PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
THIS PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
("Agreement") is made as of January 30, 1998, by and between
XXXXXX XXXXXX PROPERTIES, LIMITED PARTNERSHIP, a Delaware limited
partnership ("Seller"), and ARDEN REALTY, INC., a Maryland
corporation ("Buyer"), as follows:
1. Purchase and Sale. Upon all the terms and
conditions contained herein, Buyer hereby agrees to purchase from
Seller and Seller agrees to sell to Buyer the fee simple interest
in that certain real property (the "Property") (a) located within
the area commonly referred to as Xxxxxx Xxxxxx Center (the
"Center") and known as the location of the Spectrum Club,
(b) consisting of approximately .53 acres and all entitlements
and associated amenities, and (c) depicted and/or described on
Exhibit A attached hereto and incorporated herein by this
reference. Buyer hereby also agrees to purchase from Seller and
Seller agrees to assign to Buyer Seller's interest in the
Personal Property and the Intangible Property (as said Properties
are defined in the Xxxx of Sale And Assignment attached hereto as
Exhibit E and incorporated herein by this reference [the "Xxxx of
Sale"]).
2. Opening of Escrow. Concurrently with the
execution of this Agreement, Seller and Buyer shall open an
escrow (the "Escrow") with Xxxxxxx Title Company at 000 Xxxxx
Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 (the
"Escrow Holder") by delivering a fully executed copy of this
Agreement, or fully executed counterparts thereof, to Escrow
Holder. Escrow shall be deemed open upon Escrow Holder's
receipt thereof. Escrow Holder will execute copies of this
Agreement and return fully executed copies hereof to Buyer and
Seller when Escrow has opened. In addition, the parties agree to
be bound by the standard escrow General Provisions attached
hereto as Exhibit B and incorporated herein by this reference.
In the event of any discrepancy between this Agreement and such
General Provisions, the provisions of this Agreement shall
prevail.
3. Closing of Escrow. The closing (the "Closing") of
the purchase and sale of the Property shall take place through
Escrow on March 31, 1998 (the "Closing Date"), provided that the
conditions to Closing set forth herein have been satisfied. If
the Closing has not occurred on or before the Closing Date, then
this Agreement shall automatically terminate (and, subject to the
immediately succeeding sentence, Section 8 below shall apply)
unless the parties mutually agree to the contrary in writing. No
such termination shall relieve any party from liability due to
any breach or default under this Agreement by such party prior to
the time of such termination.
4. Purchase Price. The purchase price for the
Property, the Personal Property and the Intangible Property
(the "Purchase Price") shall be Ten Million Dollars
($10,000,000); provided, however, that if the owner and
operator of the Spectrum Club (the "Club Owner") exercises
its right of first offer under section 52 of that certain
Athletic Club Ground Lease applicable to the Property (the
"Ground Lease") to acquire the Property, the Purchase Price
shall at Closing be deposited by Escrow Holder in an
interest bearing account or other investment instrument
designated by Buyer, pending the closing of the purchase and
sale of the Property to the Club Owner. All interest earned
on the Purchase Price shall be credited to the account of
Buyer. If the Club Owner completes the purchase of the
Property, Escrow Holder shall promptly return the Purchase
Price to Buyer, together with all interest earned thereon.
If the Club Owner fails to complete the purchase of the
Property in accordance with said section 52 of the Ground
Lease, Seller shall so notify Buyer and Escrow Holder in
writing and Escrow Holder shall promptly record Seller's
Grant Deed to Buyer with respect to the Property, shall
deliver the Xxxx of Sale to Buyer, shall deliver fully
executed copies of the Assignment And Assumption Agreement
(as defined herein) to Buyer and Seller and record a fully
executed copy thereof, shall cause the Title Policy (as
defined below) to be delivered to Buyer and shall release
the Purchase Price to Seller in accordance with Seller's
instructions; provided, however, the Purchase Price shall
not be released to Seller unless and until the Title Policy
can be delivered to Buyer.
The Purchase Price shall be payable as follows:
(i) Deposit. Concurrently with the
execution of this Agreement, Buyer shall deposit into
Escrow cash in the amount of Two Hundred Fifty Thousand
Dollars ($250,000). Escrow Holder is hereby instructed
to deposit such amount (the "Deposit") in an interest
bearing account or other investment instrument
designated by Seller. All interest earned on the
Deposit shall be credited to the account of Seller and
shall be non-refundable under all circumstances. Upon
the satisfaction of the conditions to Buyer's
obligation to purchase the Property set forth in
Sections 6(a) and 6(b) below, the Deposit shall become
non-refundable, subject to the satisfaction of the
conditions set forth in Sections 6(c) and 6(d) below,
and shall be credited towards the Purchase Price. If
the Deposit becomes non-refundable as aforesaid, it
shall continue to be held by Escrow Holder to be
applied against the Purchase Price concurrently with
the Closing.
(ii) Cash at Closing. The remainder of the
Purchase Price shall be deposited into Escrow, in cash
or by wire transfer of immediately available federal
funds, by Buyer at or prior to Closing.
5. Costs and Prorations.
(a) Escrow and Title Fees. Buyer and Seller
shall each pay one-half (1/2) of the Escrow fees. Seller shall
bear the cost of (i) all documentary transfer taxes, (ii) the
premium which would be required for the Title Policy issued by
the Title Company (as defined below) insuring Buyer in the amount
of the Purchase Price, and (iii) the cost of the ALTA survey
required for the Title Policy. Buyer shall bear the cost of
recording the Grant Deed (as defined in Section 9(a) below). All
other costs or expenses not otherwise provided for in this
Agreement shall be apportioned or allocated between Buyer and
Seller in the manner customary in Los Angeles County, California.
(b) Taxes and Assessments. All current real
property taxes and all payments on general and special bonds and
assessments on the Property shall be prorated through Escrow
between Buyer and Seller as of Closing based upon the latest
available tax information, using the customary escrow procedures.
Any taxes levied under the Supplemental Tax Roll applicable to
the period prior to the Closing Date shall be paid by Seller and
any such taxes applicable to the period from and after the
Closing Date shall be paid by Buyer.
(c) Rents, Revenues and Expenses. All rents,
revenues and expenses relating to the Ground Lease shall be
prorated through Escrow between Buyer and Seller as of the
Closing based upon a proration statement prepared by Buyer,
approved by Seller and delivered to Escrow Holder prior to
Closing. Buyer shall not be required to pay to Seller at the
Closing any delinquent rents under the Ground Lease; rather,
Seller's share of delinquent rents, if any, shall be paid to
Seller if, as and when received by Buyer. Rents received after
the Closing will be applied first to the then most recently
accrued obligation of the tenant under the Ground Lease.
6. Buyer's Conditions to Closing. The obligation of
Buyer to complete the purchase of the Property is subject to
satisfaction of the conditions set forth below which conditions
shall be for the benefit of Buyer. Buyer's obligation to
complete the purchase of the Property is subject to the
satisfaction of the conditions set forth in Sections 6(a) and
6(b) on or before the date (the "Contingency Date") that is
thirty (30) days after the later of (a) execution of this
Agreement by both Buyer and Seller, or (b) delivery to Buyer of
all of the items set forth in Section 6(a) below. Buyer's
obligation to complete the purchase of the Property is subject to
the satisfaction of the conditions set forth in Sections 6(c) and
6(d) as of the Closing. Upon the failure of any such condition
to be satisfied in a timely manner, Buyer may terminate this
Agreement.
(a) Buyer shall have had opportunity to
review at Seller's office in Los Angeles (and Seller shall make
copies for Buyer upon Buyer's written request) and approve each
of the following (collectively, the "Items"):
(1) A current preliminary title report (the
"Preliminary Report") including the legal
description of the Property, together with copies
of all documents referred to therein, prepared by
Xxxxxxx Title Company (the "Title Company"). If
Buyer timely gives Seller notice of any
disapproved exceptions set forth in the
Preliminary Report, Seller may cause such
exceptions to be removed, but if Seller is
unwilling or unable to cause such exceptions to be
removed, then either party may terminate this
Agreement;
(2) Evidence that the Property complies with
the Subdivision Map Act of California;
(3) A current ALTA Survey of the Property;
(4) Copies of all agreements relating to the
Property, including but not limited to the
Development Agreement, the Tract Map (as defined
in Section 15 below), the Articles of
Incorporation and Bylaws of the Association, the
CC&Rs (as defined in Section 13(c) below), the
Ground Lease, and all amendments to the foregoing
and documents referenced therein;
(5) All plans, structural drawings,
architectural drawings, and any soils, structural,
geological, environmental, hazardous materials and
asbestos studies or reports relating to subsurface
conditions, grading plans, topographical maps and
similar data respecting the Property;
(6) Copies of property tax bills for the
last two (2) years and copies of the most recently
available utility bills and similar records
respecting the Property;
(7) A certificate of Seller certifying to
Seller's knowledge that there is no legal or
administrative action, proceeding, claim,
arbitration or suit pending before any court,
agency or official, nor any such claim or action
threatened in writing, relating to the Property or
with respect to the validity of any statutes,
ordinances, regulations or restrictions or any
permits or approvals thereunder relating to the
Property, nor any outstanding contingent
liabilities affecting the Property.
(b) During the period ending on the Contingency Date
(the "Contingency Period"), Buyer shall have the right to inspect
and approve (i) all physical, seismic and all other aspects of
the Property, (ii) each of the Items and (iii) all books,
records, correspondence, and files of Seller regarding the
Property, and to make inquiries and investigations as Buyer deems
necessary or appropriate. Seller will cause its consultants to
furnish Buyer with any information and copies of documents
reasonably requested by Buyer in writing during the Contingency
Period. In addition, the Buyer shall have the right to enter the
Property to conduct reasonable tests and inspections deemed
reasonably necessary or advisable by Buyer or its consultants
including, but not limited to, physical inspection. Buyer hereby
indemnifies and holds Seller and Seller's affiliates harmless
from any and all losses, damages, costs, liabilities and
expenses, including, without limitation, reasonable attorneys'
fees (and those fees incurred upon any appeals) and court costs
incurred or suffered by Seller, whether directly or proximately,
by the negligent or willful act or omission of Buyer or Buyer's
representatives during their inspections of the Property.
Notwithstanding the foregoing, prior to and at all times after
initially entering upon the Property for any purpose permitted by
this Agreement, Buyer shall at its expense maintain with a
reputable company or companies qualified to do business in
California and acceptable to Seller, a policy or policies of
comprehensive general liability insurance with respect to the
Property and the activities of or on behalf of Buyer on or about
the Property. Such policy or policies shall (i) name Seller as
an additional insured and include an effective waiver by the
issuer of all rights of subrogation against such additional
insured and (ii) provide that any losses shall be payable
notwithstanding any act or failure to act or negligence of Buyer
or Seller or any other person or entity. The minimum amount of
such insurance shall be $2,000,000 per person and $2,000,000 per
accident. Prior to entering onto the Property, Buyer shall
deliver to Seller a certificate of insurance evidencing that the
foregoing insurance is in full force and effect.
(c) All of Seller's covenants required to have
been performed by the Closing shall have been so performed,
and all representations and warranties of Seller shall be
current as of the Closing.
(d) Seller shall have complied with all of its
obligations under that certain Purchase Agreement And Escrow
Instructions dated as of January 30, 1998, by and between Buyer
and Seller covering the Xxxxxx Parcels, the Hotel Parcels and the
Remainder Parcels (as each of such Parcels are defined in such
Purchase Agreement And Escrow Instructions), and the Closing
under such Purchase Agreement And Escrow Instructions shall be in
a position to occur concurrently with the Closing under this
Agreement.
Approval of the conditions set forth in Sections
6(a) and 6(b) above (which approval shall be in Buyer's sole
and absolute discretion) shall be in writing signed by
Buyer. Failure of Buyer to approve any Items on or before
the Contingency Date conclusively shall be deemed to
constitute Buyer's disapproval thereof. In that event, this
Agreement shall automatically terminate and the Deposit
shall be returned to Buyer.
7. Seller's Conditions to Closing. The obligation of
Seller to complete the sale of the Property is subject to
satisfaction of the conditions set forth below on or before the
Closing Date, which conditions shall be for the benefit of
Seller. Upon failure of any such condition to be satisfied in a
timely manner, Seller may terminate this Agreement.
(a) Buyer shall have deposited into Escrow in the
manner and at the time required under this Agreement, the Deposit
and the remainder of the Purchase Price.
(b) Buyer shall have executed the Assignment And
Assumption Agreement (as defined in Section 9(a) below) and
deposited the same into Escrow in a timely manner.
(c) All of Buyer's covenants required to be performed
by the Closing shall have been so performed, and all
representations and warranties of Buyer shall be current as of
the Closing.
(d) Buyer shall have complied with all of its
obligations under that certain Purchase Agreement And Escrow
Instructions dated as of January 30, 1998, by and between Buyer
and Seller covering the Xxxxxx Parcels, the Hotel Parcels and the
Remainder Parcels (as each of such Parcels are defined in such
Purchase Agreement And Escrow Instructions), and the Closing
under such Purchase Agreement And Escrow Instructions shall be in
a position to occur concurrently with the Closing under this
Agreement.
8. Termination. If this Agreement automatically
terminates or if Buyer or Seller elects to terminate this
Agreement as provided above in Section 6 or Section 7, the
electing party shall send written notice thereof to the other
party and Escrow Holder. Upon receipt of such notice, Escrow
Holder shall return all funds deposited into Escrow and any
documents held by Escrow Holder to the parties depositing same.
All title and Escrow cancellation charges, if any, shall be
shared equally by Buyer and Seller. Upon return of such funds
and documents by Escrow Holder and, if applicable, by Seller and
subject to Section 12 below, the parties hereto shall have no
further rights or obligations under this Agreement, which shall
be deemed canceled for all purposes.
9. Documents at Closing.
(a) Ground Lease Assumed by Buyer. Seller
represents and warrants that a true, complete and correct copy
of the Ground Lease including all amendments thereto, is included
in the "Key Documents Binder" (as hereinafter defined). Buyer
acknowledges that Buyer shall be required to assume all of
Seller's obligations under the Ground Lease. In order to
accomplish the foregoing assignment and assumption, Buyer and
Seller shall each, prior to Closing, execute and deliver into
Escrow the Assignment and Assumption Agreement attached hereto
and incorporated herein as Exhibit C (the "Assignment And
Assumption Agreement").
(b) Transfer and Possession. Seller shall
deliver through Escrow an executed and recordable Grant Deed in a
form sufficient to convey good title to Buyer (the "Grant Deed"),
subject only to the exceptions described in the next following
subsection. Seller shall also deliver through Escrow the
executed Xxxx of Sale. When all required funds and instruments
have been deposited into Escrow by the appropriate parties and
when all other conditions to Closing have been fulfilled, Escrow
Holder shall record the Grant Deed, shall deliver the Xxxx of
Sale to Buyer and shall deliver fully executed copies of the
Assignment And Assumption Agreement to Buyer and Seller. Buyer
shall not be entitled to possession of the Property until the
Grant Deed has been so recorded.
(c) Title. Seller shall cause the Title Company
to be prepared or committed to deliver to Buyer an extended
coverage ALTA Owner's Policy of Title Insurance (with such
endorsements as Buyer shall reasonably require) dated as of
Closing (the "Title Policy"). The Title Policy shall insure
Buyer in an amount equal to the Purchase Price, and show title
vested in Buyer subject only to:
(i) The usual printed Title Company
exceptions applicable to an ALTA Owner's Policy;
(ii) All exceptions shown on the Preliminary
Report and not disapproved of by Buyer or not removed
by Seller pursuant to Section 6(a)(1) above; and
(iii) All other exceptions approved in
writing by Buyer.
10. Assignment. Buyer shall not assign its rights or
interests hereunder without Seller's prior written consent, which
consent may be withheld by Seller in its sole discretion.
Notwithstanding the foregoing, Buyer may assign its rights and
interests hereunder, without Seller's prior written consent, to
any Affiliate of Buyer. As used herein, "Affiliate of Buyer"
means a corporation, partnership or limited liability company of
which at least 20% of the interests are owned directly or
indirectly, by Arden Realty, Inc. or Arden Realty Limited
Partnership. Any attempted assignment made in violation of this
Section shall be null and void.
11. Time of Essence and Defaults.
(a) Time of Essence. Time is of the essence of
every provision of this Agreement in which time is an element.
Failure by one party to perform any obligation within the time
and on the terms and conditions required hereunder shall
discharge the other party's duties and obligations to perform
hereunder upon written notice or demand from the other party.
(b) Liquidated Damages. IF ESCROW DOES NOT CLOSE
DUE TO BUYER'S FAILURE TO DEPOSIT ANY REQUIRED SUMS BY THE
PRESCRIBED TIME OR TO PERFORM ANY OTHER ACT WHEN DUE HEREUNDER,
WHICH FAILURE SHALL BE DEEMED A MATERIAL BREACH OF AN OBLIGATION
OF BUYER TO BE PERFORMED UNDER THIS AGREEMENT, THEN SELLER SHALL
RETAIN ALL SUMS THEN HELD BY ESCROW HOLDER PURSUANT TO THE TERMS
OF THIS AGREEMENT, TOGETHER WITH INTEREST EARNED THEREON, AS
LIQUIDATED DAMAGES, WHICH AMOUNT IS THE BEST ESTIMATE BY THE
PARTIES OF THE DAMAGES SELLER WOULD SUFFER FROM SUCH BREACH, IT
BEING AGREED THAT IT IS EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE
AND IMPRACTICABLE, TO FIX THE EXACT AMOUNT OF DAMAGE WHICH WOULD
BE INCURRED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER.
THEREUPON ESCROW SHALL BE CANCELED AS PROVIDED ABOVE, ALL
INSTRUMENTS SHALL BE RETURNED TO THE RESPECTIVE PARTIES WHO
DEPOSITED SAME, THE PARTIES SHALL COMPLY WITH SECTION 12 BELOW
AND BUYER SHALL PAY ALL TITLE AND ESCROW CANCELLATION CHARGES.
IN ADDITION, IF ALL OR ANY PORTION OF SUCH SUMS HAVE BEEN
DEPOSITED INTO ESCROW BY EITHER BUYER OR SELLER, ESCROW HOLDER IS
HEREBY IRREVOCABLY INSTRUCTED BY BUYER AND SELLER TO DISBURSE TO
SELLER ALL SUCH SUMS UPON DEMAND OF SELLER ALONE AS LIQUIDATED
DAMAGES FOR BUYER'S BREACH OR FAILURE TO COMPLETE THE PURCHASE OF
THE PROPERTY AS PROVIDED HEREINABOVE, PURSUANT TO CALIFORNIA
CIVIL CODE SECTIONS 1671 ET. SEQ.
/s/ VJC /s/ MCI
Buyer's Initials Seller's Initials
12. Further Documents and Acts. Each of the parties
hereto agrees to cooperate in good faith with each other, and to
execute and deliver such further documents and perform such other
acts as may be reasonably necessary or appropriate to consummate
and carry into effect the transactions contemplated under this
Agreement. If this Agreement is terminated for any reason, Buyer
shall return to Seller any studies, reports or other documents,
including, without limitation, the Items, previously supplied to
Buyer by Seller, and shall deliver to Seller without charge any
and all such documents which Buyer shall have obtained with
respect to the Property at any time prior to such termination.
13. Representations, Warranties and Covenants of Buyer.
(a) Sole Reliance. Except as expressly set forth
herein, Buyer represents and warrants that it is relying solely
upon its own inspection, investigation and analyses of the
Property in purchasing the Property and is not relying in any way
upon any representations, statements, agreements, warranties,
studies, reports, descriptions, guidelines or other information
or material furnished by Seller or its representatives, whether
oral or written, express or implied, of any nature whatsoever
regarding any of the foregoing matters.
(b) As Is, Where Is. Except as expressly set
forth herein, Buyer represents and warrants that it is acquiring
the Property, the Personal Property and the Intangible Property
"AS IS, WHERE IS" without representation by Seller, and that no
patent or latent condition affecting the Property in any way,
whether or not known or discoverable or hereafter discovered,
shall affect Buyer's obligation to purchase the Property or any
of Buyer's other obligations contained in this Agreement, nor
shall any such condition give rise to any right of damages,
rescission or otherwise against Seller.
(c) U. S. Land Sales Act. Buyer is informed by
Seller that the Property is currently zoned by the appropriate
governmental authority for commercial development or will be
restricted to such uses by that certain Agreement and Declaration
of Covenants, Conditions and Restrictions for Xxxxxx Xxxxxx
Center recorded June 24, 1993 as Instrument No. 00-0000000 in the
Official Records of Los Angeles County, as amended (the "CC&Rs");
that the appropriate local authorities have approved access from
the Property to a public street or highway; and that Seller
intends that this sale of the Property comply with the exemption
requirements of the Interstate Land Sales Full Disclosure Act.
Accordingly, Buyer hereby represents and warrants to Seller as
follows:
(i) It is a duly organized corporation,
partnership, trust or other business entity which is
engaged in commercial or industrial business;
(ii) It has been represented in this
transaction by an independent attorney, accountant,
real estate broker, investment advisor or other
representative of its own selection; and
(iii) It is purchasing the Property
either (x) substantially for its own use, or (y) under
a binding commitment to sell or lease the Property to
an entity which meets the requirements of subparagraph
(i) above, is engaged in commercial or industrial
business, and is not affiliated with Seller or its
agent.
(d) Subdivision Map Conditions. Buyer
understands that in connection with the subdivision of certain
real property of which the Property is a part, the City imposed
certain map conditions. Buyer acknowledges that, from and after
the Closing, Buyer shall be responsible for complying with such
map conditions to the extent required by the City in connection
with actions to be taken by Buyer affecting the Property.
(e) Defaults. Buyer represents and warrants that
the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby will not result in any
breach of the terms of, conditions of, or constitute a default
under, any instrument or obligation by which Buyer is bound, or
violate any order, writ, injunction or decree of any court in any
litigation to which Buyer is a party.
(f) Validity. Buyer represents and warrants that
it is a valid, legal and duly constituted corporation, organized
and in good standing under the laws of the State of Maryland and
is duly qualified to transact business in the State of
California, and the persons executing this Agreement and the
documents at Closing on behalf of Buyer are and will be duly
authorized so as to fully and legally bind Buyer.
(g) Survival. All the representations,
warranties, covenants and agreements of Buyer set forth herein
and elsewhere in this Agreement shall be true upon the execution
of this Agreement, and shall be deemed to be repeated at and as
of Closing and shall survive Closing. Additionally, all
indemnities by Buyer of Seller set forth in this Agreement shall
survive the termination of this Agreement.
(h) Indemnity. Buyer hereby agrees to indemnify
and defend, at its sole cost and expense, and hold Seller, its
successors and assigns, harmless from and against and to
reimburse Seller with respect to any and all claims, demands,
actions, causes of action, losses, damages, costs, liabilities
and expenses, including, without limitation, reasonable
attorneys' fees and court costs (and those fees and costs
incurred upon any appeals), of any and every kind or character,
known or unknown, fixed or contingent, asserted against or
incurred or suffered by Seller at any time and from time to time
by reason of or arising out of (a) the breach of any
representation or warranty of Buyer set forth in this Agreement,
(b) the failure of Buyer in whole or in part, to perform any
obligation required to be performed by Buyer under this
Agreement, (c) the ownership, construction, occupancy,
operation, use and maintenance of the Property after the Closing
Date, or (d) the violation after the Closing Date of any
Hazardous Material Law in effect after the Closing Date and any
and all matters arising out of any act, omission, event or
circumstance existing or occurring after the Closing Date
(including, without limitation, the presence on the Property or
release from the Property of Hazardous Materials disposed or
otherwise released after the Closing Date) which results in a
violation of a Hazardous Materials Law, regardless of whether the
act, omission, event or circumstance constitute a violation of
any Hazardous Materials Law at the time of its existence or
occurrence. The provisions of this Section 13(h) shall survive
the Closing of the transaction contemplated by this Agreement and
shall continue thereafter in full force and effect for the
benefit of Seller, its successors and assigns. However, except
as provided in Section 11(b), Seller may exercise any right or
remedy Seller may have at law or in equity should Buyer fail to
meet, comply with or perform its indemnity obligations required
by this Section 13(h). Section 11(b) sets forth the damages
which Seller is entitled to receive as a result of Buyer's
failure to close Escrow and this Section 13(h) applies only to
other breaches by Buyer. Section 11(b) only limits Seller's
rights hereunder for Buyer's failure to close Escrow.
(i) No Marketing. Buyer shall not market the
Property for sale or lease during the Escrow period.
14. Representations, Warranties and Covenants of
Seller. All representations and warranties of Seller set forth
below in Subsection (a), (f), (g), (i), (j) and (l) shall be to
the actual knowledge of Xxxx Xxxxxxx and the officers of The
Xxxxxx Xxxxxx Corporation with a title of vice president or
higher. No other representations and warranties of Seller shall
be limited to the knowledge of Seller, except as expressly set
forth in such representations and warranties.
(a) Defaults. Seller represents and warrants
that the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not
result in any breach of the terms of, conditions of, or
constitute a default under, any instrument or obligation by which
Seller is bound, or violate any order, writ, injunction or decree
of any court in any litigation to which Seller is a party.
(b) Validity. Seller represents and warrants
that it is a valid, legal and duly constituted limited
partnership, organized and in good standing under the laws of the
State of Delaware and duly qualified to transact business in the
State of California, and the persons executing this Agreement and
the documents at Closing on behalf of Seller are and will be duly
authorized so as to fully and legally bind Seller.
(c) Survival. All the representations,
warranties, covenants and agreements of Seller set forth herein
and elsewhere in this Agreement shall be true upon the execution
of this Agreement, and shall be deemed to be repeated at and as
of Closing and shall survive Closing. Additionally, all
indemnities by Seller of Buyer set forth in this Agreement shall
survive the termination of this Agreement for a period of one (1)
year after the Closing Date.
(d) Seller represents and warrants that Seller
has duly and validly authorized and executed this Agreement and
has right, title, power and authority to enter into this
Agreement and, at Closing, to consummate the actions provided for
herein, and the joinder of no person or entity will be necessary
to convey the Property fully and completely to Buyer at Closing.
The execution by Seller of this Agreement and the consummation by
Seller of the transactions contemplated hereby do not, and at the
Closing will not (i) result in a breach of any of the terms or
provisions of, or constitute a default or a condition which upon
notice or lapse of time or both would ripen into a default under,
any indenture, agreement, instrument or obligation to which
Seller is a party or by which Seller or the Property or any
portion thereof is bound; or (ii) constitute a violation of any
order, rule or regulation of any court or of any federal or state
or municipal regulatory body or administrative agency or other
governmental body having jurisdiction over Seller or any portion
of the Property.
(e) Seller represents and warrants that there are
no adverse or other parties in possession of the Property or of
any part thereof except Seller and the Club Owner, and no party
has been granted any license, lease or other right relating to
the use or possession of the Property, except the Club Owner
under the Ground Lease, a copy of which has been given to Buyer.
(f) Seller represents and warrants that no notice
has been received by Seller and Seller is not aware of any person
having received notice from any insurance company that has issued
a policy with respect to any portion of the Property or from any
board of fire underwriters (or other body exercising similar
functions), claiming any defects or deficiencies or requiring the
performance of any repairs, replacements, alteration or other
work. No notice has been received by Seller from any issuing
insurance company that any of such policies will not be renewed,
or will be renewed only at a higher premium rate than is
presently payable therefor.
(g) Seller represents and warrants that no
pending condemnation, eminent domain, assessment or similar
proceeding or charge affecting the Property or any portion
thereof exists. Seller has not received any notice of a proposed
increase in the assessed valuation of the Property.
(h) Seller represents and warrants that there
will exist no material service contracts, management or other
similar agreements applicable to the Property. There are no
material agreements or understandings (oral or written) with
respect to or any portion thereof, to which Seller is a party,
except for the Ground Lease.
(i) Seller represents and warrants that no
default or breach exists under any covenant, condition,
restriction, right-of-way or easement affecting the Property or
any portion thereof.
(j) Seller represents and warrants that there are
no actions, suits or proceedings pending or threatened against or
affecting the Property or any portion thereof, or relating to or
arising out of the ownership of the Property, or before any
federal, state, county or municipal department, commission,
board, bureau or agency or other governmental instrumentality,
other than Seller's submittal to the City of its eleventh annual
report regarding compliance with the terms and conditions of the
Development Agreement.
(k) Seller represents and warrants that there are
no attachments, executions, assignments for the benefit of
creditors, or voluntary or involuntary proceedings in bankruptcy
or under any other debtor relief law contemplated by or pending
or threatened against Seller or the Property.
(l) For purposes of this Agreement, "Hazardous
Materials" shall mean (i) any hazardous or toxic substance,
material or waste which is or becomes designated, regulated or
classified as hazardous or toxic under any Hazardous Material
Law, (ii) any other substance, material or waste which results in
liability to any person or entity from exposure to such
substance, material or waste under any statutory or common law
theory, (iii) petroleum, oil or gas or any direct or derivative
produce or by-product thereof, (iv) asbestos and asbestos-
containing materials, (v) polychlorinated biphenyls, (vi)
flammable explosives, and (vii) radioactive materials.
For purposes of this Agreement, "Hazardous
Material Law" shall mean any applicable federal, state, or local
law, statute, common law, code, ordinance, rule, regulation or
other requirement relating to the protection of the environment,
natural resources, or the protection of public health and safety
from exposure to any Hazardous Materials, including, without
limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9601, et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. 1801, et
seq., the Resource Conservation and Recovery Act, 42 U.S.C.
6901, et seq., the Clean Water Act, 33 U.S.C. 1251, et seq.,
the Clean Air Act, 33 X.X.X, 0000, et seq., the Toxic
Substances Control Act, 15 U.S.C. 2601, et seq., the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136, et
seq., the Oil Pollution Act of 1990, 33 U.S.C. 2701, et seq.,
and the Federal Safe Drinking Water Act, 42 U.S.C. 300F, et
seq., as such laws have been amended or supplemented, and all
regulations promulgated pursuant thereto, and all analogous state
or local statutes.
Seller represents and warrants that, other than
with respect to activities in connection with or conditions
arising strictly from customary and ordinary use or maintenance
of the Property by Seller and the Club Owner in full compliance
with any or all Hazardous Materials Law, Seller is unaware of (i)
any Hazardous Materials installed, used, generated, manufactured,
treated, handled, refined, produced, processed, stored or
disposed of, or otherwise on or under, the Property; (ii) any
activity being undertaken on the Property which could cause (a)
the Property to become a hazardous waste treatment, storage or
disposal facility within the meaning of any Hazardous Materials
Law, (b) a release or threatened release of Hazardous Materials
from the Property within the meaning of any Hazardous Materials
Law, or (c) the discharge of Hazardous Materials into any
watercourse, body of surface or subsurface water or wetland, or
the discharge into the atmosphere of any Hazardous Materials
which would require a permit under any Hazardous Materials Law;
(iii) any activity undertaken with respect to the Property which
would cause a violation or support a claim under any Hazardous
Materials Law; (iv) any investigation, administrative order,
litigation or settlement with respect to any Hazardous Materials
relating to or affecting the Property; or (v) any notice being
served on Seller from any entity, governmental body or individual
claiming any violation of any Hazardous Materials Law, or
requiring compliance with any Hazardous Materials Law, or
demanding payment or contribution for the environmental damage or
injury to natural resources.
(m) Indemnity. Subject to the provisions
provided hereafter limiting the liability of Seller, Seller
hereby agrees to indemnify and defend, at its sole cost and
expense, and hold Buyer, its successors and assigns, harmless
from and against and to reimburse Buyer with respect to any and
all claims, demands, actions, causes of action, losses, damages,
liabilities, costs and expenses (including without limitation
reasonable attorneys' fees and court costs and those fees and
costs incurred upon any appeals) of any and every kind or
character, known or unknown, fixed or contingent, asserted
against or incurred or suffered by Buyer at any time and from
time to time by reason of or arising out of (a) the breach of any
representation or warranty of Seller set forth in this Agreement,
(b) the failure of Seller, in whole or in part, to perform any
obligation required to be performed by Seller under this
Agreement, (c) except for the matters disclosed herein, the
ownership, construction, occupancy, operation, use and
maintenance of the Property prior to the Closing Date, or (d) the
violation on or before the Closing Date of any Hazardous Material
Law in effect on or before the Closing Date and any and all
matters arising out of any act, omission, event or circumstance
existing or occurring on or prior to the Closing Date (including,
without limitation, the presence on the Property or release from
the Property of Hazardous Materials disposed or otherwise
released prior to the Closing Date) which results in a violation
of a Hazardous Materials Law, regardless of whether the act,
omission, event or circumstance constitute a violation of any
Hazardous Materials Law at the time of its existence or
occurrence. The provisions of this Section 14(m) shall survive
the Closing of the transaction contemplated by this Agreement and
shall continue thereafter in full force and effect for the
benefit of Buyer, its successors and assigns, for a period of one
(1) year after the Closing Date. Buyer may exercise any right or
remedy Buyer may have at law or in equity should Seller fail to
meet, comply with or perform its indemnity obligation required by
this Section 14(m).
(n) State Tax Withholding Certificates. Seller
shall execute and deliver into Escrow the Transferor's State Tax
Withholding Certificate attached hereto as Exhibit D, certifying
that withholding of tax under Sections 18805, 18815 and 26131 of
the California Revenue and Taxation Code will not be required.
(o) Maintain the Property. Seller shall maintain
the Property in good condition and shall maintain adequate
casualty liability insurance covering the Property until the
Closing.
(p) Agreements Affecting the Property. During
the Escrow period, Seller shall not amend or terminate the Ground
Lease or enter into any other agreements or take any other
actions affecting the Property (other than in the ordinary course
of ownership), without Buyer's prior written approval, which
shall not be unreasonably withheld or delayed. Seller shall not
market the Property for either sale or lease during the Escrow
period.
(q) Copies of Documents. True, complete and
correct copies of the Development Agreement, the Tract Map, the
CC&Rs, the Ground Lease, the By-laws and other agreements
governing the Association, and all amendments to each of the
foregoing, are included in that certain document binder (the "Key
Documents Binder"), marked for identification as, "Key Documents
for Xxxxxx Xxxxxx Center", dated December 29, 1997, and initialed
on the front cover by Xxxx Xxxxxxx.
15. Development Agreements. Buyer has received a copy
of that certain Xxxxxx Xxxxxx Center Development Agreement (the
"Development Agreement") entered into November 3, 1986 between
Seller and the City and recorded on November 4, 1986 as
Instrument No. 00-0000000 in the Official Records of Los Angeles
County, Xxxxxxxxx Xxxxx Xxx Xx. 00000 and all conditions of
approval with respect thereto (the "Tract Map"), and the CC&Rs.
Seller has not made and Seller is not making any representations,
warranties or covenants to Buyer as to any matter relating to the
Development Agreement, including, without limitation, the effect
of the provisions contained therein or the enforceability
thereof, the Tract Map or the CC&Rs. Seller shall not have any
liability to Buyer in any manner relating to the Development
Agreement, the Tract Map or the CC&Rs and Buyer hereby releases
Seller from any and all liability, claims or damages resulting
from the Development Agreement, the Tract Map and the CC&Rs. The
foregoing shall not constitute a waiver of the representations,
warranties and covenants set forth in this Agreement and the
documents delivered pursuant hereto.
16. Brokers' Commission. Seller represents and
warrants to Buyer and Buyer represents and warrants to Seller
that no broker or finder has been engaged by Seller or Buyer,
respectively, in connection with any of the transactions
contemplated by this Agreement, and that no broker or finder is
in any way connected with any of such transactions. In the event
of any claim for broker's or finder's fees or commissions in
connection with the negotiation, execution or consummation of
this Agreement or the transactions contemplated hereby, Buyer
shall indemnify, save harmless and defend Seller from and against
such claim if it shall be based upon any statement or
representation or agreement made by Buyer, and Seller shall
indemnify, save harmless and defend Buyer from and against such
claim if it shall be based upon any statement, representation or
agreement made by Seller.
17. Waiver, Consent and Remedies. Each provision of
this Agreement to be performed by either party shall be deemed
both a covenant and a condition and shall be a material
consideration for the other party's performance hereunder, and
any breach thereof by either party shall be deemed a material
default hereunder. Either party may specifically and expressly
waive in writing any portion of this Agreement or any breach
thereof, but no such waiver shall constitute a further or
continuing waiver of any preceding or succeeding breach of the
same or any other provision. A waiving party may at any time
thereafter require further compliance by the other party with any
breach or provision so waived. The consent by one party to any
act by the other for which such consent was required shall not be
deemed to imply consent or waiver of the necessity of obtaining
such consent for the same or any similar acts in the future. No
waiver or consent shall be implied from silence or any failure of
a party to act, except as otherwise specified in this Agreement.
All rights, remedies, undertakings, obligations, options,
covenants, conditions and agreements contained in this Agreement
shall be cumulative and no one of them shall be exclusive of any
other. Except as otherwise specified herein, either party may
pursue any one or more of its rights, options or remedies
hereunder or may seek damages in the event of the other party's
breach hereunder, or may pursue any other remedy at law or
equity, whether or not stated in this Agreement; provided,
however, that Buyer hereby waives its rights to seek specific
performance or to record a lis pendens against the Property in
the event of Seller's default hereunder and Buyer agrees that its
right to xxx for monetary damages is an appropriate and adequate
remedy in the event of any default by Seller hereunder.
18. Attorneys' Fees. In the event of any action or
proceeding instituted between Seller, Buyer and/or Escrow Holder
in connection with this Agreement, then as between Buyer and
Seller the prevailing party shall be entitled to recover from the
losing party all of its costs and expenses, including, without
limitation, court costs, all costs of appeals and reasonable
attorneys' fees.
19. Eminent Domain Proceedings. If at any time during
the Escrow period all or any substantial portion of the Property
is threatened with condemnation or legal proceedings are
commenced under the power of eminent domain, then notwithstanding
anything to the contrary contained herein, either Seller or Buyer
may terminate this Agreement and cancel Escrow by giving written
notice to Escrow Holder and the other party. Thereupon, all
instruments shall be returned to the respective parties who
deposited the same, Buyer and Seller shall each pay one-half
(1/2) of all title and Escrow cancellation charges, all other
funds then in Escrow shall be disbursed to Buyer, and each party
shall be excused from any further obligations hereunder or
liability to the other party except pursuant to Section 12 above.
21. Risk of Loss. If the improvements located on the
Property are destroyed or materially damaged prior to the
Closing, Buyer may terminate this Agreement and cancel Escrow by
giving written notice to Escrow Holder and to Seller. Thereupon,
all instruments shall be returned to the respective parties who
deposited the same, Buyer and Seller shall each pay one-half
(1/2) of all title and Escrow cancellation charges, all other
funds then in Escrow shall be disbursed to Buyer, and each party
shall be excused from any further obligations hereunder or
liability to the other party except pursuant to Section 12 above.
21. Notices. Any notice, request, demand, consent,
approval or other communication required or permitted hereunder
or by law shall be validly given or made only if in writing and
delivered in person to an officer or duly authorized
representative of the other party or deposited in the United
States mail, duly certified or registered (return receipt
requested), postage prepaid, and addressed to the party for whom
intended, as follows:
If to Seller: Xxxxxx Xxxxxx Properties, Limited Partnership
c/o The Xxxxxx Xxxxxx Corporation
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000
Attn: General Counsel
With a copy to: Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxx X. Xxxx
If to Buyer: Arden Realty, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
With a copy to: Pircher, Xxxxxxx & Xxxxx
1999 Avenue of the Stars, #2600
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Real Estate Notices (PGN)
If to Escrow
Holder: Xxxxxxx Title Company
000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Any party may from time to time, by written notice to the other,
designate a different address which shall be substituted for that
specified above. If any notice or other document is sent by mail
as aforesaid, the same shall be deemed fully delivered and
received forty-eight (48) hours after mailing as provided above.
22. Gender and Number. In this Agreement (unless the
context requires otherwise), the masculine, feminine and neuter
genders and the singular and the plural shall be deemed to
include one another, as appropriate.
23. Entire Agreement. This Agreement and its exhibits
constitute the entire agreement between the parties hereto
pertaining to the subject matter hereof, and the final, complete
and exclusive expression of the terms and conditions thereof.
All prior agreements, representations, negotiations and
understandings of the parties hereto, oral or written, express or
implied, are hereby superseded and merged herein.
24. Captions. The captions used herein are for
convenience only and are not a part of this Agreement and do not
in any way limit or amplify the terms and provisions hereof.
25. Governing Law. This Agreement and the exhibits
attached hereto shall be governed by and construed under the laws
of the State of California.
26. Invalidity of Provision. If any provision of this
Agreement as applied to either party or to any circumstance shall
be adjudged by a court of competent jurisdiction to be void or
unenforceable for any reason, the same shall in no way affect (to
the maximum extent permissible by law) any other provision of
this Agreement, the application of any such provision under
circumstances different from those adjudicated by the court, or
the validity or enforceability of this Agreement as a whole.
27. Amendments. No addition to or modification of any
provision contained in this Agreement shall be effective unless
fully set forth in writing by both Buyer and Seller.
28. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute but one and
the same instrument.
29. Binding Agreement. Subject to the restrictions on
assignment set forth herein, this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and
assigns.
30. Construction. The parties acknowledge that each
party and its counsel have reviewed and approved this Agreement
and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement or any
amendments or exhibits hereto.
31. Confidentiality. Buyer and Seller acknowledge
that it is their mutual intent to make a joint public
announcement of the transaction contemplated by this Agreement at
an appropriate time. As a result, Buyer and Seller each agree
not to make any public disclosure of this Agreement or the
Project without the prior express written consent of the other
party hereto. Additionally, the parties agree that there will be
no public announcement until the local councilwoman's office is
fully briefed, which briefing shall be arranged and coordinated
by Seller. Buyer shall maintain confidential, and shall not
divulge, disclose or use (except in connection with Buyer's
evaluation of the proposed transaction), any information obtained
or created by Buyer as a result of its investigations on the
Property or with respect to the proposed transaction, unless such
information is generally known or available to the public, is
disclosed by Buyer in connection with such inquiries and
investigations as Buyer may make during the Contingency Period
pursuant to section 6(b) above, or is required by law to be
disclosed by Buyer by virtue of Buyer being a publicly held
company. Notwithstanding anything in this Section 31 to the
contrary, once Buyer has deposited the Deposit and the Additional
Deposit into Escrow, Buyer may make a public announcement of the
transaction contemplated by this Agreement if, in the opinion of
Buyer's securities legal counsel, Buyer may be legally required
to do so. In any event, nothing shall preclude Buyer from
disclosing any such information if the Closing occurs.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written and such date shall
be deemed the date of this Agreement.
SELLER:
XXXXXX XXXXXX PROPERTIES, LIMITED
PARTNERSHIP, a Delaware limited
partnership
By:THE XXXXXX XXXXXX CORPORATION
(formerly known as Summa
Corporation), a Delaware
corporation, its sole general
partner
By:/s/ Xxxxxxx X. Inarchos
Its: Senior V.P., General Counsel
BUYER:
ARDEN REALTY, INC, a Maryland
corporation
By:/s/ Xxxxxx X. Xxxxxxx
Its: President and COO
ESCROW HOLDER:
Acknowledged and accepted this __ day of _____________, 1998.
XXXXXXX TITLE COMPANY
By: /s/ Xxxx Xxxxx
Its: Senior Escrow Officer
