PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (this "Agreement") is entered into as of July 30,
1997 by and between PROPERTY ASSET MANAGEMENT, INC., a Delaware
corporation ("Seller"), and ARDEN REALTY LIMITED PARTNERSHIP, a
Maryland limited partnership ("Buyer").
RECITALS:
A. Seller is the owner of certain improved real property
located in Xxxxxxxx Xxxxxxx, Xxxxxxxxxx known as Westlake
Renaissance Court.
B. Buyer desires to purchase that property, and Seller
desires to sell that property, on the terms and conditions
contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Agreement, Buyer and Seller agree as
follows:
1. PURCHASE AND SALE
1.1 Agreement to Buy and Sell. Subject to all of the terms
and conditions of this Agreement, Seller hereby agrees to sell
and convey to Buyer and Buyer hereby agrees to acquire and
purchase from Seller the following (collectively, the
"Property"):
1.1.1 That certain parcel of real property described on
Exhibit "A" attached hereto, together with all of Seller's right,
title and interest in and to all easements, privileges and other
rights, including but not limited to development rights, air
rights and water rights, appurtenant thereto (collectively, the
"Land");
1.1.2 All improvements, structures and fixtures located
on or under the Land (collectively, the "Improvements") (the Land
and Improvements are herein collectively called the "Project");
1.1.3 All of Seller's right, title and interest in and
to all tangible personal property, if any, located on or affixed
to the Project and used in connection with the ownership,
operation or maintenance of the Project, and all intangible
property (including, but not limited to, trade names, logos,
easements, licenses, permits, air rights, certificates of
occupancy, warranties, rights of way, signs, trademarks,
telephone listings and numbers, sewer agreements, water line
agreements, utility agreements, water rights and oil, gas and
mineral rights), if any, owned or held by Seller that pertains to
the ownership, operation or maintenance of the Project
(collectively, the "Personal Property");
1.1.4 All leases or other agreements demising space in
or providing for the use or occupancy of any portion of the
Project (collectively, the "Leases") as more particularly
described in Schedule 1.1.4 attached hereto and made a part
hereof; and
1.1.5 Any and all service contracts, maintenance
agreements, management contracts, bonds and all other contracts
and agreements relating to the Property which continue in full
force and effect beyond the "Closing" (as defined below) as more
particularly described in Schedule 1.1.5 attached hereto,
together with all supplements, amendments and modifications
thereto (collectively, the "Contracts"), to the extent the
Contracts are assignable.
1.2 Purchase Price. The purchase price to be paid by Buyer
to Seller for the Property shall be the sum of Seven Million One
Hundred Thousand Dollars ($7,100,000.00) (the "Purchase Price").
1.3 Payment of Purchase Price. The Purchase Price shall be
payable as follows:
1.3.1 Within two (2) days after the "Effective Date" (as
defined below), Buyer shall deposit into "Escrow" (as defined
below), into an interest bearing account, Three Hundred Thousand
Dollars ($300,000) (such amount, together with any interest
earned thereon, is herein called the "Deposit") by certified
check or wire transfer of federal funds or in another immediately
available form. The Deposit shall be at all times invested by
Escrow Holder (as defined below) in the following investments:
(i) U.S. Treasury obligations, (ii) U.S. Treasury backed
repurchase agreements issued by a major money center banking
institution reasonably acceptable to Seller, (iii) CDs or Money
Market Accounts of institutions whose deposits are insured by the
FDIC, or (iv) such other manner reasonably acceptable to Seller
and Buyer. The Deposit shall be nonrefundable to Buyer unless
(i) Buyer shall timely terminate this Agreement pursuant to
Sections 3.1.4, 3.2, 4.5 or 4.6, or (ii) Seller shall be in
material breach of Seller's obligations under this Agreement, or
(iii) or the Closing shall fail to occur through no fault of
Buyer. The Deposit shall be applied to the Purchase Price at
Closing.
1.3.2 At least one (1) business day prior to the
"Closing Date" (as defined below), Buyer shall deposit into
Escrow the balance of the Purchase Price, subject to adjustment
by reason of any applicable prorations and the allocation of
closing costs described below. The deposit required by this
Section 1.3.2 shall be made by wire transfer of federal funds or
in another immediately available form.
2. OPENING OF ESCROW
2.1 Escrow; Escrow Holder. Within three (3) days after
Seller and Buyer shall have executed this Agreement, Seller shall
open an escrow (the "Escrow") with First American Title
Insurance Company, at 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attn: Xxxx Xxxxx ("Escrow Holder")
by delivering to Escrow Holder a fully executed copy of this
Agreement. Escrow Holder shall immediately, upon receipt, duly
execute this Agreement. The date of the opening of Escrow is
herein called the "Effective Date" and Escrow Holder shall
promptly advise Seller and Buyer of the Effective Date.
2.2 Escrow Instructions. The terms and conditions set forth
in this Agreement shall constitute both an agreement between
Seller and Buyer and escrow instructions for Escrow Holder.
Seller and Buyer shall promptly execute and deliver to Escrow
Holder any separate or additional escrow instructions requested
by Escrow Holder which are consistent with the terms of this
Agreement. Any separate or additional instructions shall not
modify or amend the provisions of this Agreement unless otherwise
expressly set forth by mutual written consent of Buyer and
Seller. As used in this Agreement, "Closing" shall mean the
recordation of the "Deed" (as defined below) in the Official
Records of Los Angeles County, California.
2.3 Closing Date. Escrow shall close on or before the date
that is forty-five (45) days after the Effective Date (the
"Closing Date").
3. ACTIONS PENDING CLOSING
3.1 Buyer's Review of Title.
3.1.1 Seller has heretofore delivered to Buyer,
accompanied by copies of all documents referred to therein, a
current preliminary title report or commitment for title
insurance issued by First American Title Insurance Company (the
"Title Company") showing the condition of title to the Property
(the "Preliminary Title Report"). If Buyer shall desire an ALTA
Survey of the Project ("Survey"), Buyer shall cause the same to
be made at Buyer's sole cost before the "Title Date" (as defined
below).
3.1.2 Buyer shall have until twenty-five (25) days
after the Effective Date (such date being herein called the
"Title Date") within which to deliver to Seller written notice of
Buyer's disapproval of title as shown on the Preliminary Title
Report and Survey (those disapproved title matters as so
identified by Buyer are hereafter called the "Disapproved
Exceptions"). Buyer's failure to provide such notice on or
before the Title Date shall constitute Buyer's approval of the
condition of title as shown on the Preliminary Title Report and
Survey.
3.1.3 If Buyer timely notifies Seller of its
Disapproved Exceptions on or before the Title Date, Seller shall
notify Buyer in writing within five (5) days after receipt of
Buyer?s notice that: (a) Seller will remove such Disapproved
Exceptions from title as of or before Closing; or (b) Seller will
not remove any or certain specified Disapproved Exceptions from
title. Seller's failure to address any Disapproved Exceptions in
any notice, or failure to give a notice as to any Disapproved
Exceptions, shall constitute Seller's statement that it will not
remove such Disapproved Exceptions from title.
3.1.4 If Seller does not provide Buyer with written
notice that it shall remove all Disapproved Exceptions from
title, Buyer shall have the right to terminate this Agreement by
delivery of written notice of termination in accordance with
Section 3.3 on or before the date that is thirty (30) days after
the Effective Date (the "Decision Date"), as Buyer's sole and
exclusive remedy. Buyer's failure to provide such notice of
termination on or before the Decision Date shall constitute
Buyer's waiver of its disapproval of the Disapproved Exceptions.
In the case of Buyer's waiver (or deemed waiver) of Disapproved
Exceptions, Seller shall have no obligation to remove or
otherwise address such Disapproved Exceptions from title, and
such waived Disapproved Exceptions shall be deemed approved. If
Buyer elects to terminate this Agreement pursuant to this
Section 3.1.4, the provisions of Section 3.3 shall apply. Except
for the Disapproved Exceptions Seller removes or covenants to
remove, the exceptions to title shown by the Preliminary Title
Report and any encumbrance arising from the acts of Buyer are
called the "Permitted Exceptions" in this Agreement.
3.1.5 Notwithstanding any of the foregoing, Seller shall
at Closing (but shall not be obligated prior thereto) remove of
record all tax and mechanic's liens (except only for the liens of
taxes to be prorated under Section 5.2.2 below) at its sole cost
and expense. Notwithstanding any of the foregoing, Buyer's
approval of the Preliminary Title Report shall be without
prejudice to Buyer's right to disapprove any additional
exceptions to title disclosed by any supplementary reports issued
by the Title Company; provided, however, Buyer's approval shall
not be unreasonably withheld. If any such additional exceptions
to title are disclosed, then unless Buyer gives written notice
that it disapproves such additional exceptions to title on or
before the sooner to occur of the Closing Date or five (5)
business days after receipt of written notice of such additional
exceptions (together with copies of the underlying documents
evidencing same), Buyer shall be deemed to have approved said
additional exceptions. If, for any reason, on or before the
Closing Date, Seller does not cause such additional exceptions
which Buyer disapproves (to the extent Buyer is permitted
hereunder to so disapprove) to be removed at no cost to Buyer
(Seller having the right but not the obligation to do so), then,
at Buyer's option exercised by giving written notice thereof on
or before the Closing Date, this Agreement shall terminate.
3.2 Buyer's Review of the Property; Agreements. On or
before the Decision Date, Buyer shall have prepared, obtained,
reviewed (or shall have chosen not to have prepared, obtained or
reviewed) and approved, among other things, all reports of
investigations of the Property, including, such soil,
environmental, geological and engineering tests and reports,
financial information about the Project, and other inspections of
the Property as Buyer shall deem necessary in order to determine
whether the Property is suitable for Buyer's intended use, as
well as investigated (or chosen not to have investigated) all
zoning requirements, federal, state and local laws, ordinances,
rules, regulations, permits, licenses, approvals and orders
applicable to the Property. Pursuant to and subject to the
requirements of Section 3.5 of this Agreement, Buyer may enter
onto the Property for the purpose of conducting its inspection
(the "Inspection") of the Property; provided, however, without
first obtaining Seller's prior written consent, Buyer shall only
conduct a visual inspection, with no right to conduct any
physical testing, boring, sampling or removal (collectively,
"Physical Testing") of any portion of the Property. Seller shall
reasonably cooperate to assist Buyer in completing the
Inspection. If Buyer wishes to conduct any Physical Testing of
the Property, Buyer shall submit a work plan to Seller prior to
the Decision Date for Seller's prior written approval, which work
plan Seller may modify, limit or disapprove in its sole and
absolute discretion. If, on the basis of the review and the
Inspection described in this Section 3.2, or if for any other
reason or for no reason, Buyer determines in its sole and
absolute discretion that the Property is not suitable for Buyer's
intended use, then on or before the Decision Date, Buyer may
terminate this Agreement in accordance with Section 3.3 below.
Buyer's failure to provide such notice on or before the Decision
Date shall constitute Buyer's approval of the aforementioned
items and of the condition of the Property.
As soon as practicable after the date hereof, but in no event
later than five (5) business days after the Effective Date,
except as otherwise set forth, Seller shall deliver to Buyer, or
shall cause to be delivered or made available to Buyer at the
Project, to the extent they are in Seller's possession (or the
possession of Seller's property manager), the following:
(i) Complete copies of all of the Tenant Leases and all
amendments thereto, a schedule of which is attached hereto as
Schedule 1.1.4;
(ii) Evidence that the Project complies with the
Subdivision Map Act of California, the Project has all of the
necessary valid Certificates of Occupancy and otherwise complies
with all construction and operational laws, codes, ordinances,
regulations and conditional use permits;
(iii) The loss history of the Project pertaining to
any property damage or personal injury suffered for which an
insurance claim of more than Fifty Thousand Dollars ($50,000) was
submitted by Seller at any time after January 1, 1995;
(iv) A set of all "as built" plans, specifications and
structural drawings (including, but not limited to, mechanical,
electrical, air conditioning, landscaping and sprinkler
drawings), third-party soil, geological, seismic, environmental
and hazardous materials and asbestos studies or reports, relating
to the Improvements or the subsurface conditions, grading plans,
water table or other matters bearing upon condition of the
Project;
(v) All electricity, utility and property tax bills for
the period beginning January 1, 1995 and current year to date;
(vi) Statements of income and expense for the Project
for the calendar years 1995, 1996 and current year to date;
(vii) All warranties and operating manuals that
Seller may have from vendors, contractors or servicing agents
with respect to the physical condition of the Improvements, the
Project or any portion thereof or the equipment located therein;
(viii) Complete copies of all Contracts; and
(ix) A list of all personal property, if any (including
supplies) owned or leased by Seller and used in connection with
the operation, maintenance and repair of the Project.
Seller's obligation with respect to the foregoing items is only
to make deliver such items to Buyer or to make such items
available to Buyer to the extent such items are in the possession
of Seller or its property manager, and Seller shall have no
obligation to obtain any of the foregoing items from third
parties (other than Seller's property manager) or to prepare or
generate such items.
3.3 Buyer's Termination. If Buyer elects to terminate this
Agreement in accordance with Sections 3.1.4, 3.1.5, 3.2, 4.5 or
4.6, then, on or before the Decision Date with respect to a
termination pursuant to Sections 3.1.4 or 3.2., or on or before
any applicable later date in connection with a termination
pursuant to Sections 3.1.5, 4.5 or 4.6, Buyer shall give Seller
and Escrow Holder written notice that Buyer elects to terminate
this Agreement. Buyer's failure to timely provide such
termination notice pursuant to said Sections shall constitute
Buyer's waiver of Buyer's right to terminate this Agreement
pursuant to said Sections. In the event Buyer timely elects to
terminate this Agreement pursuant to this Section 3.3, Escrow
Holder (or Seller, if the Deposit has previously been delivered
to Seller) shall deliver the Deposit to Buyer and shall return to
the depositor thereof any other materials previously placed in
Escrow and remaining in Escrow; Buyer shall deliver to Seller
all information, materials and data that Buyer and/or Buyer's
Agents discover, obtain or generate in connection with or
resulting from Buyer's investigation of the Property (including,
without limitation, pursuant to Section 3.5); and neither party
shall thereafter have any further rights or obligations under
this Agreement unless expressly provided otherwise herein.
3.4 No Processing. Without Seller's prior written consent,
until the Closing, Buyer shall not make any application to any
governmental agency for any permit, approval, license or other
entitlement for the Property or the use or development thereof.
3.5 Access to Property.
3.5.1 Subject to the rights of existing tenants of the
Property ("Tenants"), whom Buyer hereby agrees not to interview
or question without having provided Seller and Seller's Broker
(as defined below) with at least 24 hours prior written notice of
its intention to do so and an opportunity for Seller's
representative to accompany Buyer or its representative during
such interview, Seller hereby grants to Buyer a nonexclusive
license to enter onto the Property solely for the purpose of
conducting Buyer's Inspection which shall also include the
examination of all operating books and records that relate to the
Project (including all specifications and as-built drawings,
building permits, certificates of occupancy, soil reports,
engineering reports and similar information relating to the
Project or its management, operation, maintenance or use, all to
the extent they are in Seller's possession). Any Inspection work
shall be at the sole cost and expense of Buyer. If Buyer or its
agents, employees, representatives or contractors (collectively,
"Buyer's Agents") conduct any activities on the Property that are
excluded from the definition of "Inspection" in Section 3.2, that
shall be a material breach of this Agreement and Seller may
terminate this Agreement by written notice thereof to Buyer. The
license created under this Section 3.5.1 shall expire on
termination of this Agreement. At least forty-eight (48) hours
prior to any entry and Inspection, Buyer shall provide Seller
with sufficient evidence to show that Buyer and Buyer's Agents,
who are to enter upon the Property, are adequately covered by
policies of insurance issued by a carrier reasonably acceptable
to Seller insuring Buyer and Seller against any and all liability
arising out of Buyer's or Buyer's Agents' entry upon and
Inspection of the Property, including without limitation any loss
or damage to the Property, with coverage in the amount of not
less than $1,000,000 per occurrence.
3.5.2 Buyer agrees to keep the Property free from any
liens arising out of any work performed, materials furnished or
obligations incurred by or on behalf of Buyer or Buyer's Agents
with respect to any Inspection or Physical Testing of the
Property. If any such lien shall at any time be filed, Buyer
shall cause the same to be discharged of record within twenty
(20) days thereafter by satisfying the same or, if Buyer in its
discretion and in good faith determines that such lien should be
contested, by recording a bond. Failure by Buyer to discharge
such lien shall be a material breach of this Agreement and Seller
may terminate this Agreement by written notice thereof to Buyer.
3.5.3 Buyer shall, at its sole cost and expense, comply
with all applicable federal, state and local laws, statutes,
rules, regulations, ordinances, or policies in conducting the
Inspection and the Physical Testing.
3.5.4 Buyer hereby agrees to hold harmless, protect,
defend and indemnify, and hereby releases, Seller and its
trustees, officers, directors, employees, contractors, agents,
subsidiaries and affiliates, and its and their respective
successors and assigns (collectively, the "Indemnitees") and the
Property from and against any and all claims, demands, causes of
action, losses, liabilities, liens, encumbrances, costs or
expenses (including without limitation reasonable attorneys' fees
and litigation costs) arising out of, connected with or
incidental to: (a) any injuries to persons (including death) or
property (real or personal), or (b) any mechanics', workers' or
other liens on the Property, by reason of or relating to the work
or activities conducted on the Property by Buyer or Buyer's
Agents. The provisions of this Section 3.5.4 shall survive any
termination of this Agreement and shall not be limited in any way
by any other terms of this Agreement, including, but not limited
to, Section 5.6 of this Agreement.
3.5.5 Except as otherwise permitted under Section 3.5,
in no event shall Buyer or Buyer's Agents have the right to place
any materials or equipment on the Property (including, without
limitation, signs or other advertising material) until after the
Closing has occurred.
3.5.6 Buyer shall, at its sole cost and expense, clean
up and repair the Property, in whatever manner necessary, after
Buyer's or Buyer's Agents' entry thereon so that the Property
shall be returned to the same condition that existed prior to
Buyer's or Buyer's Agents' entry thereon.
3.5.7 Seller shall promptly be provided with a copy of
any and all information, materials and data that Buyer and/or
Buyer's Agents discover, obtain or generate in connection with or
resulting from its Inspection and work under Section 3.5
hereunder.
4. ADDITIONAL AGREEMENTS OF THE PARTIES
4.1 Seller's Representations and Warranties. (a) Seller
hereby represents, warrants and covenants to and agrees with
Buyer that Seller has the power and authority to own the Property
and to consummate the transactions contemplated by this
Agreement, and that this Agreement and all instruments, documents
and agreements to be executed by Seller in connection herewith
are, or when delivered shall be, duly authorized, executed and
delivered by Seller and are, or when delivered shall be, valid,
binding and enforceable obligations of Seller.
(b) Seller hereby makes the following
representations, warranties and covenants, each of which is
deemed to be material and each of which is stated by Seller to be
true and correct on the date hereof and, to Seller?s knowledge,
shall be true and correct on the Closing Date and each of which
shall survive the Closing (subject to Section 4.1.1 below):
To Seller's knowledge, there are no:
(1) existing latent defects or seismic
conditions concerning the Project or materially incorrect income
or expense figures in any financial statements or materials
prepared by or for Seller and delivered to Buyer regarding the
Property;
(2) claims, litigation or administrative
actions or arbitration proceedings pending before any court,
agent or official, nor have any such claims or actions been
threatened in writing, relating to Seller (except such matters
that do not affect the Property or Seller's ability to perform
its obligations hereunder) or the Property or with respect to the
validity of any statutes, ordinances, regulations or
restrictions, or any permits or approvals thereunder, relating
to the construction of any Improvements on the Property or the
operation thereof;
(3) written notices of violations of City,
County, State, Federal, building, zoning, fire or health codes,
regulations or ordinances, filed or issued against the Property;
(4) "Hazardous Materials" (as defined below)
in existence on or below the surface of the Project or in any
building located upon the Land, including, without limitation,
contamination of soil, subsoil or ground water, which constitutes
a violation of any applicable law, rule or regulation of any
government entity having jurisdiction thereof except for office
and medical supplies in customary quantities;
(5) the Property has never been used as a
waste storage, disposal site or a gasoline storage or service
station. Without limiting the other provisions of this
Agreement, Seller shall reasonably cooperate with Buyer's
investigation of matters relating to the foregoing provisions of
this paragraph and provide access to and copies of any data
and/or documents dealing with potentially Hazardous Materials
used at the Property and any disposal practices followed in
connection with the same. Seller agrees that Buyer may make
inquires of governmental agencies regarding such matters, without
liability for the outcome of such discussions; and
(6) the Tenant Leases and Contracts and any
other agreements, matters and things to be submitted to Buyer by
Seller for approval pursuant to this Agreement shall be true,
correct and complete copies thereof as of the date of submission
thereof, and as thereafter supplemented by supplements or
additions that have been delivered to Buyer. Notwithstanding
anything to the contrary contained herein, Seller shall have no
obligation or liability to Buyer with respect to any of the
foregoing lease or Contract matters which shall be confirmed as
incorrect in any tenant estoppel certificate delivered to Buyer
as provided in this Agreement.
4.1.1 Seller's Knowledge. As used herein, Seller's
"knowledge" means the actual (not constructive and without
attribution) conscious knowledge, without undertaking, and
without any duty to undertake, any investigation or inquiry, of
Xxxxxxxx X'Xxxxx, which individual is the employee of Seller's
asset manager who has asset management responsibility for the
Property and the most knowledge with respect to the Property .
Without limiting the foregoing, Buyer acknowledges that the items
and information delivered, or to be delivered or made available,
to Buyer hereunder have not been reviewed by Xxxxxxxx X'Xxxxx. It
is the express intention of Buyer and Seller that Buyer shall be
entitled to recover any damages or have any other remedies
against Seller by reason of a breach of Seller's representations
and/or warranties set forth in subparagraphs 4.1 (b) above if and
only if Buyer shall allege and prove that Xxxxxxxx X'Xxxxx had
actual conscious knowledge of the falsity of such representations
and/or warranties when made. It is also expressly agreed and
understood that in no event shall Buyer be entitled to bring any
action(s) for damages or otherwise against Xxxxxxxx X'Xxxxx. Any
action against Seller based upon an alleged breach of Seller's
representations and warranties set forth herein must be filed
within three hundred sixty five (365) days after the Closing
Date, and failure to timely file any such action shall be deemed
Buyer's waiver and release of any such action.
4.2 Buyer's Representations and Warranties. Buyer hereby
represents, warrants and covenants to and agrees with Seller as
follows:
4.2.1 Buyer's Investigation. (a) Buyer acknowledges
that Seller, or Seller's predecessor, acquired the Property
through foreclosure or deed in lieu of foreclosure and, except as
explicitly set forth herein, there are no representations or
warranties of any kind whatsoever, express or implied, made by
Seller in connection with this Agreement, the purchase of the
Property by Buyer, the Leases or Contracts, the physical
condition of the Property or whether the Property complies with
applicable laws or is appropriate for Buyer's intended use;
(b) On or prior to the Decision Date, Buyer will have (or will
have chosen not to have) fully investigated the Property
(including the Leases and Contracts) and all matters pertaining
thereto; (c) Except as set forth expressly in this Agreement
(including the Schedules attached hereto) Buyer is not relying on
any statement or representation of Seller, its agents or its
representatives nor on any information supplied by Seller, its
agents or its representatives; (d) Buyer, in entering into this
Agreement and in completing its purchase of the Property, is
relying entirely on its own investigation of the Property based
on its extensive experience in and knowledge of real property in
the areas where the Property is located; (e) On or prior to the
Decision Date Buyer will be aware (or will have chosen not to be
aware) of all zoning regulations, other governmental
requirements, legal, site and physical conditions, and other
matters affecting the use and condition of the Property; (f)
Buyer's decision, on or prior to the Decision Date, of whether to
purchase the Property on the terms and conditions hereof shall be
made solely and exclusively in reliance on Buyer's own review,
inspection and investigation of the Property (including the
Leases and Contracts) and of materials, documents, information
and studies relating to the Property (including, without
limitation, Buyer's Inspection or Physical Testing) and the
representations and warranties of Seller set forth in Section 4.1
above; and (g) Buyer shall purchase the Property in its "as is"
condition as of the date of Closing.
4.2.2 Authority. Buyer has the power and authority to
own the Property and to consummate the transactions contemplated
by this Agreement. This Agreement and all instruments, documents
and agreements to be executed by Buyer in connection herewith are
or when delivered shall be duly authorized, executed and
delivered by Buyer and are valid, binding and enforceable
obligations of Buyer. Each individual executing this Agreement
on behalf of Buyer represents and warrants to Seller that he or
she is duly authorized to do so.
4.2.3 Consents. Buyer is not required to obtain any
consents or approvals to consummate the transactions contemplated
in this Agreement.
4.3 Reaffirmation. The representations and warranties of
Buyer set forth in Section 4.2 are true and correct as of the
date of this Agreement and shall be true and correct as of the
Closing. The representations and warranties of Seller set forth
in Section 4.1(a) are true and correct as of the date of the
Agreement and shall be true and correct as of the Closing. The
representations and warranties of Seller set forth in Section
4.1(b) are true and correct as of the date of this Agreement.
The Closing shall constitute Buyer's reaffirmation of those
representations and warranties as of the Closing and Buyer shall
execute and deliver at Closing a document (a "Buyer's
Reaffirmation Certificate") reaffirming Buyer's representations
and warranties. Seller shall be entitled to rely upon Buyer's
representations and warranties, notwithstanding any inspection or
investigation of the Property which was made or could have been
made by Buyer. The Closing shall constitute Seller's
reaffirmation of the representations of Seller set forth in
Section 4.1(a) as of the Closing and Seller shall execute and
deliver at Closing a document ("Seller's Reaffirmation
Certificate") reaffirming Seller's representations and warranties
set forth in Section 4.1(a). In addition, Seller's Reaffirmation
Certificate shall reaffirm Seller's representations and
warranties set forth in Section 4.1(b), or, to the extent facts
or Seller's knowledge have changed since the date of execution of
this Agreement that render any of such representations and
warranties no longer accurate, Seller's Reaffirmation Certificate
shall identify such changed facts or knowledge.
4.4 Hazardous Material Waiver. To the extent permitted by
applicable law, Buyer, on behalf of itself, its successors and
assigns, hereby releases Indemnitees (but does not indemnify
Indemnitees) from and against any and all liabilities, claims,
demands, suits, judgments, causes of action (including, but not
limited to, causes of action arising under the Comprehensive
Environmental Response Compensation and Liability Act of 1980, 42
U.S.C. ss 9601 et. seq.), losses, costs, damages, injuries,
penalties, enforcement actions, fines, taxes, remedial actions,
removal and disposal costs, investigation and remediation costs
and expenses (including, without limit, attorneys' fees,
litigation, arbitration and administrative proceeding costs,
expert and consultant fees and laboratory costs), sums paid in
settlement of claims, whether direct or indirect, known or
unknown, arising out of, related in any way to, or resulting from
or in connection with, in whole or in part, the presence or
suspected presence of Hazardous Materials (defined below) in, on,
under, or about the Property. In that connection, Buyer, on
behalf of itself, its successors, assigns and
successors-in-interest and such other persons and entities,
waives the benefit 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."
"Hazardous Material(s)" means any chemical, substance, material,
controlled substance, object, condition, waste living organisms
or combination thereof which is or may be hazardous to human
health or safety or to the environment due to his radioactivity,
ignitability, corrosivity, reactivity, explosivity, toxicity,
carcinogenicity, mutagenicity, phytotoxicity, infectiousness or
other harmful or potentially harmful properties or effects,
including, without limitation, petroleum hydrocarbons and
petroleum products, lead, asbestos, radon, polychlorinated
biphenyls (PCBs) and all of those chemicals, substances,
materials, controlled substances, objects, conditions, wastes,
living organisms or combinations thereof which are now or become
in the future listed, defined or regulated in any manner by any
federal, state or local law based upon, directly or indirectly,
such properties or effects.
4.5 Condemnation. If, prior to Closing, any portion of the
Property shall be condemned or become the subject of any pending
or threatened condemnation action, Seller shall promptly notify
Buyer thereof. This Agreement shall remain in full force and
effect, regardless of such condemnation or threatened or pending
action, and if any condemnation award is received by Seller prior
to Closing, the amount of such award shall be applied as a credit
against the Purchase Price. Any condemnation awards received by
Seller on or after Closing shall be promptly delivered by Seller
to Buyer. Notwithstanding the foregoing, in the event such
condemnation involves more than twenty percent (20%) of the Land
or the Improvements, or otherwise materially and adversely
affects the Property in the reasonable opinion of Buyer, Buyer
shall be entitled to terminate this Agreement by written notice
thereof to Seller given within five (5) business days after Buyer
shall have been notified of such condemnation, whereupon the
Deposit shall be returned to Buyer. Buyer's failure to timely
deliver such notice to Seller within such five (5) business day
period shall constitute Buyer's election to proceed to Closing.
4.6 Damage or Destruction. In the event of any damage to or
destruction of the Property prior to the Closing, Seller shall
promptly notify Buyer thereof and the Closing shall nevertheless
occur as otherwise provided for in this Agreement, except Seller
shall assign to Buyer upon the Closing all insurance proceeds
paid or payable to Seller in connection with such occurrences and
shall pay Buyer the amount of any deductible under the applicable
insurance policy. Seller shall have no obligation to repair such
damage or destruction. Notwithstanding the foregoing, if such
damage or destruction to the Property has resulted in the cost of
repair of damage to the Property equal to or in excess of
$100,000, then Seller shall promptly so notify Buyer and within
five (5) business days after receipt of such notice, Buyer shall
deliver written notice to Seller and Escrow Holder, electing
either: (a) to proceed with this transaction and Closing in
accordance with this Agreement notwithstanding such damage or
destruction; or (b) to terminate this Agreement in accordance
with the terms of Section 3.3. Buyer's failure to deliver either
of such notices to Seller and Escrow Holder within such five (5)
business day period shall constitute Buyer's election to proceed
to Closing under clause (a).
4.7 Indemnity. (a) Buyer shall hold harmless, indemnify,
protect and defend Indemnitees from and against any and all
liabilities, claims, demands, suits, judgments, causes of action,
losses, costs, damages, injuries, penalties, enforcement actions,
fines, taxes, liens or encumbrances, expenses (including, without
limit, attorneys' fees, litigation, arbitration and
administrative proceeding costs, expert and consultant fees and
laboratory costs), and sums paid in settlement of claims
(collectively, "Costs"), whether direct or indirect, known or
unknown, arising out of, related in any way to, or resulting from
or in connection with (a) the Property based upon events or facts
occurring after the Closing (other than matters arising from any
act, conduct or omission of Indemnitees), or in any way
proximately related to or proximately arising from any act,
conduct, omission, contract or commitment of Buyer and/or Buyer's
Agents; and (b) any inaccuracy in or breach of any representation
or warranty of Buyer or resulting from any breach or default by
Buyer under this Agreement. In the event Seller receives notice
of a claim or demand against which it is entitled to
indemnification pursuant to this paragraph, Seller shall promptly
give written notice thereof to Buyer. Buyer shall immediately
thereupon take such measures as may be reasonably required to
properly and effectively defend such claim with counsel approved
in writing in advance by Seller. If Buyer fails to properly and
effectively defend such claim, then Seller may defend such claim
with counsel of its own choosing at Buyer's cost and expense.
The provisions of this paragraph shall survive the Closing Date.
(b) Seller shall hold harmless, indemnify, protect and defend
Buyer from and against any and all Costs, whether direct or
indirect, known or unknown, arising out of, related in any way
to, or resulting from or in connection with the Property
occurring (i) during Seller's period of ownership of the Property
(other than any matter arising from any act, conduct or omission
of Buyer's Agents) as a result of any injury relating to the
Property that shall have occurred to persons or the property of
third parties (except, with respect to Hazardous Materials, this
indemnity shall relate only to Hazardous Materials actually
released by Seller onto the Property and shall not relate to any
other injury caused by Hazardous Material(s)) during Seller's
period of ownership of the Property; or (ii) subject to Section
4.1.1, resulting from any inaccuracy in or breach of any
representation or warranty of Seller or resulting from any breach
or default by Seller under this Agreement. In the event Buyer
receives notice of a claim or demand against which it is entitled
to indemnification pursuant to this paragraph, Buyer shall
promptly give written notice thereof to Seller. Seller shall
immediately thereupon take such measures as may be reasonably
required to properly and effectively defend such claim. Subject
to Section 4.1.1, the provisions of this paragraph shall survive
the Closing Date.
4.8 Lease Amendments . From and after the date of execution
of this Agreement and until the Closing Date, Seller shall not
enter into any new leases or amend or extend, terminate or accept
the surrender of any existing tenancies or approve any subleases
without the prior written consent of Buyer (which consent shall
not be unreasonably delayed or withheld). In requesting such
consent, Seller shall inform Buyer in writing of the amount, if
any, proposed to be required to pay for, or any allowance
proposed to be given for, tenant improvement work and any leasing
commissions and fees (collectively, a "Lease Expense"), in
connection with such lease and any rent concessions. Also
included in the request for consent, shall be Seller's proposed
draft of the lease or amendment agreement. The failure of Buyer
to respond within five (5) business days after written request
for any such approval shall be deemed to constitute approval. In
the event Buyer approves any such lease or lease modification,
Buyer shall, at Closing, reimburse Seller in the amount of any
Lease Expense associated with such approved lease or lease
modification previously expended by Seller, and shall assume
Seller's obligations with respect to any Lease Expense not yet
paid by Seller. Seller shall not collect in advance any rent or
other sum due under any of the Tenant Leases, except for
collection of current rents no more than one month in advance.
Subject to damage or destruction, or other matters outside of
Seller's control, Seller agrees to continue to manage the
Property until Closing in the same manner it is currently
managing the Property.
4.9 Estoppel Certificates. Seller agrees to promptly exert
good faith efforts to obtain Tenant Estoppel Certificates
("Tenant Estoppel Certificates") in accordance with the
respective leases, from all tenants of the Property. Seller
shall not be in default hereunder if Seller is unable to obtain
any or all such Estoppel Certificates nor, except for termination
on or before the Decision Date as provided in Section 3.2 hereof,
shall Buyer have the right to terminate this Agreement by reason
of the lack of delivery of, or the contents of, any Estoppel
Certificates. Each Estoppel Certificate shall be substantially
in the form of Exhibit ?B? attached hereto.
4.8 Audit Report. At Buyer's request at any time from and
after the date hereof until the date that is one (1) year after
the Closing Date, Seller shall, at Buyer's expense, provide to
Purchaser's designated independent auditor reasonable access to
the books and records of the Property, regarding the period for
which Buyer is required to have audited financial statements
prepared with respect to the Property as may be required by the
Securities and Exchange Commission, but only to the extent that
such books, records and related information are in Seller's
possession or control and relate to the period during which
Seller held title to the Property. Further, Seller agrees to
provide such auditor a representation letter regarding the books
and records of the Property, in substantially the form of Exhibit
"F" attached hereto, in connection with the normal course of
auditing the Property in accordance with generally accepted
auditing standards (but shall not thereby be deemed to have made
any representation or warranty to Buyer or to any other third
party).
5. CLOSING
5.1 Deposits Into Escrow.
5.1.1 At least one (1) business day prior to the
Closing Date, Seller shall deposit into Escrow:
(a) A grant deed in the form of Exhibit "C"
attached hereto, conveying the Property to Buyer (the "Deed"),
subject to the Permitted Exceptions;
(b) An affidavit or qualifying statement which
satisfies the requirements of Section 1445 of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder
(the "Non-Foreign Affidavit");
(c) A "Withholding Exemption Certificate, Form
590", pursuant to the Revenue and Taxation Code Sections 18805
and 26131 stating either the amount of withholding required from
Seller's proceeds or that Seller is exempt from such withholding
requirement (the "Certificate");
(d) An original xxxx of sale and assignment (the
"Xxxx of Sale"), duly executed by Seller, assigning and conveying
to Buyer all of Seller's right, title and interest in and to the
Personal Property. The Xxxx of Sale shall be in the form of
Exhibit "D" attached hereto;
(e) An original assignment and assumption agreement
(the "Assignment and Assumption Agreement") duly executed by
Seller assigning all of Seller's right, title and interest in and
to the Leases and the Contracts. The Assignment and Assumption
Agreement shall be in the form of Exhibit "E" attached hereto;
(f) An original counterpart of each of the Leases,
Contracts and keys to the Property that are in Seller's
possession and/or under its control;
(g) Notices for each of the tenants and occupants
of the Property of the transfer of the Property to Buyer in the
form of Exhibit "F" attached hereto ("Notices");
(h) To the extent they are in Seller's possession,
a complete set of all plans, specifications and as-built
drawings, and all building permits, certificates of occupancy,
third-party soil reports, and environmental reports and studies
relating to the Project (to the extent not previously delivered
to Buyer);
(i) All warranties and operating manuals that are
in Seller's possession or control with request to the Property or
any portion thereof (to the extent not previously delivered to
Buyer); and
(j) Seller's Reaffirmation Certificate.
Notwithstanding the foregoing, Seller may choose to deliver those
items referenced in Sections 5.1.1 (f), (h) and (i) above
directly to Buyer outside of Escrow on or before the Closing
Date.
5.1.2 At least one (1) business day prior to the
Closing Date, Buyer shall deposit into Escrow:
(a) Funds in accordance with the provisions of
Section 1.3.2;
(b) Buyer's Reaffirmation Certificate; and
(c) An original counterpart of the Assignment and
Assumption Agreement duly executed by Buyer.
5.1.3 Seller and Buyer shall each deposit such other
instruments and funds as are reasonably required by Escrow Holder
or otherwise required to close Escrow and consummate the sale of
the Property in accordance with the terms of this Agreement,
including but not limited to documents required under
Section 5.4.1.
5.2 Prorations.
5.2.1 Rentals (including fixed monthly rentals and
other periodic rentals, additional rentals, operating cost pass-
throughs and other sums and charges payable by the tenants),
prepaid rentals and prepaid payments (collectively, "Rent")
shall, subject to the further provisions hereof, be prorated on
the basis that Buyer shall receive a credit for all Rent which
Seller has actually received before the Closing which is
allocable to the period after the Closing and for all security
deposits paid to the landlord under the Leases as referenced in
the Leases, less only the amount thereof, if any, Seller shall
have applied pursuant to one or more Leases (in which event
Seller shall provide Buyer with a written explanation of the
application of same). Seller shall not receive a credit for any
Rent Seller has not received as of the Closing which is allocable
to the period prior to the Closing. If Buyer shall collect any
such Rent after the Closing (Buyer shall exert good faith efforts
to collect such Rent), Buyer shall promptly pay the same to
Seller.
5.2.2 Real estate taxes shall be prorated as of the
Closing on the basis of the most recent assessed valuation of and
rates and multiplier applicable to the Property.
5.2.3 Utilities shall be read at the Closing Date and
Seller shall be responsible for payment of such utilities. Buyer
shall establish new utility accounts and shall be responsible for
all utilities from and after the Closing.
5.2.4 Common area and maintenance charges, property
taxes, insurance and other operating cost pass-throughs payable
by tenants of the Project which accrue as of the Closing Date,
but which are not then due and payable (collectively, the
"Operating Expenses"), shall not be prorated, except as herein
provided. Buyer shall receive and retain any Operating Expenses
paid by tenants of the Project on or after the Closing Date and
Seller shall receive and retain any Operating Expenses paid by
tenants of the Project prior to the Closing Date; provided,
however, that any monthly or periodic deposits or payments of
estimated Operating Expenses with respect to the month in which
the Closing occurs received by Seller prior to the Closing Date
or by Buyer on or after the Closing Date shall be prorated as of
the Closing Date. Buyer and Seller shall cooperate within
thirty (30) days after Closing to reconcile actual Operating
Expenses collected by Seller from Project tenants prior to
Closing with actual Operating Expenses paid by Seller with
respect to such period, so that if there are any rebates owing to
Project tenants for the period of Seller's ownership, Seller
shall be charged therefor, and if the Project tenants owe the
landlord any additional amounts for Operating Expenses with
respect to the period of Seller's ownership, and actually pay
such amounts to Buyer (Buyer agrees to exert good faith efforts
to collect the same), Seller shall be entitled to receive such
amounts from Buyer. Any prorations under this Agreement shall be
based upon the actual number of days in the applicable period.
5.3 Payment of Closing Costs.
5.3.1 Closing Costs Borne by Seller. Seller shall bear
and Escrow Holder shall discharge on Seller's behalf out of the
sums payable to Seller hereunder (a) the portion of the costs
associated with the standard coverage premium for the "Owner's
Policy" (defined below), (b) the documentary transfer tax and all
sales and use taxes required in connection with the transfer of
the Property to Buyer, (c) one-half of Escrow Holder's fee, and
(d) any additional costs and charges customarily charged to
sellers in accordance with common escrow practices in Los
Angeles County, California.
5.3.2 Closing Costs Borne by Buyer. Buyer shall
deposit with Escrow Holder for disbursement by Escrow Holder
(a) one-half of Escrow Holder's fee, (b) all costs and expenses
of the Owner's Policy in excess of the premium to be borne by
Seller (including, without limitation, any additional premium
charged for any extended coverage policy or endorsements required
by Buyer and the cost of any survey which may be required by
Title Company in connection therewith), (c) the recording fees
required in connection with the transfer of the Property to
Buyer, and (d) any additional charges customarily charged to
buyers in accordance with common escrow practices in Los Angeles
County, California.
5.4 Closing of Escrow.
5.4.1 Pursuant to Section 6045 of the Internal Revenue
and Taxation Code, Escrow Holder shall be designated the "closing
agent" hereunder and shall be solely responsible for complying
with the tax reform act of 1986 with regard to reporting all
settlement information to the Internal Revenue Service.
5.4.2 Escrow Holder shall hold the Closing on the
Closing Date if: (i) it has received in a timely manner all the
funds and materials required to be delivered into Escrow by Buyer
and Seller; and (ii) it has received assurances satisfactory to
it that, effective as of the Closing, the Title Company will
issue to Buyer its ALTA extended coverage (Form 1970) title
insurance policy in the amount of the Purchase Price, insuring
Buyer as the owner of the Property, subject only to the Permitted
Exceptions (the "Owner's Policy").
5.4.3 To Close the Escrow, Escrow Holder shall:
(a) Cause the Deed to be recorded and thereafter
mailed to Buyer, and deliver to Buyer the Owner's Policy, Xxxx of
Sale, Assignment and Assumption Agreement (executed by Seller),
Non-Foreign Affidavit to, original Leases, original Contracts,
Notice, Seller's Reaffirmation Certificate and all other
documents delivered to Escrow Holder pursuant to Sections
5.1.1(h) and (i).
(b) Deliver to Seller the Reaffirmation
Certificate, the Assignment and Assumption Agreement (executed by
Buyer) and by wire transfer of federal funds, funds in the amount
of the Purchase Price, plus or less any net debit or credit to
Seller by reason of the prorations and allocations of closing
costs provided for in this Agreement, and less the Deposit, to
the extent previously released to Seller.
5.5 Failure to Close; Cancellation. If the Escrow Holder is
not in a position to Close the Escrow on the Closing Date, then,
subject to Section 5.7 below, this Agreement shall terminate,
except that no such termination shall relieve either party of
liability for any failure to comply with the terms of this
Agreement.
5.6 LIQUIDATED DAMAGES. BUYER AND SELLER AGREE THAT IN THE
EVENT OF A MATERIAL DEFAULT OR BREACH HEREUNDER BY BUYER
(INCLUDING, WITHOUT LIMITATION, ANY DEFAULT OR BREACH BY BUYER
WHICH RESULTS IN THE FAILURE OF ESCROW TO CLOSE), THE DAMAGES TO
SELLER WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO
ASCERTAIN, AND THAT THEREFORE THE DEPOSIT IS A REASONABLE
ESTIMATE OF THE DAMAGES TO SELLER, SUCH DAMAGES INCLUDING COSTS
OF NEGOTIATING AND DRAFTING OF THIS AGREEMENT, COSTS OF
COOPERATING IN SATISFYING CONDITIONS TO CLOSING, COSTS OF SEEKING
ANOTHER BUYER UPON BUYER'S DEFAULT, OPPORTUNITY COSTS IN, AND
CARRYING COST ASSOCIATED WITH, KEEPING THE PROPERTY OUT OF THE
MARKETPLACE, AND OTHER COSTS INCURRED IN CONNECTION HEREWITH.
ACCORDINGLY, BUYER AND SELLER AGREE THAT, EXCEPT FOR ANY DAMAGES,
COSTS AND EXPENSES INCURRED IN CONNECTION WITH OR RESULTING FROM
BUYER'S DEFAULT, OR BREACH OF ITS OBLIGATIONS UNDER SECTIONS 3.5,
4.2 AND 6.16 (WHICH DAMAGES, COSTS AND EXPENSES SHALL SURVIVE ANY
CLOSING OR TERMINATION OF THIS AGREEMENT AND ARE NOT LIMITED BY
THIS SECTION 5.6), RECEIPT AND RETENTION OF THE DEPOSIT SHALL BE
THE SOLE DAMAGES OF SELLER IN THE EVENT OF ANY
BREACH OR DEFAULT BY BUYER HEREUNDER.
Initials of Buyer: Initials of Seller:
/s/ VJC /s/ YC
5.7 Remedies of Purchaser. If Seller fails to comply with
its obligations under Section 5.1.1 hereof, then Buyer may pursue
such rights it may have against Seller and the Property either at
law or in equity including, without limitation, the right to
specific performance hereunder.
5.8 Possession. Subject to the Leases and any amendments
thereto or new leases permitted under Section 4.8 above,
possession of the Property shall be delivered to Buyer upon
Closing.
6. GENERAL PROVISIONS
6.1 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all
of which, taken together, shall constitute one and the same
instrument.
6.2 Entire Agreement. This Agreement contains the entire
integrated agreement between the parties respecting the subject
matter of this Agreement and supersedes all prior and
contemporaneous understandings and agreements, whether oral or in
writing, between the parties respecting the subject matter of
this Agreement. There are no representations, agreements,
arrangements or understandings, oral or in writing, between or
among the parties to this Agreement relating to the subject
matter of this Agreement which are not fully expressed in this
Agreement. The terms of this Agreement are intended by the
parties as a final expression of their agreement with respect to
those terms and they may not be contradicted by evidence of any
prior agreement or of any contemporaneous agreement. The parties
further intend that this Agreement constitute the complete and
exclusive statement of its terms and that no extrinsic evidence
whatsoever may be introduced in any judicial proceeding involving
this Agreement.
6.3 Legal Advice; Neutral Interpretation; Headings. Each
party has received independent legal advice from its attorneys
with respect to the advisability of executing this Agreement and
the meaning of the provisions hereof. The provisions of this
Agreement shall be construed as to their fair meaning, and not
for or against any party based upon any attribution to such party
as the source of the language in question. Headings used in this
Agreement are for convenience of reference only and shall not be
used in construing this Agreement.
6.4 Choice of Law. This Agreement shall be governed by the
laws of the State of California.
6.5 Severability. If any term, covenant, condition or
provision of this Agreement, or the application thereof to any
person or circumstance, shall to any extent be held by a court of
competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, covenants, conditions or provisions of
this Agreement, or the application thereof to any person or
circumstance, shall remain in full force and effect and shall in
no way be affected, impaired or invalidated thereby.
6.6 Waiver of Covenants, Conditions or Remedies. The
waiver by one party of the performance of any covenant, condition
or promise under this Agreement shall not invalidate this
Agreement nor shall it be considered a waiver by it of any other
covenant, condition or promise under this Agreement. The waiver
by either or both parties of the time for performing any act
under this Agreement shall not constitute a waiver of the time
for performing any other act or an identical act required to be
performed at a later time. The exercise of any remedy provided
in this Agreement shall not be a waiver of any consistent remedy
provided by law, and the provision in this Agreement for any
remedy shall not exclude other consistent remedies unless they
are expressly excluded.
6.7 Exhibits. All exhibits to which reference is made in
this Agreement are deemed incorporated in this Agreement.
6.8 Amendment. This Agreement may be amended at any time
by the written agreement of Buyer and Seller. All amendments,
changes, revisions and discharges of this Agreement, in whole or
in part, and from time to time, shall be binding upon the parties
despite any lack of legal consideration, so long as the same
shall be in writing and executed by the parties hereto.
6.9 Relationship of Parties. The parties agree that their
relationship is that of seller and buyer, and that nothing
contained herein shall constitute either party the agent or legal
representative of the other for any purpose whatsoever, nor shall
this Agreement be deemed to create any form of business
organization between the parties hereto, nor is either party
granted any right or authority to assume or create any
obligation or responsibility on behalf of the other party, nor
shall either party be in any way liable for any debt of the
other.
6.10 No Third Party Benefit. This Agreement is intended to
benefit only the parties hereto and no other person or entity has
or shall acquire any rights hereunder.
6.11 Time of the Essence. Time shall be of the essence as
to all dates and times of performance, whether contained herein
or contained in any escrow instructions to be executed pursuant
to this Agreement, and all escrow instructions shall contain a
provision to this effect.
6.12 Further Acts. Each party agrees to perform any
further acts and to execute, acknowledge and deliver any
documents which may be reasonably necessary to carry out the
provisions of this Agreement both before and after the Closing.
6.13 Recordation. Buyer shall not record this Agreement,
any memorandum of this Agreement, any assignment of this
Agreement or any other document which would cause a cloud on the
title to the Property.
6.14 Assignment. Upon written notice to Seller, Buyer
shall be entitled to assign Buyer's rights and delegate its
obligations hereunder to a third party, but no such assignment
shall release Buyer of any liability hereunder. This Agreement
shall be binding upon and shall inure to the benefit of the
successors and assigns of the parties to this Agreement.
6.15 Attorneys' Fees. In the event of any litigation
involving the parties to this Agreement to enforce any provision
of this Agreement, to enforce any remedy available upon default
under this Agreement, or seeking a declaration of the rights of
either party under this Agreement, the prevailing party shall be
entitled to recover from the other such attorneys' fees and costs
as may be reasonably incurred, including the costs of reasonable
investigation, preparation and professional or expert
consultation incurred by reason of such litigation. All other
attorneys' fees and costs relating to this Agreement and the
transactions contemplated hereby shall be borne by the party
incurring the same.
6.16 Brokers. Pursuant to separate agreement, Seller shall
pay Xxxxx & Xxxxx ("Seller's Broker") for its services as broker
in this transaction if, as and when the Closing occurs. Buyer
and Seller each represent and warrant to the other that, except
as stated in the preceding sentence (a) they have not dealt with
any brokers or finders in connection with the purchase and sale
of the Property, and (b) insofar as such party knows, no broker
or other person is entitled to any commission or finder's fee in
connection with the purchase and sale of the Property. Seller
and Buyer each agree to indemnify and hold harmless the other
against any loss, liability, damage, cost, claim or expense
incurred by reason of any brokerage fee, commission or finder's
fee which is payable or alleged to be payable to any broker or
finder because of any agreement, act, omission or statement of
the indemnifying party. The provisions of this Section 6.16
shall not be limited in any way by any terms of this Agreement
including, but not limited to, Section 5.6 of this Agreement.
6.17 Manner of Giving Notice. All notices and demands
which either party is required or desires to give to the other
shall be given in writing by personal delivery, express courier
service or by telecopy followed by next day delivery of a hard
copy to the address or telecopy number set forth below for the
respective party, provided that if any party gives notice of a
change of name, address or telecopy number, notices to that party
shall thereafter be given as demanded in that notice. All
notices and demands so given shall be effective upon receipt by
the party to whom notice or a demand is being given.
To Buyer:
Arden Investment Group
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Christensen, Miller, Xxxx
Jacobs, Glaser, Weil & Xxxxxxx, LLP
2121 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
To Seller:
Property Asset Management, Inc.
c/o GMAC Commercial Mortgage Corporation
000 Xxxxxxxxxx Xxxxxx, Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx O?Brien
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Bainbridge Group
00000 Xxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
6.18 Survival. Only the provisions of Sections 3.5 (Access
to Property), 4.1 (Seller's Representations and Warranties),
4.2 (Buyer's Representations and Warranties), 4.3
(Reaffirmation), 4.4 (Hazardous Material Waiver),
4.5 (Condemnation), 4.6 (Damage or Destruction), 4.7 (Indemnity),
5.2 (Prorations), 5.3 (Payment of Closing Costs), 5.6 (LIQUIDATED
DAMAGES), 5.7 (Possession) and Article 6 (General Provisions)
shall survive the Closing and the consummation of the
transactions contemplated by this Agreement or the termination of
this Agreement for any reason without the conveyance of the
Property to Buyer.
6.19 Confidentiality. Seller and Buyer agree that it is in
both of their best interests to keep this Agreement and all
information concerning the Property confidential until Closing.
Seller and Buyer each agrees that neither shall take any action
nor conduct itself in any fashion that would disclose to third
parties unrelated to Buyer's acquisition or intended ownership
and operation of the Property, any aspect of the contemplated
transaction. After Closing neither party shall make any public
announcement of the transaction (unless required by applicable
law) that has not been approved in advance and in writing by the
other party.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day
and year first above written.
SELLER: PROPERTY ASSET
MANAGEMENT, INC.,
a Delaware corporation
By:/s/ Xxx Xxx
Its: Vice President
BUYER: ARDEN REALTY
LIMITED PARTNERSHIP
a Maryland limited partnership
By: Xxxxxx X. Xxxxxxx
Its: President and COO
ESCROW HOLDER:
The undersigned hereby executes this Agreement to
evidence its agreement to act as Escrow Holder in accordance with
the terms of this Agreement.
FIRST AMERICAN TITLE INSURANCE COMPANY
By: ____________________________
Name: _________________________
Title: __________________________
_______________________________
1IRMAIN01 Doc: 49765_1 NOTES
DOCUMENT CODED FOR "TABLE OF CONTENTS" -- Levels 1 & 2 only!
