PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is
entered into as of November 1, 1996, by and between XXXXXXX-XXXXXX,
INC., a Delaware corporation ("Seller") and ARDEN REALTY
LIMITED PARTNERSHIP, a Maryland limited partnership
("Buyer"), as follows:
1. Definitions. In addition to the terms defined above,
each of the following terms, when used herein with an initial
capital letter, shall have the meaning ascribed to it as
follows, unless such meanings are expressly modified,
limited or expanded elsewhere in this Agreement.
(A) "Assignment and Assumption of Leases" shall mean the
document to be executed by Buyer and Seller at Closing,
whereby Seller shall assign to Buyer and Buyer shall assume
all of Seller's right, title and interest in the Leases.
(B) "Xxxx of Sale" shall mean the duly executed and
acknowledged xxxx of sale conveying title to the Personal
Property from Seller to Buyer,
(C) "Brokers" shall mean Madison Partners, representing
the Seller.
(D) "Building: shall mean the building located on the
Land.
(E) "Closing" shall mean the closing and consummation
of the purchase and sale of the Property at a location to be
mutually agreed upon pursuant to this Agreement.
(F) "Closing Date" shall mean December 10, 1996, at which
time the transactions described herein shall be consummated.
(G) "Deed" shall mean the duly executed and acknowledged
grant deed conveying title to the Real Property from Seller
to Buyer, in the form attached as Exhibit "I" hereto.
(H) "Defect" or "Defects" shall mean a lien, claim,
charge, security interest, encumbrance, easement,
assessment, restriction, tax or other such matter which
adversely affects title to the Property, other than the
Permitted Exceptions.
(I) "Xxxxxxx Deposit" shall mean the Two Hundred Thousand
and no/lOO Dollars ($200,000.00) to be deposited by Buyer
pursuant to Section 3 herein, together with any interest
accruing thereon. Upon expiration of the Contingency Period,
Buyer will deposit an additional Two Hundred Thousand
Dollars ($200,000.00) "Additional Deposit" pursuant to
Section 3 herein.
(J) "Escrow Holder" shall mean Chicago Title Company.
(K) "Improvements" shall mean improvements and
fixtures located on the Land, other than the Building,
including, but not limited to, the parking facilities, paved
areas and landscaping.
(L) "Contingency Period" shall mean the twenty-one
(21) calendar day period commencing on October 24, 1996 and
expiring on November 14, 1996, during which Buyers must
complete its due diligence.
(M) "Land" shall mean the land owned by Seller and
more particularly described on Exhibit "A" attached hereto,
together with all right and appurtenances pertaining
thereto, including any right, title and interest of Seller
in and to adjacent streets, easements or rights-of-way.
(N) "Leases" shall mean the leases entered into between
Seller or Seller's predecessor in interest and Tenants as
more particularly described on the Rent Roll, including any
amendments thereto, and any and all guaranties of the leases
(O) "Objections" shall have the meaning set forth in
Section 5.4.
(P) "Owner's Title Policy" shall mean an ALTA extended
form owner's policy (as revised as of 1970) of title
insurance for the Real Property to be issued by the Title
Company pursuant to the Title Commitment, with a liability
limit in the amount of the purchase price and wish such
endorsements as Buyer shall request.
(Q) "Permitted Exceptions" shall mean all matters
which affect the title to the real Property which are
consented to or waived by Buyer as more particularly
described in Section 5.3 and 5.4 hereof.
(R) "Personal Property" shall mean all fixtures,
equipment, supplies, machinery, furniture and furnishing as
Listed on Exhibit "B" attached hereto, and other personal
property (both tangible and intangible) including, without
limitation, architectural drawings (if any) of existing and
proposed structures owned by Seller and related to the Real
Property, as-built mechanical, electrical and structural
drawings, plans and specifications, if any, together with
seller's rights and obligations from and after the Closing
Date under those reports, studies, tests, surveys,
agreements, contracts, guarantees, warranties, licenses,
permits, approvals and land use entitlements which relate to
the Real Property, if any.
(S) "Property" shall mean the Real Property and
Personal Property collectively.
(T) "Purchase Price" shall mean the total purchase
price of Ten Million, Two Hundred and Fifty Thousand Dollars
($10,250,000) as more particularly described in Section 3
hereof.
(U) "Real Property" shall mean collectively the parcel of
Land being purchased and sold hereunder, together with the
Building and the Improvements located thereon, legally
described on Exhibit "A" attached hereto, with a common
address of 0000 Xxxxxxxx Xxxxxxxxx and 0000 Xxxxxxx Xxxxxx,
Xxxxx Xxxxxx, Xxxxxxxxxx.
(V) "Rent Roll" shall mean a rent roll certified by the
Seller of Tenants in the Building substantially in the form
of the rent roll attached hereto as Exhibit "C".
(W) "Surveys" shall mean current surveys of the Real
Property to be obtained by Buyer as referenced herein.
(X) "Survey Objections" shall have the meaning set
forth in Section 5.2.
(Y) "Tenants" shall mean those tenants listed on the Rent
Roll.
(Z) "Title Commitment" shall mean the title commitment
to be obtained by Buyer as referenced in Section 5.3 herein.
(AA) "Title Company" shall mean Chicago Title Company.
(BB) "Title Objections" shall have the meaning set
forth in Section 5.3.
(CC) "Intangible Property" shall mean Seller's rights and
interests in any and all transferable or assignable permits,
building plans and specifications, certificates of
occupancy, operating permits, sign permits, development
rights and approvals, certificates, licenses, warranties and
guarantees, trade names, service marks, engineering, soils,
pest control and other reports relating to the Property,
tenant lists, advertising materials, and telephone exchange
numbers identified with the Property; and (b) all other
transferable intangible property, miscellaneous rights,
benefits or privileges of any kind or character with respect
to the Property.
(DD) "Service Agreements" shall mean Seller's rights
and interests in maintenance, service and other agreements
to which Seller is a party affecting the ownership, repair,
maintenance or operating of the Property. Service Agreements
shall not include any property management or leasing listing
agreements,
2. Agreement to Sell and Purchase. Seller hereby
agrees to sell and convey to Buyer, and Buyer hereby agrees
to purchase from Seller, the Property subject to the Leases,
and subject to the terms and conditions of this Agreement.
3. Purchase Price: Deliver of Possession.
(A) Buyer shall pay the Purchase Price to Seller as
follows:
(i) Buyer shall pay the Xxxxxxx Deposit to the
Title Company simultaneous with Buyer's and Seller's
execution of this Agreement. The Title Company shall deposit
the Xxxxxxx Deposit in a bank account and any interest
accruing thereon shall be added to and become part of the
Xxxxxxx Deposit. Unless Buyer has terminated this Agreement,
upon expiration of the Contingency Period, Buyer shall
deposit the Additional Deposit with the Title Company.
Subject to the terms of this Agreement, such Xxxxxxx Deposit
and Additional Deposit shall become non-refundable upon
expiration of the Contingency Period unless Buyer has
terminated this Agreement in the manner described below. At
Closing, the Xxxxxxx Deposit and Additional Deposit shall be
credited to the Purchase Price due to Seller;
(ii) Buyer shall deposit the balance of the
Purchase Price to the Title Company, as adjusted to provide
for the allocation of costs and prorations pursuant to
Section 6 herein, less the Xxxxxxx Deposit and Additional
Deposit, by confirmed wire transfer, or by check collectible
in same day funds in sufficient time to close this Escrow on
the Closing Date, or such earlier date as may be required by
the Title company under applicable law.
(B) Seller shall deliver possession of the Property to
Buyer at Closing, subject to the rights of the Tenants under
the Leases.
4. Conveyance of Title.
At Closing, (i) Seller shall convey to Buyer by Grant
Deed, marketable fee simple title to all of the Real
Property free and clear of any and all Defects, except for
the Permitted Exceptions; (ii) Seller shall assign to Buyer
all of Seller's right, title and interest as landlord under
the Leases, and Buyer shall assume all of Seller's rights,
duties, obligations and liabilities as Landlord thereunder;
(iii) Seller shall convey to Buyer title to all of Seller's
rights, title and interest to the Personal Property, free
and clear of any and all Defects, except for the Permitted
Encumbrances; and (vi) Seller shall assign to Buyer all of
Seller's right title and interest to service agreements and
intangible property.
5. Contingencies and Inspections.
5.1 Document Production. Immediately upon
execution of this Agreement, Seller shall provide to Buyer
copies of the following items, which to Seller's actual
knowledge are true, accurate and complete:
(i) all service and professional contracts with
respect to the Property which are currently in effect and
continue in effect following the Closing;
(ii) all warranties or guaranties currently in
effect and in Seller's possession, if any, related to the
Building and Improvements;
(iii) certificates of occupancy related to the
Property, if any;
(iv) any existing surveys and title insurance
policies relating to the Property;
Buyer agrees that if for any reason the Closing is not
consummated, Buyer will immediately return to Seller all
materials furnished to Buyer pursuant to this Section 5.1.
5.2 .Survey. Buyer, at its expense, may obtain a
current survey of the Property. If so, Buyer shall have
until the expiration of the Contingency Period to object to
Seller in writing to matters of the survey. Such written
notice shall state with specificity all of Buyer's
objections to matters of Survey in Buyer's sole discretion
which adversely affect marketability of title to the
Property, other than the Permitted Exceptions (the "Survey
Objection"). This contingency shall be deemed satisfied or
waived if Seller has not received written notice of Buyer's
objection to any such changes to the Survey within the
Contingency Period. Seller shall have no obligation to cure
any Survey Objection made by Buyer under this Paragraph 5.2.
5.3 Title and Title Insurance for the Real
Property.
(A) Buyer, at its sole cost and expense,
shall obtain the Title Commitment.
(B) Buyer's obligation to purchase the
Property is subject to Buyer's approval of any title matters shown on
the Title Commitment. Buyer shall have until the expiration
of the Contingency Period to object to Seller in writing to
any such title matters ("Title Objections"). This
contingency shall be deemed satisfied or waived if Seller
has not received written notice of Buyer's objection to any
such changes to the Title Commitment within the Contingency
Period.
5.4 Cure Period for Survey and Title Objections.
(A) Upon receipt of any objection notice
provided for herein, Seller may, but shall not be obligated
to, cure any or all of the Survey Objections and/or Title
Objections, as applicable (collectively the "Objections")
within fifteen (15) days of such notice. If Seller cures the
Objections within such fifteen (15) day period, or, if the
Objections are such that they cannot be cured within fifteen
(15) days and Seller has commenced curing the Objections and
thereafter diligently proceeds to perfect such cure (but in
no event beyond twenty (20) days unless agreed to in writing
by Buyer), or if any Survey or Title Objections can be cured
by the payment of money and Seller agrees such payment may
be made from Seller's proceeds at Closing, this Agreement
shall continue in full force and effect and the Closing Date
shall be adjusted accordingly. If Seller is unable to or
chooses not to cure the Objections as permitted above,
Seller shall notify Buyer in writing prior to the expiration
of the cure period of such failure to cure the Objections
and thereafter, Buyer may terminate this Agreement within 5
(five) days of receipt of Seller's notice of its inability
or failure to cure the Objections, at which time the Title
Company shall immediately return the Xxxxxxx Deposit to
Buyer, and neither party shall have any further obligations
hereunder, except for Buyer's obligation to repair under
Section 5.5 herein and the Surviving Covenants. If Seller
does not receive the notice from Buyer as provided herein,
Buyer shall be deemed to have waived the Objections that
Seller is unable to or chooses not to cure and this
Agreement shall remain in full force and effect with no
reduction in the Purchase Price.
(B) At Closing, the Real Property shall be
conveyed to Buyer free and clear of all Defects and subject
only to the Permitted Exceptions. If between the date hereof
and the Closing the Real Property shall become subject to
any defect, Seller, at its option and in Seller's sole and
absolute discretion, shall use reasonable efforts to cure or
correct such Defect on or before the Closing Date. If Seller
is unable to or elects not to cure or correct such Defect,
then Buyer shall elect either;
(i) to terminate this Agreement by sending
written notice to Seller within five (5) days after receipt
by Buyer of written notice from Seller of its option
election, in which event the Xxxxxxx Deposit shall be
returned to Buyer and the parties hereto shall be released
from any liability arising hereunder; or
(ii) to proceed to Closing under this
Agreement subject to the satisfaction by Seller at or prior
to Closing of such Defect. Provided, in the case of any
Defect that can be satisfied by the payment of money not to
exceed $25,000, Seller shall have the obligation at or prior
to Closing to elect to pay the amount necessary to satisfy
such Defect or arrange at Seller's expense for the Title
Company to issue the Title Policy without exception for such
Defect.
5.5 Physical and Financial Inspection
(A) During the Contingency Period, Seller shall
make the Property and the operating financial records of the
Property available for inspection by Buyer in the management
office for the Property in Santa Monica, California Such
records shall include, but not be limited to, the items set
forth on Exhibit "G" attached hereto. Buyer shall have the
right, at Buyer's expense, to make photocopies of such
operating financial records. Buyer may, at Buyer's expense,
conduct an engineering and/or market and economic
feasibility study of the Property and undertake such
physical, environmental, structural, and seismic inspections
of the Property and the Property's financial records as
Buyer deems appropriate. Such inspection shall be conducted
by Buyer at reasonable times and upon two (2) business days
advance written notice to Seller. Seller shall have the
right to designate a representative to accompany Buyer's
employees, agents, and independent contractors on any such
inspections. In connection with such entry, Buyer (a) shall
perform all inspections and investigations in a safe manner;
(b) shall not permit any hazardous condition caused by Buyer
or its agents to remain on the Property; (c) shall repair
any damage or disturbance to the Property caused by Buyer or
its agents; and (d) shall produce (or have all work
performed by contractors who maintain) general liability
insurance with minimum coverage amounts of $1,000,000 naming
Seller as an additional insured, evidence of which shall be
delivered to Seller prior to Buyer's first entry. Buyer
further agrees to indemnify, hold harmless, protect and
defend Seller (and its officers, directors, shareholders,
participants, employees, agents, representatives, successors
and assigns) and the Property from and against any and all
liabilities, liens, claims, damages, costs, expenses, suits
or judgments (including attorneys' fees and court costs) for
labor or services performed or materials furnished to or for
Buyer, or for personal injury or death or property damage
arising out of entry upon the Property by Buyer or its
employees, agents or independent contractors prior to the
Close of Escrow, provided Seller makes any claims within
sixty (60) days after Seller becomes aware of damage to the
Property or Seller's receipt of notice of any claim against
Seller or the Property, but in any event by not later than
one year after the date of this Agreement. Notwithstanding
any provision to this Agreement to the contrary, Buyer's
obligations under this Section 5 shall survive any
termination of this Agreement or the close of Escrow and
delivery of the Grant Deed to Buyer.
(B) On or before the last day of the Contingency
Period, Buyer, in its sole and absolute discretion, may
terminate this Agreement by providing written notice to
Seller of Buyer's termination. Upon receipt of such notice,
this Agreement shall terminate and the Title Company shall
immediately return the Xxxxxxx Deposit to Buyer, and neither
party shall have any obligation to the other, except for the
Surviving Covenants. If Buyer fails to provide such notice
of termination on or before the last day of the Contingency
Period, Buyer shall be deemed to have approved such
inspections and waived any unsatisfied contingencies or
conditions precedent to Closing and its right to terminate
this Agreement under this Section 5.5 and, this Agreement
shall remain in full force and effect,
(C) 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 Buyer's designated independent auditor 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, 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. Seller agrees to fully
cooperate with Buyer's auditor in order to provide said auditor
with all information necessary or desirable in order to enable
said auditor to opine that a statement of operating income
prepared for a period prior to the Closing date presents
fairly, in all material respects, the results of operation
of the Property in conformity with generally accepted
accounting principles.
5.6 Environmental Review. Buyer, at its option and
expense may, within the Contingency Period and on a timely
basis, elect to obtain a Phase I Environmental Site
Assessment of the Property. If so, by no later than the
expiration of the Contingency Period, Buyer, in its sole and
absolute discretion, may terminate this Agreement by
providing written notice to Seller. Upon receipt of such
notice, Agreement shall terminate and the Title Company
shall immediately return the Xxxxxxx Deposit to Buyer, and
neither party shall have any obligation to the other, except
for the Surviving Covenants. If Buyer fails to provide such
notice of termination within such five (5) day period, Buyer
shall be deemed to have approved the environmental report
and waived its right to terminate this Agreement under this
Section 5.6 and this Agreement shall remain in full force
and effect.
If Buyer so determines that a Phase II Environmental Site
Assessment of the Property is necessary or desirable,
subject to obtaining the prior written consent of Seller,
which consent shall not be unreasonably withheld or delayed,
Buyer shall have the right to obtain same, at its expense,
by no later than the expiration of the Contingency Period.
Buyer shall furnish Seller with a copy of the Phase II
Environmental Site Assessment of the Property promptly
following the receipt thereof by Buyer.
5.7 Buyer's Review. Buyer's obligation to purchase the
Property is subject to Buyer's review and approval, in its
sole and absolute discretion, of (i) the Leases, (ii) any
operating, maintenance, or service agreements affecting the
Property, (iii) local zoning ordinances, (iv) land use and
other governmental regulations, laws, permits and approvals
that apply to the Property, (v) Certificates of Occupancy,
if any, issued with respect to the Property, (vi) any
engineer's or architect's certifications with respect to the
physical condition and structure of the Property (vii)
tenant improvement plans and floor plans, reports of
Insurance carriers regarding claims history, insurance
certificates, all correspondence regarding hazardous
materials, all broker commission agreements, any agreements
which survive the Closing, property tax bills for the last
three (3) years, tenant credit reports, all crime or
security reports; and (viii) any agreements or documents
requested by Buyer as provided herein.
5.8 Estoppel Certificates and Non-disturbance/Attornment
Agreements, Seller shall use its best efforts to promptly provide
to Buyer Estoppel Certificates executed by Tenants occupying at
least seventy percent (70%) of the total occupied space in
the office building, which shall include every tenant which
leases in excess of two thousand five hundred (2,500)
rentable square feet pursuant to the Leases in form and
content satisfactory to Buyer substantially in the form of
Exhibit "D" attached hereto and incorporated herein by
reference. Buyer's obligation to close Escrow shall be
conditioned upon Buyer's receipt prior to the Closing Date
of the requisite number of Estoppel Certificates from
Tenants. If Seller is unable to obtain any such Estoppel
Certificates, then Seller shall execute and deliver same to
Buyer on behalf of the applicable Tenants. Seller shall have no
liability for any Estoppel Certificates executed by Seller
which is replaced by a Tenant Estoppel Certificate
subsequently received. Seller shall reasonably cooperate
with Buyer, at Buyer's expense, in obtaining non-disturbance
and attornment agreements from all Tenants prior to the
Closing as to any financing which Buyer places upon the
Property at the Closing,
5.9 Damage to Property; Eminent Domain. In the event of
either (i) damage to or destruction of the Property in
excess of $100,000, or damage or destruction which is
uninsured. or (ii) the commencement or threat of
commencement of eminent domain, or similar proceedings
against the Property, Buyer shall have the right to
terminate this Agreement in accordance with the provisions
of Section 7 herein.
6. Costs and Prorations,
6.1 Costs. Seller shall pay any transfer tax and
conveyance fees, prepayment fees or prepayment penalties
required under any existing mortgages encumbering the
Property, Seller's legal fees, the CLTA portion of the
premium due for the Title Insurance Policy to be issued to
Buyer, and one half of the fee due the Title Company for its
services as Escrow Agent. Buyer shall pay for all recording
fees related to the recording of the deed and any other
documents to be recorded related to the transfer of the
Property. Buyer shall also pay for the cost of the Survey,
the ALTA portion of the premium due for the Title Insurance
Policy to be issued to Buyer, the cost of any Environmental
Report, Buyer's legal fees, and one half of the fee due the
Title Company for its services as Escrow Agent. Any other
fees, charges or expenses incurred in connection with the
consummation of the transaction contemplated herein shall be
paid by Seller or Buyer in accordance with local custom
applicable to similar transactions.
6.2 Prorations. All prorations for non-delinquent real
estate taxes, and other costs normally prorated between a
seller and buyer in a commercial real estate transaction in
the Los Angeles, California area shall be prorated as of the
Closing Date. All prorations shall be calculated on the
basis of a 365day year. By not later than two (2) business
days prior to the Closing Date, the Title Company shall
provide, for review and approval by Seller and Buyer, an
estimated statement of all prorations.
6.3 Rents. Rents, additional rents, operating costs, and
other income of the Property (other than security deposits)
collected by Seller from the Tenants for the month of
Closing shall be prorated through the date of Closing.
Seller hereby acknowledges that Buyer shall not be legally
responsible to Seller for the collection of any uncollected
rent or other income under the Leases that is past due or
otherwise due and payable as of the date of Closing. Buyer
agrees that if (i) any of the Tenants are in arrears on the
date of Closing in the payment of rental or other charges
under any of the Leases and (ii) upon Buyer's receipt after
Closing of any rental or other payment from any of the
Tenants and Buyer's payment of any costs of collection
incurred, if the defaulting tenant is, or after application
of a portion of such payment shall be, current under its
lease in the payment of all accrued rental and other charges
that become due and payable after the date of Closing, then
Buyer shall refund to Seller, out of and to the extent of
the portion of such payment remaining after Buyer deducts
therefrom any and all sums due and owing it and from such
tenants after the date of Closing, an amount up to the full
amount of any arrearage existing on the date of Closing
6.4 Operating Costs Pass-Throughs, Etc. Operating
costs pass-throughs, percentage rentals, additional rentals
and other retroactive rental escalations, sums or charges
payable by Tenants which accrue prior to the Close of Escrow
but are not then due and payable, shall be prorated as of
the Close of Escrow; provided, however, no payment thereof
shall be made to Seller until Buyer collects same from the
Tenants. When Buyer collects such operating costs pass
throughs, percentage rentals or other retroactive rental
escalations, sums or charges from a Tenant, Seller shall be
due an amount equal to all such operating costs pass
throughs, percentage rentals or other retroactive rental
escalations, sums or charges accruing prior to-the Close of
Escrow, computing same on a per diem basis after amortizing
them over the respective periods for which such items are
payable. Payments of such prorated amounts collected by
Buyer shall be made to Seller upon receipt and shall be
accompanied by a report showing how same was calculated and
such supporting documentation as Seller reasonable requests.
Where the Leases contain Tenant obligations for taxes,
common area expenses, maintenance, utilities, assessments,
or additional charges of any nature (the "Tenant Charges"),
and where Seller shall have collected any Tenant Charges
thereof in excess of amounts owed by Seller for such Tenant
Charges for the period prior to the Closing Date, there
shall be an adjustment and credit given to Buyer for such
excess amounts collected. Buyer shall apply all such excess
amounts tot he charges owed by Buyer for such items for the
period after the Closing Date and, if required by the
Leases, shall rebate or credit Tenants with any remainder.
If, pursuant to the leases, the Tenants are entitled to
payments by the Landlord (other than a return of security
deposits) in excess of the amounts credited to Buyers at
closing for the lease year in which the Closing Date falls,
Seller shall be responsible for a portion of such payment as
determined on the basis of a fraction, the denominator of
which shall be twelve (12) and the numerator of which shall
be the number of months (or part thereof) in such lease year
prior to the Closing Date. Prorations for any partial months
shall be calculated on a daily basis. Buyer shall be
responsible for the remainder.
6.5 Utilities. Final readings on all gas, water and
electric meters shall be made as of the date of Closing, if
possible. If finer readings are not possible, gas, water and
electricity charges will be prorated based on the most
recent period for which costs are available with a
subsequent cash adjustment to be made between Buyer and
Seller within thirty (30) days after Closing. Any deposits
made by Seller with utility companies shall be returned to
Seller. Buyer shall be responsible for making all
arrangements for the continuation of utility services.
6.6 Management Agreement Cancellation. Any existing
management agreement then in effect with respect to the
Property shall be canceled by Seller and terminated
effective as of the Closing Date and Seller shall pay any
cancellation or termination fees.
6.7 Leasing Listing Agreement Cancellation Any existing
leasing listing agreement then in effect with respect to the
Property shall be canceled by Seller and terminated
effective as of the Closing Date.
6.8 Commissions Seller shall pay in full all leasing
commissions due in connection with the origination of the
Leases entered into by Seller or Leases renewed by Seller as
of or prior to the Closing Date without contribution or
proration from Buyer.
6.9 Prepaid Rentals. Rentals received by Seller
attributable to periods after the Closing Date shall be
credited to Buyer and debited to Seller at the Closing.
6.10 Credits. At Closing, Seller shall credit to Buyer
in cash an amount equal to all cash security deposits held
by Seller under the Leases. After Closing, Buyer shall
assume full responsibility for such security deposits of
Tenants which have been credited to Buyer. Seller shall,
without recourse, assign to Buyer any Letters of Credit in
its Possession which may have been furnished to Seller by
tenants pursuant to Leases, if any.
6.11 Adjustments. To the extent that the amount of any
of the above items shall not be available for exact
proration as of the Closing Date, Seller and Buyer agree to
make any necessary adjustments to the prorations between the
Seller and Buyer as of the Closing Date. Any such prorations
not determined or not agreed upon by the Closing shall be
paid by Buyer to Seller, or by Seller to Buyer, as the case
may be, in cash as soon as practicable after the Closing,
but in no event later than sixty (60) calendar days after
the Closing. By not later than sixty (60) days after the
Closing, Seller shall provide to Buyer a final post-closing
reconciliation reflecting all credits, debits, and
prorations.
7. Risk of Loss; Eminent Domain.
7.1 Damage to Property. Buyer shall be obligated to
purchase the Property for the Purchase Price, without regard
to the occurrence of any damage or destruction of or to the
Property prior to Closing that involves less than $100,000
of damage. Seller shall assign to Buyer any insurance
proceeds or other sums sufficient to repair the damage or
destruction caused by any such occurrence. Between the
Execution Date and the Closing, Seller shall keep all
insurance policies on the Property currently maintained by
it in full force and effect.
With regard to the occurrence of any damage or
destruction of or to the Property prior to the Closing that
involves more than $100,000 of damage, Buyer shall have the
right to terminate this Agreement by written notice to the
Seller prior to the Closing Date, in which event this
Agreement shall be void and of no further force and effect
and the Xxxxxxx Deposit shall be returned to Buyer as
Buyer's sole remedy. In the event Buyer does not terminate
this Agreement, Seller shall assign any insurance proceeds
to Buyer and will credit Buyer at Closing an amount equal to
the deductible amount attributable to such insurance policy.
If the parties cannot reach final and binding agreement on
such matters on or before the Closing Date, this Agreement
shall be void and of no further force and effect and the
Xxxxxxx Deposit shall be returned to Buyer as Buyer's sole
remedy.
7.2 Eminent Domain. If, after the execution of this
Agreement and prior to the Closing Date, Seller shall
receive notice of the commencement or threatened
commencement of eminent domain or other like proceedings
against the Real Property or any portion thereof, Seller
shall immediately notify Buyer in writing, and Buyer shell
elect, within ten (10) business days from and after the
later of such notice or Buyer's independent discovery of
such threatened or pending proceedings, by written notice to
Seller, either:
(i) to not close the transaction contemplated hereby,
in which even this Agreement shall be void and of no further
force and effect and the Xxxxxxx Deposit shall be
immediately return to Buyer as Buyer's sole remedy; or
(ii) to close the transaction contemplated hereby in
accordance with the terms and conditions contained herein,
but subject to such proceedings, in which event the Purchase
Price shall remain the same and Seller shall transfer and
assign to Buyer at Closing all rights, title and interest to
any and all condemnation proceeds. If Buyer elects to
purchase the property after receipt of such notice, Buyer
shall have the right and obligation to control and pay for
all appropriate action with regard to such eminent domain or
like proceedings, including but not limited to,
negotiations, litigation, settlement, appraisals and
appeals.
If Buyer does not make such election within the aforesaid
ten (10) business day time period, Buyer shall be deemed to
have elected to close the transaction contemplated hereby in
accordance with this Section 7.2 (ii).
8. Notices. Each notice required or permitted to be given
hereunder shall be in writing and shall comply with the
requirements of this Section 8. Any notice by either party
to the other shall be deemed to be duly given if: (a) either
(i) hand delivered to the person(s) listed below for the
appropriate party, or (ii) by telephone facsimile
transmittal to the facsimile telephone number of the
appropriate party listed below, in which event proof of
delivery shall be by telephone records, and (b) a duplicate
of such notices shall be sent by registered or certified
mail to the appropriate address set forth below (or at such
other address as may hereafter be designated by the
appropriate party). Notice shall be deemed effective at the
time of hand delivery or transmission of the telephone
facsimile and upon deposit of the notice in the United
States Mail for registered or certified delivery.
The addresses and facsimile telephone numbers of the
parties to which notices are to be sent shall be those set
forth below:
As to Seller:
XXXXXXX X. XXXXXXXX
Chief Executive Officer
Xxxxxxx-Xxxxxx, Inc.
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Telephone: (000) 000-0000
FAX: (000) 000-0000
With a copy to:
Xxxx X. Xxxxxx, Esq.
XXXXX, XXXXXXXXX & XXXXXX
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telephone: (3t0) 000-0000
FAX: (000) 000-0000
As to Buyer:
ARDEN REALTY LIMITED PARTNERSHIP
c/o ARDEN REALTY GROUP, INC.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000X
Xxxxxxx Xxxxx, XX 9O212
Attention: Brig Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
JEFFER, MANGELS, XXXXXX & MARMARO LLP
0000 Xxxxxx xx xxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile. (000) 000-0000
Any party shall have the right from time to time to change the
address or telephone number to which notices to it shall be sent
by giving the other party or parties at least five (5) days prior
written notice of the changed address or additional addresses.
9. Documents at Closing, All of the following documents shall
be in a form and substance reasonably acceptable to the parties
and their legal counsel and deposited with Escrow Agent prior to
or on the Closing Date:
9.1 Seller's Documents. Seller shall execute and /or
deliver the following to Buyer at Closing:
(i) The Grant Deed, Xxxx of Sale, Assignment and
Assumption of Leases, and lien affidavit (if required) acceptable
to the Title Company, all duly executed by Seller and
acknowledged.
(ii) An affidavit, duly executed by Seller, that Seller
is not a "foreign person" within the meaning of Section 1445 of
the Internal Revenue Code, and a certificate under California
Revenue and Taxation Code Section 18662 In statutory form
sufficient to provide that Buyer shall have no withholding
requirement under the California Revenue and Taxation Code Section
18662.
(iii) Certification by Seller that the representations
and warranties of Seller contained in this Agreement remain true
and accurate as of the Closing Date.
(iv) A current Rent Roll within forty-eight (48)
hours of Closing.
(v) A master key or duplicate key for all locks in the
Building and Improvements.
(vi) Appropriate corporate resolutions authorizing the
sale of the Property and the execution of all documents to be
executed by Seller.
(vii) An Assignment and Assumption of service
agreements and intangible property which are assumable and which
Buyer elects to assume, in the form of the agreement attached
hereto as Exhibit "F".
(viii) Copies of all Service Agreements executed by
Seller or which are in effect relating to the Property.
(ix) The original Leases and warranties and
guaranties in effect as of
the Closing Date.
(x) Any drawings, surveys, site plans, permits,
licenses, or certificates of occupancy relating to the Property
and in the possession of Seller.
(xi) Copy of letters to be sent to Tenants advising them
of the sale of the Property by Seller to Buyer and setting
forth the address of Buyer, in the form attached hereto as Exhibit
"H".
9.2 Buyer's Documents. Buyer shall pay the cash portion of
the Purchase Price to the Title Company at Closing as required by
Section 3, and Buyer shall execute and/or deliver the following to
Seller at Closing:
(i) The Assignment and Assumption of Leases duly
executed by Seller and Buyer.
(ii) A partnership resolution signed by the General
Partner of the Buyer evidencing, the authorization by the General
Partner of the Buyer of the entering into and consummation by
Buyer of the transactions set forth in this Agreement.
(iii) Certification by Buyer that the representations
and warranties of Buyer contained in this Agreement remain, true
and accurate.
(iv) Such other documents and assurances as shall be
reasonably required by Seller.
(v) An Assignment and Assumption of the service
agreements and
intangible property.
9.3 Closing Conditions. Closing shall be subject to all of
the following conditions precedent (the "Closing Conditions"):
(i) Covenants; Seller shall have performed fully all
covenants set forth in Paragraphs 5.8, 9.1 and 11 herein, except
to the extent to which Seller's full performance has been
prevented, impaired, or excused by Buyer's acts or omissions.
(ii) Representations: Seller's representations set forth
in this Agreement shall be true and correct as of the Closing
Date. Buyer's sole remedy in the event Buyer discovers prior to
the Closing Date that any representation is materially untrue or
incorrect shall be to terminate this Agreement and receive its
entire Deposit.
(iii) Title Insurance Policy: The Title Company shall be
ready, willing and able to issue, upon payment of the Title
Company's regularly scheduled premium, the Owner's Title Policy.
(iv) There has been no material change in the
condition, operations or income relating to the Property.
10. Representations.
10.1 Representation by Seller. Seller hereby
represents to Buyer that as of the Execution Date:
(i) Seller is a duly organized corporation under the
laws of the State of Delaware and Seller has the power and
authority to enter into this Agreement.
(ii) To the best of Seller's knowledge, Seller has good
and marketable title to the Property.
(iii) Seller has the legal authority to sell the
Property, and all documents to be signed by Seller in connection
herewith have been or will be duly authorized, executed and
delivered by Seller.
(iv) To the best of Seller's knowledge, all taxes
(rental, real and personal) relating to the Property have been
paid; there are no special assessments with respect to the
Property that are due and payable; and Seller has no actual
knowledge of any pending or threatened assessments or condemnation
proceedings relating to the Property.
(v) To the best of Seller's knowledge, there are no
outstanding claims relating to the Property or any suits, actions,
proceedings or claims to be asserted by or against current or
former employees, suppliers, tenants or subcontractors or
otherwise relating to the Property.
(vi) To the best of Seller's knowledge, Seller has not
received any written notice from any governmental agency or
private land owner of any violation or encroachment on any right-
of-way or easement.
(vii) To the best of Seller's knowledge, all management
and service agreements relating to the Property have been provided
to Buyer and are listed on Exhibit "F".
(viii) The property management agreement currently in
effect with respect to the Property will terminate at Closing and
will not survive Closing.
(ix) True and correct copies of all of the Leases and
any subleases and occupancy agreements in Seller's possession have
been provided to Buyer; that all of such Leases are in full force
and effect; that, there are no other documents or agreements with
respect to the Tenants or regarding occupancy of the Property
other than the Leases; that, except as set forth in the Leases,
there are no options to renew, no options to purchase, options to
terminate; nor are there any rent concessions given to any of the
tenants, and except as set forth on such Exhibit "C", all rental
and other payments due under such leases, as of the date hereof,
have been paid in full: that, except as set forth on Exhibit "C",
the tenants under such Leases are not, as of the date hereof, in
default thereunder; that as of the date hereof, there are no
commissions or other fees payable to any person, entity or agent
with respect to the execution of such Leases; Seller, as landlord,
has received no written notice from any tenant that Seller is in
default or not complying with Seller's obligations, as landlord,
under any Lease; that, except for any work to be done subsequent
to the date hereof pursuant to the provisions of any Lease, any
and all decorating, painting, renovation or construction work
required to be done under the provisions of any such Leases as of
the Closing Date has been, or as of the Closing Date, as Seller's
expense, will be fully complete and paid for.
(x) That Seller has not received any written notice
contemplated or actual special assessment or reassessments for
general real estate tax purposes affecting the Property.
(xi) To the best of Seller's knowledge, there are no
actions, suits, or proceedings pending or threatened against or
relating to Seller or the Property in any court or before any
administrative agency. This warranty will not be deemed untrue or
violated as to any mechanic's liens against the Land and
Improvements existing at the Closing, against which Seller has
caused the Title Company to insure Buyer.
(ix) That Seller is not subject to any commitment,
obligation or agreement, including, any right of first refusal or
option to purchase granted to a third party which would or could
prevent it from completing the sale of the Property under this
Agreement or which would bind Buyer subsequent to consummation of
this Agreement.
(ix) That there are no outstanding accounts payable or
mechanic's liens in favor of any contractor, materialmen, or
laborer or any other person or entity in connection with the
construction, repair or renovation of any portion of the Property;
that there has not been any work performed or materials supplied
to the Property or contracts entered into for work to be performed
or materials to be supplied to the Property in the sixty (60) days
prior to the date hereof which has not been, or at the Closing
will not be, fully paid for, which could give rise to the filing
of such liens against the Property; and that, except for those
items of expense and contracts authorized in writing by Buyer
hereafter, Seller shall be responsible for any and all claims for
mechanic's liens and accounts payable that have arisen or may
subsequently arise due to contracts entered into for and/or any
work performed on, or materials supplied to, the Property prior to
the Closing Date, and Seller shall and does hereby agree to
defend, indemnify and hold Buyer and Buyer's nominee or designee
harmless from and against any and all such mechanics' liens,
accounts payable and any other contracts of commitment relating to
the Property. This warranty will not be deemed untrue or violated
as any mechanic's liens against Land and Improvements existing at
the Closing, against which Seller has caused the Title Company to
insure Buyer.
(xiv) Seller hereby certifies that Seller is not a "non-
resident alien", "foreign corporation", "foreign partnership",
"foreign trust., or "foreign estate" within the meaning of the
Internal Revenue Code of 1954, as amended, and the regulations
thereunder, and the Seller agrees, at the Closing, to deliver into
escrow any affidavit or certificate in confirmation of the same.
(xv) Except as otherwise disclosed to buyer, to the best
of Seller's knowledge without inquiry, no toxic or hazardous
chemicals, wastes or substances, of any kind whatsoever,
including, without limitation, asbestos, PCB's, radioactive
substances, petroleum or petroleum by-products or urea
formaldehyde have been generated, released, stored or disposed of,
on or at the Property or any immediately adjacent property owned
by Seller (excepting only currently lawful quantities maintained
in accordance with commercially reasonable standards and
applicable environmental laws). Seller hereby advises Buyer that a
five hundred (500) gallon diesel fuel storage tank is located on
the property.
(xvi) To the best of Seller's knowledge, Seller is not
aware of any material facts regarding the Property which have not
been disclosed to Buyer.
(xvii) To the best of Seller's knowledge, Seller is not
aware of any inaccuracy or incompleteness in any of the
information or documents furnished by Seller to Buyer pursuant to
this Agreement.
10.2 Representations by Buyer. Buyer hereby represents to
Seller that as of the date hereof, Buyer is a duly organized and
validly existing partnership under the laws of the State of
Maryland, and Buyer has the power and authority to enter into this
Agreement and take all necessary action and to execute any
documents or instruments required in order to consummate the
transactions contemplated herein.
10.3 Remedies.
IN THE EVENT THE CLOSING AND THE CONSUMMATION OF THE
TRANSACTION HEREIN CONTEMPLATED DOES NOT OCCUR AS HEREIN PROVIDED
BY REASON OF ANY DEFAULT OF BUYER, BUYER AND SELLER AGREE THAT IT
WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE
DAMAGES SUFFERED BY SELLER AS A RESULT OF BUYER'S FAILURE TO
COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THIS AGREEMENT,
AND THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS
AGREEMENT, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS PARAGRAPH
REPRESENT A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WILL
INCUR AS A RESULT OF SUCH FAILURE; PROVIDED, HOWEVER THAT THIS
PROVISION WILL NOT LIMIT SELLER'S RIGHT TO RECEIVE REIMBURSEMENT
FOR ATTORNEYS' FEES NOR WAIVE OR AFFECT BUYER'S INDEMNITY
OBLIGATIONS AND SELLER'S RIGHT TO THOSE INDEMNITY OBLIGATIONS
UNDER THIS AGREEMENT, THEREFORE BUYER AND SELLER DO HEREBY AGREE
THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER
WOULD SUFFER IN THE EVENT THAT BUYER DEFAULTS AND FAILS TO
COMPLETE THE PURCHASE OF THE PROPERTY IS AN AMOUNT EQUAL TO THE
DEPOSIT (WHICH INCLUDES ANY ACCRUED INTEREST THEREON) SAID AMOUNT
WILL BE THE FULL, AGREED AND LIQUIDATED DAMAGES FOR THE BREACH OF
THIS AGREEMENT BY BUYER. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED
DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. UPON
DEFAULT BY BUYER. THIS AGREEMENT WILL BE TERMINATED AND
NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS
HEREUNDER, EACH TO THE OTHER EXCEPT FOR THE RIGHT OF SELLER
TO COLLECT SUCH LIQUIDATED DAMAGES FROM BUYER AND ESCROW
HOLDER. SELLER HEREBY WAIVES THE PROVISIONS OF CALIFORNIA
CIVIL CODE SECTION 3389.
Buyer's Initial /s/ VJC Seller's Initials /s/ WJM
Notwithstanding the foregoing provisions of this Section
10.3, in the event any of Buyer's warranties and
representations are true as of the Execution Date, but become
untrue after the Execution Date without the intentional act
of Buyer, then Seller's sole remedy shall be to terminate
this Agreement.
10.4 Property "As-Is".
(a) No Side Agreements or Representations. No person
acting on behalf of Seller, including any broker, is
authorized to make, and by execution hereof, Buyer
acknowledges that no person has made, any representation,
agreement, statement, warranty, guarantee or promise
regarding the Property or the transaction contemplated herein
or the zoning, feasibility of building any other
improvements, physical condition, marketability or other
status of the Property except as may be expressly set forth
in this Agreement. No representation, warranty, agreement,
statement, guarantee or promise, if any made by any given
person acting on behalf of Seller which is not contained in
this Agreement will be valid or binding on
Seller. Except as expressly set forth in this Agreement,
Seller makes no representations or warranties regarding any
aspect of the Property. Buyer purchases the Property after
having made an independent evaluation and decision to
purchase the Property, including but not limited to geologic
and seismic hazards that may affect the Property. Except as
expressly set forth in this Agreement, Seller makes no
representations or warranties with respect to, but in no way
limited to, the following pertaining the Property, (i) that
there are no physical, structural, or mechanical defects or
violations of any laws or regulations applicable to the
Property; (ii) that all water, sewer, gas, electric,
telephone, and drainage facilities and all other utilities
required by law and by the normal operation of the Property
are all connected with valid permits, and/or are
available or adequate to service the Property and to permit
full compliance with all requirements of law; (iii) that all
licenses, permits, easements and rights-of-way, including
proof of dedication, required from all governmental
authorities having jurisdiction over the Property or from
private parties to permit the present use of the Property
and to insure vehicular and pedestrian ingress and egress to
the Property from public roads at all access points currently
being used having been properly obtained; or (iv) the
existence of nonexistence of hazardous substances.
Buyer acknowledges that the Property may be subject to
the provisions of the Subdivision Map Act (Government Code
Section 66410 et seq.). Seller makes no representations or
warranties regarding compliance thereunder.
(b) 'AS-IS' Purchase. Buyer represents and warrants
to Seller that Buyer has independently and personally
inspected the Property and improvements, if any, and the
Buyer has entered into this Agreement based upon such
personal examination and inspection. Except for the
representations made by Seller in this Agreement or as
otherwise set forth herein, Buyer agrees that Buyer will
accept the Property, at Close of Escrow, in its then
condition, AS-IS, WHERE-IS and WITH ALL FAULTS ACCEPTED,
including without limitation, those faults and conditions
specifically referenced in this Agreement. The Purchase
Price has been negotiated with the mutual understanding that
Buyer's costs associated with ownership, development,
operation and management of the Property are uncertain.
Buyer acknowledges that neither Seller nor its agents have
made any representation or warranty (except for those set
forth above), express or implied, written or oral, to Buyer
or any agent of Buyer with respect to any matter concerning
the Property, including without limitation, its physical
condition. Buyer acknowledges that neither Seller nor its
agents have made any representation or warranty to Buyer
concerning the income that can be expected from the Property
or expenses to be generated by operation, development, or
management of the Property. In purchasing the Property, Buyer
conducted a thorough inspection and review of the Property
and subject to the terms of this Agreement, has relied
entirely on its own independent investigation and analysis of
the Property and Buyer acknowledges that except as expressly
set forth in this Agreement, (i) Seller has not made any
representation or warranty, expressed or implied, written or
oral, to Buyer concerning any of the matters described above,
or any other matter, and (ii) any oral or written information
supplied by Seller to Buyer in respect of the Property was
intended by Seller and has been used by Buyer solely as a
basis for Buyer to conduct its own investigation and analysis
of the Property and except as expressly set forth in this
Agreement, Buyer has
not relied on any such written or oral information supplied
or provided by Seller to Buyer. It is not contemplated that
the Purchase Price will be increased it these costs prove to
be less than expected nor will the Purchase Price be reduced
if the Buyer's plan leads to higher cost projections. The
sole remedy of the Buyer will be to terminate this Agreement
as provided herein prior to the end of the Contingency
Period.
11. Covenants by Seller. Seller hereby covenants and
promises to and for the benefit of Buyer as follows:
11.1 Compliance With Laws. Seller will not
voluntarily commit any action that will result in a violation
after the execution date hereof of any applicable statute,
ordinance, regulation, order or other law, including, without
limitation, zoning or environmental regulations concerning
use of the Property or the existence or construction of the
Improvements.
11.2 Actions Pending. Seller shall notify Buyer
promptly of any lawsuits, condemnation proceedings, rezoning,
or other governmental order or action or any threat thereof
actually known to Seller which would affect the Property,
11.3 Amendments to Leases. Seller shall not enter
into any new leases or assign, modify, terminate (unless the
tenant thereunder shall have materially defaulted in the
performance of any of its obligations under the Lease) or
amend the Leases in any respect without Buyer's prior written
consent, which consent shall not be unreasonably withheld. If
Buyer does not disapprove any request of Seller regarding a
Lease within five (5) days of such request, Buyer shall be
deemed to have approved such request.
11.4 Insurance Policies The existing insurance
policies currently in effect with respect to liability claims
arising in connection with the Property, or equivalent
coverage, shall remain continuously in effect from the date
hereof to the Closing Date.
11.5 No Further Encumbrances After the date hereof,
Seller shall not enter into any agreement or cause any matter
to be recorded that may constitute an exception to title to
the Property or be binding on Buyer after the Closing Date,
without the prior written consent of Buyer, which consent
Buyer may withhold in its reasonable discretion.
11.6 Financial Statements. To deliver to Buyer
the items identified under the heading "Post Closing" on
Exhibit "G" attached hereto as soon as reasonably practicable
after the Closing Date.
12. Indemnification.
(a) Indemnification of Buyer. Seller hereby agrees to
indemnify Buyer against, defend and hold Buyer harmless from,
all liabilities, losses, damages, costs and expenses,
including without limitation, reasonable legal fees and
disbursements, incurred by Buyer relating to the Property
which arise or result from claims caused by acts, occurrences
or matters that took place prior to the Close of Escrow.
(b) Indemnification of Seller. Buyer hereby agrees to
indemnify Seller against, defend and hold Seller harmless
from, all liabilities, losses, damages, costs and expenses,
including without limitation, legal fees and disbursements,
incurred by Seller relating to the Property which arise or result
from claims caused by acts, occurrences or matters that take place
after the Close of Escrow.
13. Miscellaneous
13.1 Broker. At the Closing, Seller shall pay from
funds accruing to Seller through Escrow, (i) any brokerage
commission and fees owed to Seller's broker, Madison Partners
("Madison") in connection with transaction contemplated by
this Agreement pursuant to Seller's separate agreement with
Madison, Seller represents and warrants to Buyer, and Buyer
represents and warrants to Seller, that no other broker or
finder has been engaged by it, respectively, in connection
with any of the transactions contemplated by this Agreement,
or to its knowledge is in any way connected with any of such
transactions. In the event of any such claims for additional
brokers' or finders' fees or commissions in connection with
the negotiation, execution or consummation of this Agreement,
then Buyer shall indemnify, save harmless and defend Seller
from and against such claims if they shall be based upon any
statement or representation or agreement by Buyer, and Seller
shall indemnify, save harmless and defend Buyer if such claims
shall be based upon any statement, representation or agreement
made by Seller.
13.2 Entire Agreement. This Agreement constitutes
the entire agreement between Buyer and Seller with respect to the
Property and may not be amended except by written instrument
executed by Buyer and Seller. Any other agreements, written
or oral, between Buyer and Seller with respect to the
property are hereby superseded in their entirety by this
Agreement.
13.3 Headings, The section headings are inserted
for convenience only and are in no way intended to describe,
interpret, define or limit the scope or content of this
Agreement or any provision hereof.
13.4 Construction. Words of any gender used in
this Agreement shall be held and construed to include any other
gender, words in the singular number shall be held to include
the plural, and vice verse, unless the context requires
otherwise.
13.5 Applicable Law This Agreement shall be
construed and interpreted in accordance with the laws of the State of
California.
13.6 Successors and Assigns. This Agreement shall
be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors and assigns. Neither
Buyer nor Seller shall assign all or any portion of its
rights under this Agreement without the prior written consent
of the other.
13.7 Surviving Covenants. Notwithstanding any
provisions hereof to the contrary, the Surviving Covenants
shall survive the Closing and any termination of this
Agreement.
13.8 Counterparts. This Agreement may be executed
in two (2) or more counterparts.
13.9 Time of the Essence. Time is of the essence
as to the time for Closing and as to all other rights and
obligations of Buyer and Seller hereunder.
13.10 Real Estate Licenses. The parties hereto
acknowledge that both Buyer and Seller are licensed as Real
Estate Brokers in the State of California.
13.11 Confidentiality, Buyer shall keep all information
and reports obtained from Seller relating to the Property and to
this Agreement confidential and shall not disclose any such confidential
information to any other person or entity without obtaining prior written
consent from Seller.
IN WITNESS WHEREOF, Buyer and Seller have executed this
Agreement under seal by their duly authorized partners or officers.
SELLER; XXXXXXX-XXXXXX, INC.
a Delaware corporation
By: /s/ Xxxxxxx X.XxXxxxxx
Xxxxxxx X. XxXxxxxx
Chief Executive Officer
BUYER:
ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: ARDEN REALTY, INC.,
a Maryland corporation, its
Sole General Partner
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X.Xxxxxxx
Its: President & COO
The Company hereby agrees to furnish supplementally
the omitted exhibits and schedules to the Commission
upon request.
