ("Grant Deed"
herein) hereinafter referred to is recorded in the office of
the County Recorder of Los Angeles County and the net
proceeds of sale are held by Escrow Agent for disbursement
to Seller. If the Closing as provided herein does not
occur, this Agreement and the Escrow shall be cancelled and
terminated and thereafter neither party shall have any
further obligation or liability to the other party, except
as expressly set forth in this Agreement.
4. Title Matters.
(a) Title Report.
(i) Seller has ordered (and upon receipt shall
cause to be delivered to Purchaser) a CLTA Preliminary Title
Report covering the Real Property and the Improvements,
which may state that it is subject to any matter that would
be disclosed by a survey (the "Preliminary Title Report"),
issued by Chicago Title Insurance Company ("Title Company"),
together with true and legible copies of all documents
evidencing matters of record shown as exceptions to title
thereon. If Purchaser shall desire an ALTA Survey of the
Real Property and Improvements ("Survey"), Purchaser shall
cause the same to be so made at Purchaser's sole cost and
expense before the expiration of the Approval Period (and
upon receipt shall deliver a copy of the updated Survey to
Seller). Purchaser shall have the right to object to any
exceptions contained in the Preliminary Title Report or the
Survey by giving notice to Seller before the expiration of
the Approval Period. Notwithstanding any of the foregoing,
Seller shall at Closing (but shall not be obligated prior
thereto) remove of record all tax and mechanic's liens
(except only for the liens of the taxes and assessments to
be prorated under Paragraph 12(a)(ii)), at its sole cost and
expense. Unless Purchaser gives written notice that it
disapproves any such additional exceptions to title matters,
stating the exceptions so disapproved, before the expiration
of the Approval Period, Purchaser shall be deemed to have
approved said exceptions. Purchaser's approval of the
Preliminary Title Report shall be without prejudice to Pur
chaser's right to disapprove additional survey matters or
any supplementary reports issued by Title Company or
disclosed after the expiration of the Approval Period;
provided, however, Purchaser's approval shall not be
unreasonably withheld, and, as to survey matters, shall only
be applicable if Purchaser shall have obtained a Survey
before the expiration of the Approval Period. If for any
reason, on or before the Closing Date Seller does not cause
such exceptions to title or survey matters which Purchaser
timely disapproves (to the extent Purchaser is permitted
hereunder to so disapprove) to be removed at no cost or
expense to Purchaser (Seller having the right but not the
obligation to do so), the obligation of Seller to sell, and
Purchaser to buy, the Property as herein provided shall
terminate (and Seller and Purchaser shall have no further
obligations in connection herewith). Purchaser shall have
the option to waive the condition precedent set forth in
this paragraph 4(a) by notice to Seller. In the event of
such waiver, such condition shall be deemed satisfied. All
matters set forth on the Preliminary Title Report, the
Survey or any updated Survey obtained by Purchaser which are
not timely objected to by Purchaser shall be permitted
exceptions to title and shall additionally include (i) any
title or survey matters objected to by Purchaser, which
objections are subsequently waived in writing by Purchaser,
and (ii) any title or survey matters objected to by
Purchaser in accordance with the terms and provisions of
this Agreement, which objections are cured to Purchaser's
satisfaction, (iii) real estate taxes and assessments not
yet due and payable; and (iv) the printed exceptions which
appear in the standard form ALTA owner's policy of title
insurance (with extended coverage).
(ii) If at the date of Closing there are any liens
or encumbrances that Seller is obligated to pay and dis
charge, Escrow Agent may use any portion of the Purchase
Price to satisfy the same (if the same are not bonded-over
or otherwise satisfied by title endorsement), provided
Seller shall simultaneously either deliver to Escrow Agent
at Closing title instruments in recordable form sufficient
to satisfy such liens and encumbrances of record, together
with the cost of recording or filing said instruments.
(b) Title Policy. The Title Policy shall be
Chicago Title Company's ALTA Owner's policy with liability
in the amount of the Purchase Price, showing fee title to
the Real Property and the Improvements as vested in
Purchaser, or in Purchaser's permitted assignee, subject
only to the permitted exceptions specified in Paragraph 4(a)
above.
5. Delivery of Information.
(a) As soon as practicable after the date hereof,
but in no event later than five (5) business days after the
Effective Date, except as otherwise set forth, Seller shall
have delivered or shall have caused to be delivered or made
available to Purchaser at the Property to Purchaser to the
extent they are in Seller's possession or under its control,
the following:
(i) Evidence that the Real Property complies
with the Subdivision Map Act of California, the Property has
all of the necessary valid Certificates of Occupancy and
otherwise complies with all construction and operational
laws, codes, ordinances, regulations and conditional use
permits.
(ii) The loss history of the Property pertaining
to any property damage or personal injury suffered for which
an insurance claim of more than Fifty Thousand Dollars
($50,000) was submitted by Seller at any time after January
1, 1995 to the extent available to Seller;
(iii) A set of all "as built" plans, specifications
and structural drawings (including, but not limited to,
mechanical, electrical, air conditioning, landscaping and
sprinkler drawings), third-party soil, geological, seismic,
environmental and hazardous materials and asbestos studies
or reports, relating to the Improvements or the subsurface
conditions, grading plans, water table or other matters
bearing upon condition of the Property;
(iv) All electricity and property tax bills for
the period beginning January 1, 1995 to the extent available
to Seller;
(v) Statements of income and expense for the
Property for the calendar year 1995, 1996 and current year
to date to the extent available to Seller;
(vi) All warranties and operating manuals that
Seller may have from vendors, contractors or servicing
agents with respect to the physical condition of the
Improvements, the Property or any portion thereof or the
equipment located therein;
(vii) Complete copies of all service and other con
tracts pertaining to the Property (including, but not
limited to, HVAC, elevator, landscape, management, leasing
brokerage and parking) in respect to which Seller is
obligated (the "Service Contracts");
(viii) A list of all personal property (including
supplies) owned or leased by Seller and used in connection
with the operation, maintenance and repair of the Property.
(b) Purchaser shall have until 5:00 P.M. on
June 2, 1997 (the "Approval Period") in which to approve or
disapprove all matters and things that are subject to
Purchaser's rights of review, inspection and approval
hereunder. Purchaser's failure either to approve or
disapprove said information before the expiration of the
Approval Period as aforesaid shall be deemed its approval
thereof. If Purchaser disapproves any of said information,
Purchaser shall notify Seller in writing thereof within the
time period specified above whereupon, this Agreement shall
terminate. However, notwithstanding the foregoing, if
Purchaser disapproves any Service Contract, this Agreement
shall not terminate and Seller shall lawfully terminate such
Service Contract not later than thirty (30) days after the
Closing, to the extent the same can be so terminated and
provided Purchaser shall pay all cancellation or termination
penalties, fees or costs in connection therewith.
6. Inspections and Approval by Purchaser.
(a) From and after the date hereof, Purchaser and
its agents, employees and contractors shall be afforded full
access to the Property during normal business hours and upon
twenty-four (24) hours prior notice for the purpose of
making such investigations as Purchaser deems prudent with
respect to the physical condition of the Property,
including, but not limited to, engineering tests, subject to
the rights of tenants in possession. Seller shall
reasonably cooperate to assist Purchaser in completing such
inspection. However, Purchaser agrees not to contact any of
Seller's tenants without Seller's prior consent and to hold
Seller harmless from and against any loss, cost, damage,
claim or expense suffered by Seller or the Property and
caused by Purchaser's said investigations (the foregoing
obligation surviving any termination of this Agreement). In
no event shall Purchaser make any intrusive physical testing
(environmental, structural or otherwise) at the Property
(such as soil borings or the like) without Seller's prior
consent. Purchaser shall promptly restore the Property to
its condition immediately prior to such investigations. In
addition, Purchaser agrees not to unreasonably interfere
with the use and enjoyment of the Property by Seller, its
agents, representatives, employees or any tenants or other
occupants. Seller shall have the right, at its option, to
cause a representative of Seller to be present at all
inspections, reviews and examinations conducted hereunder.
At the request of Seller, Purchaser shall promptly deliver
to Seller true, accurate and complete copies of any written
reports relating to the Property prepared for or on behalf
of Purchaser by any third party and, in the event of
termination hereunder, shall return all documents and other
materials furnished to or on behalf of Purchaser by Seller
hereunder. Purchaser shall keep all information or data
received or discovered in connection with any of the
inspections, reviews or examinations strictly confidential;
provided; however, that Purchaser shall be entitled to
disclose such information to Purchaser's attorneys,
consultants, accountants and prospective debt and equity
financing sources who reasonably need to be informed in
connection with Purchaser's determinations hereunder.
(b) From and after the date hereof until Closing,
Purchaser and its agents shall be afforded full opportunity
by Seller during normal business hours and upon twenty-four
(24) hours prior notice to examine all operating books and
records that relate to the Property (including all specifica
tions and as-built drawings to the extent they are in
Seller's possession), all building permits, certificates of
occupancy, soil reports, engineers' reports and studies, and
similar information relating to the Property or its manage
ment, operation, maintenance or use, and all warranties and
operating manuals that Seller may have from vendors, contrac
tors or servicing agents with respect to the physical condi
tion of the Property or any portion thereof or the equipment
located thereon.
(c) Purchaser shall have until the expiration of
Approval Period in which to approve or disapprove the
matters referred to in subparagraphs (a) and (b) above.
Furthermore, Purchaser shall have until the expiration of
the Approval Period in which to approve or disapprove of a
market and leasing survey of the Property and the
surrounding leasing market (including its own economic
analysis of the feasibility of the Property for Purchaser's
particular use thereof). Purchaser's disapproval shall be
in writing and shall be delivered to Seller prior to the
expiration of the Approval Period. Failure to deliver such
written disapproval shall be deemed Purchaser's approval of
said matters.
7. Operation of Property Pending Closing.
(a) Tenant Leases. From and after the date of
execution of this Agreement and until the Closing Date
Seller shall not enter into any new leases or amend or
extend, terminate or accept the surrender of any tenancies
or approve any subleases without the prior written consent
of Purchaser (which consent shall not be unreasonably
delayed or withheld). In requesting such consent, Seller
shall inform Purchaser in writing of the amount, if any,
proposed to be required to pay for, or any allowance
proposed to be given for, tenant improvement work, any
leasing commissions and fees, in connection with such lease
and any rent concessions. Also included in the request for
consent, shall be Seller's proposed draft of the lease or
amendment agreement. The failure of Purchaser to respond
within five (5) business days after written request for any
such approval shall be deemed to constitute approval.
Seller shall not collect in advance any rent or other sum
due under any tenant lease, except for collection of current
rents no more than one month in advance.
(b) Leasing Commissions; Tenant Improvements and
Rent Concessions. Seller covenants and agrees to be
responsible for all leasing commissions, tenant improvement
costs and unamortized rent concessions with respect to any
leases (including amendments and renewals) entered into on
or before June 2, 1997. Purchaser covenants and agrees to
be responsible for all leasing commissions, tenant
improvement costs and unamortized rent concessions with
respect to any new leases, extensions of existing leases and
renewals occurring after June 2, 1997, provided that (i)
Purchaser has approved or is deemed to have approved such
action or event by Seller and (ii) Seller has delivered to
Purchaser copies of the proposed lease and other agreements
with respect thereto and to which any brokerage commissions
are payable. Failing such delivery and approval (or deemed
approval), Seller shall remain responsible for all of costs
and expenses including commissions.
(c) Insurance Policies. Seller shall keep all of
the insurance policies covering the Property (or
substantially equivalent coverage) in full force and effect
between the date of this Agreement and Closing (the
"Insurance Policies").
(d) Service Contracts. Seller shall have the
right to renew or replace Service Contracts that expire
prior to Closing or to enter into new Service Contracts for
emergency purposes if deemed reasonably necessary by Seller
for any term provided that such Service Contracts are
terminable by Seller or its successors in interest upon not
more than thirty (30) days' notice to the service provider.
(e) Property Management. Seller shall maintain
the Property in the same manner as prior hereto pursuant to
its normal course of business (such maintenance obligations
not including extraordinary capital expenditures or
expenditures not incurred in such normal course of
business), subject to reasonable wear and tear and further
subject to destruction by casualty or other events beyond
the reasonable control of Seller.
8. Conditions Precedent to Purchaser's Obligation to
Close Escrow. The obligation of Purchaser to consummate the
transactions contemplated hereby is subject to the following
conditions, inserted for Purchaser's sole benefit and that
may be waived by Purchaser only in writing at its sole
option. Said conditions are as follows:
(a) Representations and Warranties True at Clos
ing. The representations and warranties of Seller contained
in Paragraph 13 of this Agreement shall be true on the date
of Closing in all material respects as though such
representations and warranties were made on and as of such
date.
(b) Compliance with This Agreement. Seller shall
have performed and complied with in all material respects
all agreements and conditions required by this Agreement to
be performed or complied with by it on or prior to Closing.
(c) Title Policy. Title Company shall be ready,
willing and able to issue the Title Policy required by Para
graph 4(b).
(d) Change in Condition. Subject to the pro
visions of Paragraphs 15(b) and 15(c) hereof, there shall
exist no damage, destruction or condemnation of the Property
prior to Closing.
9. Conditions Precedent to Seller's Obligation to
Close Escrow. The obligation of Seller to consummate the
transactions contemplated hereby is subject to the following
conditions, inserted for Seller's sole benefit and that may
be waived solely by Seller only in writing at its sole
option. Said conditions are as follows:
(a) Representations and Warranties True at Clos
ing. The representations and warranties of Purchaser con
tained in this Agreement, or in any certificate or document
signed by Purchaser pursuant to the provisions hereof, shall
be true on and as of Closing in all material respects as
though such representations and warranties were made on and
as of such date.
(b) Delivery of Purchase Price and Documents.
Purchaser shall have delivered all funds and documents to
Escrow Holder required by it hereunder to enable it to close
the Escrow.
(c) Compliance with This Agreement. Purchaser
shall have performed and complied with all agreements and
conditions required by this Agreement to be performed or
complied with by it on or prior to Closing.
10. Remedy of Purchaser and Seller Upon Default.
(a) Remedies of Purchaser. In the event that
Seller fails to keep and perform each and every obligation,
covenant and agreement herein by Seller to be kept or per
formed, then Purchaser may pursue such rights it may have
against Seller and the Property either at law or in equity.
(b) Remedy of Seller. THE PARTIES HERETO, BEFORE
ENTERING INTO THIS TRANSACTION, HAVE BEEN CONCERNED WITH THE
FACT THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY SELLER IF
PURCHASER SHOULD WRONGFULLY FAIL TO PURCHASE THE PROPERTY.
WITH THE FLUCTUATION IN VALUE OF REAL PROPERTY, THE CURRENT
AND HIGHLY UNPREDICTABLE STATE OF THE ECONOMY, THE
FLUCTUATING MONEY MARKET FOR REAL ESTATE LOANS OF ALL TYPES,
AND OTHER FACTORS THAT DIRECTLY AFFECT THE VALUE AND MARKET
ABILITY OF THE PROPERTY, IT IS REALIZED BY THE PARTIES THAT
IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE, IF NOT IM
POSSIBLE, TO ASCERTAIN WITH ANY DEGREE OF CERTAINTY PRIOR TO
SIGNING THIS AGREEMENT THE AMOUNT OF DAMAGES THAT WOULD BE
SUFFERED BY SELLER IN THE EVENT OF PURCHASER'S WRONGFUL FAIL
URE TO PURCHASE THE PROPERTY. THE PARTIES, HAVING MADE DILI
GENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL COM
PENSATORY DAMAGES SELLER WOULD SUFFER IN THE EVENT OF PUR
CHASER'S WRONGFUL FAILURE TO PURCHASE THE PROPERTY, HEREBY
AGREE THAT THE REASONABLE ESTIMATE OF SAID DAMAGES IS AN
AMOUNT EQUAL TO THE DEPOSIT; AND IN THE EVENT OF PURCHASER'S
WRONGFUL FAILURE TO PURCHASE THE PROPERTY, SELLER SHALL BE
ENTITLED TO SUCH AMOUNT AS FULL LIQUIDATED DAMAGES, AND THAT
PAYMENT OR TENDER TO SELLER BY PURCHASER OF SUCH AMOUNT
SHALL TERMINATE ALL OF SELLER'S RIGHTS AND REMEDIES AT LAW
OR IN EQUITY AGAINST PURCHASER WITH RESPECT TO SUCH FAILURE
TO PERFORM.
/s/ LLG /s/ RC /s/RSZ
Seller's Purchaser's
Initials Initials
11. Closing Procedure.
(a) At least one business day prior to the date
of Closing, Purchaser shall have delivered to Escrow Agent
counterpart executed originals of the following documents
and the following sums of money required to be delivered by
Purchaser hereunder:
(i) The Purchase Price in the manner set forth
in Paragraph 2(a);
(ii) Such funds as may be necessary to comply with
Purchaser's obligations hereunder regarding prorations,
costs and expenses; and
(iii) A signed counterpart of the Assignment of
Leases and Security Deposits (the "Assignment of Leases") if
any leases are in effect covering all or any portion of the
Property, substantially in the form and substance of Exhibit
"G" attached hereto and forming a part hereof and a signed
counterpart of the Assignment of Service and Miscellaneous
Rights and Agreements (the "Assignment of Service
Contracts").
(b) At least one business day prior to the date
of Closing, Seller shall have delivered to Escrow Agent
counterpart executed originals of the following documents:
(i) The Grant Deed in the form of Exhibit "E"
attached hereto and forming a part hereof;
(ii) A Xxxx of Sale (the "Xxxx of Sale") in the
form of Exhibit "F" attached hereto covering the Personal
Property;
(iii) An Assignment of Leases;
(iv) An Assignment of Service Contracts substan
tially in the form and substance of Exhibit "H" attached
hereto and forming a part hereof;
(v) An original counterpart of each of the
Service Contracts, Leases and keys to the Property if in
Seller's possession or under its control;
(vi) Notices to any tenants and occupants of the
Property of the transfer of the Property to Purchaser;
(vii) To the extent they are in Seller's
possession, a complete set of all plans, specifications and
as-built drawings, and all building permits, certificates of
occupancy, third-party soil reports, and environmental
reports and studies relating to the Improvements; and
(viii) All warranties and operating manuals that
Seller may have from vendors, contractors or servicing
agents with respect to the physical condition of the
Property or any portion thereof or the equipment located
thereon.
(c) Upon delivery of the foregoing sums and
documents, Escrow Agent shall cause Title Company to cause
the Grant Deed to be recorded (by a special recording if
necessary) in the Official Records of Los Angeles County,
California, and immediately to issue the Title Policy.
12. Costs and Prorations.
(a) Prorations. All revenues, income, receiv
xxxxx, costs, expenses and payables of the Property shall be
apportioned equitably between the parties as of Closing on
the basis of the actual number of days in a particular
month, and with respect to the items enumerated below where
a particular manner of apportionment is provided, then
apportionment of such item shall be made in such manner.
The obligation to make apportionments shall survive Closing.
Without limitation, the following items shall be so
apportioned:
(i) Monthly rents and percentage rent and
"passthroughs" of real estate taxes and operating expenses
due from occupancy tenants under Tenant Leases, as and when
collected. If at Closing there are any past due rents or
charges owed by occupancy tenants, they shall not be
prorated until received; Purchaser shall include such
delinquencies in its normal billing and shall pursue the
collection thereof in good faith after the Closing Date (but
Purchaser shall not be required to litigate or declare a
default in any Tenant Lease). To the extent Purchaser
receives amounts on account of Tenant Leases on or after the
Closing Date, such payments shall be applied first toward
then current rent owed to Purchaser in connection with the
applicable Tenant Lease for which such payments are
received, and any excess monies received shall be applied
toward the payment of any delinquent rents, with Seller's
share thereof being promptly delivered to Seller. Purchaser
may not waive any delinquent rents nor modify a Tenant Lease
so as to reduce or otherwise affect amounts owed thereunder
for any period in which Seller is entitled to receive its
share of charges or amounts without first obtaining Seller's
written consent. Seller hereby reserves the right to pursue
any remedy against any tenant owing delinquent rents and any
other amounts to Seller. Purchaser shall reasonably
cooperate with Seller in any collection efforts hereunder
(but shall not be require to litigate or declare a default
in any Lease). With respect to delinquent rents and any
other amounts or other rights of any kind respecting tenants
who are no longer tenants of the Property as of the Closing
Date, Seller shall retain all rights relating thereto.
(ii) Real estate and personal property taxes and
any special assessments, taking into consideration discounts
for the earliest permitted payment, based upon the latest
previous tax levies. Such items shall be reapportioned
between Seller and Purchaser if current tax rates differ
from the latest previous tax rates as soon as the same are
known. Seller agrees that to the extent any additional
taxes, assessments or levies are imposed, assessed or levied
against the Property, or any portion thereof, the Seller or
the Purchaser at any time subsequent to Closing but with
reference to any period prior thereto during Seller's
ownership thereof, Seller shall promptly pay to Purchaser an
amount equal to such additional assessments or levies.
Similarly, if tax refunds become payable for periods during
Seller's ownership of the Property, such amounts (subject to
adjustments for the potential claims of occupancy tenants
that paid tax increases by way of rent escalations to
Seller) shall be promptly paid over to Seller. In the event
that any assessments on the Property are payable in
installments, then the installment for the current period
shall be prorated (with Purchaser assuming the obligation to
pay any installment due after the Closing Date). In no
event shall Seller be charged with or be responsible for any
increase in the taxes on the Property resulting from the
sale of the Property or from any improvements made or lease
entered into on or after the Closing Date.
(iii) Transferable annual permits, licenses, and/or
inspection fees, if any, on the basis of the duration of the
same;
(iv) Security Deposits, plus accrued interest, if
any, payable thereon to tenants, and any other deposits and
prepaid rent, shall be credited (or assigned) to Purchaser;
(v) Utility charges levied against Seller or the
Property, and Purchaser shall transfer all such utility
services to its name and account immediately upon Closing;
(vi) Service Contracts on the basis of the charge
or premium for the period involved;
(vii) Tenant improvements costs and leasing commis
sions for leases signed after the June 2, 1997 shall be paid
by Purchaser if approved by Purchaser in accordance with
Paragraphs 7(a) and 7(b).
(viii) All other operating expenses incurred in the
management and operation of the Property.
No insurance policies shall be assigned hereunder, and
accordingly there shall be no proration of insurance
premiums.
(b) Expenses of Closing. The expenses of Closing
shall be paid in the following manner:
(i) Seller shall pay:
(1) The cost of securing the CLTA standard
coverage portion of the Title Policy that is
attributable to the required ALTA Owner's coverage, the
cost of title endorsements deemed reasonably necessary
to satisfy a specific title exception objection by
Purchaser);
(2) Documentary transfer tax (County and
City) imposed on the conveyance of title to the
Property to Purchaser;
(3) Any sales or use taxes that may be
owing in connection with the transactions contemplated
by this Agreement; and
(4) One-half of Escrow Agent's Escrow Fee.
(iii) Purchaser shall pay:
(1) The cost of the Preliminary Title
Report and the cost of any Escrow or Title cancellation
charges in the event that the transaction fails to
close through no fault of the Seller and, if Closing
does occur, that portion of the cost of the Title
Policy that is not to be paid by Seller pursuant to
Subsection (b)(i)(1) above and the cost of the ALTA
Survey; and
(2) The cost of recording the Grant Deed;
(3) All expenses relating to Purchaser's
financing of its acquisition of the Property including
the cost of recording the Deed of Trust and obtaining
Seller's Loan Policy of Title Insurance; and
(4) One half of Escrow Agent's Escrow fee.
All other Closing fees and expenses, including, but not
limited to, the parties' legal expenses, accounting and con
sulting fees, and other incidental expenses in connection
with this transaction shall be borne by the party incurring
same.
13. Representations, Warranties and Covenants of Seller.
(a) Seller hereby makes the following representa
tions, warranties and covenants, each of which is deemed to
be material and each of which is stated by Seller to be true
and correct on the date hereof and on the Closing Date and
each of which shall survive the Closing:
(i) Seller has no knowledge of any:
(1) existing latent defects or seismic
conditions concerning the Real Property or materially incor
rect income or expense figures in any financial statements
prepared by or for Seller and delivered to Purchaser
regarding the Property.
(2) any claim, litigation or administra
tive action, arbitration, proceeding pending before any
court, agency or official, nor any such claim or action
threatened in writing, relating to the Seller or the
Property or with respect to the validity of any statutes,
ordinances, regulations or restrictions or any permits or
approvals thereunder relating to the construction of any
Improvements on the Property or the operation thereof nor
any outstanding contingent liabilities affecting the
Property;
(3) written notice of violations of
City, County, State, Federal, building, zoning, fire or
health codes, regulations or ordinances, filed or issued
against the Property;
(4) Hazardous Substance in existence on
or below the surface of the Real Property or in any building
located upon the Real Property, including, without
limitation, contamination of soil, subsoil or ground water,
which constitutes a violation of any applicable law, rule or
regulation of any government entity having jurisdiction
thereof except for office and medical supplies in customary
quantities;
(5) thing that would suggest any
portion of the Property having ever been used as a waste
storage or disposal site or gasoline station. Without
limiting the other provisions of this Agreement, Seller
shall reasonably cooperate with Purchaser's investigation of
matters relating to the foregoing provisions of this
paragraph and to provide access to and copies of any data
and/or documents dealing with potentially Hazardous Sub
stances used at the Property and any disposal practices fol
lowed in accordance with, and subject to the provisions of,
Paragraph 6 hereof. Seller agrees that Purchaser may make
inquiries of governmental agencies regarding such matters,
without liability for the outcome of such discussions. For
the purposes of this Agreement, "Hazardous Substances" shall
mean (A) substances defined as "hazardous substances" in (i)
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S. C. 9601 et
seq.), or (ii) the Resource Conservation and Recovery Act of
1976 (42 U.S.C. 6901 et seq.), together with the regula
tions enacted pursuant to such acts, and (B) those
substances defined as "hazardous wastes" in 25117 of the
California Health and Safety Code or as "hazardous
substances" in 25316 of the California Health and Safety
Code together with the regulations enacted pursuant to such
statutes.
(ii) The Service Contracts and any other
agreements, matters and things to be submitted to Purchaser
by Seller for approval pursuant to Paragraph 5 above, or
otherwise, shall be true, correct and complete copies
thereof as of the date of submission thereof, and as
thereafter supplemented by supplements or additions,
approved in writing by Purchaser, on or before Closing.
Notwithstanding anything to the contrary contained herein,
Seller shall have no obligation or liability to Purchaser
with respect to any of the foregoing lease matters which
shall be confirmed as correct in any tenant estoppel
certificate delivered to Purchaser as provided in this
Agreement;
(iii) The operating financial information prepared
by Seller and delivered to Purchaser with respect to the
Property, consisting of Statements of Operations for the
calendar year ended December 31, 1995, December 31, 1996 and
for the current calendar year are true and correct in all
material respects; in this regard Seller agrees to make
available to Purchaser and its accountants, at Purchaser's
cost, all accounting records for the calendar years ended
December 31, 1995, December 31, 1996 and for the period from
January 1, 1997 through the date of Closing, including but
not limited to all general ledgers, cash receipts, cancelled
checks and any other accounting documents and information
reasonably requested; and
(iv) As used in this Agreement, "to Seller's
knowledge" or other similar knowledge limitations as to
Seller shall mean the actual knowledge, without any duty to
investigate, of Xxxxxx X. Xxxxx.
(b) Notwithstanding anything contained in Para
graphs 5(a) or 13(a) to the contrary, Seller is neither
responsible nor liable for any representation or warranty,
either expressed or implied, guaranty, promise or other
information pertaining to the Property or the Improvements
made or furnished to Purchaser by any broker representing or
purporting to represent Seller.
14. Representations and Warranties of Purchaser. Pur
chaser hereby makes the following representations and
warranties, each of which is deemed to be material and each
of which is stated by Purchaser to be true and correct on
the date hereof:
(a) Purchaser has full legal power and authority
to enter into and perform this Agreement in accordance with
its terms. This Agreement constitutes the valid and binding
obligation of Purchaser, enforceable in accordance with its
terms, except as such enforcement may be affected by bank
ruptcy, insolvency and other laws affecting the rights of
creditors generally. The execution, delivery and
performance of this Agreement and all documents in
connection therewith are not in contravention of or in
conflict with any agreement or undertaking to which
Purchaser is a party or by which Purchaser may be bound or
affected; and
(b) The execution and delivery of this Agreement
and the payment and performance by Purchaser of its payments
and obligations hereunder require no further action or
approval in order to constitute this Agreement as a binding
and enforceable obligation of Purchaser, and all such
actions have been duly taken by Purchaser.
(c) As of the expiration of the Approval Period
and as of the Closing Date (i) Purchaser has received and
reviewed all materials provided to Purchaser by Seller
pursuant to Sections 4 and 5 above (collectively, the "Due
Diligence Materials"), (ii) Purchaser has inspected the
Property, (iii) Purchaser has made such investigation of the
information contained in the Due Diligence Materials as it
deems appropriate, and (iv) Purchaser is satisfied based
upon its examination of the Due Diligence Materials and its
investigation of all other aspects of the Property which
Purchaser deems material to its purchase thereof, including,
without limitation, the condition of title to the Property,
the zoning of the Property, the condition and physical
aspects of all structures located on the Real Property
(including the Improvements) and the presence or absence of
Hazardous Substances on the Property.
15. General Covenants and Agreements of Purchaser and Seller.
(a) Delivery of Possession. Possession of the
Property shall be delivered to Purchaser upon Closing,
subject to the rights of tenants in possession.
(b) Damage to or Destruction of Property Prior to
Closing; Risk of Loss. If prior to Closing the Property
shall sustain damage caused by fire or other casualty that
is insured and that would cost One Hundred Fifty Thousand
Dollars ($150,000) or more to repair or if any uninsured
loss or casualty occurs that would cost One Hundred Fifty
Thousand Dollars ($150,000) or more to repair, either Seller
or Purchaser may respectively elect to terminate this
Agreement by written notice to the other within fifteen days
after notice of such event, or at Closing, whichever is
earlier. If neither Seller nor Purchaser so elects to
terminate its obligations under this Agreement, or if the
loss or casualty would cost less than One Hundred Fifty
Thousand Dollars ($150,000) to repair, the Closing shall
take place as provided herein and Purchaser shall receive an
assignment of Seller's rights to insurance proceeds with
respect to any unrepaired damage (including any rental loss
proceeds for periods after the Closing), loss or casualty in
question. Seller shall retain all interest in and to the
insurance proceeds that may be payable to Seller on account
of repaired and completed damage, but Seller shall have no
obligation of repair or replacement.
(c) Condemnation of Property Prior to Closing. In
the event that the Property or any part thereof becomes the
subject of a condemnation proceeding other than of a minor
immaterial nature prior to Closing, Seller agrees to
immediately advise Purchaser thereof. In the event of such
condemnation, Purchaser shall have the option to (1) take
title in accordance with the terms and conditions of this
Agreement and negotiate with the said condemning authority
for the condemnation award and receive the benefits thereof
without affecting the Purchase Price, or (2) terminate this
Agreement and declare its obligations thereunder null and
void and of no further effect, in which event all sums
theretofore paid to Seller or to Escrow Agent hereunder
shall be returned to Purchaser as set forth herein. Notice
of the exercise of such option hereunder shall be in
writing, delivered to Seller at the address set forth in
Paragraph 16(g) of this Agreement (or such other address as
Seller may have theretofore designated in writing) at least
two days prior to Closing.
(d) Brokers' Commissions. Seller warrants that
Seller did not negotiate with respect to the purchase of the
Property through any broker, agent, finder, affiliate or
other third party or incur any liability, contingent or
otherwise, for brokerage or finder's fees or agent's
commissions or other like payments in connection with this
Agreement, or the transactions contemplated hereby. Seller
hereby agrees to indemnify Purchaser against and hold
Purchaser harmless from any and all claims, demands, causes
of action or damages resulting from any breach of this
warranty. Purchaser hereby warrants that Purchaser did not
negotiate through any broker, agent, finder, affiliate or
other third party or incur any liability, contingent or
otherwise, for any such brokerage or finder's fees, agent's
commissions or other like payments, in connection with this
Agreement, and hereby agrees to indemnify Seller against and
hold Seller harmless from any and all claims, demands,
causes of action or damages resulting from any breach of
this warranty. This provision shall survive Closing.
(e) Further Assurances Prior to Closing. Seller
and Purchaser shall, prior to Closing, execute any and all
documents and perform any and all acts reasonably necessary,
incidental or appropriate to effect the purchase and sale
and the transactions contemplated in this Agreement.
(f) Time of Essence. Time shall be of the
essence with respect to the obligations of the parties
hereunder.
(g) Assignability. Purchaser may assign all of
its rights and duties hereunder to any entity with which Pur
chaser is, directly or indirectly, affiliated or an entity
to be formed and controlled by the principals (Xxxxxxx X.
Xxxxx and Xxxxxx X. Xxxxxxx) of Purchaser, without Seller's
consent, upon the giving of written notice to Seller, which
notice may not be given less than three days prior to
Closing. For the purpose of this paragraph an "affiliate"
of or a person "affiliated" with, a specified person, is a
person that directly or indirectly, through one or more
intermediaries, controls or is controlled by, or is under
common control with, the person specified. Any such
assignment is conditional upon such assignee assuming the
obligations of Purchaser under this Agreement agreeing to be
bound by all consents and approvals theretofore given or
deemed to have been given by Purchaser, and such assignment
or nomination shall not relieve Purchaser of its obligations
hereunder.
(h) Waivers, Amendments and Modifications of
Provisions. Waivers, amendments or modifications of any
term or condition of this Agreement must be in writing
signed by the party against whom such waiver is sought to be
enforced. No waiver by any party of any breach hereunder
shall be deemed a waiver of any other or subsequent breach.
(i) Indemnification. Seller shall indemnify Pur
chaser against and hold Purchaser harmless from any and all
loss, cost, damage, claim, liability or expense, including
court costs and reasonable attorneys' fees, for third party
claims arising out of or in connection with any tort
committed by Seller (including any personal injury or
property damage or claim of personal injury or property
damage of any kind whatsoever, including death, to property
or persons, including employees of Seller) unless caused by
Purchaser, resulting from such tort occasioned in or about
the Property prior to Closing. Purchaser shall indemnify
Seller against and hold Seller harmless from any and all
loss, damage, claim of damage, liability or expense,
including court costs and reasonable attorneys' fees, for
third party claims arising out of or in connection with any
tort committed by Purchaser (including any personal injury
or property damage or claim of personal injury or property
damage of any kind whatsoever, including death, to property
or persons, including employees of Purchaser) unless caused
by Seller, resulting from such tort occasioned in or about
the Property (a) as a result of its investigation of the
Property during the Approval Period or (b) on or subsequent
to Closing. These covenants shall survive Closing.
16. Miscellaneous Provisions.
(a) Successors and Assigns. Subject to the pro
visions hereof, the terms and provisions hereof shall be
binding upon and inure to the benefit of the successors and
assigns of the parties hereto.
(b) Meaning of Terms. When necessary herein, all
terms used in the singular shall apply to the plural and
vice versa; and all terms used in the masculine shall apply
to the neuter and feminine genders.
(c) Entire Agreement. This Agreement is the
entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior
agreements between the parties hereto with respect thereto.
No claim of waiver, modification, consent or acquiescence
with respect to any of the provisions of this Agreement
shall be made against either party, except on the basis of a
written instrument executed by or on behalf of such party.
(d) Governing Law. This Agreement is to be
governed by and construed in accordance with the internal
laws of the State of California.
(e) Paragraph Headings. The headings of the sev
eral paragraphs of this Agreement are inserted solely for
convenience of reference and are not a part of and are not
intended to govern, limit or aid in the construction of any
term or provision hereof.
(f) Attorneys' Fees. If either Seller or Pur
chaser shall obtain legal counsel and bring an action or
proceeding against the other by reason of an alleged breach
of any covenant, provision or condition hereof, or otherwise
arising out of this Agreement, the unsuccessful party shall
pay to the prevailing party reasonable attorneys' fees,
which shall be payable whether or not any proceeding is
prosecuted to judgment or award. The term "prevailing
party" shall include a party (i) who brings an action or
proceeding against the other by reason of the other's breach
or default and obtains substantially the relief sought by
judgment or award or (ii) who successfully defends an action
or proceeding brought by the other party and against whom no
material damages or specific performance are awarded.
(g) Notices. All notices, requests and other
communications hereunder shall be in writing and shall be
personally delivered or, in the alternative, deposited with
(1) the United States Postal Service, Certified Mail with
Return Receipt Requested, with postage prepaid or (2)
Federal Express or other overnight air freight forwarder for
delivery the next business day or (3) by facsimile
transmission during normal business hours on regular
business days at the to the following addresses, and shall
be effective immediately upon delivery:
Seller: Overland Plaza Partnership
1999 Avenue of the Stars
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
FAX (310)
With a copy to: Xxxxxx Xxxxx, Esq.
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
FAX (310)
Purchaser: Arden Realty, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000 Xxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxx
FAX (000) 000-0000
With a copy to: Xxxx & Xxxxx
0000 Xxxxxxx Xxxx Xxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
FAX (000) 000-0000
Escrow Agent: Commerce Escrow Company
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
FAX (000) 000-0000
All notices, requests and other communications may be sent
by legal counsel for the party and shall be deemed received
on the date of acknowledgment or other evidence of actual
receipt.
(h) Severability. If any provision of this Agree
ment or the application thereof to any person or cir
cumstance shall be invalid or unenforceable to any extent,
the remainder of this Agreement and the application of such
provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest
extent permitted by law.
(i) Further Assurances on or After Closing. Each
party hereto agrees to do all acts and things and to make,
execute and deliver such written instruments as shall be
reasonably necessary to carry out the terms and provisions
of this Agreement. This covenant of further assurances
shall survive Closing.
(j) Other Parties. Nothing in this Agreement
shall be construed as giving any person, firm, corporation
or other entity, other than the parties hereto, their
successors and permitted assigns, any right, remedy or claim
under or with respect to this Agreement or any provision
hereof.
(k) Confidentiality. Seller and Purchaser agree
that it is in both of their best interests to keep this
Agreement and all information concerning the Property
confidential until Closing. Seller and Purchaser each
agrees that neither shall take any action nor conduct itself
in any fashion that would disclose to third parties
unrelated to Purchaser's acquisition or intended ownership
and operation of the Property, any aspect of the
contemplated transaction. After Closing, neither party
shall make any public announcement of the transaction that
has not been approved in advance and in writing by the other
party.
(l) Tax Deferred Exchange. Seller may desire to
dispose of the Property through a tax deferred exchange
which qualifies for non-recognition of gain under Section
1031 of the Internal Revenue Code. Purchaser shall
cooperate with Seller in attempting to effectuate such
exchange, including, but not limited to, the execution of
such documentation as may be reasonably necessary to effect
such exchange, provided that (i) Purchaser shall not incur
any additional liability in connection with an exchange for
the benefit of Seller, (ii) Purchaser shall not be obligated
to take title to any real property (other than the
Property), (iii) the date of Closing shall not be extended
as a result of the exchange, without Purchaser's prior
written consent, and (iv) any additional costs and charges
attributable to the exchange, including, but not limited to,
attorneys' fees, brokers' commissions and other transaction
related expenses shall be paid for by Seller. Purchaser and
Seller further agree that Seller may substitute an
intermediary ("Intermediary") to act in place of Seller as
the seller of the Property. The Intermediary shall be desig
nated in writing by Seller. Upon identification of Interme
diary, Intermediary shall be substituted for Seller as the
seller of the Property. Purchaser agrees to accept the
Property and all other required performance from
Intermediary and to render its performance of all of its
obligations to Intermediary. Purchaser agrees that
performance by Intermediary will be treated as performance
by Seller. Seller shall unconditionally guarantee the full
and timely performance by Intermediary of each and every one
of the representations, warranties, covenants, indemnities,
obligations and undertakings of Intermediary. As guarantor,
Seller shall be treated as a primary obligor with respect to
these representations, warranties, covenants, indemnities,
obligations and undertakings, and, in the event of breach,
Purchaser may proceed directly against Seller on this
guarantee without the need to join Intermediary as a party
to any action against Seller. Seller unconditionally waives
any defense that it might have as guarantor that it would
not have if it had made or undertaken these representations,
warranties, covenants, indemnities, obligations and
undertakings directly. In the event of the breach of any
representations, warranties, covenants, obligations and
undertakings by Seller or Intermediary or in the event of
any claim upon any indemnity of Seller or Intermediary
(whether the representation, warranty, covenant, indemnity,
obligation or undertaking is express or implied),
Purchaser's exclusive recourse shall be against the Seller
and Purchaser shall have no recourse of any type against the
Intermediary arising from this transaction.
(m) Condition of Property. Purchaser
acknowledges that it will inspect and examine the Property
and, except as expressly provided in this Agreement, will
rely solely on its own investigation of the Property and not
on any information provided or to be provided by or on
behalf of Seller. Except as otherwise expressly provided in
this Agreement, the sale of the Property to Purchaser is
made on an "AS IS" "WHERE IS" and "WITH ALL FAULTS" basis.
Purchaser acknowledges that in consideration of entering
into this Agreement, that, except as expressly provided in
this Agreement, Seller makes no warranty or representation,
with respect to the Property, or any portion thereof,
express or implied, or arising by operation of law,
including, but not limited to, any warranty of condition
(physical, environmental or otherwise), title (other than
the limited warranties of title contained in the grant
deed), habitability or fitness for a particular purpose or
otherwise.
(n) Counterparts. This Agreement may be executed
in any number of counterparts, each of which so executed
shall be deemed an original; such counterparts shall
together constitute but one agreement.
(o) Facsimile Signatures. Purchaser and Seller
each (i) has agreed to permit the use, from time to time and
where appropriate, of telecopied signatures in order to
expedite the transaction contemplated by this Agreement,
(ii) intends to be bound by its respective telecopied
signature, (iii) is aware that the other party will rely on
the telecopied signature, and (iv) acknowledges such
reliance and waives any defenses to the enforcement of the
documents and notices effecting the transaction contemplated
by this Agreement based on the fact that a signature or
notice was sent by telecopy.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement the day and year first hereinabove written.
Seller: OVERLAND PLAZA PARTNERSHIP,
a California general partnership
By:/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: General Partner
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Managing General Partner
Purchaser: ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Arden Realty, Inc.,
a Maryland corporation,
Its general partner
By:/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx,
Chairman of the Board and
Chief Executive Officer
The undersigned hereby executes this Agreement to
evidence its agreement to act as Escrow Holder in accordance
with the terms of this Agreement.
AGREED AND ACCEPTED:
Escrow Agent:
COMMERCE ESCROW COMPANY
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Escrow Officer
