PURCHASE AND SALE AGREEMENT
THIS AGREEMENT made and entered into as of the 10 day of January, 1997,
by and between XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY, a
Massachusetts corporation, having its principal address c/o The Real
Estate Investment Group, Xxxx Xxxxxxx Xxxxx, X.X. Xxx 000, Xxxxxx,
Xxxxxxxxxxxxx 00000 (hereinafter "Seller"), and ARDEN REALTY LIMITED
PARTNERSHIP, a Maryland limited partnership, having an office address
at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000 Xxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000 (hereinafter "Buyer");
WITNESSETH THAT:
WHEREAS, Seller is the owner of the premises known as 00000 Xxxxx
Xxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, containing approximately
29,450 square feet of land improved with a building containing
approximately 93,000 square feet of space ("the Premises"), more
particularly described on Exhibit A attached hereto and made a part
hereof, and subterranean and surface parking for approximately 246
automobiles, landscaping and other amenities, and certain tangible and
intangible personal property (collectively, the "Property"); and
WHEREAS, Buyer desires to purchase the Premises and acquire
possession thereof in accordance with the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth the parties hereto mutually agree as follows:
1. Purchase Price. The Premises are to be sold to Buyer for the
sum of Ten Million Five Million Hundred Thousand dollars
($10,500,000.00) ("the Purchase Price"), which Buyer shall pay to
Seller on the Date of Closing by wiring immediately available
Federal funds to such bank account as may be designated by Seller.
2. Deposit. Buyer shall deposit with Title Company (as
hereinafter defined) as escrow agent $150,000.00 by official bank
cashier's check or federal wire transfer of funds simultaneously
with the execution of this Agreement as a good faith deposit
(hereinafter, said deposit and such interest as is earned thereon
shall be referred to as "the Deposit"), which Deposit shall be
disposed of in the manner herein provided. If Buyer performs all
of its obligations under this Agreement, the Deposit shall either
be applied against the Purchase Price or returned by escrow agent
to Buyer on the Date of Closing, as hereinafter provided. If
Seller shall be unable to deliver title and possession, as
hereinafter provided, or if Buyer shall fail to perform any of its
agreements hereunder, the Deposit shall be disposed of in the
manner hereinafter provided.
3. Closing. Subject to the provisions of this Agreement, the
grant deed representing fee title to the Premises shall be
delivered at 9 o'clock A.M., P.S.T., on February 13, 1997 ("the
Date of Closing" or "Closing"), at the offices of Chicago Title
Insurance Company located at 000 X. Xxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000 (the "Title Company").
4. Buyer's Review. Buyer shall have until 5 o'clock P.M., Boston
time, on January 31, 1997 ("the Review Period") (a) to obtain and
review a commitment for title insurance and a survey; (b) to make
or have made such reasonable non-destructive inspections as it
desires of the Premises, including, without limitation, the
interior, exterior, and structure of all improvements, and the
condition of soils and subsurfaces; and (c) to review all of
Seller's financial records, contracts, and leases relating to the
Premises. All such items shall be obtained and reviewed at Buyer's
sole cost and expense, except as otherwise expressly provided
herein. If Buyer has any objection to any of the matters set out
in (a), (b), or (c) of this section 4, it may either notify Seller
in writing of such objection on or before the end of the Review
Period ("Notice of Objection"), provided that with such notice
Buyer shall provide Seller with copies of all written materials
which provide or evidence the basis of any such objection, or
notify Seller in writing that this Agreement is terminated ("Notice
of Termination"). Any matters not objected to in writing as herein
provided shall be deemed waived. Upon the expiration of the Review
Period without Notice of Objection or Notice of Termination, as
provided herein, or upon Seller's cure of Buyer's objections, as
provided in the following paragraph, or upon Buyer's actual or
deemed notification to Seller that Buyer will proceed
notwithstanding Seller's failure to cure Buyer's objections, as
provided in the following paragraph, the Deposit will become
nonrefundable, except in the case of Seller's default hereunder.
If Seller is unwilling or unable to correct to Buyer's
satisfaction all defects to which Buyer has objected within 30 days
after receipt of Notice of Objection (provided that correction of
defects objected to in the title commitment or survey may be
accomplished either by removing such defects or by arranging for
the title insurance policy to insure over such defects; and
provided further that Seller may use the Purchase Price or any
portion thereof to cure any such defects which may be cured by
instruments recorded on the Date of Closing, or later if
arrangements are made which are satisfactory to Buyer and the Title
Company), Seller shall, at any time before the end of said 30-day
period, so notify Buyer, provided that if Seller fails to give such
notice, Seller shall be deemed to have notified Buyer on the 30th
day after receipt of Notice of Objection that Seller is unwilling
or unable to cure all defects to which Buyer has objected. Buyer
shall, within ten days after Seller has given or is deemed to have
given said notice, either (i) notify Seller that it shall waive
said defect(s) and proceed to closing, as set out in section 3
hereof, or (ii) give Notice of Termination, provided that if Buyer
fails to give such notice, Buyer shall be deemed to have notified
Seller that it shall waive all defects and proceed to closing. If
any new matters come to the attention of the Title Company after
the close of the Review Period but prior to the Closing Date which
would constitute exceptions on Buyer's title policy, Seller shall
promptly notify Buyer of such matters and Buyer shall have five (5)
business days in which to determine if such new exceptions are
acceptable or objectionable, and if necessary, the Review Period
shall be extended only for this purpose until the completion of
such five (5) business days.
Upon receipt of Notice of Termination the Deposit shall be
refunded and this Agreement shall become null and void, and neither
party shall be liable to the other for damages or otherwise, except
as otherwise expressly provided herein.
5. Condition of Premises. Buyer and Seller agree that, subject to
section 5A below, Buyer is acquiring the Premises and any related
personal property in their "AS IS" condition, WITH ALL FAULTS, IF
ANY, AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED. Neither Seller
nor any agents, representatives, or employees of Seller have made
any representations or warranties, direct or indirect, oral or
written, express or implied, to Buyer or any agents,
representatives, or employees of Buyer with respect to the
condition of the Property, their fitness for any particular
purpose, or their compliance with any laws, and Buyer is not aware
of and does not rely upon any such representation to any other
party. Buyer acknowledges that the Purchase Price might be higher
if Buyer were not acquiring the Property in "as is" condition.
Buyer acknowledges that it either has had or will have before the
Date of Closing the opportunity to make such inspections (or have
such inspections made by consultants) as it desires of the Property
and all factors relevant to its use, including, without limitation,
the interior, exterior, and structure of all improvements, and the
condition of soils and subsurfaces (particularly with respect to
the presence or absence of hazardous substances).
After its inspections are completed, Buyer shall restore the
Premises and personal property to their condition prior to Buyer's
inspections. Buyer agrees to indemnify Seller for all claims or
damages arising out of Buyer's inspections, including, without
limitation, claims for personal injury or property damage, and
including all costs and attorneys' fees. The obligations in this
paragraph shall survive the Closing or the termination of this
Agreement for any reason, including without limitation pursuant to
section 4, 9, or 14 hereof.
Buyer hereby releases Seller and its agents, representatives,
and employees from any and all claims, demands, and causes of
action, past, present, and future, that Buyer may have relating to
(i) the condition of the Premises and the personal property at any
time, before or after the Date of Closing, including, without
limitation, the presence of any hazardous substance, or (ii) any
other matter pertaining to the Premises or the personal property.
This release shall survive the Closing or the termination of this
Agreement for any reason. This release shall not apply to (x) any
presence or release of hazardous substances which first occurred
while Seller owned the Premises, and of which Buyer, after having a
phase I environmental site assessment performed on the Premises,
has no knowledge, or (y) any administrative or judicial action
brought against Buyer, without Buyer's instigation, by an unrelated
third party or governmental entity, relating to a condition or
event that occurred while Seller owned the Premises, in which
action Buyer may file a third party complaint or similar pleading
against Seller.
Seller shall deliver possession to Buyer, subject to the
matters set forth in section 7(a)(1) hereof, not later than the
Date of Closing, provided that all the terms and conditions of this
Agreement have been complied with. Seller until the Date of
Closing shall maintain, repair (subject to section 9 hereof),
manage, and operate the Premises in a businesslike manner in
accordance with Seller's prior practices; shall comply with its
contractual obligations as owner of the Premises; shall maintain
the types and amounts of insurance that are in force on the date of
execution hereof; and shall not dissipate the Premises or remove
any material property therefrom, except in the ordinary course of
business.
Between the date hereof and the Date of Closing, Seller will not
execute any new Leases or materially amend, terminate (except upon
a default by the tenant thereunder) or accept the surrender of any
existing tenancies or approve any subleases without the prior
consent of Buyer; provided however that Seller is authorized to
accept the termination of Leases at the end of their existing terms
and to expand, extend or renew any Leases pursuant to expansion,
extension or renewal options contained therein. With respect to
all new Leases executed after the Review Period expires which Buyer
has approved pursuant to this section 5, which new Leases require
the construction of tenant improvements after the date hereof
and/or the payment of leasing or brokerage commission(s) by
landlord, including without limitation brokerage commissions upon
the exercise by the tenant thereunder of an expansion, extension or
renewal option contained in such tenant's lease, Buyer shall: (a)
pay, and/or reimburse Seller at Closing for the paid portion of,
the cost of such improvements and such leasing or brokerage
commission(s) and any other costs associated with such Lease; and
(b) assume all of Seller's obligations as landlord thereunder with
respect to the payment of tenant improvements and brokerage
commissions after Closing. The failure of Buyer to notify Seller
of Buyer's consent or disapproval, within forty-eight (48) hours
after written request by Seller for such consent, to any Lease or
lease amendment submitted by Seller to Buyer after the expiration
of the Review Period shall be deemed to constitute Buyer's
disapproval.
5A. Representations and Warranties. (a) Seller represents and
warrants to Buyer as follows:
(1) Seller is an insurance company, duly organized, validly
existing, and in good standing under the laws of the Commonwealth
of Massachusetts and the State in which the Premises are located.
(2) Seller has all requisite power and authority to execute and
deliver this Agreement and to carry out its obligations hereunder
and the transactions contemplated hereby. This Agreement has been,
and the documents contemplated hereby will be, duly executed and
delivered by Seller and constitutes the Seller's legal, valid, and
binding obligation enforceable against Seller in accordance with
its terms. The consummation by Seller of the sale of the Premises
is not in violation of or in conflict with, nor does it constitute
a default under any term or provision of, the organizational
documents of Seller, or any of the terms of any agreement or
instrument to which Seller is a party, or by which Seller is bound,
or any provision of any applicable law, ordinance, rule, or
regulation of any governmental authority or any provision of any
applicable order, judgment, or decree of any court, arbitrator, or
governmental authority.
(3) Except as listed on Exhibit E hereto, to the best of Seller's
knowledge, Seller has not received, with respect to the Premises,
any notices from (i) any governmental agency of any violations of
building codes and/or zoning ordinances or other governmental laws,
regulations, or orders, (ii) any governmental agency of any pending
or threatened condemnation proceedings, or (iii) any party of
pending or threatened litigation affecting the Premises in any way.
(4) To the best of Seller's knowledge, the list attached hereto as
Exhibit B is a true and complete list of all tenants and their
security deposits at the Premises, the leases to be provided by
Seller to Buyer during the Review Period are true and complete
copies of all existing leases for space at the Premises, and Seller
has paid all leasing commissions incurred by Seller as owner of the
Premises.
(5) To the best of Seller's knowledge, the list attached hereto as
Exhibit C is a true and complete list of all service and management
contracts affecting the Premises, and the contracts to be provided
by Seller to Buyer during the Review Period are true and complete
copies of all existing service and management contracts for the
Premises.
(6) To the best of Seller's knowledge, Seller has received no
notice of the presence of any hazardous substances, as defined by
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), 42 USC ss.9601(14), pollutants or
contaminants, as defined in CERCLA, 42 USC ss.9601(33), or hazardous
waste, as defined by the Resource Conservation and Recovery Act
("RCRA"), 42 USC ss.6903(5), or other similar applicable federal or
state laws and regulations, including, but not limited to, asbestos
and PCB's, at the Premises, except as set forth in the report
prepared by , and except for minor amounts of substances
customarily used in the maintenance of properties similar to the
Premises and maintained in accordance with applicable laws.
(b) Buyer represents and warrants to Seller as follows:
(1) Buyer is a limited partnership, duly organized, validly
existing, and in good standing under the laws of Maryland and the
State in which the Premises are located.
(2) Buyer has all requisite power and authority to execute and
deliver this Agreement and to carry out its obligations hereunder
and the transactions contemplated hereby. This Agreement has been,
and the documents contemplated hereby will be, duly executed and
delivered by Buyer and constitutes its legal, valid, and binding
obligation enforceable against it in accordance with its terms, and
the consummation and performance by Buyer of the transactions
contemplated herein will not result in a violation of or be in
conflict with or constitute a default under any term or provision
of the organizational documents of Buyer, or any of the terms of
provisions of any agreement or instrument to which it is a party,
or by which it is bound, or of any term of any applicable law,
ordinance, rule or regulation of any governmental authority or of
any term of any applicable order, judgment, or decree of any court,
arbitrator, or governmental authority.
(c) The above-stated representations and warranties will
survive the Closing for a period of one year, before the expiration
of which the party claiming a breach must have filed an action in a
court of competent jurisdiction, and any representation and
warranty not specified in such action shall expire. Buyer
acknowledges that Seller has maintained no employees at the
Premises and that the Premises have during Seller's ownership
thereof always been managed by a third-party manager, and that
Seller has relied upon such manager for knowledge and notice. The
words "to the best of Seller's knowledge" in this section 5A mean
to the actual knowledge of Xxxx Xxxxxxxx and Xxxxx Xxxxxx, the two
employees of Seller who are most familiar with the Premises and who
have had the most contact with the management company.
(d) Indemnification. Seller shall indemnify Buyer against
and hold Buyer harmless from any and all loss, cost, damage, claim,
liability or expense, including court costs and reasonable
attorneys' fees, for third party claims relating to the Premises
and arising out of or in connection with any act or omission of
Seller prior to closing (including any personal injury or property
damage of any kind whatsoever, including death, to property or
persons including employees and agents of Seller), unless caused by
Buyer. Buyer shall indemnify Seller against and hold Seller
harmless from any and all loss, cost, damage, claim, liability or
expense, including court costs and reasonable attorneys' fees, for
third party claims relating to the Premises and arising out of or
in connection with any act or omission of Buyer as a result of its
investigation of the Premises during the Review Period or
subsequent to the Closing (including any personal injury or
property damage of any kind whatsoever, including death, to
property or persons including employees and agents of Buyer),
unless caused by Seller. These covenants shall survive the
Closing.
5B. Conditions Precedent. (a) Conditions Precedent to Buyer's
Obligation to Close Escrow. The obligation of Buyer to consummate
the transactions contemplated hereby is subject to the following
conditions, inserted for Buyer's sole benefit and that may be
waived by Buyer only in writing at its sole option. Said
conditions are as follows:
1. Representations and Warranties True at Closing. The
representations and warranties of Seller contained in section 5A 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.
2. Delivery of Tenant Estoppels. Seller shall have delivered
to Buyer estoppel letters (the "Tenant Estoppels") from tenants
representing 85% of the leased area and from all tenants leasing
more than 3,500 square feet in the Premises in substantially the
form of Exhibit D attached hereto and forming a part hereof,
consistent in all material respects with the information to be
provided by Seller hereunder and certifying, inter alia, to the
effect that there are no defaults by landlord under the lease known
to tenant thereunder; that such lease is unmodified, except as may
be set forth therein, and in full force and effect; that there are
no defenses or offsets against the landlord known to tenant
thereunder; and that rental is current and has not been paid more
than one month in advance.
(b) 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 by Seller
only in writing at its sole option. Said conditions are as
follows:
1. Representations and Warranties True at Closing. The
representations and warranties of Buyer contained in section 5A 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.
2. Delivery of Purchase Price and Documents. Buyer shall
have delivered all funds and documents to the Title Company
required by it hereunder to enable it to close pursuant to the
terms of this Agreement.
6. Adjustments and Prorations. All taxes, including, without
limitation, real estate taxes and personal property taxes,
collected rents, charges for utilities, including water, sewer, and
fuel oil, and for utility services, maintenance services,
maintenance and service contracts, all operating costs and
expenses, and all other income, costs, and charges of every kind
which in any manner relate to the operation of the Premises (but
not including insurance premiums) shall be prorated to the Date of
Closing, except that if Seller does not receive the Purchase Price
(by receipt of wired funds or by receipt in hand of an official
bank cashier's check) by 1 o'clock P.M., Boston time on the Date of
Closing, all prorations shall be made as of the following business
day. Rents shall be prorated on an as-collected basis, with first
rents collected after the Date of Closing credited toward current
rent, if owed, and the balance to delinquencies. The Buyer shall
receive credit for any post-closing unamortized rental concessions
granted by Seller prior to the date of this Agreement. Buyer shall
use reasonable efforts to assist the Seller in collecting
delinquent rent, but shall not be required to file an action for
the delinquency. Buyer shall receive a credit for all security
deposits set forth on Exhibit B. If the amount of said taxes,
assessments, or rents is not known on the Date of Closing, they
shall be apportioned on the basis of the amounts for the preceding
year, with a reapportionment as soon as the new amounts can be
ascertained. If such taxes and assessments shall thereafter be
reduced by abatement, the amount of such abatement, less the
reasonable cost of obtaining the same, shall be apportioned between
the parties, provided that neither party shall be obligated to
institute or prosecute proceedings for an abatement unless
otherwise agreed. Buyer shall be responsible for the payment of
any assessments or notice of assessments made after the date of
execution hereof for any public improvement, provided Buyer takes
title hereunder. Any deposits on utilities paid by Seller shall be
returned to Seller. The foregoing provisions of this section shall
not apply to any taxes, assessments, or other payments which are
directly payable by tenants under their leases or reimbursable by
such tenants to the owner of the Premises, as landlord, under their
leases. On the Date of Closing, Seller shall deliver to Buyer all
inventories of supplies on hand at the Premises owned by Seller, if
any, at no additional cost to Buyer.
7. Closing Documents. (a) Seller's Deliveries. Conditioned upon
performance by Buyer hereunder, Seller shall execute and deliver to
Buyer at the Closing the following documents ("Seller's Closing
Documents"):
(1) Deed. A grant deed conveying marketable title to the
Premises subject to the following:
(A) All easements, conditions, restrictions, and reservations
of record set forth on the Schedule B of a pro forma title
policy from the Title Company, including all private and
public rights in highways and rights-of-way;
(B) All building and zoning laws, ordinances, and State and
Federal regulations;
(C) Encroachments and all other matters that an accurate
survey might show, provided that the same do not unreasonably
interfere with the use of the Premises as an office building;
(D) Rights of tenants in possession as tenants only; and
(E) Real estate taxes and all installments of special
assessments or levies not yet due and payable on the Date of
Closing.
(2) Xxxx of Sale. A xxxx of sale, assigning and transferring
to Buyer all of the right, title, and interest of Seller in and to
all tangible personal property, if any, owned by Seller and located
upon the Premises.
(3) Assignment of Leases. An assignment of leases, tenancies,
and security deposits, which will include an indemnification by
Seller of Buyer for all landlord obligations accruing prior to the
Date of Closing.
(4) Assignment of Service Contracts. An assignment of
maintenance and service contracts, which will include an
indemnification by Seller of Buyer for all owner obligations
accruing prior to the Date of Closing.
(5) Non-Foreign Certificate. A certification that Seller is
not a non-resident alien (a foreign corporation, partnership,
trust, or estate as defined in the Internal Revenue Code and
Treasury Regulations promulgated thereunder).
(b) Buyer's Deliveries. Conditioned upon performance by Seller
hereunder, Buyer shall execute and deliver to Seller at the Closing
the following documents:
(1) Assumption of Leases. An assumption of leases, tenancies,
and security deposits, which will include an indemnification by
Buyer of Seller for all landlord obligations accruing on or after
the Date of Closing.
(2) Assumption of Service Contracts. An assumption of
maintenance and service contracts, which will include an
indemnification by Buyer of Seller for all owner obligations
accruing on or after the Date of Closing.
(c) Other Closing Documents and Deliveries. Each party shall
deliver to the other party or the Title Company such duly executed
and acknowledged or verified certificates, affidavits, and other
usual closing documents respecting the power and authority to
perform the obligations hereunder and as to the due authorization
thereof by the appropriate corporate, partnership, or other
representatives acting for it, as counsel for the other party or
the Title Company may reasonably request. Seller shall cause
tenant notices to be sent out at Closing. Seller shall deliver
keys and personal property located on the Premises and used in the
operation of the Premises at the Closing.
8. Costs. Buyer and Seller shall each pay one-half of the escrow
fee, while Seller shall pay the documentary transfer tax (city and
county) and the CLTA portion of the title premium, plus the cost of
any specific endorsements Seller agrees to obtain to cure specific
title objections of the Buyer. Buyer shall pay the balance of the
title premium charges and the cost of recording the deed and other
transfer documents. Buyer shall pay its attorneys' fees, and the
fees and costs of any other professionals or consultants. Seller
shall pay its attorneys' fees, if any, incurred by Seller in
connection with this transaction, and the Broker's commission, but
only if, as, and when the transaction contemplated hereby is fully
consummated and the deed is recorded and the full consideration
therefor has been received by Seller.
9. Casualty or Condemnation. In the event that prior to the Date
of Closing either the improvements on the Premises are damaged or
destroyed, in whole or in part, by fire or other cause, or any
portion of the Premises becomes the subject of a condemnation
proceeding by a public or quasi-public authority having the power
of eminent domain, then either (a) the parties shall proceed with
the transaction contemplated herein, in which event Buyer shall be
entitled to receive any insurance proceeds or condemnation awards,
or (b) in the event such damage, destruction, or condemnation
involves, in the reasonable estimation of Seller, a loss in an
amount in excess of ten per cent (10%) of the Purchase Price, or
loss of all or a material portion of access to the Premises, either
party, at its option, may terminate this Agreement by notice to the
other within ten (10) days of Buyer's receipt of Seller's notice of
such damage or proceeding, in which case the Deposit shall be
refunded, and thereafter neither party shall have any further
obligation or liability to the other by virtue of this Agreement,
except as otherwise expressly provided herein.
10. Insurance. Seller shall not be obligated to assign to Buyer
any fire, hazard, or liability insurance policies which it holds
respecting the Premises, and Seller shall have the right to any and
all refunds or rebates resulting from the termination of such
policies.
11. Broker's Commission. Buyer and Seller each hereby warrants
and represents to the other that it has dealt with no broker or
finder in connection with this transaction except Westmac and
Xxxxxxx and Xxxxxxxxx ("the Brokers"), and that it is not
affiliated with the Brokers in any way. Buyer and Seller each
hereby agrees to indemnify and hold the other harmless from and
against any and all claims for brokerage or finder's fees or other
similar commissions or compensation made by any and all other
brokers or finders claiming to have dealt with the indemnifying
party in connection with this Agreement or the consummation of the
transaction contemplated hereby. The obligations in this section
shall survive the Closing or the termination of this Agreement for
any reason, including without limitation pursuant to section 4, 9,
or 14 hereof.
12. Seller's Performance. The acceptance of Seller's Closing
Documents by Buyer shall be deemed to be a full performance and
discharge of every agreement and obligation of Seller herein
contained and expressed, except such as are, by the terms hereof,
to be performed after the delivery of said instruments.
13. Recording Prohibited. This Agreement shall not be recorded
with Los Angeles County Records or in any other office or place of
public record. If Buyer shall record this Agreement or cause or
permit the same to be recorded, Seller may, at its option, elect to
treat such act as a default by Buyer under this Agreement.
14. Remedies. If Seller defaults under this Agreement, Buyer's
sole remedy, at law or in equity, shall be one of either (a) the
return of the Deposit to Buyer, whereupon the obligations of Seller
under this Agreement shall terminate; or (b) the right to obtain
specific performance of Seller's obligation to convey the Premises
pursuant to this Agreement, provided that in no event shall Seller
be obliged to cure defects objected to by Buyer pursuant to section
4 hereof. In no event shall any officer, director, employee,
agent, or representative of Seller have any personal liability in
connection with this Agreement or transaction.
BUYER ACKNOWLEDGES THAT IF IT FAILS TO PURCHASE THE PREMISES AS THE
RESULT OF BUYER'S DEFAULT UNDER THIS AGREEMENT SELLER SHOULD BE
ENTITLED TO COMPENSATION FOR THE DETRIMENT RESULTING THEREFROM, AND
THEREFORE THE PARTIES AGREE AS FOLLOWS: IF BUYER SHALL DEFAULT IN
ITS OBLIGATIONS TO PURCHASE THE PREMISES, SELLER SHALL BE ENTITLED
TO RETAIN AS AND FOR ITS OWN PROPERTY, AS LIQUIDATED DAMAGES AND
NOT AS A PENALTY, AN AMOUNT EQUAL TO THE DEPOSIT, TOGETHER WITH ANY
AND ALL EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) THAT SELLER
MAY INCUR IN COLLECTING SUCH LIQUIDATED DAMAGES. BOTH PARTIES
ACKNOWLEDGE AND AGREE THAT SAID AMOUNT IS PRESENTLY A REASONABLE
SUM CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF
THIS AGREEMENT, INCLUDING THE RELATIONSHIP OF THE SUM TO THE RANGE
OF HARM TO SELLER THAT REASONABLY COULD BE ANTICIPATED AND THE
ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR
INCONVENIENT. IN PLACING THEIR INITIALS AT THE PLACES PROVIDED,
SELLER /s/ JMG BUYER /s/ VJC
EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS
MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL
WHO EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION
AT THE TIME THIS AGREEMENT WAS MADE. BOTH PARTIES AGREE THAT THIS
SUM STATED AS LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER
RELIEF TO WHICH SELLER MIGHT OTHERWISE BE ENTITLED BY VIRTUE OF
THIS AGREEMENT OR OPERATION OF LAW.
Nothing in this section 14 shall limit the express provisions
of this Agreement obligating one party hereto to indemnify the
other or to restore the Premises, including without limitation
sections 5 and 11 hereof.
15. Assignment. This Agreement may not be assigned by Buyer
without the express written consent of Seller, which consent Seller
may in its sole discretion withhold, except that Buyer may, without
Seller's consent, assign this Agreement to a limited partnership of
which Buyer (or a principal of Buyer) or any parent or any wholly
owned subsidiary of Buyer are the sole general partners. No such
assignment shall operate to relieve Buyer from any obligation
hereunder.
16. Waiver. No waiver of any breach of any agreement or provision
contained herein shall be deemed a waiver of any preceding or
succeeding breach of any other agreement or provision herein
contained. No extension of time for the performance of any
obligation or act shall be deemed an extension of time for the
performance of any other obligation or act.
17. Time. It is agreed that time is of the essence of this
Agreement.
18. Governing Law. This Agreement shall be construed under the
laws of the state in which the Premises are located.
19. Notices. All notices required or permitted to be given
hereunder shall be in writing and sent by overnight delivery
service (such as Federal Express), in which case notice shall be
deemed given on the day after the date sent, or by personal
delivery, in which case notice shall be deemed given on the date
received, or by certified mail, in which case notice shall be
deemed given three (3) days after the date sent, or by fax (with
copy by overnight delivery service), in which case notice shall be
deemed given on the date sent, to the appropriate address indicated
below or at such other place or places as either Buyer or Seller
may, from time to time, respectively, designate in a written notice
given to the other in the manner described above.
To Seller: c/o The Real Estate Investment Group
Xxxx Xxxxxxx Xxxxx, X.X. Xxx 000
Xxxxxx, XX 00000
Re: File No. ______________
Attention: Xxxx Xxxxxxxx, Investment Officer
Fax No.: (000) 000-0000 or 3866
With Copy To: Xxxx Xxxxxxx Mutual Life Insurance Company
Law Department (T-50)
Xxxx Xxxxxxx Xxxxx, X.X. Xxx 000
Xxxxxx, XX 00000
Re: File No. ______________
Attention: Xxxxxx Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000 or 9269
To Buyer: Arden Realty Limited Partnership
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Ms. Brig Troy
Fax No.: (000) 000-0000
With Copy To: Xxxxxxx X. Xxxxxx, Esq.
Xxxx & Xxxxx
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
Fax No.: (000) 000-0000
20. Confidentiality. Buyer shall not disclose the financial and
economic terms and conditions of the transaction contemplated
herein except as may be necessary in the ordinary course of its
business. All press releases or other dissemination of information
to the media, or responses to requests from the media, for
information relating to the transaction contemplated herein shall
be subject to the prior written approval of Seller; provided that,
following the Closing, Seller's approval shall not be unreasonably
withheld or delayed. The obligations in this section shall survive
the Closing or termination of this Agreement for any reason.
21. Seller's Approvals. Seller's obligation to close hereunder
shall be conditioned upon the approval of this transaction by
Seller's internal committees. If on or before the last day of the
Review Period Seller has not notified Buyer that such approval has
been granted, such approval shall be deemed not to have been
granted; if approval is not granted, the Deposit shall be refunded
and this Agreement shall terminate, and neither party shall be
liable to the other for damages or otherwise except as otherwise
expressly provided herein.
22. Entire Agreement. This instrument, executed in duplicate,
sets forth the entire agreement between the parties and may not be
canceled, modified, or amended except by a written instrument
executed by both Seller and Buyer.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed the day and year first above written.
SELLER:
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Investment Office
BUYER:
ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: ARDEN REALTY GROUP, INC.,
a Maryland corporation,
its sole general partner
By:/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
