PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated
for reference purposes only as of December 13, 1996, is made by
and between C.P. PROPERTIES I, INC., a Delaware corporation
("Seller"), and ARDEN REALTY LIMITED PARTNERSHIP, a Maryland
limited partnership ("Purchaser"), as of the "Effective Date"
specified in Section 10.13 below.
In consideration of the mutual covenants and representations
herein contained, and other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, Seller
and Purchaser agree as follows:
Section 1.
PURCHASE AND SALE
1.1 Purchase and Sale. Subject to the terms and conditions
of this Agreement, Seller hereby agrees to sell and convey to
Purchaser, and Purchaser hereby agrees to purchase from Seller,
all of Seller's assignable and transferable right, title and
interest in and to the following described property (herein
collectively called the "Property"):
(a) Land. That certain tract of land (the "Land") located
in the City of Ventura, County of Ventura, State of California,
being more particularly described on Exhibit A attached hereto
and made a part hereof.
(b) Easements. All easements, if any, benefiting the Land
or the Improvements (as hereinafter defined).
(c) Rights and Appurtenances. All rights and appurtenances
pertaining to the Land, including any right, title and interest
of Seller in and to adjacent streets, alleys or rights-of-way.
(d) Improvements. All improvements and related amenities
known as "The Center Promenade" (the "Improvements") in and on
the Land, and having an address of 6401, 6477, 6555 and 6633
Telephone Road, 1000 and 0000 Xxxx Xxxx, and 0000 Xxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxxxx.
(e) Leases. All leases (the "Leases") of space in the
Property, concession leases, lease guaranties, and all tenant
security deposits and prepaid rent held by Seller on the Closing
Date (as defined in Section 6.1).
(f) Tangible Personal Property. All appliances, fixtures,
equipment, machinery, furniture, carpet, drapes and other
personal property, if any, owned by Seller, located on and used
in connection with the Land and the Improvements (the "Tangible
Personal Property").
(g) Contracts. To the extent assignable without the consent
of third parties, all written contracts and agreements pertaining
to the Property, and not cancelable on thirty (30) days notice
without penalty or premium (collectively, the "Contracts"),
including, but not limited to, service contracts, equipment
leases and maintenance contracts.
(h) Intangible Property. To the extent assignable without
the consent of third parties, all intangible property (the
"Intangible Property"), if any, owned by Seller and pertaining to
the Land, the Improvements, or the Tangible Personal Property
including, without limitation, transferable utility contracts,
transferable telephone exchange numbers, plans and
specifications, engineering plans and studies, floor plans and
landscape plans, surveys, permits, licenses, approvals,
guaranties and warranties relating thereto.
Section 2.
PURCHASE PRICE
2.1 Purchase Price. The purchase price (the "Purchase
Price") for the Property shall be ELEVEN MILLION FIVE HUNDRED
FIFTY THOUSAND AND NO/100 DOLLARS ($11,550,000.00) and shall be
paid in cash by Purchaser to Seller at the Closing (as defined in
Section 6.1) by wire transfer in accordance with wire transfer
instructions to be provided by Seller.
Section 3.
XXXXXXX MONEY
3.1 Xxxxxxx Money.
(a) Purchaser shall deliver to the Title Company (as defined
in Section 6.1) within two (2) business days after the date a
fully-executed copy of this Agreement is delivered to the Title
Company by Seller, by wire transfer in accordance with wire
transfer instructions provided by the Title Company, the amount
of ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00) (which
amount and any additional funds delivered by Purchaser to Title
Company pursuant to this Section 3, together with all interest
accrued thereon, if any, is herein called the "Xxxxxxx Money") to
be invested by the Title Company in an interest-bearing account
as Purchaser and Seller shall direct. Purchaser agrees to
promptly deliver or cause the Title Company to deliver to Seller
written acknowledgment by the Title Company that the executed
copy of this Agreement and the required Xxxxxxx Money have been
received by and are being held by the Title Company pursuant to
the terms of this Agreement.
(b) Seller shall have the option of terminating this
Agreement if the full amount of required Xxxxxxx Money is not
timely and fully delivered to the Title Company at the time(s)
and in the manner as prescribed in this Section 3.
(c) If on or before the expiration of the Approval Period
(as defined in Section 4.2) this Agreement has not been
terminated by Purchaser in accordance with an express termination
granted to Purchaser by the terms of this Agreement, the Xxxxxxx
Money shall automatically and without further notice or action by
Seller become and remain non-refundable except to the limited
extent otherwise expressly provided in this Agreement.
(d) If the sale of the Property is consummated under this
Agreement, the Xxxxxxx Money shall be paid to Seller and applied
to the payment of the Purchase Price at Closing.
(e) If Purchaser terminates this Agreement in accordance
with any right to terminate granted to Purchaser by the terms of
this Agreement, the Xxxxxxx Money shall be immediately returned
to Purchaser, and no party hereto shall have any further
obligation under this Agreement except for such obligations which
by their terms expressly survive the termination of this
Agreement (the "Surviving Obligations"). Purchaser agrees to
deliver to Seller copies of all third party Reports (as defined
in Section 4.4) identified in good faith by Purchaser in writing
at the time the notice to terminate this Agreement is given (the
notice to terminated shall not be deemed to have been properly
given if it does not identify such third party Reports). The
obligations to deliver the Reports shall survive the termination
of this Agreement. In no event shall $10,000.00 of the Xxxxxxx
Money be returned to Purchaser hereunder until all such
identified Reports have been delivered to Seller.
(f) If Seller terminates this Agreement in accordance with
Section 8.2(a), the Xxxxxxx Money Deposit shall be immediately
released by Title Company to Seller as liquidated damages as
provided in Section 8.2(a), and no party hereto shall have any
further obligation under this Agreement except for the Surviving
Obligations.
Section 4.
DELIVERIES, INSPECTIONS AND REPRESENTATIONS
4.1 Seller's Delivery Obligations. On or prior to the date
of this Agreement, Seller (at Seller's expense) has delivered to
Purchaser, and Purchaser has received from Seller, the following:
(1) Title Commitment. Commitment for Owner's Policy of
Title Insurance (the "Title Commitment") with respect to the
Property, issued by the Title Company, and legible copies of any
restrictive covenants, easements, and other items listed as title
exceptions therein.
(2) Survey. The most recent and existing "as-built" survey
of the Property (the "Survey"), if any, in Seller's possession.
(3) Contracts. Copies of all Contracts, to the extent in
the possession of Seller.
(4) Rent Roll. A rent roll in the form previously provided
by Seller to Purchaser (the "Rent Roll") identifying all Leases
of space within the Improvements current as of a date not earlier
than thirty (30) days prior to the Effective Date and certified
by Seller's property manager as being true and correct in all
material respects.
(5) Additional Items. Those additional documents, items
and things relating to the Property and particularly described in
Schedule 1 attached hereto.
4.2 Purchaser's Satisfaction. During the period commencing
on the Effective Date and ending on December 13, 1996 (the
"Approval Period"), the following matters shall be conditions
precedent to Purchaser's obligations under this Contract:
(a) Purchaser's being satisfied, in Purchaser's sole
discretion, that the Property is suitable for Purchaser's
intended uses; and
(b) Purchaser's being satisfied, in Purchaser's sole
discretion, with the items delivered pursuant to Section 4.1(3),
(4) and (5) above, including the information reflected therein.
If Purchaser is not satisfied, in its sole discretion, as to the
suitability of the Property for Purchaser's intended uses or any
of the items delivered pursuant to Section 4.1(3), (4) and (5),
Purchaser may give written notice thereof to Seller on or before
the expiration of the Approval Period (the "Disapproval Notice"),
whereupon this Agreement shall terminate, and upon such
termination, Purchaser shall be entitled to the return of the
Xxxxxxx Money (return of $10,000.00 of the Xxxxxxx Money shall be
subject to Purchaser's delivery of the third party Reports to
Seller as required pursuant to Section 3.1(d) above), and neither
party shall have any further obligation hereunder except for the
Surviving Obligations. If Purchaser fails to timely give the
Disapproval Notice, Purchaser shall be deemed to be satisfied
with such matters and the conditions precedent in this Section
4.2 shall be deemed to be satisfied.
4.3 Title Commitment and Survey.
(a)In the event (i) the Survey shows any easement,
right-of-way, encroachment, conflict, protrusion or other matter
affecting the Land or Improvements that is unacceptable to
Purchaser, in its sole discretion, or (ii) any exceptions appear
in the Title Commitment (other than the standard printed
exceptions set forth in the standard form of Title Commitment)
that are unacceptable to Purchaser, in its sole discretion,
Purchaser shall within twenty (20) days after the Effective Date
of this Agreement (the "Title Approval Period"), notify Seller in
writing of such facts and the reasons therefor ("Purchaser's
Title Objections"). Upon the expiration of the Title Approval
Period, except for Purchaser's Title Objections, Purchaser shall
be deemed to have accepted the form and substance of the Survey,
all matters shown or addressed thereon, all existing conditions
of title to the Land and Improvements including, without
limitation, any easement, right of way, encroachment, conflict,
discrepancy, overlapping of improvements, protrusion, lien,
encumbrance, restriction, condition, covenant, exception or other
matter with respect thereto and all items shown or addressed in
the Title Commitment (collectively, the "Approved Title
Matters").
(b) Notwithstanding anything to the contrary contained
herein, Seller shall have no obligation to take any steps or
bring any action or proceeding or otherwise to incur any effort
or expense whatsoever to eliminate or modify any of Purchaser's
Title Objections; provided, however, Seller, at its sole option,
may attempt to eliminate or modify all or a portion of
Purchaser's Title Objections to Purchaser's reasonable
satisfaction prior to the Closing Date. In the event Seller is
unable or unwilling to attempt to eliminate or modify all of
Purchaser's Title Objections to the reasonable satisfaction of
Purchaser, Seller shall provide written notice thereof to
Purchaser ("Seller's Notice"). Purchaser may (as its sole and
exclusive remedy) terminate this Agreement by delivering notice
thereof in writing to Seller by the earlier to occur of (i) the
Closing Date, or (ii) five (5) business days after Seller's
Notice, in which event neither party shall have any obligation
hereunder other than the Surviving Obligations.
(c)The term "Permitted Encumbrances" as used herein
includes: (i) all of the Approved Title Matters, (ii) any
Purchaser's Title Objection that remains uncured, for whatever
reason, at the earlier to occur of (A) Closing hereunder, or (B)
five (5) business days after Seller's provision of the Seller's
Notice, and (iii) the rights and interests of parties claiming
under the Leases.
4.4 Inspection.
(a) During the Approval Period, Purchaser may inspect, test,
investigate and survey: (i) the Property, (ii) all of Seller's
financial records pertaining to the operation of the Property,
and (iii) photocopies of all Leases and Contracts in the
possession of Seller. The foregoing may be done at any
reasonable time during ordinary business hours upon twenty-four
(24) hours prior written notice to Seller, at Purchaser's sole
cost and in a manner not disruptive to tenants or the operation
of the Property. Notwithstanding the foregoing, Purchaser must
obtain Seller's written approval (not to be unreasonably withheld
or delayed) of the scope and method of any inspection, testing or
investigation of the Property (other than a Phase I environmental
inspection) including, but without limitation, any inspection
which would involve taking subsurface borings or related
investigations and any inspection which would materially alter
the physical condition of the Property prior to Purchaser's
commencement of such inspections, testing or investigation.
Seller and its representatives, agents, and/or contractors shall
have the right to be present during any testing, investigation,
or inspection of the Property. In no event shall Purchaser or
any of its agents, representatives or independent contractors
contact any tenant at the Property directly without Seller's
prior written approval (not to be unreasonably withheld or
delayed).
(b) If such inspection, test, investigation or survey
reveals any fact or condition unacceptable to Purchaser, in its
sole discretion, Purchaser shall notify Seller in writing prior
to the expiration of the Approval Period of such unacceptable
fact or condition and the reasons therefor ("Purchaser's
Inspection Objections"). Notwithstanding anything to the
contrary contained herein, Seller shall have no obligation to
take any steps or bring any action or proceeding or otherwise to
incur any effort or expense whatsoever to eliminate or cure any
of the Purchaser's Inspection Objections; provided, however,
Seller, at its sole option, may attempt to eliminate or cure all
or a portion of Purchaser's Inspection Objections to Purchaser's
reasonable satisfaction prior to the Closing Date. In the event
Seller is unable or unwilling to attempt to eliminate or cure all
of Purchaser's Inspection Objections to the reasonable
satisfaction of Purchaser, Seller shall provide written notice
thereof to Purchaser ("Seller's Notice"). Purchaser may (as its
sole and exclusive remedy) terminate this Agreement by delivering
notice thereof in writing to Seller by the earlier to occur of
(i) the Closing Date, or (ii) five (5) business days after
Seller's Notice, in which event neither party shall have any
obligation hereunder other than the Surviving Obligations. If
Purchaser does not notify Seller of Purchaser's Inspection
Objections in writing prior to the expiration of the Approval
Period, all inspections, tests, investigations and surveys of the
Property, and all conditions relating to the Property (except for
Purchaser's express closing conditions specified in Section 6.9
below), shall be deemed satisfactory to Purchaser.
(c) All information provided by Seller to Purchaser or
obtained by Purchaser relating to the Property in the course of
Purchaser's review, including, without limitation, any
environmental assessment or audit (collectively, the "Reports")
shall be treated as confidential information by Purchaser and
Purchaser shall instruct all of its employees, agents,
representatives and contractors as to the confidentiality of all
such information. In the event that this transaction is not
closed for any reason, then Purchaser shall maintain the
confidentiality of such information, and shall require its
agents, representatives and accountants not to disclose any such
information to any other party.
(d) Purchaser shall restore the Property to its condition
existing immediately prior to Purchaser's inspection, testing,
investigation and survey thereof, and except to the extent
resulting from the gross negligence or willful misconduct of
Seller or Seller's agents, representatives or employees,
Purchaser shall be liable for all damage or injury to any person
or property resulting from, relating to or arising out of any
such inspection, testing, investigation or survey, whether
occasioned by the acts of Purchaser or any of its employees,
agents, representatives or contractors, and Purchaser shall
indemnify, defend and hold harmless Seller and its agents,
employees, officers, directors, affiliates, advisors and asset
managers from any liability resulting therefrom. This
indemnification by Purchaser shall survive the Closing or the
termination of this Agreement, as applicable.
(e) At Purchaser's request at any time from and after the
date hereof until that date which is one (1) year following the
Closing Date, Seller shall, at no cost or expense to Seller, make
available to Purchaser's designated independent auditor, upon
reasonable advance notice, the following: (i) the historical
property information for the Property for calendar years 1994,
1995 and 1996 (exclusive of any advisory, proprietary or other
materials which Seller is required to keep confidential), and
(ii) copies of any audited financial statements with respect to
the Property, prepared or to be prepared by Seller for calendar
years 1994, 1995 and 1996 so as to permit preparation by
Purchaser of audited or unaudited financial statements for all
periods required to be prepared by the Rules and Regulations of
the Securities and Exchange Commission (the "SEC Regulations"),
to the extent that the materials specified in subparagraphs (i)
and (ii) are in Seller's possession or under Seller's control.
Further, after Closing until that date which is one (1) year
following the Closing Date, upon written request by Purchaser's
designated independent auditor in connection with the normal
course of such auditor's auditing of the Property, Seller agrees
to authorize its auditors, at no cost, expense or liability to
Seller, to discuss such historical property information and
audited financial statements with Purchaser's designated
independent auditor. The use of any such information by
Purchaser or Purchaser's designated independent auditor shall be
subject to the confidentiality requirements of Section 4.4(c)
above, except to the extent, if any, such information is included
in statements required by the SEC Regulations.
4.5 Purchaser's Representations and Warranties. Purchaser
represents and warrants to Seller that:
(a) Purchaser is a limited partnership, duly organized and
in good standing under the laws of the State of Maryland, is
qualified to do business in the State of California and has the
power to enter into this Agreement and to execute and deliver
this Agreement and to perform all duties and obligations imposed
upon it hereunder, and Purchaser has obtained all necessary
corporate, partnership or other organizational authorizations
required in connection with the execution, delivery and
performance of this Agreement and the transaction contemplated
herein and has obtained the consent of all entities and parties
(whether private or governmental) necessary to bind Purchaser to
this Agreement;
(b) neither the execution nor the delivery of this
Agreement, nor the consummation of the purchase and sale
transaction contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement
conflict with or will result in the breach of any of the terms,
conditions or provisions of any agreement or instrument to which
Purchaser, or its general partner, is a party or by which
Purchaser, any shareholder, partner or related entity or
affiliate of Purchaser, or any of Purchaser's assets is bound;
(c) Purchaser has the financial resources to timely
consummate the purchase and sale transaction contemplated by this
Agreement;
(d) neither Purchaser nor any partner, shareholder, related
entity or affiliate of Purchaser is in any way affiliated with
Seller, GE Capital Realty Group, Inc., General Electric Capital
Corporation, General Electric Realty Advisors, Inc., GE Capital
Investment Advisors, Inc. ("Advisor"), General Electric Company
or any affiliate of any of the foregoing; provided, that to the
extent the foregoing representation applies with respect to any
investor in Purchaser's general partner, Purchaser is only
representing and warranting that no shareholders of record of
Purchaser's general partner are identified with "GE" or "General
Electric" in their name;
(e) Purchaser is not an "employee benefit plan" as defined
in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), which is subject to Title 1 of ERISA
and (b) the assets of Purchaser do not constitute "plan assets"
of one or more such plans within the meaning of 29 C.F.R. Section
2510.3-101;
(f) Purchaser is not a "governmental plan" within the
meaning of Section 3(32) of ERISA or a "plan" within the meaning
of Section 4975(e)(1) of the Internal Revenue Code (the "Code");
(g) One or more of the following circumstances is true:
(i) equity interests in Purchaser are publicly offered
securities, within the meaning of 29 C.F.R. Section 2510.3-
101(b)(2);
(ii) less than 25 percent of all equity interests in
Purchaser are held by "benefit plan investors" within the meaning
of 29 C.F.R. Section 2510.3-101(f)(2);
(iii) Purchaser is a corporation that qualifies as
either an "operating company" or a "real estate operating
company" within the meaning of 29 C.F.R. Section 2510.3-101(c)
and (e); or
(iv) with respect to Seller, and with respect to any
shareholder, partner, related entity or affiliate of Seller,
Purchaser is neither (1) a party in interest as defined in
Section 3(14) of ERISA, nor (2) a disqualified person as defined
in Section 4975(e)(2) of the Code;
(h) that prior to the end of the Approval Period, Purchaser
will have examined and investigated to Purchaser's full
satisfaction the physical, economic and legal condition of the
Property and made all other inquiries Purchaser deemed necessary
in connection with the transaction herein contemplated;
(i) except to the limited extent, if any, specifically and
expressly set forth in this Agreement, Purchaser shall accept the
Property "AS IS" and "WHERE IS" at Closing, and Purchaser has not
relied upon and will not rely upon, and Seller is not liable for
or bound by any, express or implied, warranties, guarantees,
statements, representations or information pertaining to the
Property or relating thereto made or furnished by Seller or any
of its advisors, or any of their agents, representatives,
contractors, employees, attorneys or brokers, to whomever made or
given, directly or indirectly, verbally or in writing, unless
specifically and expressly set forth herein;
(j) neither Purchaser nor Purchaser's general partner has a
controlling interest in, is controlled by, is under common
control with, and is otherwise in any way affiliated with Title
Company.
Purchaser's representations and warranties set forth in this
Section 4.5 shall survive the Closing or termination of this
Agreement. As a condition precedent to Seller's obligation to
close the purchase and sale transaction contemplated in this
Agreement, Purchaser's representations and warranties contained
herein must remain and be true and correct as of the Closing
Date. Prior to the Closing Date, Purchaser shall notify Seller
in writing of any facts, conditions or circumstances which render
any of the representations and warranties set forth in this
Section 4.5 in any way inaccurate, incomplete, incorrect or
misleading.
4.6 Seller's Representations and Warranties. Seller
represents and warrants to Purchaser that:
(a) Seller is a corporation organized under the laws of the
State of Delaware and is qualified to do business in the State of
California. Seller has the full right, power, and authority,
without the joinder of any other person or entity (or the consent
of any third parties), to enter into, execute and deliver this
Agreement, and to perform all duties and obligations imposed on
Seller under this Agreement, except to the limited extent, if
any, specifically and expressly set forth in this Agreement;
(b) neither the execution nor the delivery of this
Agreement, nor the consummation of the purchase and sale
contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions of this Agreement conflict with or will
result in the breach of any of the terms, conditions, or
provisions of any agreement or instrument to which Seller is a
party or by which Seller or any of Seller's assets is bound;
(c) [intentionally omitted]
(d) [intentionally omitted]
(e) to the best of Seller's knowledge, Seller has received
no written notice of (i) any pending assessment or condemnation
proceedings relating to the Property, (ii) any special assessment
or reassessment liens or proceedings for general real estate tax
purposes affecting the Property (other than those, if any, as may
be reflected in the Title Commitment), or (iii) any actions,
suits, or other proceedings filed or pending in any court or
before any administrative agency against Seller or affecting the
Property (exclusive of any tenant bankruptcy proceedings
disclosed in any of the materials delivered to Purchaser by or on
behalf of Seller pursuant to Section 4.1 above);
(f) [intentionally omitted]
As used herein, the phrase "to the best of Seller's knowledge"
shall mean only the actual, current conscious and not
constructive, imputed or implied knowledge of Xxxxxx Xxxxxx and
Xxxxxx Xxxxx (the Portfolio Manager and Asset Manger,
respectively, of Advisor (as defined
below) primarily responsible with respect to the Property on
behalf of Seller) without any duty of investigation or inquiry.
Anything herein to the contrary notwithstanding, neither Xxxxxx
Xxxxxx, Xxxxxx Xxxxx or Advisor shall have any personal or other
liability or obligation whatsoever with respect to any of the
matters set forth in this Agreement or any of Seller's
representations herein being or becoming untrue, inaccurate or
incomplete in any respect.
The parties agree that (a) Seller's warranties and
representations contained in this Section 4.6 shall survive the
Closing Date and Purchaser's acquisition of the Property only for
a period of nine (9) months after the Closing Date (the
"Limitation Period"), and (b) Purchaser shall provide written
notice to Seller of any breach of such warranties or
representations and shall allow Seller thirty (30) days within
which to cure such breach, or, if such breach cannot reasonably
be cured within thirty (30) days, an additional reasonable time
period, so long as such cure has been commenced within such
thirty (30) days and diligently pursued; provided that such time
for cure shall not in any event extend the Closing Date by more
than sixty (60) days. If Seller fails to cure such breach after
written notice and within such cure period, Purchaser's sole
remedy shall be an action at law for damages as a consequence
thereof (subject to the limitations contained in Section 8.1
below), which must be commenced, if at all, within the Limitation
Period; provided, however, that if within the Limitation Period
Purchaser gives Seller written notice of such a breach and Seller
commences to cure and thereafter terminates such cure effort or
is otherwise unable to cure such default, Purchaser shall have an
additional thirty (30) days from the date of such termination of
attempts to cure within which to commence an action at law for
damages as a consequence of Seller's failure to cure. The
Limitation Period referred to herein shall apply to known as well
as unknown breaches of such warranties or representations.
4.7 Tenant Estoppel Certificates.
(a) Seller agrees to submit or cause its property manager
to submit within ten (10) days after the Effective Date hereof to
each tenant or lessee under a Lease, an estoppel certificate, in
form substantially in accordance with Exhibit B-1 attached hereto
("Tenant Estoppel"). If an executed Tenant Estoppel contains
only non-material exceptions, qualifications or modifications and
complies with any of the following subparagraphs (i) through
(iii), then such Tenant Estoppel shall be deemed to be
substantially in compliance with Exhibit B-1 and shall
automatically be deemed to be acceptable to Purchaser (an
"Acceptable Estoppel"):
(i) the Tenant Estoppel shall include at least the
information specified in Exhibit B-2; or
(ii) the Tenant Estoppel shall include at least the
information specified in such tenant's Lease to be included in
such tenant's required tenant estoppel or other certification as
provided in such tenant's Lease; or
(iii) if such tenant is a federal, state or local
governmental authority or instrumentality, the Tenant Estoppel is
provided on such tenant's individual form.
Seller shall have no liability or obligation to Purchaser with
respect to any Tenant Estoppel other than to submit or cause its
property manager to submit such Tenant Estoppel to the tenant or
lessee with a request that such Tenant Estoppel be executed and
returned not later than two (2) business days prior to the end of
the Approval Period; provided, however, Seller shall make
commercially reasonable efforts to follow-up and obtain such
Tenant Estoppels.
(b) In the event that Seller is unable to obtain and deliver
to Purchaser on or before that day which is three (3) business
days preceding the Closing Date executed Acceptable Estoppels
from tenants occupying, in the aggregate, at least fifty percent
(50%) (the "Aggregate Percentage") of the net rentable space in
the Improvements (such percentage of net rentable space to be
determined exclusive of the space leased to the Specified Tenants
(as defined below)), Purchaser shall have the option of giving
written notice to Seller, no later than that day which is two (2)
business days preceding the Closing Date, that Purchaser will
require Seller to execute and deliver Landlord Estoppels (as
defined below) with respect to tenants (exclusive of Specified
Tenants) designated in Purchaser's notice who have not provided
Acceptable Estoppels in order to achieve an aggregate of
Acceptable Estoppels and Landlord Estoppels from or with respect
to tenants occupying not less than seventy-five percent (75%) of
net rentable space in the Improvements (such percentage of net
rentable space to be determined exclusive of the space leased to
the Specified Tenants) (the "Higher Percentage"). If Purchaser
shall have timely delivered such notice to Seller, Seller shall,
on or before the Closing Date, deliver to Purchaser a Tenant
Estoppel, substantially in compliance with Exhibit B-2 (the
"Landlord's Estoppel"), executed by Seller with respect to any
tenant from whom Seller has been unable to obtain an Acceptable
Estoppel as designated in Purchaser's notice in order to achieve
the Higher Percentage; under no circumstances shall Seller be
obligated to execute any Landlord Estoppel which would exceed the
Higher Percentage. If Purchaser shall not have given timely
written notice as described in this paragraph, Purchaser shall be
deemed for all purposes to be satisfied with the form and
substance of each Tenant Estoppel and shall have no further right
to object thereto based on the response or lack thereof with
respect to the Tenant Estoppels. In the event that Seller shall
execute and deliver a Landlord's Estoppel, such Landlord's
Estoppel shall thereafter automatically and without further
action by Seller or Purchaser be deemed cancelled and terminated
upon execution and delivery (whether before or after the Closing
Date) to Purchaser of an Acceptable Estoppel from the tenant to
which such Landlord's Estoppel related.
(c) In addition, as provided in Section 6.9(d) below,
Purchaser's obligation to consummate the transaction contemplated
herein is subject to Purchaser's timely receipt of Acceptable
Estoppels from each of American Commercial Bank; Xxxxxxx/Xxxxx
Consultants; Spray, Xxxxx & Xxxxxx; and at least three (3) of the
other four (4) Specified Tenants. As used herein, the
"Specified Tenants" shall mean and refer to the following
existing tenants under Leases: (i) American Commercial Bank,
(ii) IBM, (iii) Lifetime Benefits, (iv) Xxxxxxx/Xxxxx
Consultants, (v) Xxxx Xxxxxx & Company, (vi) Spray, Xxxxx &
Xxxxxx, and (vii) Hill Street Cafe.
4.6 Defective Condition. In the event that subsequent to
the execution of this Agreement Seller obtains knowledge of, or
Purchaser's inspection of the Property reveals, either (i) the
presence of any Hazardous Materials (as defined below in this
Section 4.8) or the violation or potential violation of any
Environmental Requirements (as defined below in this Section 4.8)
or (ii) any structural or other defect in the Improvements,
whether or not in violation of any applicable law, ordinance,
code, regulation or decree of any governmental authority having
jurisdiction over the Property (collectively, a "Defective
Condition"), which Seller, in its sole good faith judgment,
determines could constitute a potential liability to Seller after
the Closing or should be remedied prior to the sale of the
Property, Seller shall have the right upon written notice to
Purchaser on or before the scheduled Closing Date either (i) to
extend the Closing Date for the period of time (not to exceed 30
days) necessary to complete such remediation at Seller's sole
cost and expense, or (ii) to terminate this Agreement upon
written notice to Purchaser in which event the Xxxxxxx Money
shall be refunded to Purchaser and neither party shall have any
further right or obligation hereunder other than the Surviving
Obligations. The terms of this Section 4.8 are solely for the
benefit of Seller and Purchaser shall have no additional right or
remedy hereunder as a result of the exercise by Seller of its
rights under this Section 4.8.
As used herein, the term "Hazardous Materials" shall mean
any substance which is or contains (i) any "hazardous substance"
as now or hereafter defined in 101(14) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
as amend (42 U.S.C. 9601 et seq.) ("CERCLA") or any regulations
promulgated under CERCLA; (ii) any "hazardous waste" as now or
hereafter defined in the Resource Conservation and Recovery Act
(42 U.S.C. 6901 et seq.) ("RCRA") or regulations promulgated
under RCRA; (iii) any substance regulated by the Toxic Substances
Control Act (15 U.S.C. 2601 et seq.); (iv) gasoline, diesel fuel,
or other petroleum hydrocarbons; (v) asbestos and asbestos
containing materials, in any form, whether friable or
non-friable; (vi) polychlorinated biphenyls; (vi) radon gas; and
(viii) any additional substances or materials which are now or
hereafter classified or considered to be hazardous or toxic under
Environmental Requirements or the common law, or any other
applicable laws relating to the Property. Hazardous Materials
shall include, without limitation, any substance, the presence of
which on the Property, (A) requires reporting, investigation or
remediation under Environmental Requirements; (B) causes or
threatens to cause a nuisance on the Property or adjacent
property or poses or threatens to pose a hazard to the health or
safety of persons on the Property or adjacent property; or (C)
which, if it emanated or migrated from the Property, could
constitute a trespass.
As used herein, the term "Environmental Requirements" shall
mean all laws, ordinances, statutes, codes, rules, regulations,
agreements, judgments, orders, and decrees, now or hereafter
enacted, promulgated, or amended, of the United States, the
states, the counties, the cities, or any other political
subdivisions in which the Property is located, and any other
political subdivision, agency or instrumentality exercising
jurisdiction over the owner of the Property, the Property, or the
use of the Property, relating to pollution, the protection or
regulation of human health, natural resources, or the
environment, or the emission, discharge, release or threatened
release of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or waste or Hazardous Materials
into the environment (including, without limitation, ambient air,
surface water, ground water or land or soil).
Section 5.
NO REPRESENTATIONS OR WARRANTIES BY SELLER
ACCEPTANCE OF PROPERTY
5.1 Disclaimer. PURCHASER ACKNOWLEDGES AND AGREES SELLER
HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND
DISCLAIMS ANY REPRESENTATIONS, WARRANTIES (OTHER THAN AS SET
FORTH IN SECTION 4.6 ABOVE, THE WARRANTY OF TITLE CONTAINED IN
THE DEED, AS DEFINED IN SECTION 6.5 BELOW), PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO:
(A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY
INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY;
(B) THE INCOME TO BE DERIVED FROM THE PROPERTY;
(C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES
AND USES WHICH PURCHASER OR ANY TENANT MAY CONDUCT THEREON;
(D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH
ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY;
(E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY;
(F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF
ANY, INCORPORATED INTO THE PROPERTY;
(G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF
THE PROPERTY;
(H) COMPLIANCE WITH ANY ENVIRONMENTAL REQUIREMENTS;
(I) THE PRESENCE OR SUSPECTED PRESENCE IN, ON, UNDER OR ABOUT
THE PROPERTY OR THE SOIL OR GROUND WATER THEREOF OF ANY HAZARDOUS
MATERIALS;
(J)ANY OTHER MATTER WITH RESPECT TO THE PROPERTY.
ADDITIONALLY, NO PERSON ACTING ON BEHALF OF SELLER IS
AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF, PURCHASER
ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, NO
PERSON HAS MADE, ANY REPRESENTATION, AGREEMENT, STATEMENT,
WARRANTY, GUARANTY OR PROMISE REGARDING THE PROPERTY OR THE
TRANSACTION CONTEMPLATED HEREIN; AND NO SUCH REPRESENTATION,
WARRANTY, AGREEMENT, GUARANTY, STATEMENT OR PROMISE, IF ANY, MADE
BY ANY PERSON ACTING ON BEHALF OF SELLER SHALL BE VALID OR
BINDING UPON SELLER UNLESS EXPRESSLY SET FORTH HEREIN.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN
GIVEN A FULL AND ADEQUATE OPPORTUNITY TO INSPECT, TEST AND
INVESTIGATE THE PROPERTY, SUBJECT TO ANY REPRESENTATIONS BY
SELLER EXPRESSLY SET FORTH HEREIN, PURCHASER IS RELYING SOLELY ON
ITS OWN INSPECTION, TESTING AND INVESTIGATION OF THE PROPERTY AND
NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER, AND
PURCHASER AGREES TO ACCEPT THE PROPERTY IN ITS THEN EXISTING "AS-
IS" CONDITION AND BASIS WITH ALL FAULTS AT THE CLOSING AND WAIVES
ALL OBJECTIONS OR CLAIMS AGAINST SELLER (INCLUDING, BUT NOT
LIMITED TO, ANY RIGHT OR CLAIM OF CONTRIBUTION) ARISING FROM OR
RELATED TO THE PROPERTY OR ITS PHYSICAL, ENVIRONMENTAL, ECONOMIC
OR LEGAL CONDITION (INCLUDING, WITHOUT LIMITATION, THE ACTUAL OR
SUSPECTED EXISTENCE OF ANY HAZARDOUS MATERIALS IN, ON UNDER OR
ABOUT THE PROPERTY OR THE SOIL OR GROUND WATER THEREOF).
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY
INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE
PROPERTY BY OR ON BEHALF OF SELLER WAS OBTAINED FROM A VARIETY OF
SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO
REPRESENTATIONS AS TO THE ACCURACY, TRUTHFULNESS OR COMPLETENESS
OF SUCH INFORMATION AND, EXCEPT FOR ANY EXPRESS REPRESENTATIONS
OF SELLER SET FORTH HEREIN, THAT SELLER IS NOT, AND SHALL NOT BE,
LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENT,
REPRESENTATION OR INFORMATION PERTAINING TO THE PROPERTY, OR THE
OPERATION OR CONDITION THEREOF, FURNISHED BY ANY ADVISOR,
ATTORNEY, REAL ESTATE BROKER, CONTRACTOR, AGENT, EMPLOYEE,
SERVANT OR OTHER PERSON. PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT, SUBJECT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT AND ANY REPRESENTATIONS EXPRESSLY MADE BY SELLER
CONTAINED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS"
CONDITION AND BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND AGREED
THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR NEGOTIATION TO
REFLECT THAT ALL OF THE PROPERTY IS SOLD BY SELLER AND PURCHASED
BY PURCHASER SUBJECT TO THE FOREGOING.
PURCHASER HEREBY AGREES TO INDEMNIFY, PROTECT, DEFEND, SAVE
AND HOLD HARMLESS SELLER FROM AND AGAINST ANY AND ALL DEBTS,
DUTIES, OBLIGATIONS, LIABILITIES, SUITS, CLAIMS, DEMANDS, CAUSES
OF ACTION, DAMAGES, LOSSES, FEES AND EXPENSES (INCLUDING, WITHOUT
LIMITATION, ATTORNEYS' FEES AND EXPENSES AND COURT COSTS) IN ANY
WAY RELATING TO, OR IN CONNECTION WITH OR ARISING OUT OF
PURCHASER'S ACQUISITION, OWNERSHIP, LEASING, USE, OPERATION,
MAINTENANCE AND MANAGEMENT OF THE PROPERTY; PROVIDED, HOWEVER,
THE FOREGOING SHALL NOT BE APPLICABLE WITH RESPECT TO ANY THIRD
PARTY CLAIMS FOR SUCH MATTERS TO THE EXTENT THAT THE SAME SHALL
ARISE OR RESULT FROM EVENTS OCCURRING IN THEIR ENTIRETY PRIOR TO
THE CLOSING DATE. THE PROVISIONS OF THIS SECTION 5 SHALL SURVIVE
THE CLOSING OR ANY TERMINATION HEREOF.
5.2 Waiver and Release. Except with respect to any claims
arising out of any breach of express and specific covenants,
indemnities, representations or warranties of Seller set forth in
this Agreement, Purchaser, for itself and its agents, affiliates,
successors and assigns, effective as of the Closing Date hereby
releases and forever discharges Seller, its agents, partners,
affiliates, successors and assigns from any and all rights,
claims and demands at law or in equity, whether known or unknown
as of the Closing Date, which Purchaser has or may thereafter
have in the future, arising out of the physical, environmental,
economic or legal condition of the Property. Purchaser hereby
specifically acknowledges that Purchaser has carefully reviewed
this subsection and discussed its import with legal counsel and
that the provisions of this subsection are a material part of
this Agreement.
PURCHASER SPECIFICALLY WAIVES THE PROVISIONS OF SECTION 1542 OF
THE CALIFORNIA CIVIL CODE WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS TO 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.
Section 6.
CLOSING
6.1 Closing. The closing of the purchase and sale
transaction contemplated herein (the "Closing") shall be held at
or conducted through the offices of Continental Lawyers Title
Insurance Company (the "Title Company") at 000 Xxxxx Xxxxx, Xxxxx
000, Xxxxxxxxx, Xxxxxxxxxx 00000, Attn: Xxxx Xxxx, Escrow No.
C14179CJ, at a date designated by Seller and Purchaser on or
before December 17, 1996 (the "Closing Date"), unless the parties
mutually agree in writing upon another place, time or date. On
the Closing Date, all documents to be recorded shall be
appropriately recorded and all other closing documents and funds
shall be deemed to be simultaneously delivered.
6.2 Possession. Possession of the Property shall be
delivered to Purchaser at the Closing, subject to the Permitted
Encumbrances.
6.3 Proration. All rents, other amounts payable by the
tenants under the Leases, income, utilities and all other
operating expenses with respect to the Property for the month in
which the Closing occurs, and real estate and personal property
taxes and other assessments with respect to the Property for the
year in which the Closing occurs, shall be prorated to the date
of Closing, with Purchaser receiving the benefits and burdens of
ownership on the Closing Date.
(a) If the Closing shall occur before rents and all other
amounts payable by the tenants under the Leases and all other
income from the Property have actually been paid for the month in
which the Closing occurs, the apportionment of such rents and
other amounts and other income shall be upon the basis of such
rents, other amounts and other income actually received by
Seller. Subsequent to the Closing, if any such rents, other
amounts and other income are actually received by Purchaser, all
such amounts shall first be applied to post-closing rents due to
Purchaser which are currently or past due and the balance shall
be immediately paid by Purchaser to Seller to the extent of pre-
closing delinquent rents and other amounts due Seller. Purchaser
shall make a good faith effort and attempt to collect any such
rents and other amounts and other income not apportioned at the
Closing for the benefit of Seller, however, Purchaser shall not
be required to expend any funds or institute any litigation in
its collection efforts. Nothing in this paragraph shall restrict
Seller's right to collect delinquent rents directly from a tenant
by any legal means. At Closing, prepaid rents and refundable
security deposits in the possession or control of Seller
(together with any interest accrued thereon only if interest is
specifically required to be paid thereon under applicable law or
under the terms of a specific Lease), whether held in the form of
cash, pledged securities or letters of credit, at Seller's sole
option shall either be (i) transferred to Purchaser at Closing
and not subject to adjustment, or (ii) adjusted by way of a
credit in favor of Purchaser.
(b) If the Closing shall occur before the tax rate or the
assessed valuation of the Property is fixed for the then current
year, the apportionment of taxes and assessments shall be upon
the basis of the tax rate for the preceding year applied to the
latest assessed valuation. Subsequent to the Closing, when the
tax rate and the assessed valuation of the Property is fixed for
the year in which the Closing occurs, the parties agree to adjust
the proration of taxes and assessments and, if necessary, to
refund or repay such sums as shall be necessary to effect such
adjustment. If the Property is not assessed as a separate parcel
for tax or assessment purposes, then such taxes and assessments
attributable to the Property shall be determined by Purchaser and
Seller. If, as of the Closing, the Property is not being treated
as a separate tax parcel, then within thirty (30) days after the
Closing, Purchaser shall, at its sole cost and expense, have the
Property assessed separately for tax and assessment purposes.
(c) Seller shall request that final water, electric and gas
meter readings be made on the Closing Date. If the Closing shall
occur before the actual amount of utilities and all other
operating expenses with respect to the Property for the month in
which the Closing occurs are determined, the apportionment of
such utilities and other operating expenses shall be upon the
basis of a reasonable estimate by Seller (to be reasonably
approved by Purchaser) of such utilities and other operating
expenses for such month. Subsequent to the Closing, when the
actual amount of such utilities and other operating expenses with
respect to the Property for the month in which the Closing occurs
are determined, the parties agree to adjust the proration of such
utilities and other operating expenses and, if necessary, to
refund or repay such sums as shall be necessary to effect such
adjustment.
(d) Any tenant-improvement and/or leasing-commission costs
(including, without limitation, referral or locator fees) and all
other out-of-pocket fees and costs (including, without
limitation, legal fees and costs) (collectively, "New Tenant
Costs") paid or incurred by Seller after the Effective Date with
respect to new Leases or modifications to existing Leases
executed on or after the Effective Date in accordance with
Section 9 below shall be credited in favor of Seller at Closing
(provided, however, that Purchaser shall not be obligated for any
New Tenant Costs with respect to new Leases or modifications to
existing Leases executed prior to expiration of the Approval
Period unless Purchaser has consented thereto, which consent will
not be unreasonably withheld and which consent shall be given or
denied in writing within two (2) business days of Seller's
written request with Purchaser's consent being deemed to have
been given in the event that Purchaser fails to respond to such
request within such two (2) business day period). Seller shall
supply invoices and statements for all New Tenant Costs to
Purchaser on or prior to the Closing Date. Purchaser shall be
solely responsible for the payment of all New Tenant Costs in
connection with any options, renewals, or extensions exercisable
under the Leases after the Closing Date and Purchaser shall
indemnify, protect, defend, save and hold harmless Seller from
and against any and all debts, duties, obligations, liabilities,
suits, claims, demands, causes of action, damages, losses, fees
and expenses (including, without limitation, attorneys' fees and
expenses and court costs) in any way relating to, or in
connection with or arising out of New Tenant Costs.
(e) If Leases contain obligations ("Lease Obligations") on
the part of the Tenants for: (i) CPI or similar adjustments, (ii)
percentage rents, (iii) escalation payments for taxes, labor or
operations, or (iv) other expenses including, without limitation,
common area maintenance or any other operating cost pass-throughs
or retroactive charges payable by Tenants which have accrued as
of the Closing Date but are not then due and payable, the amount
of such Lease Obligations shall be prorated as of the Closing
Date upon the basis of a reasonable estimate by Seller (to be
reasonably approved by Purchaser) of such Lease Obligations
through the Closing Date. Subsequent to the Closing, when the
actual amount of such Lease Obligations with respect to the
Property through the Closing Date is determined, the parties
agree to adjust the proration of such Lease Obligations and, if
necessary, to refund or repay such sums as shall be necessary to
effect such adjustment.
The agreements of Seller and Purchaser set forth in this Section
6.3 shall survive the Closing.
6.4 Closing Costs. Seller shall pay, on the Closing Date,
the standard coverage portion of the title insurance premium for
the Owner's Policy (as defined in Section 6.5(a) below),
applicable county and city transfer taxes, one-half (1/2) of any
escrow fees and other customary fees, costs and charges of the
closing and consummation of the purchase and sale transaction
contemplated in this Agreement as customarily charged to and
payable by the seller in such transactions in the location in
which the Land is situate. Purchaser shall pay, on the Closing
Date, the extended coverage portion, if applicable, of the title
insurance premium for the Owner's Policy, the costs of any
endorsements to the Owner's Policy requested by Purchaser, all
recording costs, one-half (1/2) of any escrow fees and other
customary fees, costs and charges of the closing and consummation
of the purchase and sale transaction contemplated in this
Agreement as customarily charged to and payable by the purchaser
in such transactions in the location in which the Land is
situate. Notwithstanding the foregoing, each party shall pay its
own attorneys' fees incurred in connection with the transaction
contemplated in this Agreement.
6.5 Seller's Obligations at the Closing. At the Closing,
Seller shall deliver or cause to be delivered to Purchaser the
following:
(a) Title Policy. An ALTA Owner's Policy of Title Insurance
(the "Owner's Policy"), issued by Title Company naming Purchaser
as insured, in the amount of the Purchase Price, insuring that
Purchaser owns good and indefeasible fee simple title to the
Property, subject only to the Permitted Encumbrances without
exception for mechanics' liens. Purchaser, at Purchaser's sole
expense, may elect to cause the Title Company to issue certain
endorsements. Notwithstanding the foregoing, Seller shall have
no obligation or liability to Purchaser in the event that Title
Company is unwilling or unable to issue the Owner's Policy and
the provision at Purchaser's request of endorsements shall not be
a condition to Closing.
(b) Evidence of Authority. Such organizational and
authorizing documents of Seller as shall be reasonably required
by the Title Company to evidence Seller's authority to consummate
the transactions contemplated by this Agreement.
(c) Deed. A duly executed and acknowledged deed to the Land
and Improvements in the form attached to this Agreement as
Exhibit C (the "Deed").
(d) Assignment. A duly executed and acknowledged
counterpart Assignment and Assumption of Personal Property,
Service Contracts, Warranties and Leases in the form attached to
this Agreement as Exhibit D (the "Assignment").
(e) FIRPTA Affidavit. A duly executed affidavit of Seller
in form attached hereto as Exhibit E certifying that Seller is
not a "foreign person," as defined in Section 1445 of the
Internal Revenue Code of 1986, as amended, and in any applicable
state laws for the state in which the Property is located.
(f) Tenant Notices. Duly executed notices to all tenants or
lessees under the Leases in form attached hereto as Exhibit F.
(g) Original Documents. The original of all Leases,
Contracts and other Intangible Property in Seller's possession.
(h) California Form 590. A duly executed California
Form 590 certifying that Seller is qualified to do business in
California in the form attached hereto as Exhibit I.
(i) Update Certificate. A duly executed certificate
updating Seller's representations set forth in Section 4.6 in the
form attached to this Agreement as Exhibit J.
(j) Updated Rent Roll. An updated Rent Roll certified by
Seller's property manager effective as of a date not earlier than
three (3) business days prior to the Closing Date.
(k) Keys. Seller shall request its property manager to
deliver a master key or duplicate keys for all locks in the
Improvements to the extent, if any, in the property manager's
possession.
6.6 Purchaser's Obligations at the Closing. At the Closing,
Purchaser shall deliver or cause to be delivered to Seller the
following:
(a) Purchase Price. The Purchase Price by wire transfer of
immediately available funds.
(b) Evidence of Authority. Such organizational and
authorizing documents of Purchaser as shall be reasonably
required by Seller and/or the Title Company authorizing
Purchaser's acquisition of the Property pursuant to this
Agreement and the execution of this Agreement and any documents
to be executed by Purchaser at the Closing.
(c) Assignment. A duly executed and acknowledged
counterpart Assignment.
(d) Taxpayer Certification. A duly executed Taxpayer I.D.
Certification in the form attached to this Agreement as Exhibit
G.
(e) ERISA Certificate. A duly executed ERISA Certificate in
the form attached to this Agreement as Exhibit H.
6.7 Insurance. Seller's existing liability and property
insurance pertaining to the Property shall be canceled as of the
Closing Date, and Seller shall receive any premium refund due
thereon.
6.8 Filing of Reports. Title Company shall be solely
responsible for the timely filing of any reports or returns
required pursuant to the provisions of Section 6045(e) of the
Internal Revenue Code of 1986 (and any similar reports or returns
required under any state or local laws) in connection with the
closing of the transaction contemplated in this Agreement.
6.9 Purchaser's Closing Conditions. Closing shall be
subject to Purchaser's reasonable satisfaction, or written
waiver, of the following conditions precedent:
(a) Seller shall have substantially performed all of its
covenants provided in Section 9 below.
(b) Seller's representations set forth in Section 4.6 shall
remain true and correct in all material respects.
(c) Title Company shall be ready, willing and able to issue,
upon payment of Title Company's regularly scheduled premium, the
Owner's Policy.
(d) Without limiting the provisions of Section 4.7(a) and
(b) above, Purchaser shall have received Acceptable Estoppels
from each of American Commercial Bank; Xxxxxxx/Xxxxx Consultants;
Spray, Xxxxx & Xxxxxx; and at least three (3) of the other four
(4) Specified Tenants.
Section 7.
RISK OF LOSS
7.1 Condemnation. If, prior to the Closing, action is
initiated to take any of the Property by eminent domain
proceedings or by deed in lieu thereof, Purchaser may either at
or prior to Closing (a) terminate this Agreement (in which event
Purchaser shall be entitled to immediate return of the Xxxxxxx
Money), or (b) consummate the Closing, in which latter event all
of Seller's assignable right, title and interest in and to the
award of the condemning authority shall be assigned to Purchaser
at the Closing and there shall be no reduction in the Purchase
Price.
7.2 Casualty. Except as otherwise provided in this
Agreement, Seller assumes all risks and liability for damage to
or injury occurring to the Property by fire, storm, accident, or
any other casualty or cause until the Closing has been
consummated. If the Property, or any part thereof, suffers any
damage in excess of $200,000.00 prior to the Closing from fire or
other casualty which Seller, at its sole option, does not elect
to repair, Purchaser may either at or prior to Closing (a)
terminate this Agreement (in which event Purchaser shall be
entitled to immediate return of the Xxxxxxx Money), or (b)
consummate the Closing, in which latter event all of Seller's
right, title and interest in and to the proceeds of any insurance
covering such damage plus an amount equal to Seller's deductible
under its applicable insurance policy (less an amount equal to
any out-of-pocket expenses and costs incurred by Seller to
collect or adjust such insurance or to repair or restore the
Property and any portion of such proceeds paid or to be paid on
account of the loss of rents or other income from the Property
for the period prior to and including the Closing Date, all of
which shall be payable to Seller), to the extent the amount of
such insurance does not exceed the Purchase Price, shall be
assigned to Purchaser at the Closing. If the Property, or any
part thereof, suffers any damage equal to or less than
$200,000.00 prior to the Closing, Purchaser agrees that it will
consummate the Closing and accept the assignment of the proceeds
of any insurance covering such damage plus an amount equal to
Seller's deductible under its insurance policy and there shall be
no reduction in the Purchase Price.
Section 8.
DEFAULT
8.1 Breach by Seller.
(a) Pre-Closing. In the event that Seller shall (i) breach
or default in the performance of any of its obligations to be
performed prior to Closing, or (ii) fail to consummate the
transaction contemplated by this Agreement for any reason (except
Purchaser's breach or default under this Agreement or a
termination of this Agreement by Purchaser or Seller pursuant to
a right to do so under the provision hereof), or (iii) breach any
of its representations set forth in Section 4.6 above, or (iv)
default in performance of any of its covenants set forth in
Section 9.3 below, Purchaser, as Purchaser's sole and exclusive
remedy, may either (1) terminate this Agreement, receive a refund
of the Xxxxxxx Money and pursue Seller for actual damages,
subject to the limitations contained in Section 8.1(c) below; or
(2) pursue the remedy of specific performance of Seller's
obligations under this Agreement provided that (i) any such suit
for specific performance must be filed within sixty (60) days
after Purchaser first becomes aware of the breach or default by
Seller, (ii) Purchaser is not in breach or default in the
performance of its obligations under this Agreement, and (iii)
Purchaser has tendered the Purchase Price, less Purchaser's good
faith reasonable estimate of proration credits that would be
credited against the Purchase Price, to the Title Company in
immediately available funds and the Title Company has
acknowledged receipt of same, in writing, to Seller.
Notwithstanding anything to the contrary contained herein, in the
event Purchaser seeks specific performance under this Agreement,
Seller shall not be obligated to expend any sums to cure any
defaults under this Agreement.
(b) Breach of Representations. In the event that Seller
shall breach or default in the performance of any of its
representations, warranties or covenants which by the express
terms of this Agreement survive the Closing, Purchaser, as
Purchaser's sole and exclusive remedy may pursue Seller for
actual damages, subject to the limitations contained in Section
8.1(c) below, incurred by Purchaser solely as the result of such
breach or default.
(c) Damages. Notwithstanding anything to the contrary
contained in this Agreement, in no event whatsoever shall
Purchaser have the right to seek or recover money damages from
Seller in excess of One Hundred Thousand and No/100 Dollars
($100,000.00) as a result of any breach or default by Seller
under any of the terms of this Agreement. Purchaser specifically
and without limitation hereby waives and relinquishes any right
to seek or recover from Seller, and specifically acknowledges and
agrees that in no event shall Seller be liable to Purchaser for,
any damages in excess One Hundred Thousand and No/100 Dollars
($100,000.00) whether as punitive, speculative or consequential
damages.
Purchaser hereby agrees that prior to its exercise of any right
or remedy as a result of any breach or default by Seller,
Purchaser will first deliver written notice of said breach or
default to Seller and give Seller five (5) business days
thereafter in which to cure said breach or default, if Seller so
elects.
8.2 Breach by Purchaser.
(a) Liquidated Damages. In the event that Purchaser fails
to comply with Section 6 of this Agreement and consummate the
transaction contemplated by this Agreement, Seller may terminate
this Agreement and thereupon Seller shall be entitled to receive
and retain the Xxxxxxx Money as liquidated damages (and not as a
penalty or forfeiture) and as Seller's sole remedy and relief
hereunder (except for the Surviving Obligations).
SELLER AND PURCHASER ACKNOWLEDGE THAT THE ACTUAL DAMAGES TO
SELLER WHICH WOULD RESULT FROM SUCH FAILURE WOULD BE EXTREMELY
DIFFICULT TO CALCULATE OR ESTABLISH ON THE DATE HEREOF. IN
ADDITION, PURCHASER DESIRES TO HAVE A LIMITATION PUT UPON ITS
POTENTIAL LIABILITY TO SELLER IN THE EVENT OF SUCH FAILURE BY
PURCHASER. BY PLACING THEIR INITIALS IN SPACES HEREINAFTER
PROVIDED, SELLER AND PURCHASER SPECIFICALLY ACKNOWLEDGE AND
AGREE, AFTER NEGOTIATION BETWEEN SELLER AND PURCHASER, THAT THE
AMOUNT OF THE XXXXXXX MONEY CONSTITUTES REASONABLE COMPENSATION
TO SELLER FOR SUCH FAILURE BY PURCHASER AND SHALL BE DISBURSED TO
AND RETAINED BY SELLER AS LIQUIDATED DAMAGES IN THE EVENT OF SUCH
FAILURE BY PURCHASER. IN CONNECTION THEREWITH, SELLER HEREBY
SPECIFICALLY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE
SECTION 3389.
PURCHASER /s/ RSZ SELLER /s/ GDB /s/ RRL
(b) Other Remedies. In the event of any breach or default
by Purchaser other than as specifically described in Section
8.2(a) above, Seller shall have any and all rights and remedies
available at law or in equity by reason of such breach or
default.
None of the provisions of this Section 8.2 shall limit, impair or
affect any of Purchaser's indemnities of Seller or other
Surviving Obligations of Purchaser as provided elsewhere in this
Agreement.
Section 9.
FUTURE OPERATIONS
9.1 Operations. From the Effective Date of this Agreement
until the Closing or earlier termination of this Agreement:
(a) Seller will keep and maintain the Property in
substantially its condition as of the date of this Agreement,
ordinary wear and tear and casualties excepted.
(b) Seller will perform all Seller's material obligations
under the Contracts and the Leases to be performed during such
time period. Seller will not, without the prior written consent
of Purchaser (which consent will not be unreasonably withheld or
delayed), modify, enter into, or renew any Contract which cannot
be canceled upon thirty (30) days prior written notice.
(c) Seller will not knowingly and voluntarily commit or
permit any action on the Property that will result in a violation
of any applicable statute, ordinance, regulation, order or other
law concerning the use of the Property or the existence or
construction of the Improvements.
(d) Seller shall notify Purchaser promptly of Seller's
receipt of written notice of the commencement of any lawsuits,
condemnation proceedings, rezoning or other governmental order or
action against Seller or affecting the Property filed on or after
the Effective Date.
(e) Seller shall keep and remain in effect substantially all
of the existing liability insurance policies and coverages, or
substantially equivalent policies and coverages, as Seller
maintains in effect as of the Effective Date with respect to the
Property.
(f) Seller shall not voluntarily enter into any agreement or
intentionally cause any matter to be recorded which may
constitute an exception to title to the Property which Seller
shall be unable to cause the Title Company to insure over or be
binding upon Purchaser after the Closing Date, without the prior
written consent of Purchaser (which consent shall not be
unreasonably withheld or delayed).
9.2 Leasing. From the expiration of the Approval Period
until the Closing or earlier termination of this Agreement,
Seller will not, without the prior written consent of Purchaser
(which consent will not be unreasonably withheld and which
consent shall be given or denied in writing within two (2)
business days of Seller's written request with Purchaser's
consent being deemed to have been given in the event that
Purchaser fails to respond to such request within such two (2)
business day period), modify, terminate, enter into, or renew any
Leases except in the customary and ordinary operation of the
Property by Seller consistent with Seller's current practices in
effect as of the Effective Date. In the event that Seller shall
enter into any such lease transactions prior to expiration of the
Approval Date, Seller shall promptly advise Purchaser thereof and
provide to Purchaser a copy of the executed documents relating
thereto.
9.3 Other Covenants.
(a)Seller will deliver to Purchaser, as soon as reasonably
practicable after the Closing Date, Seller's final (i) income and
expense statement for the Property for calendar year 1996 through
the Closing Date, (ii) cumulative general ledger for the Property
for calendar year 1996 through the Closing Date, and (iii) aged
delinquency report for the Property as of the date of such
report.
(b) Seller will terminate or cause to be terminated, as of
the Closing Date, Seller's existing property management agreement
and leasing brokerage agreement.
(c) From the Effective Date of this Agreement until the end
of the Approval Period, Seller will, upon reasonable advance
notice to Seller, make available to Purchaser (i) at Seller's on-
site property manager's office at the Property during business
hours, all of Seller's books and records relating to the
operation and leasing of the Property which are maintained by or
on behalf of Seller at such on-site property management office,
and (ii) at Advisor's office in San Francisco during business
hours, Xxxxxx Xxxxxx and Xxxxxx Xxxxx for interview by Purchaser.
Section 10.
MISCELLANEOUS
10.1 Notices. All notices, demands and requests which may
be given or which are required to be given by either party to the
other, and any exercise of a right of termination provided by
this Agreement, shall be in writing and shall be deemed effective
either: (a) on the date personally delivered to the address
below, as evidenced by written receipt therefor, whether or not
actually received by the person to whom addressed; (b) on the
third (3rd) business day after being sent, by certified or
registered mail, postage prepaid, return receipt requested,
addressed to the intended recipient at the address specified
below; (c) on the first (1st) business day after being deposited
into the custody of a nationally recognized overnight delivery
service such as Federal Express Corporation, Xxxxx or Purolator,
addressed to such party at the address specified below; or (d) on
the date of actual receipt in the office of the intended
recipient if sent by facsimile transmission to the facsimile
number provided below and concurrently sent the same day by
either (a), (b) or (c) above. For purposes of this Section 10.1,
the addresses of the parties for all notices are as follows
(unless changed by similar notice in writing given by the
particular person whose address is to be changed):
If to Seller: c/o GE Capital Investment Advisors, Inc.
Xxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: GE Capital Investment Advisors, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Landels Xxxxxx & Diamond, LLP
000 Xxx Xxxxxxxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Purchaser: c/o Arden Realty, Inc.
0000 Xxxxxxxx Xxxxxxxxx,
Xxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Jeffer, Mangels, Xxxxxx & Marmaro
2121 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Title
Company: Continental Lawyers Title Insurance Company
000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxx
Escrow No. C14179CJ
Telephone: (000) 000-0000 x 000
Facsimile: (000) 000-0000
10.2 Real Estate Commissions. Seller shall pay to CB
Commercial Real Estate, Inc. (hereinafter called "Agent" whether
one or more) upon the Closing of the transaction contemplated
hereby, and not otherwise, a cash commission in the amount agreed
on in a separate listing agreement between Seller and Agent.
Said commission shall in no event be payable unless and until the
transaction contemplated hereby is closed in accordance with the
terms of this Agreement; if such transaction is not closed for
any reason, including, without limitation, failure of title or
default by Seller or Purchaser or termination of this Agreement
pursuant to the terms hereof, then such commission will be deemed
not to have been earned and shall not be due or payable. Except
as set forth above with respect to Agent, neither Seller nor
Purchaser has authorized any broker or finder to act on
Purchaser's or Seller's behalf in connection with the sale and
purchase hereunder and neither Seller nor Purchaser has dealt
with any broker or finder purporting to act on behalf of any
other party. Purchaser agrees to indemnify, defend, protect and
hold harmless Seller from and against any and all claims, losses,
damages, liabilities, costs or expenses of any kind or character
arising out of or resulting from any agreement, arrangement or
understanding alleged to have been made by Purchaser or on
Purchaser's behalf with any broker or finder in connection with
this Agreement or the transaction contemplated hereby. Seller
agrees to indemnify, defend, protect and hold harmless Purchaser
from and against any and all claims, losses, damages,
liabilities, costs or expenses of any kind or character arising
out of or resulting from any agreement, arrangement or
understanding alleged to have been made by Seller or on Seller's
behalf with any broker or finder in connection with this
Agreement or the transaction contemplated hereby.
Notwithstanding anything to the contrary contained herein, this
Section 10.2 shall survive the Closing or any earlier termination
of this Agreement.
10.3 Entire Agreement. This Agreement embodies the entire
agreement between the parties relative to the subject matter
hereof, and there are no oral or written agreements between the
parties, nor any representations made by either party relative to
the subject matter hereof, which are not expressly set forth
herein.
10.4 Amendment. This Agreement may be amended only by a
written instrument executed by the party or parties to be bound
thereby.
10.5 Headings. The captions and headings used in this
Agreement are for convenience only and do not in any way limit,
amplify, or otherwise modify the provisions of this Agreement.
10.6 Time of Essence. Time is of the essence of this
Agreement; however, if the final date of any period which is set
out in any provision of this Agreement falls on a Saturday,
Sunday or legal holiday under the laws of the United States or
the State in which the Property is located, then, in such event,
the time of such period shall be extended to the next day which
is not a Saturday, Sunday or legal holiday.
10.7 Governing Law. This Agreement shall be governed by the
laws of the State in which the Property is located and the laws
of the United States pertaining to transactions in such State.
10.8 Successors and Assigns; Assignment. This Agreement
shall bind and inure to the benefit of Seller and Purchaser and
their respective heirs, executors, administrators, personal and
legal representatives, successors and permitted assigns.
Purchaser shall not assign Purchaser's rights under this
Agreement without the prior written consent of Seller, in
Seller's sole and absolute discretion. No assignment of
Purchaser's rights hereunder shall relieve Purchaser of its
liabilities under this Agreement. This Agreement is solely for
the benefit of Seller and Purchaser; there are no third party
beneficiaries hereof. Any assignment of this Agreement in
violation of the foregoing provisions shall be null and void.
10.9 Invalid Provision. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under present or
future laws, such provision shall be fully severable; this
Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part of
this Agreement; and, the remaining provisions of this Agreement
shall remain in full force and effect and shall not be affected
by such illegal, invalid, or unenforceable provision or by its
severance from this Agreement.
10.10 Attorneys' Fees. In the event it becomes necessary
for either party hereto to file suit to enforce this Agreement or
any provision contained herein, the party prevailing in such suit
shall be entitled to recover, in addition to all other remedies
or damages, as provided herein, reasonable attorneys' fees
incurred in such suit.
10.11 Multiple Counterparts. This Agreement may be executed
in a number of identical counterparts which, taken together,
shall constitute collectively one (1) agreement; in making proof
of this Agreement, it shall not be necessary to produce or
account for more than one such counterpart with each party's
signature.
10.12 Effective Date. As used herein the term "Effective
Date" shall mean the first date the Title Company is in receipt
of both this Agreement executed by Purchaser and Seller (whether
in counterparts or not) and the Xxxxxxx Money.
10.13 Exhibits. The exhibits attached to this Agreement and
referred to herein are hereby incorporated into this Agreement by
this reference and made a part hereof for all purposes.
10.14 Construction. Seller and Purchaser acknowledge that
each party and its counsel have reviewed and revised this
Agreement and that the normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of this
Agreement or any amendments or exhibits hereto.
10.15 No Recordation. Seller and Purchaser hereby
acknowledge that neither this Agreement nor any memorandum or
affidavit thereof shall be recorded of public record in the
county in which the Property is located or any other county.
Should Purchaser ever record or attempt to record this Agreement,
or a memorandum or affidavit thereof, or any other similar
document, then, notwithstanding anything herein to the contrary,
said recordation or attempt at recordation shall constitute a
default by Purchaser hereunder, and, in addition to the other
remedies provided for herein, Seller shall have the express right
to terminate this Agreement by filing a notice of said
termination in the county in which the Land is located.
10.16 Merger Provision. Except as otherwise expressly
provided herein, any and all rights of action of Purchaser for
any breach by Seller of any representation, warranty or covenant
contained in this Agreement shall merge with the Deed and other
instruments executed at Closing, shall terminate at Closing and
shall not survive Closing.
10.17 Jury Waiver. PURCHASER AND SELLER DO HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, OR UNDER OR IN CONNECTION WITH THIS AGREEMENT,
THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING OR SELLER AT
CLOSING, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ANY ACTIONS OF EITHER PARTY
ARISING OUT OF OR RELATED IN ANY MANNER WITH THIS AGREEMENT OR
THE PROPERTY (INCLUDING WITHOUT LIMITATION, ANY ACTION TO RESCIND
OR CANCEL THIS AGREEMENT AND ANY CLAIMS OR DEFENSES ASSERTING
THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID
OR VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR SELLER TO
ENTER INTO AND ACCEPT THIS AGREEMENT AND THE DOCUMENTS DELIVERED
BY PURCHASER AT CLOSING AND SHALL SURVIVE THE CLOSING AND
TERMINATION OF THIS AGREEMENT.
10.18 No Personal Liability of Officers, Directors, Etc.
Purchaser acknowledges that this Agreement is entered into by a
corporation as Seller and Seller acknowledges that this Agreement
is entered into by a limited partnership as Purchaser having a
corporation as its sole general partner. Purchaser and Seller
agree that no individual officer or director or other
representative of Purchaser, Purchaser's general partner, Seller
or Advisor shall have any personal liability under this Agreement
or any document executed in connection with the transactions
contemplated by this Agreement. Further, Purchaser acknowledges
that Advisor is not a party to this Agreement and that neither
such Advisor nor the individual officers, directors or
representatives of Advisor shall have any personal liability
under this Agreement or any document executed in connection with
the transaction contemplated by this Agreement. For the purposes
of this Agreement, Advisor in its capacity as Seller's authorized
investment advisor, is acting as Seller's representative; the
burdens and liabilities of this Agreement shall extend only to
Seller and Advisor shall have no liability hereunder. In
addition, all approvals to be given by Seller hereunder may be
given or withheld by Advisor as Seller's representative, and all
requests or requirements that Seller is entitled to make
hereunder may be by Advisor on behalf of Seller.
PURCHASER:
ARDEN REALTY LIMITED PARTNERSHIP
a Maryland limited partnership
By: ARDEN REALTY, INC.
a Maryland Corporation
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Its: CEO
Date of Execution
by Purchaser:
December 16, 1996
[Signatures Continued on Next Page]
SELLER:
C.P. PROPERTIES I, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Its: Vice President
By: Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Its: Vice President
Date of Execution
by Seller:
December 16, 1996
The undersigned Title Company hereby acknowledges receipt of the
Xxxxxxx Money and a copy of this Agreement, and agrees to hold
and dispose of the Xxxxxxx Money in accordance with the
provisions of this Agreement.
TITLE COMPANY:
CONTINENTAL LAWYERS TITLE INSURANCE COMPANY,
a corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Its: Escrow Manager
Date of Execution
by Title Company:
December 16, 1996
The Company hereby agrees to furnish supplementally the omitted
exhibits and schedules to the Commission upon request.
