PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
To: Chicago Title Company ("Escrow Agent") Escrow No.:8307017-M23
00000 Xxx Xxxxxx, Xxxxx 000 Title Order No.: 8137505-X59; 158179NBU
Xxxxxx, Xxxxxxxxxx 00000 Title Officer: Xxxxx XxXxxxxx
Escrow Officer: Xxxxxx Xxxxxxx
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS ("Agreement") is made and entered into and is
effective as of the 12th day of May, 1998 (the "Effective Date"),
by and between THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a
New York mutual life insurance company ("Seller"), and ARDEN
REALTY LIMITED PARTNERSHIP, a Maryland limited partnership ("Buyer").
Recitals
A. Seller is the owner of the Property (as defined below).
B. Seller has agreed to sell the Property to Buyer, and Buyer
has agreed to purchase the Property from Seller, such purchase
and sale being made upon and subject to the terms and conditions
set forth in this Agreement.
Agreement
NOW, THEREFORE, in consideration of the foregoing recitals,
the mutual covenants set forth in this Agreement, and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Buyer and Seller hereby agree as set
forth below.
1. Purchase and Sale of the Property. Seller agrees to sell,
assign, convey, and transfer to Buyer all of Seller=s right,
title and interest in and to the following real and personal
property described in subsections (a) through (g) below
(collectively referred to herein as the "Property"), and Buyer
hereby agrees to purchase and accept the Property, and assume the
obligations in connection therewith, subject to and in accordance
with the terms and conditions contained in this Agreement:
(1) Land. Subject to general and special real estate taxes and
assessments, and all matters of record or apparent from an
inspection or survey, Seller's interest in that certain real
property located at 100 Oceangate, in the City of Long Beach,
County of Los Angeles, State of California (the "Land"), which
real property is more particularly described on Exhibit "A",
together with that certain leasehold interest of Seller more
particularly described on Exhibit "A-1" attached hereto.
(2) Improvements. Those certain fixtures and improvements
located on the Land and described on Exhibit AB@ attached hereto
(collectively, the "Improvements"), including one office
building, parking structure, driveways, hardscaping, and related
improvements, together with fixtures attached thereto, it being
understood and agreed, however, that Buyer shall have no right,
title or interest in or to any of such fixtures and improvements
which are the property of the tenants of the Property (the
"Tenants") under the Leases (as defined below). The Land and the
Improvements may be collectively referred to herein as the "Real
Property."
(3) Personalty. That certain tangible personal property of
Seller which is located on or in the Land or the Improvements and
which is described on Exhibit "B" attached hereto (collectively,
the "Personalty"), it being understood and agreed, however, that
Buyer shall have no right, title or interest in or to (and the
"Personalty" shall not include) (i) any personal property on the
Improvements which is the personal property of the Tenants
pursuant to the Leases, and (ii) any lap-top computers which are
the personal property of Seller and are located in the on-site
offices of the Real Property.
(4) Appurtenances. All of Seller's rights, privileges and
easements appurtenant to the Land, all development rights and air
rights relating to the Land and any and all easements,
rights-of-way and other appurtenances used in connection with the
beneficial use and enjoyment of the Land, but excluding all
water, water rights and water stock, and excluding minerals and
mineral rights of every kind (including oil, gas and other
hydrocarbon substances) on or under the Land.
(5) Leases. Seller's interest in all leases, subleases,
licenses, concessions, and other forms of agreement in effect as
of the Effective Date or entered into after the Effective Date,
and remaining in effect as of the Closing Date (as defined
below), granting to any party or parties the right of use or
occupancy of any portion of the Land and/or Improvements, and all
renewals, modifications, amendments, guarantees, and other
agreements affecting the same (together, the "Leases").
(6) Awards. All right, title and interest of Seller in and to
any unpaid awards for damages to the Land and/or Improvements
resulting from any taking in eminent domain or by reason of
change of grade of any street accruing after closing of the
purchase and sale pursuant to this Agreement.
(7) Intangible Property. Except the name of Seller or
affiliated entities, all of the interest of Seller in any
intangible property now or hereafter owned by Seller and used or
designed for use in connection with the Land, Improvements and/or
Personalty, and any contract or lease rights, licenses, permits,
certificates of occupancy, franchises, agreements, utility
contracts and agreements (including sewer and water line
agreements), telephone listings and numbers used by Seller at the
Real Property, unexpired claims, signs, trade names, logos,
trademarks and service marks arising from or related to the Real
Property (other than Seller's name or marks), warranties,
guaranties and sureties belonging to Seller, or other rights
relating to the ownership, development, construction, design, use
and operation of the Land and/or Improvements (together,
"Intangible Property"), so long as and to the extent that said
Intangible Property may be transferred or assigned, and is not
specifically excluded from the Xxxx of Sale (as defined below).
Notwithstanding anything to the contrary herein, Intangible
Property does not include (i) any refunds of taxes or assessments
which were paid by Seller or Seller's predecessor in interest,
prior to close of the purchase and sale pursuant hereto, or of
insurance premiums paid by Seller or Seller's predecessor-in-
interest and attributable to the period prior to the Closing Date
(without regard to when such refunds are received), (ii)
condemnation or other awards which represent refunds of amounts
paid by Seller or any predecessor-in-interest prior to the
Closing Date or awards for property damage (other than amounts to
be credited to Buyer pursuant to Section 13 of this Agreement) or
otherwise relating to the Property, (iii) any claims of Seller
existing as of the Closing Date against Tenants for delinquent
rents, to the extent not subsequently paid or credited to Seller,
or (iv) claims of Seller made pursuant to or arising in
connection with the litigation matters set forth on Exhibit "C"
attached hereto (the "Litigation Claims"); provided, however,
that Litigation Claims do not include any rents or other income relating
to the period after the Closing Date with respect to Leases as to
which the Tenant continues to occupy the leased premises after
the Closing Date.
2. Opening of Escrow and Deposit.
(1) General Instructions. Chicago Title Company is hereby
designated as escrow holder ("Escrow Agent"), to act in
accordance with this Agreement. Escrow Agent's general
conditions or provisions, which are attached hereto as
Exhibit "D", are incorporated by reference herein (with the
changes noted thereon); provided, however, that in the event of
any inconsistency between Exhibit "D" and any other provisions of
this Agreement, the provisions of this Agreement shall control
over the provisions of Exhibit "D." Buyer and Seller shall each
execute, deliver and be bound by such further escrow instructions
or other instruments as may be reasonably requested by the other
party or by Escrow Agent from time to time, so long as the same
are consistent with this Agreement, and upon execution thereof by
both Seller and Buyer, such escrow instructions shall be deemed
to be a material part of this Agreement. Escrow Agent needs to
be concerned only with those provisions of this Agreement that
instruct it to perform specific acts or with respect to which
escrow holders generally and reasonably would be expected to act.
Escrow Agent shall comply, but shall have no liability whatsoever
for complying, with the unilateral instructions of only one party
without the consent of the other party hereto if expressly
required to do so in this Agreement.
(2) Opening of Escrow; Deposit. Concurrently with its execution
of this Agreement, Buyer shall open an escrow with Escrow Agent
(the "Escrow") by delivering to Escrow (with a copy to Seller),
an executed copy of this Agreement, and a deposit in the form of
immediately available funds in the amount of Five Hundred
Thousand Dollars ($500,000.00) (such deposit, together with all
interest accrued thereon, is referred to herein as the
"Deposit"). Escrow Agent shall retain possession of the Deposit
until delivery or return thereof is permitted or required under
this Agreement. The Deposit shall be deposited by Escrow Agent
in an interest-bearing account with the interest thereon to be
disbursed with the Deposit in accordance with the provisions hereof.
(3) Disposition of Deposit. As of 5:00 p.m. Pacific Daylight
Time ("PDT") on the date of expiration of the Investigation
Period (as defined below), without written cancellation of the
Escrow by Buyer, the Deposit shall immediately become non-
refundable (except upon (i) default by Seller (giving effect to
any applicable cure period), or (ii) failure to occur of any of
the conditions set forth in subsection 7(a) below other than as a
result of the conduct or omissions of Buyer), shall immediately
be deemed to have been fully earned by Seller, and shall be
delivered by Escrow Agent to Seller on or before the date which
is one business day after the expiration of the Investigation
Period. If Buyer provides Notice (as defined below) to Seller,
during the Investigation Period, of Buyer's cancellation of
Escrow as a result of information obtained by Buyer during the
Investigation Period (other than information relating to Approved
Conditions, as defined below), then Escrow Agent shall return the
Deposit to Buyer, net only of Buyer's share of the costs and
expenses of Escrow and title. If the purchase and sale shall
close pursuant to this Agreement, the Deposit shall be credited
against the Purchase Price (as defined below) at the close of Escrow.
(4) Closing. The Escrow shall close, as evidenced by
recordation of a Grant Deed in accordance herewith (the
"Closing"), on a date mutually agreed to by the parties, but in
all events on or before May 22, 1998 at 5:00 p.m. PDT (the
"Outside Closing Date"). If Buyer does not cancel the Escrow
during the Investigation Period as herein permitted, and Escrow
thereafter fails to close on or before the expiration of the
Outside Closing Date, for any reason, then (i) this Agreement
shall terminate and, except for provisions which expressly
survive a termination, neither party shall have any further
obligation to the other hereunder; and (ii) Escrow shall be
canceled and the Deposit shall be distributed to Seller;
provided, however, that if Escrow fails to close on or before the
Outside Closing Date due solely to a default by Seller or to a
failure to satisfy any of the conditions set forth in subsection
7(a) below other than as a result of the conduct or omission of
Buyer, then the Deposit shall be distributed to Buyer.
(1) 3. Purchase Price. The "Purchase Price" for the Property
shall be Twenty-Three Million Four Hundred Thousand Dollars
($23,400,000.00) payable in immediately available funds upon
Closing, and otherwise in accordance with the terms and
conditions contained in this Agreement.
4. Prorations. The following items shall be prorated as of the
date of Closing (the "Closing Date") and such prorations shall be
reflected on the settlement statements prepared by Escrow Agent
on the Closing Date and shall serve to adjust the Purchase Price.
Such prorations shall be made on the basis of a 365-day year, as
of 12:01 a.m. on the Closing Date.
(1) Rents.
(1) All rentals, receipts and other revenues from the Property,
including base rents, percentage rents and additional rents
(other than those referenced in Section 4(b) below)
(collectively, "Rents"), which have been actually received by
Seller and which are payments under Leases for the period from
and after the Closing Date, shall be credited to Buyer, and Buyer
shall be entitled to collect all Rents which are delinquent or
due on or after the Closing Date.
(2) All Rents collected by Buyer after the Closing Date with
respect to each Lease for which Rent payments are delinquent at
Closing by not more than thirty (30) days and subject to Seller=s
retained right to xxx therefor with respect to delinquent Rents
accruing prior to the Closing Date, to the extent not paid or
credited to Seller, shall be credited and paid by Buyer as
follows: first to Seller for amounts due before the Closing Date,
but unpaid prior to the Closing Date, and second to Buyer;
(3) All Rents collected by Buyer after the Closing Date with
respect to each Lease for which Rent payments are delinquent at
Closing by more than thirty (30) days shall (subject to Seller=s
retained right to xxx therefor with respect to delinquent Rents
accruing prior to the Closing Date, to the extent not paid or
credited to Seller) be credited and paid by Buyer as follows:
first to Buyer in an amount equal to amounts due as of the date
of collection but after the Closing Date, and second to Seller in
an amount equal to amounts due prior to the Closing Date and
unpaid as of the Closing Date;
(4) Notwithstanding the foregoing, with respect to any Lease for
which Rent is paid in arrears, Rent received by Buyer after the
Closing shall be credited to the Rent in arrears for the previous
month before it is credited to current month or advance Rents;
(5) Any delinquent Rents which, as so credited, relate in whole
or part to any period prior to the Closing Date shall be remitted
by Buyer to Seller when collected by Buyer (net only of Buyer's
proportionate share of any reasonable out-of-pocket collection
expenses actually incurred by Buyer); and
(6) In addition to the foregoing, any tenant improvements,
leasing commissions or other monetary obligations of the landlord
under Leases entered into after the Effective Date pursuant to
Section 6(c) below, which obligations have been paid by Seller,
shall be credited to Seller.
(1) (2) Lease Operating Cost Pass-Throughs.
(1) All operating cost pass-throughs for taxes, utilities,
insurance, common area maintenance charges or other current
operating costs and cost of living escalation amounts ("CAM
Charges") (A) paid by Tenants and which have been actually
received by Seller and which are allocable to the period from and
after the Closing Date, shall be credited to Buyer, and (B)
payable by Tenants but unpaid as of the Closing Date and
attributable to the period before the Closing Date, shall
(subject to Seller's retained right to xxx Tenants for such
amounts) be subject to collection by Buyer after the Closing Date
and upon such collection shall be credited and paid by Buyer as
set forth herein below.
(2) All CAM Charges collected by Buyer after the Closing Date
with respect to each Lease for which such payments are delinquent
at Closing by not more than thirty (30) days shall (subject to
Seller's retained right to xxx therefor with respect to
delinquent CAM Charges accruing prior to the Closing Date, to the
extent not paid or credited to Seller) be credited and paid by
Buyer as follows: first to Seller for amounts due before the
Closing Date, but unpaid prior to the Closing Date, and second to
Buyer;
(3) All CAM Charges collected by Buyer after the Closing Date
with respect to each Lease for which such payments are delinquent
at Closing by more than thirty (30) days shall (subject to
Seller's retained right to xxx therefor with respect to
delinquent CAM Charges accruing prior to the Closing Date, to the
extent not paid or credited to Seller) be credited and paid by
Buyer as follows: first to Buyer in an amount equal to amounts
due as of the date of collection but after the Closing Date, and
second to Seller in an amount equal to amounts due prior to the
Closing Date and unpaid as of the Closing Date; and
(4) With respect to any Lease for which CAM Charges are paid in
arrears, CAM Charges received by Buyer after the Closing under
such Lease shall be credited to the CAM Charges in arrears before
the same are credited to current month or advance CAM Charges
under such Lease. Any delinquent CAM Charges which, as so
credited, relate in whole or part to any period prior to the
Closing Date shall be remitted by Buyer to Seller when collected
by Buyer (net only of Buyer's proportionate share of any
reasonable out-of-pocket collection expenses actually incurred by
Buyer).
(3) Property Taxes. All real property taxes for the current
(1997-98) tax year which are due and payable on or before the
Closing Date and all real property taxes for years prior thereto
shall be paid by Seller on or before the Closing Date, and
prorated as of the Closing Date for the 1997-98 tax year (on the
basis of the portion of the 1997-98 tax year which falls after
the Closing Date, and based upon the most recent assessment and
levy). Any adjustments to such taxes for the 1997-98 tax year
(with the exception of any readjustment as a result of the sale
contemplated hereby) shall be adjusted between Seller and Buyer
promptly upon receipt by Buyer of the actual bills for such
taxes. Seller shall (subject to any refund rights of tenants) be
entitled to retain for its own account any and all refunds
(whenever received) of taxes and assessments paid by Seller prior
to the Closing Date, including any of the same that shall result
from pending property tax appeals, if any, relating to the
Property or the personalty associated therewith.
(4) Assessments. All assessments, special assessments and other
like charges imposed against the Property, or any part thereof,
by reason of roadways, utility lines, streets, alleys or other
improvements in existence, under construction or planned and
payable on or prior to the Closing Date shall be prorated to such
date. All such assessments, special assessments and other
charges affecting the Property and payable after the Closing Date
shall be the sole responsibility of Buyer. All pending refunds
of assessments paid by Seller prior to the Closing Date, if any,
shall be delivered to and retained by Seller.
(5) Security Deposits. All security and other deposits, if any,
including any accrued interest thereon if such interest is
required to be remitted to Tenants pursuant to their respective
Leases, received by Seller on or before the Closing Date on
behalf of any Tenants under any Leases (and not subject to
current or past application against Lease obligations pursuant to
the Leases), shall be credited to Buyer, and Escrow shall deliver
a notice to the Tenants, in the form of Exhibit "E": attached
hereto, advising Tenants that: (i) Buyer has purchased the
Property, (ii) the security deposit, if any, has been delivered
to Buyer in connection with such sale, and (iii) Seller is
relieved of any and all liability for any such security deposit.
(6) Utility Charges and Other Expenses. Prepaid water, sewer,
and other utility charges and similar Property expenses allocable
to the period from and after the Closing Date shall be credited
to Seller, and accrued water, sewer, and other utility charges
and similar Property expenses shall be credited to Buyer. After
the Closing, outside of Escrow, the parties shall make any
readjustments necessary based upon a final billing obtained by
Buyer or actual subsequent readings of utility meters respecting
that billing period in which the Closing occurred. All utility
security deposits, if any, shall either be retained by Seller
without adjustment or, at Seller's option, shall be delivered to
Buyer and credited to Seller.
(7) Service Contracts. Prepaid charges in connection with any
Service Contracts (as defined below) which Buyer assumes pursuant
hereto, and any licenses or permits issued in connection with the
Property (to the extent transferrable) shall be credited to
Seller. Accrued charges payable for the period up to the Closing
Date and unpaid as of the Closing in connection with such Service
Contracts, licenses or permits (to the extent transferrable)
shall be credited to Buyer.
(8) Tenant Allowances and Leasing Commissions. Amounts due from
Seller for tenant improvements and leasing commissions under
Leases (other than Leases or Lease modifications approved by
Buyer under Section 6), with respect to unpaid tenant improvement
costs, or leasing commissions (excluding any commissions which
may be due after the Effective Date with respect to options,
extensions, expansions or renewals), which amounts are unpaid as
of the Closing Date, shall be credited to Buyer on the Closing
Date, and at Closing, Buyer shall assume the liability for
payment thereof. Seller shall receive a credit for all amounts
paid by Seller for leasing commissions and tenant improvements
pursuant to Section 6 below (including without limitation in
connection with the proposed Lease to Xxxxxxx Xxxxxx and all
other Leases approved by Buyer under Section 6 below; provided,
however, that the leasing commissions and tenant improvement
expenses for the proposed Lease to Xxxxxxx, Xxxxx & Xxxxxxx with
respect to Suite 800 (the "Xxxxxxx Lease"), having been approved
by Buyer pursuant to Section 6 below, shall be split 50% each,
with the initial credit to Seller at Closing to be (i) $30,714.62
in favor of Seller (assuming no approved change orders prior to
the Closing Date) in connection with the tenant improvement
construction contract, and (ii) $5,090.70 for leasing
commissions, with additional payments to be made by Buyer to
Seller, post-Closing in the event that the actual costs under the
construction contract increase as a result of change orders, if
any, which increase the cost of construction and are consented to
by Buyer, but which are not required to be paid for by the
tenant, with Buyer's share of such additional costs to be paid by
Buyer to Seller within ten (10) days after Seller's written
request therefor and delivery of copies of the change orders
evidencing such increased costs. In connection with the Closing,
Seller shall deliver to Buyer any tenant improvement funds paid
by Tenants and held by Seller as of the Closing Date with respect
to uncompleted tenant improvements or which are subject to refund
to Tenants and Buyer shall assume Seller's liability to provide
such tenant improvements and make such refunds: provided,
however, that Buyer shall not assume the obligations to complete
tenant improvements under the Xxxxxxx Lease (it being understood
that Seller shall be responsible for completion of such
improvements and payment of such expenses). In addition to the
foregoing, an amount equal to the value of "free rent," if any,
specified in the Leases for the one (1) year period commencing on
the Closing Date (exclusive of any Leases or Lease modifications
approved by Buyer under Section 6), to the extent the existence
of such free rent was not disclosed to Buyer in the offering
circular or pursuant to other materials delivered to Buyer on or
before the Effective Date, shall be credited to Buyer on the
Closing Date, by multiplying the number of months of free rent
with respect to each particular Lease during the one (1) year
period following the Closing Date, by the base monthly rental
rate payable under that Lease in the first month in which rent is
payable. On or before 9:00 a.m. PDT on May 8 , 1998, Buyer shall
deliver to Seller a list of Leases as to which free rent is due
within the specified period and the amounts of free rent due as
to each such Lease (the "Free Rent List"). Seller shall deliver
to Buyer a Notice specifying any exceptions (based upon
correctness or prior disclosure to Buyer) on or before 9:00 a.m.
PDT on May 11, 1998. If Seller's Notice is not satisfactory to
Buyer, Buyer shall cancel the Escrow in accordance with Section
5(c) or proceed to Close and waive any objections to Seller's
Notice. If Seller fails to deliver timely Notice, the Free Rent
List shall be deemed to be correct.
If any of the prorations described in this Section 4 cannot
be calculated accurately on the Closing Date, then the same shall
be calculated as soon as reasonably possible thereafter and
either party owing the other party a sum of money based on such
subsequent prorations shall promptly pay said sum to the other
party. If either party owing funds to the other after the
Closing Date pursuant to this Section does not remit them within
thirty (30) days after demand therefor (which demand shall also
include invoices or other appropriate documentation in support
thereof), such funds shall thereafter bear interest at a "Default
Rate" equal to five percent (5%) above the highest rate as
announced from time to time by Chase Manhattan Bank, N.A. at its
principal office in New York City as its "prime rate," as the
same shall fluctuate from day to day, or, if lesser, the maximum
rate permitted by law.
(i) Lease Terminations - X'Xxxxxxxx & Xxxxxx and Xxxx &
Xxxx. Seller hereby advises Buyer that Seller intends to, and
Seller reserves the right to, terminate those certain leases
entered into by Seller with X'Xxxxxxxx & Xxxxxx and Xxxx & Xxxx,
with respect to Suites 500 and 800 respectively, which tenants
are tenants that are currently in default with respect to their
Leases. In the event that Seller successfully negotiates a
termination of the Josi & Xxxx Lease prior to the Closing, then
Buyer acknowledges and agrees that Buyer shall not be entitled to
any credit in connection with the Closing as a result of the
termination of such Lease (as Carol, Kelly, & Xxxxxxx have agreed
to let the Josi & Xxxx space), and Seller shall retain its rights
to commence and maintain an action against Josi & Xxxx with
respect to that Lease, and the Lease shall not be assigned to
Buyer. In the event the Josi & Xxxx Lease is not terminated prior
to the Closing Date, then Buyer shall assume the Lease (and
rights and obligations thereunder from and after the Closing
Date), so as to enable Buyer to pursue an unlawful detainer
proceeding and a proceeding against Lease collateral and
guarantors after the Closing Date, in which event any recovery of
Rents, any security deposit, and proceeds of collateral for such
Lease, shall be applied first to Rents accruing after the Closing
Date and prior to the date of rent commencement under the Xxxxxxx
Lease, and then against Rents in arrears prior to the Closing
Date. With respect to the X'Xxxxxxxx & Xxxxxx space, without
regard to whether Seller successfully terminates the Lease prior
to the Closing, Seller shall retain the right to pursue its
claims against such tenant following the Closing with respect to
all Rents arising under the Lease, Buyer shall use its best
efforts to let the space following the Closing in accordance with
Section 16(r) below, and Seller shall place in Escrow the sum of
$60,000.00 (the "Funds"), for credit and release to Buyer on
September 5, 1998, if and to the extent, despite Buyer's
compliance with its obligation to attempt to relet the premises,
Buyer does not either receive Rents with respect to the
X'Xxxxxxxx & Xxxxxx Lease after the Closing, or relet such
premises within the period between the Closing Date and September
5, 1998 (the "Remaining Lease Period") to a new tenant. If Buyer
receives Rents with respect to the X'Xxxxxxxx & Xxxxxx Lease
after the Closing, or leases such premises during the Remaining
Lease Period, Buyer shall be entitled to recover the Funds from
Escrow only if, and to the extent, the Rents payable for the
Remaining Lease Period (calculated based upon average rent during
the initial year of the new lease and applying it ratably
throughout such period, even if not so paid) by any new tenant,
and any Rents paid with respect to the X'Xxxxxxxx & Xxxxxx Lease
after the Closing, shall be less than Rents due during the
Remaining Lease Period under the X'Xxxxxxxx & Xxxxxx Lease, and
the remaining portion of the Funds shall be released to Seller.
Without limiting the generality of the foregoing, if the
X'Xxxxxxxx & Xxxxxx Lease is not terminated prior to the Closing
Date, then Buyer shall assume such Lease (and rights and
obligations thereunder from and after the Closing Date), so as to
enable Buyer to pursue an unlawful detainer proceeding and a
proceeding against Lease collateral and guarantors after the
Closing Date, in which event any recovery of Rents, any security
deposit, and proceeds of collateral for such Lease, shall be
delivered to, and retained by, Seller (after deducting for
Buyer's reasonable out-of-pocket legal fees, costs and expenses
to the extent not collected in such action). Buyer and Seller
shall cooperate with each other in pursuing unlawful detainer
proceedings against such tenants, and proceedings against Lease
collateral and guarantors in connection with such Leases.
With respect to the leasing of Suite P-220, as to which
Buyer and Seller anticipated that the existing lease with
Alliance Shippers, Inc. ("Alliance"), which Lease expired April
30, 1998 would be renewed at market rates, the parties agree
that, if Suite P-220 is not relet effective on or before the
Closing Date (either to Alliance or another tenant, in each case
as approved by Buyer pursuant to Section 6 hereof), Buyer shall
receive a credit against the Purchase Price in the amount of One
Hundred Seventy-Five Thousand Dollars ($175,000.00).
5. Due Diligence Investigation Period.
(1) Due Diligence Materials.
(1) Materials Previously Delivered; Approved Conditions. On or
before April 22, 1998, without any representation or warranty as
to accuracy or completeness, Seller made available to Buyer the
following reports, information and studies:
(1) Xxxxxx Xxxxxxxxx Consulting Structural Engineers letter
dated March 3, 1998 and relating to the REI Seismic Study -
Phase III;
(2) Phase I Environmental Site Assessment Document No. 4738-052-
E01 dated September 9, 1997, and prepared by ENSR;
(3) Seismic Study - Phase III, dated April 1991;
(4) Structural plans relating to the Property, prepared as of
July 31, 1991, by Xxxxxx Xxxxxxxxx;
(5) A Certificate of Occupancy - Seismic Upgrade, issued by
the City of Long Beach as of April 9, 1992;
(6) A Beam Cyclic Loading Test prepared by SEQAD Consulting
Engineers, Report No. 91-03 dated March 1991; and
(7) Re Job No. 90-060 dated January 1991.
By execution and delivery hereof, Buyer
acknowledges and agrees that it has, for information purposes
only (and not for reliance thereon) received and reviewed all of
such reports, and conducted such additional testing, obtained
such additional reports, and conducted such additional
investigations as Buyer has deemed necessary or appropriate in
connection with purchase of the Property, relating to the
structural condition of the Real Property, seismic compliance and
soundness of the Improvements, and environmental condition of the
Real Property and the surrounding property (collectively, the
"Approved Conditions"). Based on the foregoing, Buyer hereby
acknowledges and agrees that Buyer shall not be entitled to
conduct any further review of, or diligence with respect to, the
Approved Conditions, and that the Approved Conditions shall not,
under any circumstances, form a basis for Buyer to determine not
to purchase the Property, and shall not be a basis for
cancellation of Escrow during the Investigation Period.
(2) Additional Deliveries. Buyer agrees and acknowledges that,
on or before the opening of Escrow (the "Diligence Date"),
without any representation or warranty as to accuracy or
completeness, and only to the extent within the physical
possession of Seller, and only to the extent not previously
provided, Seller has either (at Seller's option) delivered to
Buyer or made available for inspection (and copying) by Buyer at
Buyer=s expense, at the Property and/or the offices of Seller
(except that the items listed in (A) below shall be delivered by
Seller to Buyer), the following items relating to the Property:
(1) Preliminary title reports or commitments issued by Chicago
Title Company ("Title Company"), dated January 15, 1998 (the
"Preliminary Report"), relating to the Real Property, which
Buyer may use to obtain, directly from the Title Company,
copies of those documents referenced as exceptions in the
Preliminary Report, so that, to the extent Buyer wishes to
do so, it shall be able to review all such documents;
(2) The current Tenants' Leases, including any and all
amendments thereto; Service Contracts; maintenance records;
copies of current utility bills (to the extent received);
copies of architectural plans and "as-built" drawings (if
any) for the buildings (which Buyer understands do not
necessarily reflect the present state of the buildings);
building permits, certificates of occupancy, and licenses
pertaining to the Property to the extent they remain in
effect; copies of any written warranties relating to the
Personalty; copies of insurance claim reports, if any; and
Seller's Real Property operating statements for calendar
years 1996 and 1997, and monthly operating statements for
January 1998 through March 1998;
(3) Copies of all real property tax and assessment bills
received by Seller for the 1996-97 and 1997-98 tax years;
(4) Capital expenditures list for 1997 and 1998; and
(5) Assignment of Magnolia Street Ground Lease, dated December
14, 1973, by and between Boise Cascade and Seller.
(2) ALTA Survey. In the event that Buyer determines that it
desires to obtain, in addition to the survey delivered by Seller
to Buyer, an American Land Title Association survey for Buyer's
account with respect to the Property (the "Survey"), Buyer may
obtain such a Survey during the Investigation Period, at Buyer's
sole cost and expense; provided, however, that if Buyer fails to
obtain the Survey prior to the end of the Investigation Period,
Buyer must either cancel Escrow or proceed to purchase the
Property based solely on Title Company's agreement to provide
standard title insurance coverage (with exceptions for any items
a survey would disclose and for any items disclosed by a Survey
obtained after the end of the Investigation Period). Without
limiting the generality of the foregoing, Buyer acknowledges and
agrees that Buyer's failure to obtain a Survey prior to the end
of the Investigation Period shall not be deemed a default
hereunder or a failure of a condition to Buyer's obligation to
Close, but Buyer's delay in obtaining the Survey shall not extend
the Investigation Period or the Outside Closing Date, and, to the
extent any items are disclosed to Buyer in a Survey delivered to
Buyer after the end of the Investigation Period, such items shall
be deemed "Permitted Exceptions" (as defined below).
(3) Investigation Period. Beginning upon the date of Buyer's
and Seller's execution and delivery of the Entry Permit (as
defined below), and terminating as of 5:00 p.m. PDT on May 13,
1998 (the "Investigation Period"), Buyer may, subject to the
limitations set forth in this Agreement and in the Entry Permit,
investigate any and all aspects of the Property; provided,
however, Buyer shall not investigate the Approved Conditions
after the execution of this Agreement. To the extent Buyer is
entitled to investigate particular matters during the
Investigation Period, Seller, at no cost or expense to Seller,
shall reasonably cooperate with Buyer to the extent Seller's
cooperation is required for Buyer to obtain public information
pertaining to the Property from governmental agencies. If, in
Buyer's sole discretion, Buyer disapproves of any aspect of the
Property (including the form and/or status of the Lease described
on Exhibit "A-1") other than the Approved Conditions, Buyer may
cancel the Escrow by Notice to Seller delivered to Seller on or
before 5:00 p.m. PDT on the last day of the Investigation Period.
If Buyer does not timely cancel Escrow as set forth in the above
sentence, Buyer shall be unconditionally obligated to purchase
the Property without any contingencies (other than Section 7(a)
conditions precedent). Upon termination of the Investigation
Period without timely cancellation of Escrow, the Deposit shall
be non-refundable in favor of Seller, and shall be released to
Seller by Escrow Agent on the first business day following the
expiration of the Investigation Period, without further act of
Buyer. If Escrow is canceled during the Investigation Period in
accordance herewith, Buyer shall deliver to Seller, for retention
by Seller, all information, studies, and reports obtained or made
by Buyer or its agents relating to the Property. In addition, if
Escrow is canceled during the Investigation Period in accordance
herewith, Seller shall instruct Escrow Agent to refund the
Deposit to Buyer, net only of Buyer's share of costs and expenses
of the Escrow and title. Buyer's inspection, investigation and
survey of the Property , prior to execution hereof and during the
Investigation Period, shall be in lieu of any notice or
disclosure required by Section 25359.7 of the California Health
and Safety Code, or by any provision of the Civil Code or
pursuant to any other applicable law, and Buyer hereby waives any
requirement for a notice pursuant to those provisions. Buyer
shall be deemed to have approved all conditions pertaining to the
Property unless it cancels Escrow in accordance herewith (on the
basis of a condition other than an Approved Condition) on or
before the end of the Investigation Period. Notwithstanding
anything to the contrary herein, if Buyer desires to undertake
any testing, investigation or inspection of the Land (other than
in connection with the Approved Conditions) Buyer shall perform
such inspections, investigations or tests on or before the
expiration of the Investigation Period, using only consultants on
a list to be provided by Seller upon Buyer's written request therefor.
(4) Title. Not later than 5:00 PDT on May 6, 1998, Buyer may
provide Notice to Seller that Buyer disapproves of one or more
matters affecting title to the Property (the "Title Notice Date")
and request that Seller correct such deficiency. All matters
affecting title to the Property which are not disapproved by
Buyer by Notice to Seller on or before the Title Notice Date,
together with all matters consented to by Buyer or created by
Buyer or its agents, or by a tenant (without Seller's written
consent), shall be deemed to be "Permitted Exceptions" for the
purposes of this Agreement. In the event Seller receives no such
Notice, all matters affecting title to the Property shall be
deemed Permitted Exceptions. If Buyer timely and properly
objects to a title matter, Seller shall, in the exercise of its
sole discretion, at least one (1) day prior to the end of the
Investigation Period, advise Buyer whether Seller intends to
correct the title objection or provide endorsement coverage with
respect thereto prior to the close of Escrow. If Seller elects
not to correct the deficiency or provide endorsement coverage
with respect thereto, or if Seller provides no Notice to Buyer of
its intent with respect thereto (in which event Seller shall be
deemed to have elected not to correct the deficiency or provide
endorsement coverage with respect thereto), Buyer shall be
required, either to waive its objection or cancel Escrow by
Notice delivered to Seller and Escrow Agent on or before the
expiration of the Investigation Period. Subject to any
deficiency which Seller has agreed to correct or endorse prior to
the close of Escrow, if Buyer does not cancel Escrow during the
Investigation Period, Buyer shall be deemed to have waived its
previous objections to matters affecting title to the Property,
which objections shall thereafter be deemed included in the
"Permitted Exceptions." Notwithstanding the foregoing, Seller
agrees to use its reasonable efforts to cause the removal from
the Title Policy (by removal, indemnity or endorsement), prior to
Closing, of all monetary encumbrances recorded against the Real
Property after the end of the Investigation Period, other than
(i) liens recorded as a result of acts or omissions of Buyer, and
(ii) liens recorded as a result of acts or omissions of Tenants.
(5) Title Commitment. On or before the expiration of the
Investigation Period, Buyer shall have obtained from Title
Company Commitments to issue, in a form acceptable to Buyer, a
standard coverage policy of title insurance (collectively, the
"Title Policy") dated as of the Closing Date in an amount which,
in the aggregate, is equal to the amount of the Purchase Price,
showing fee title to, the Property vested in Buyer, subject only
to the Permitted Exceptions, and with such endorsements and such
exclusions as shall be acceptable to Buyer (each, a
"Commitment"). If Buyer fails to obtain the Commitments, Buyer
shall be required to close Escrow (subject only to the conditions
in Section 7(a)) notwithstanding that Buyer may not be able to
obtain, thereafter, a Title Policy in a form acceptable to Buyer
with respect to the Property.
(6) Buyer's Right of Entry. Prior to the Effective Date, Buyer
and Seller have entered into that certain Entry Permit shown on
Exhibit "F" attached hereto ("Entry Permit"), and shall act in
accordance with the terms of that Entry Permit, subject, however,
to the more specific limitations set forth in this Agreement.
Notwithstanding any greater rights previously set forth in the
Entry Permit, Buyer shall have the right to enter the Property
prior to the end of the Investigation Period, solely to conduct,
at Buyer's cost, expense and liability, the following studies or
inspections: (i) a market and neighborhood analysis; and (ii) a
complete financial analysis of the Property. Without limiting
the generality of the foregoing, Buyer acknowledges and agrees
that Buyer shall not be entitled to enter the Property after the
date of this Agreement, for the investigations relating to the
Approved Conditions, and by execution and delivery hereof, the
Entry Permit is deemed so modified. In addition, Buyer may enter
the Property after the expiration of the Investigation Period
(provided Escrow has not been canceled), subject to the Entry
Permit through the Closing Date with the prior written consent of
Seller (which consent shall not be unreasonably delayed or
denied), in connection with preparation for transfer of the
Property to Buyer (but not to conduct continuing diligence after
expiration of the Investigation Period), for purposes such as
obtaining access to the books and records of Seller made
available to Buyer pursuant to Section 5(a) above, in connection
with audits by Buyer=s auditors, and meeting with on-site staff
to effect an orderly transition of management following the
Closing Date.
6. Limitation on Leasing. Subsequent to Buyer's execution and
delivery of the Entry Permit, and while this Agreement is in
effect, and so long as Buyer is not in default hereunder, Seller
shall not modify any of the Leases or enter into any new Leases
after the Effective Date without the prior written consent of
Buyer, which shall not be unreasonably withheld. Such consent
shall be conclusively presumed to be granted two (2) business
days after a copy of such proposed new Lease or Lease
modification is delivered to Buyer, unless Buyer objects in
writing, listing the specific and reasonable basis for such
objection, by Notice to Seller within such period. As to all
such Leases or Lease modifications entered into after the
Effective Date (unless Buyer timely and properly objects as set
forth above), Buyer hereby expressly assumes all obligations of
the landlord under such Leases, including obligations with
respect to tenant improvements, and contracts relating thereto
(including without limitation such obligations relating to the
Xxxxxxx Xxxxxx Lease), leasing commissions and free rent or other
rent concessions, whether such obligations are payable prior or
subsequent to the Closing Date; provided, however, that the
proposed construction contract with respect to the "Xxxxxxx
Lease," and leasing commissions obligations in connection
therewith, shall not be assumed by Buyer, and such tenant
improvement costs and leasing commissions shall be allocated as
described in Section 4(i) above. Except with respect to entering
into new Leases and Lease modifications, Seller shall retain all
of its rights to operate the Property in the ordinary course of
business prior to the Closing Date, including taking legal action
against Tenants in default under their Leases, and Buyer shall
cooperate (at no cost to Buyer) with Seller's prosecution of such
actions to completion following the Closing. Notwithstanding the
foregoing, prior to delivering a Tenant notice under Code of
Civil Procedure '1161, et seq., Seller shall deliver a Notice to
Buyer specifying the nature of the default and the amount to be
paid or other actions required to cure the default. If Buyer
fails to deliver Notice to Seller within three (3) days of
Seller=s Notice, pursuant to which Buyer agrees to treat such
Lease as a Lease subject to the provisions of Sections 4(a)(ii)
and 4(b)(ii) (so as to apply amounts received post-closing first
to delinquent amounts which accrued pre-closing), then Seller may
proceed to exercise its rights and remedies against such Tenant.
7. Conditions Precedent to Closing.
(1) Buyer's Conditions. The closing of the purchase of the
Property on the Closing Date and Buyer's obligation to acquire
the Property shall, in addition to any other conditions set forth
herein, be conditional and contingent upon satisfaction, or
waiver by Buyer, of all of the below listed conditions:
(1) Personal Property. The Personalty shall consist of those
items described on Exhibit "B" hereto, subject only to changes
relative to use and consumption thereof during the ordinary
course of business while this Agreement is in effect;
(2) Compliance with Agreement. Seller shall have substantially
performed and complied with all of its covenants and conditions
contained in this Agreement;
(3) Accuracy of Representations and Warranties. The
representations and warranties of Seller set forth in this
Agreement shall be confirmed by Seller in writing as materially
true and correct as of the Closing Date;
(4) Title. No matters shall have been placed of record after
expiration of the Investigation Period, and remain of record as
of the Closing Date, other than mechanics and materialmen liens,
and other liens, placed of record (i) in connection with acts or
omissions of Tenants or work performed by or for Tenants, and not
financed by Seller, and (ii) as a result of acts or omissions of
Buyer, which matters the Title Company intends to include as an
exception to the Title Policy;
(5) Casualty or Condemnation. No casualty or condemnation has
occurred pursuant to which Buyer has elected to terminate the
Agreement in accordance with Section 13 below; and
(6) Estoppels. Seller shall have delivered to Buyer prior to
the Closing Date, Tenant estoppels, executed within sixty (60)
days of the Closing Date and in the form of Exhibit "G-1", either
directly to the benefit of Buyer or assigned by Seller to Buyer,
and without any material exceptions noted thereon by the
applicable Tenant except for Permitted Estoppel Exceptions (as
defined below) ("Tenant Estoppels") from (i) Tenants leasing, in
the aggregate, as of the Effective Date, not less than seventy-
five percent (75%) of the total leased space in the Property,
with the exception of X'Xxxxxxxx & Xxxxxx and Xxxx & Xxxx, and
(ii) all Tenants leasing, as of the Effective Date, more than
3,000 square feet of net rentable area of the Property, with the
exception of X'Xxxxxxxx & Xxxxxx and Xxxx & Xxxx (it being
understood and agreed that Leases entered into after the
Effective Date and approved or deemed approved by Buyer shall be
deemed to have approved Tenant Estoppels); provided, however,
that, with respect to one or more particular premises in the
Property, Seller may, in lieu of delivering to Buyer a Tenant
Estoppel to meet such condition, deliver a "Seller's Estoppel"
with respect to such leased space, in the form of Exhibit "G-2"
attached hereto (or a portion thereof, as needed), subject only
to Permitted Estoppel Exceptions; provided, further, however,
that in the event that Seller thereafter delivers a Tenant
Estoppel to Buyer with respect to the same Lease (either before
or after the Closing Date), then Seller's Estoppel shall be of no
force and effect with respect to the Lease covered by such Tenant
Estoppel, if and to the extent that the Tenant Estoppel is
consistent with the previously delivered Seller's Estoppel. As
used herein, "Permitted Estoppel Exceptions" means all of the
following: (i) a Tenant's failure to include (after Seller's
delivery of the Tenant Estoppel to Tenant in the form of Exhibit
"G-1"), Paragraph 10 of Exhibit "G-1"; and (ii) a Tenant's
disclosure of information (x) consistent with the Lease of the
Tenant, or inconsistent with such Lease in an immaterial respect,
or (y) known to or made available to Buyer prior to expiration of
the Investigation Period in connection with Buyer's review of
materials pursuant to Section 5 above.
(2) Seller's Conditions. The closing of the purchase of the
Property on the Closing Date and Seller's obligation to sell and
convey the Property shall, in addition to any other conditions
set forth herein, be conditional and contingent upon
satisfaction, or waiver by Seller, of each and all of the below
listed conditions:
(1) Compliance with Agreement. Buyer shall have substantially
performed and complied with all of its covenants and conditions
contained in this Agreement, and shall have delivered all
documents required to be delivered by Buyer pursuant hereto to
effect a purchase of the Property in accordance herewith;
(2) Accuracy of Representations and Warranties. All
representations and warranties of Buyer contained in or made
pursuant to this Agreement shall be confirmed by Buyer in writing
as true and correct as of the Closing Date;
(3) Title. The condition precedent set forth in Section
7(a)(iv) shall have been satisfied.
8. Closing Documents. On or before the Closing Date, Seller
and Buyer shall deliver to Escrow Agent the following fully-
executed documents and/or items, acknowledged where appropriate
(together referred to herein as the "Closing Documents"):
(1) Deed. A Grant Deed, in the form attached as Exhibit "H"
(the "Deed"), executed by and notarized on behalf of Seller, and
conveying Seller's interest in the Property and Improvements to
Buyer, subject to general and special real estate taxes and
assessments, and all matters of record or apparent from an
inspection or survey.
(2) Xxxx of Sale, Assignment and Assumption Agreement. A Xxxx
of Sale, Assignment and Assumption agreement to be executed and
delivered by Seller and Buyer, in the form attached hereto as
Exhibit "I" (the "Xxxx of Sale") (i) conveying to Buyer title to
the Personalty, (ii) assigning to Buyer Seller's interest in all
Leases (other than the Lease described on Exhibit "A-1") and
providing for assumption thereof by Buyer, (iii) assigning to
Buyer, Seller's interest in all assignable, written or oral
service, maintenance, construction, parking, brokerage, leasing
commission, advertising, employment, operating or other
contracts, arrangements or agreements affecting the Property,
including any third party management agreements or contracts (but
not any management agreement or management contract, or leasing
agreement with respect to the entire Property, entered into by
ARES, Inc. or any other affiliate of Seller), and any agreements
pursuant to which goods, services, supplies or any other items
whatsoever are furnished and/or to be furnished in connection
with the Property, or the repair, maintenance or operation of the
Property or any portion or component thereof ("Service
Contracts"), and providing for assumption thereof by Buyer;
provided, however, that Seller shall cause to be completed
following the Closing, and Buyer shall not assume at Closing the
obligations to complete, the tenant improvements with respect to
the Xxxxxxx Lease (but shall be responsible for payment of 50% of
the costs of construction of such tenant improvements pursuant to
that certain contract entered into by and between Advance
Builders and Seller as of April 24, 1998); and (iv) assigning to
Buyer all of Seller's interest in the Intangible Property,
together with originals of all Intangible Property (if
applicable) in each case without representation by Seller as to
assignability or other matters (except to the extent expressly
represented and warranted by Seller herein in Section 10 below).
(3) Assignment of Lease. An Assignment and Assumption of Lease
to be executed and delivered by Seller and Buyer, in the form
attached hereto as Exhibit "I-1" (the "Assignment of Lease"),
conveying to Buyer all of Seller's interest, if any, in the Lease
described therein and on Exhibit "A-1" hereto.
(4) Non-Foreign Status Affidavit. Seller shall deliver an
Affidavit of Non-Foreign Status in the form of Exhibit "J"
attached hereto, together with a State of California FTB 590RE form.
(5) Other Documents. Buyer and Seller shall deliver such other
documents as shall be reasonably required to transfer or assign
the Property to Buyer, and provide for assumption of liabilities
by Buyer as provided herein.
9. Closing.
(1) Closing Date. The Closing Date shall be on a business day
as agreed to by Seller and Buyer, but in all events shall be on a
date no later than the Outside Closing Date, unless this date is
mutually extended in writing by Seller and Buyer in the exercise
of their respective sole discretion.
(2) Time and Place. The Closing shall take place through Escrow
on the Closing Date at the offices of Escrow Agent.
(3) Payment of Purchase Price. Buyer shall deliver to Escrow at
least one (1) business day before the Closing Date immediately
available funds in the amount of the Purchase Price plus any
prorations, costs and expenses hereunder payable by Buyer, and
less the amount of the Deposit (which shall have been delivered
to Seller on or before the day after the expiration of the
Investigation Period). The amount of the Deposit shall be
credited against the Purchase Price upon Closing.
(4) Possession. Possession of the Property shall be delivered
to Buyer on the Closing Date, subject only to the rights of
Tenants under the Leases and matters of record or apparent by
inspection or survey of the Property. At Closing, Seller will
make available to Buyer at the Real Property all keys (identified
as to suite), Personalty, and originals or true and correct
copies of all plans and specifications, manuals, warranties and
operating logs for the Real Property and other operating and
management documents not previously delivered to Buyer and in
Seller's possession or control.
(5) Closing Costs. Seller shall pay at Closing the premium for
the standard coverage policy of title insurance, documentary
transfer fees and one-half of the escrow and recording fees.
Buyer shall pay the premium for the extended coverage policy of
title insurance and one-half of the escrow and recording fees.
Seller and Buyer shall each be responsible for paying their
respective attorneys' fees and costs, if any.
(6) Settlement Statement and Disbursement Ledger. Escrow Agent
shall prepare and deliver to the parties on the Closing Date a
correct Settlement Statement and Cash Receipts and Disbursements Ledger.
(7) Title Policy. Escrow Agent shall require Title Company to
deliver the Title Policy to Buyer (with a copy to Seller) within
fifteen (15) business days following the Closing Date.
(8) Xxxx of Sale. On the Closing Date, Seller shall assign to
Buyer, the Personalty and the Intangible Property, with the
exception of items of Personalty excluded pursuant to the Xxxx of
Sale, and Seller shall assign to Buyer and Buyer shall assume,
Seller's rights and obligations under, the Leases and Service
Contracts, in accordance with and as specified in the Xxxx of Sale.
(9) Audit Letter. On or before the Closing Date, at Buyer's
request, Seller shall deliver a letter to Buyer's auditors, in
the form of Exhibit "K" attached hereto.
10. Representations and Warranties of Seller. Seller represents
and warrants to Buyer, as of the Effective Date and as of the
Closing Date, as follows:
(1) Status of and Execution by Seller. Seller is (i) in good
standing and validly existing as a New York corporation; and (ii)
duly authorized, qualified and licensed to do all things required
of it under or in connection with this Agreement, including to
execute, deliver and perform this Agreement. All agreements,
instruments, and documents herein provided to be executed by
Seller will be duly executed by and binding upon Seller as of the Closing.
(2) Leases. The Lease Schedule attached hereto as Exhibit "L"
correctly lists, as of the Effective Date, all of the Leases and
the base rental currently required to be paid with respect
thereto. Except as disclosed on Exhibit "L," the Leases are not
in monetary default as of April 30, 1998, and Seller shall have,
on or before the Diligence Date, made available to Buyer true and
accurate copies of the Leases in effect as of the Effective Date.
Notwithstanding anything to the contrary in this Agreement, to
the extent that the foregoing statements are confirmed by Tenants
in Tenant Estoppels delivered to Buyer (or in other documents
made available to Buyer), Seller shall have no obligation or
liability to Buyer with respect to such statements regarding such Leases.
(3) Service Contracts. There are no Service Contracts which are
not terminable on thirty (30) (or fewer) days' notice, and
entered into by Seller with respect to the Property, which remain
in effect, except those listed on Exhibit "M" attached hereto.
(4) Mechanics Liens. To Seller's knowledge, there are no
mechanics liens outstanding with respect to the Property as a
result of work performed thereon by Seller, or contractors or
agents of Seller, except any of the same as shall be removed (or
endorsed over by Title Company) as of the Closing Date.
(5) Financial Statements. To Seller's knowledge, there are no
materially incorrect income or expense figures in any financial
statements prepared by or for Seller and made available to Buyer
with respect to the Property, except as may be corrected in other
financial or other statements or documents made available to
Buyer in connection with Buyer's due diligence, and Seller
acknowledges and agrees that Buyer, at Buyer's sole cost and
expense, may request its auditors to review such statements in
connection with its purchase of the Property.
(6) Pending Actions. To Seller's knowledge, except as set forth
on Exhibit "C," there is no litigation, claim, administrative
action, arbitration or other proceeding now pending or threatened
in writing against Seller relating to the Property, which would
materially and adversely affect the use, operation or
construction of the Property, and which is not a matter of public record.
(7) No Violations. To Seller's knowledge, Seller has received
no written notice of violations of City, County, State, Federal,
building, fire or health codes, zoning codes or other regulations
or ordinances, filed or issued against the Property by any
government authority, which violations remain outstanding and
which would materially and adversely affect the use of the
Property.
As used in this Agreement, the term "to Seller's knowledge"
shall mean to Seller's actual present knowledge, as determined by
the state of knowledge of the individual who acts as the Seller's
asset manager of the Property as of the Effective Date (or, with
respect to Section 10(g) only, as determined by the state of
knowledge of Xxxxx Xxxxxxx and Xxxxx Xxxxxxxx), with respect to
the Property, without independent investigation or independent
review of Seller's files. Seller shall not have any liability
for breach of its representations and warranties herein if, as of
the Closing Date, the representations and warranties set forth
above shall not be true, but Buyer has knowledge of such facts
prior to the Closing and proceeds to close Escrow notwithstanding
such facts. Seller shall be entitled to state in writing prior
to Closing exceptions to the representations, warranties, and
covenants set forth above, in which case Buyer may (i) terminate
this Agreement if such exceptions are not reasonably acceptable,
in which event the Deposit (less Buyer's share of Escrow and
Closing costs) shall be returned to Buyer, or (ii) elect to close
Escrow notwithstanding such exceptions. In either event, Seller
shall have no further obligation or liability to Buyer. The
representations and warranties of Seller set forth in this
Agreement shall survive for one (1) year after the close of Escrow.
11. Representations and Warranties of Buyer. Buyer represents
and warrants to Seller, as of the Effective Date and as of the
Closing Date, as follows:
(1) Status of and Execution by Buyer. Buyer is now and on the
Closing Date will be: (i) duly formed and validly existing as a
Maryland limited partnership; (ii) duly authorized, qualified and
licensed under the laws of the State of California to conduct
business and to acquire the Property; and (iii) duly authorized,
qualified and licensed to do all things required of it under or
in connection with this Agreement, including to execute, deliver
and perform this Agreement. All agreements, instruments, and
documents herein provided to be executed by Buyer will be duly
executed by and binding upon Buyer as of the Closing.
(2) No Violations. Neither this Agreement nor any of the
agreements, instruments and documents herein provided to be
executed or to be caused to be executed by Buyer violate or will
violate any provision of any agreement, law, regulation or
judicial order to which Buyer is a party or by which it is bound.
The representations and warranties of Buyer contained in
this Agreement shall survive for one (1) year after the close of Escrow.
12. Condition of the Property.
(1) AS-IS. Buyer acknowledges that Seller is selling, and Buyer
shall accept, the Property in an "AS IS" condition without any
representation or warranty whatsoever by Seller relating to the
Property, with the exception of the express, limited
representations and warranties set forth in Section 10 above.
Buyer acknowledges that it is a sophisticated real estate
investor who shall have had, as of the Closing Date, open access
to, and sufficient time to review, all information, documents,
agreements, studies and tests relating to the Property that Buyer
elects to conduct, and conduct a complete and thorough
inspection, analysis and evaluation of the Property, including
without limitation investigation of structural, seismic, zoning,
land use and environmental issues, if any, and further
acknowledges that Buyer has conducted, or shall conduct with
respect to matters other than Approved Conditions, such tests and
investigations, if at all, prior to expiration of the
Investigation Period, and that Buyer shall receive and review
such information as Buyer shall require in the course of its
investigation. Buyer has undertaken (with respect to Approved
Conditions), and shall undertake (with respect to all matters
other than Approved Conditions) such investigation as Buyer
deems necessary or desirable to make Buyer fully aware of the
condition of the Property as well as all facts, circumstances and
information which may affect the use and operation of the
Property, and Buyer covenants and warrants to Seller that Buyer
shall rely solely on Buyer's own due diligence investigation in
determining to purchase the Property.
(2) Release. Effective as of the Closing Date, Buyer, on behalf
of itself, its officers, directors and its and their respective
successors, shall, and by the execution of this Agreement, hereby
does, forever release Seller, its officers, directors, agents and
employees, and its and their respective successors, of and from
any and all losses, liabilities, damages, claims, demands, causes
of action, costs and expenses, whether known or unknown, arising
out of or in any way connected with the Property, including the
condition of title to the Property (and Seller's interest in and
ownership thereof) and the environmental and structural condition
of the Property (herein, "Losses"). Buyer shall, upon the
Closing, and, by the execution of this Agreement, hereby does,
forever release Seller of and from any environmental claims and
causes of action existing now or hereafter created or enacted,
whether at common law or by federal, state, county, or municipal
law or ordinance. Buyer agrees never to commence, aid in any
way, or prosecute against Seller, its officers, directors, agents
or employees or its and their respective successors, any action
or other proceeding based upon any Losses. The foregoing release
shall not be deemed to release any claim of Buyer for Seller's
breach of its representations and warranties set forth in
Section 10 above (subject to the limitation on the (1)
survival of such representations and warranties as set forth in
Section 10), nor any claim of Buyer for damages resulting from
the untruth of any matter which Seller certifies to be true in
any Seller's Estoppel delivered to Buyer in connection with this
Agreement, which Seller's Estoppel remains in effect as of the
date Buyer brings such claim.
(3) Waiver. Buyer expressly waives any rights or benefits
available to it with respect to the foregoing release under any
provision of applicable law which generally provides that a
general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time the release
is agreed to, which, if known to such creditor, would materially
affect a settlement. Buyer, by the execution of this Agreement,
acknowledges that it fully understands the foregoing, and with
this understanding, nonetheless elects to and does assume all
risk for Losses known or unknown, described in this Section 12.
Without limiting the generality of the foregoing:
THE UNDERSIGNED ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY LEGAL
COUNSEL AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL
CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH
THE DEBTOR."
THE UNDERSIGNED, BEING AWARE OF THIS CODE SECTION, HEREBY
EXPRESSLY WAIVES ANY RIGHTS IT MAY HAVE THEREUNDER, AS WELL AS
UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
Seller's Initials:/s/ WJS Buyer's Initials:/s/ VJC
13. Casualty or Condemnation. If prior to the Closing Date, the
Property shall be destroyed or substantially damaged, and the
cost to repair shall exceed One Million Dollars ($1,000,000.00),
or if the Property shall become the subject of any proceedings,
judicial, administrative, or otherwise, for eminent domain or
condemnation where the value of the portion of the Property
sought exceeds One Million Dollars ($1,000,000.00), Seller shall
promptly notify Buyer thereof, and Buyer may then, within fifteen
(15) days after delivery of Notice of the same by Seller, elect
to terminate this Agreement by giving Seller Notice thereof, in
which event the parties hereto shall be relieved and released of
and from any further duties, obligations, rights, or liabilities
hereunder (but not under the Entry Permit), and the Deposit shall
be returned to Buyer (less only Buyer's half of Escrow fees and
costs). If the Closing Date is within the aforesaid fifteen (15)
day period, then the Closing shall be extended to the next
business day following the end of said fifteen (15) day period.
If (i) the value of the Property destroyed or substantially
damaged or subject to taking is equal to or less than One Million
Dollars ($1,000,000.00), or (ii) Buyer elects to complete the
transactions contemplated herein as provided above
notwithstanding destruction or eminent domain or condemnation
proceedings involving damage or condemnation value of in excess
of One Million Dollars ($1,000,000.00), this Agreement shall
remain in full force and effect and the purchase contemplated
herein, less any portion of the Property taken by eminent domain
or condemnation, if any, shall be consummated with no further
adjustment or modification and at the Closing Seller shall
assign, transfer, and set over to Buyer all the right, title, and
interest of Seller in and to any insurance proceeds resulting
from the casualty or any awards that have been or may thereafter
be made for the taking or condemnation.
14. Default and Remedies.
IF (i) BUYER IS IN DEFAULT OF THIS AGREEMENT PRIOR TO THE
CLOSING, (ii) BUYER FAILS TO CURE SUCH DEFAULT ON OR BEFORE THE
DATE WHICH IS FIVE (5) DAYS AFTER NOTICE THEREOF FROM SELLER (OR,
IF EARLIER, ON OR BEFORE THE OUTSIDE CLOSING DATE), AND (iii)
SELLER ELECTS TO TERMINATE THIS AGREEMENT DUE TO BUYER'S DEFAULT,
THE DEPOSIT AND ALL OTHER PAYMENTS AND THINGS OF VALUE DELIVERED
BY BUYER SHALL BE FORFEITED BY BUYER AND RETAINED BY SELLER, AND
BOTH PARTIES SHALL THEREAFTER BE RELEASED FROM ALL FURTHER
OBLIGATIONS UNDER THIS AGREEMENT. IF (i) SELLER IS IN DEFAULT OF
THIS AGREEMENT PRIOR TO THE CLOSING, (ii) SELLER FAILS TO CURE
SUCH DEFAULT ON OR BEFORE THE DATE WHICH IS FIVE (5) DAYS AFTER
NOTICE THEREOF FROM BUYER (OR, IF EARLIER, ON OR BEFORE THE
OUTSIDE CLOSING DATE), AND (iii) BUYER ELECTS TO TERMINATE THIS
AGREEMENT DUE TO SELLER'S DEFAULT, BUYER SHALL BE ENTITLED TO
OBTAIN A RELEASE OF THE DEPOSIT, AND IN LIEU OF ALL OTHER
REMEDIES AND DAMAGES, BUYER SHALL BE ENTITLED TO, AT ITS
ELECTION, EITHER (A) SPECIFIC ENFORCEMENT OF SELLER'S DUTY TO
TRANSFER THE PROPERTY PURSUANT TO THIS AGREEMENT, OR (B) PAYMENT
BY SELLER OF FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) AS
LIQUIDATED DAMAGES (IN WHICH EVENT BOTH PARTIES SHALL THEREAFTER
BE RELEASED FROM ALL FURTHER OBLIGATIONS HEREUNDER); PROVIDED,
HOWEVER, BY PURSUING AN ACTION FOR SPECIFIC PERFORMANCE, BUYER
SHALL BE DEEMED TO HAVE IRREVOCABLY ELECTED SUCH ACTION AS ITS
SOLE REMEDY HEREUNDER AND SHALL NOT BE ENTITLED TO MAINTAIN A
CONCURRENT OR ALTERNATIVE ACTION FOR ANY OTHER DAMAGES OR REMEDIES.
BUYER AND SELLER ACKNOWLEDGE THAT BUYER'S AND SELLER'S
DAMAGES WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE IN THE
EVENT, RESPECTIVELY, OF BUYER'S OR SELLER'S FAILURE TO PERFORM
ITS OBLIGATIONS UNDER THIS AGREEMENT AND THAT THE DEPOSIT AND THE
LIQUIDATED RECOVERY SET FORTH ABOVE, FOR BUYER IN THE EVENT OF
SELLER'S BREACH, AND SELLER IN THE EVENT OF BUYER'S BREACH, ARE
REASONABLE ESTIMATES OF SUCH DAMAGES. THE DEPOSIT AND SUCH OTHER
PAYMENT SHALL, THEREFORE, BE LIQUIDATED DAMAGES TO, RESPECTIVELY,
SELLER AND BUYER, AND RETENTION THEREOF OR RECEIPT THEREOF SHALL
BE, RESPECTIVELY, SELLER'S AND BUYER'S SOLE AND EXCLUSIVE REMEDY
FOR THE OTHER PARTY'S FAILURE TO PERFORM ITS OBLIGATIONS UNDER
THIS AGREEMENT IN THE EVENT THE NON-DEFAULTING PARTY ELECTS TO
TERMINATE THIS AGREEMENT (UNLESS BUYER ELECTS ITS RIGHT TO SEEK
SPECIFIC PERFORMANCE AS PROVIDED HEREIN). EXCEPT AS EXPRESSLY
PROVIDED ABOVE, SELLER AND BUYER EACH EXPRESSLY WAIVE THE
REMEDIES OF SPECIFIC PERFORMANCE AND ADDITIONAL DAMAGES. IN
ADDITION, BUYER HEREBY WAIVES ANY RIGHT (EXCEPT IN CONNECTION
WITH AN ACTION FOR SPECIFIC PERFORMANCE), WHICH BUYER MAY
OTHERWISE HAVE TO RECORD ANY NOTICE OF PENDING ACTION (LIS
PENDENS) AFFECTING THE PROPERTY. BUYER AND SELLER FURTHER
ACKNOWLEDGE BY THEIR INITIALS BELOW THAT THEIR RESPECTIVE WAIVER
OF THEIR RIGHTS PURSUANT TO THIS SECTION 14 IS MATERIAL
CONSIDERATION FOR THE OTHER PARTY TO ENTER INTO THIS AGREEMENT.
SELLER'S INITIALS: /s/ WJS BUYER'S INITIALS: /s/ VJC
15. Brokerage Commissions. Buyer hereby represents and warrants
to Seller that Buyer has not incurred, and shall not have
incurred as of the Closing Date, any liability for the payment of
any brokerage fee or commission in connection with the
transaction contemplated in this Agreement. Seller hereby
represents and warrants to Buyer that Seller has not incurred,
and shall not have incurred as of the Closing Date, any liability
for the payment of any brokerage fee or commission in connection
with the transaction contemplated in this Agreement, except for
the commission due to Xxxxxxx & Xxxxxxxxx, with respect to the
Property, which commission (as between Buyer and Seller) shall be
the sole obligation of Seller. Seller and Buyer hereby agree to
defend, indemnify and hold harmless the other from and against
any and all claims of any other person claiming a brokerage fee
or commission in connection with the Property through such party.
16. Miscellaneous.
(1) No Exchange. Seller shall not participate in, or
accommodate Buyer in connection with, a ' 1031 exchange.
(2) Entire Agreement. This Agreement supersedes all prior
discussions, agreements and understandings between Seller and
Buyer, with the exception of the Entry Permit and the
confidentiality letter signed by Buyer on or about April 13,
1998, and constitutes the entire agreement between Seller and
Buyer with respect to the transaction herein contemplated. This
Agreement may be amended or modified only by a written instrument
executed by Seller and Buyer.
(3) Waiver. Each party hereto may waive any breach by the other
party of any of the provisions contained in this Agreement or any
default by such other party in the observance or performance of
any covenant or condition required to be observed or performed by
it contained herein; provided, however, that such waiver or
waivers shall be in writing, shall not be construed as a
continuing waiver, and shall not extend to or be taken in any
manner whatsoever to affect any subsequent breach, act or
omission or default or affect each party's rights resulting
therefrom. No waiver will be implied from any delay or failure
by either party to take action on account of any default by the
other party. No extension of time for performance of any
obligations or acts shall be deemed an extension of the time for
performance of any other obligations or acts.
(4) Further Assurances. Each party hereto shall do such further
acts and execute and deliver such further agreements and
assurances as the other party may reasonably require to give full
effect and meaning to this Agreement.
(5) Notices. All notices demands, consents, approvals and other
communications given pursuant to this Agreement (each, a
"Notice") must be in writing and must be sent by hand, or by
telecopy (with a duplicate copy sent by ordinary mail, postage
prepaid), or by certified or registered mail, postage prepaid,
return receipt requested, or by reputable overnight courier
service, postage prepaid, addressed to the party to be notified
as set forth below:
TO SELLER:
The Mutual Life Insurance Company of New York
00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: H.E. Xxx Xxxxxxxx, Esq.
With a copy to:
Croudace & Xxxxxxxx
0 Xxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
TO BUYER:
Arden Realty Limited Partnership
c/o Arden Realty, Inc.
0000 Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Mr. Xxxxxx Xxxxxxx
With a copy to:
Xxxx & Xxxxx, P.C.
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Notices will be deemed given when delivered to Seller or Buyer,
as applicable (regardless of whether delivered to the persons
stated above to receive copies), by hand or when a legible copy
is received by telecopier (provided receipt is verified by
telephone confirmation or one of the other permitted means of
giving Notices under this Section), or if mailed, three (3) days
after deposit in the U.S. mail, certified, return receipt
requested (or on the date of delivery for overnight courier
service), with failure or refusal to accept delivery constituting
delivery for this purpose. The parties agree to use reasonable
efforts to provide copies of Notices to the outside counsel for
the other party specified above, but delivery of such copies
shall not be required for effective delivery of Notice. Actual
notice, however and from whomever given or received, will always
be effective Notice when received. Either party may change its
address for Notices set forth above by giving at least ten (10)
days' prior Notice of such change to the other party.
(6) Facsimile Signatures. Buyer and Seller each (i) agrees to
permit the use of telecopied signatures, from time to time, where
appropriate and consistent with subsection (e) above, 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.
(7) Successors and Assigns; Survival. This Agreement shall be
binding upon, and inure to the benefit of, the parties hereto and
their respective successors, heirs, administrators and assigns,
provided, however, that if Buyer assigns this Agreement, Buyer
shall not be relieved of any liability in connection herewith or
the purchase and sale. Any provision of this Agreement which, by
its terms, is to be performed after the Closing, shall survive
the Closing Date until full performance thereof.
(8) Governing Law and Venue. This Agreement shall be governed
by and construed in accordance with the laws of the State of
California and the venue shall be in Orange County.
(9) No Third Parties Benefitted. The parties do not intend to
confer any benefit on any person, firm, or corporation other than
Seller and Buyer, except as and to the extent otherwise expressly
provided herein.
(10) Attorneys' Fees. In the event of any dispute between any
parties arising out of or in connection with this Agreement or
any other document executed or delivered in connection herewith,
including any litigation, arbitration, bankruptcy and appellate
proceedings (and efforts to enforce the judgment, award or other
disposition of any of the same), the party which prevails in such
action (the "Prevailing Party") shall be reimbursed by the other
party for attorneys' fees, costs and expenses incurred by the
Prevailing Party in connection with such dispute (whether or not
such costs or expenses are specified in California Code of Civil
Procedure Section 1033.5 (a) or (b)). As used herein, the
"Prevailing Party" shall mean the party which obtains the net
monetary recovery or, if no monetary recovery is sought, the
party obtaining the greater nonmonetary relief.
(11) Construction. The section titles or captions in this
Agreement are for convenience only and shall not be deemed to be
part of this Agreement. All pronouns and any variations of
pronouns shall be deemed to refer to the masculine, feminine, or
neuter, singular or plural, as the identity of the parties may
require. Whenever the terms referred to herein are singular, the
same shall be deemed to mean the plural, as the context
indicates, and vice versa. The enumeration of certain
particulars as included within the general language shall not
restrict the scope or affect the generality of such language, and
except as expressly otherwise provided herein, the term "include"
shall mean "include, but shall not be limited to" and the term
"including" shall mean "including, without limitation." Both
Buyer and Seller are sophisticated parties who have been
represented by counsel in the negotiation of this Agreement, and
this Agreement shall not be construed as if it had been prepared
only by Buyer or Seller but rather as if both Buyer and Seller
had prepared the same. If any term, covenant, condition, or
provision of this Agreement or the application thereof to any
person or circumstance shall, at any time or to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision to persons or circumstances
other than those to which it is held invalid or unenforceable,
shall not be affected thereby, and each provision of this
Agreement shall be valid and shall be enforced to the fullest
extent permitted by law.
(1) (12) Time of Essence. Time is of the essence of this
Agreement and each and every term and provision hereof.
(13) Confidentiality and Indemnification. Buyer covenants and
agrees that: (i) all information provided to it by Seller in
connection with the Property or resulting from Buyer's
inspections of the Property and review of relevant materials will
be held in strict confidence by it and its agents and employees,
(ii) Buyer will return all such information to Seller in the
event the transaction contemplated by this Agreement is not
consummated for any reason, and (iii) Buyer will not rely
thereon, but will instead conduct Buyer's own due diligence
inquiry with respect to the Property. Buyer further agrees to
indemnify and hold Seller harmless from and against any and all
claims or damages, including attorneys' fees, resulting from
Buyer's breach of the covenant contained herein and/or from its
or its agents' or employees' entrance onto the Property. The
indemnification contained herein shall, without limitation,
survive the termination of this Agreement.
(14) Consents and Approvals. Both Seller and Buyer represent and
warrant to the other that each have obtained all requisite
consents and approvals, whether required by internal operating
procedures or otherwise, for entering into this Agreement and
closing the transaction contemplated hereby.
(15) No Other Agreements. After the Effective Date and until the
earlier of the termination of this Agreement or the Outside
Closing Date, Seller shall not enter into any written agreement
with any other person or entity for the sale of the Property;
provided, however, that Seller may accept back-up offers with
respect to purchase of the Property.
(16) Exhibits. All of the Exhibits referenced in this Agreement
are incorporated herein by reference.
(17) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all
of which taken together shall be deemed one and the same instrument.
(18) Post-Closing Covenant Re: Defaulted Leases. If and to the
extent any of the Leases shall be in default as of the Closing
Date, and shall not have been terminated prior to the Closing
Date, Buyer acknowledges and agrees that, if Buyer consummates
the purchase of the Property, Buyer shall use good faith,
reasonable efforts to relet the premises subject to such Lease,
so as to mitigate damages and preserve the benefits to Seller of
the retained Litigation Claims.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the Effective Date.
BUYER:
ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Arden Realty, Inc., a Maryland corporation
Its: General Partner
By:/s/ Xxxxxx X. Xxxxxxx
Its: President and COO
SELLER:
THE MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK, a New York mutual life insurance company
By:/s/ Xxxxxxx X. Xxxxxxxxxx
Its: Regional Vice President
By:
Its:
"ESCROW AGENT:" The undersigned acknowledges receipt of this
Agreement and agrees to act in accordance with all applicable
provisions contained herein.
CHICAGO TITLE INSURANCE COMPANY,
a California corporation
By: /s/ Xxxxxx Xxxxxxx
Its: Sr. Escrow Officer
