AGREEMENT OF PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS
("Agreement") is made and entered into this 22nd day
of November 1996 by and between 6800 OWENSMOUTH, INC., a
California corporation ("Seller"), and ARDEN REALTY LIMITED
PARTNERSHIP, a Maryland limited partnership ("Purchaser"),
with reference to the following facts:
A. Seller is the fee owner of that certain parcel of
real property (the "Real Property") and the improvements
thereon, for informational purposes only, are a four
(4)-story office building containing approximately 80,029
rentable square feet, other facilities, fixtures, paving and
surfacing thereon or associated therewith, with subterranean
and surface automobile parking with a total of approximately
317 marked parking spaces (collectively, the
"Improvements"). The Real Property and Improvements are
located at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxxxx,
and is more particularly described in Exhibit "A" attached
hereto and forming a part hereof.
B. Seller desires to sell, and Purchaser desires to
purchase, all of the real and personal property owned by
Seller located at or forming part of the Real Property,
including, but not limited to, the Improvements, and all
appurtenant easements and rights, and the Personal Property
(as hereinafter defined) on the terms, covenants and condi-
tions hereinafter set forth.
NOW, THEREFORE, with reference to the foregoing reci-
tals and in reliance thereon and in consideration of the
purchase price hereinbelow set forth, and the other terms,
covenants and conditions set forth below, and other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, it is mutually covenanted and
agreed by Seller and Purchaser as follows:
1. Purchase and Sale. Subject to all of the terms
and conditions of this Agreement and for the consideration
set forth, on Closing (as hereinafter defined), Seller shall
convey, or cause to be conveyed, to Purchaser or to
Purchaser's assignee pursuant to paragraph 15(f) below, and
Purchaser or assignee shall purchase from Seller, all of the
following:
(a) The Real Property and the Improvements,
together with all easements, hereditaments and appurtenances
thereto, subject only to such easements, agreements and
exceptions as may have been approved by Purchaser in
accordance with Paragraph 4(a) hereof and the tenancies and
occupancies that are set forth on Exhibit "B";
(b) All of the personal property of Seller (the
"Personal Property") located at, attached or appurtenant to,
or used in connection with the operation or maintenance of
the Real Property and/or the Improvements (the "Inventory");
(c) All leases to tenants leasing space in the
Improvements (the "Tenant Leases");
(d) To the extent assignable, those certain
service and other agreements more particularly described in
Exhibit "C" attached hereto and made a part hereof; and
(e) All other right, title and interest of Seller
constituting part and parcel of the Property (as hereinafter
defined), including, but not limited to, trade names, logos,
easements, licenses, permits, air rights, certificates of
occupancy, warranties, rights-of-way, signs, trademarks,
telephone listings and numbers, sewer agreements, water line
agreements, utility agreements, water rights and oil, gas
and mineral rights (collectively, the "Intangibles") to the
extent assignable or transferable. Reference herein to the
"Property" shall include all of the real, personal and
intangible property described in subparagraphs (a) through
(e) hereof.
2. Purchase Price and Payment. The purchase price
(the "Purchase Price") to be paid by Purchaser to Seller for
the Property is the sum of Eight Million Seven Hundred
Seventy-Five Thousand and No/100 Dollars ($8,775,000.00),
payable as follows:
(a) Upon the opening of Escrow (as hereinafter
set forth) Purchaser shall deliver to Escrow Agent (as
hereinafter defined) cash in the sum of Two Hundred Sixty-
Three Thousand Two Hundred Fifty Dollars ($263,250),
("Deposit") which shall be held by Escrow Agent as security
for the full performance by Purchaser of its obligations
hereunder and on account of the Purchase Price payable at
Closing, subject to the following terms and conditions:
(i) If Closing occurs, then the Deposit
shall be applied to the Purchase Price;
(ii) If Closing does not occur and Seller
shall be entitled to liquidated damages as provided in
Paragraph 10(b) hereof, Seller shall be entitled to the
Deposit; and
(iii) If the Closing does not occur and
Purchaser shall be entitled to the return of the Deposit as
provided in this Agreement, the same shall be returned to
Purchaser.
(b) Purchaser shall pay to Seller through Escrow
Agent at Closing in immediately available funds an amount
equal to the balance of the Purchase Price, plus (or minus)
the net amount of all costs, expenses, adjustments and
prorations to be credited (or debited) to Purchaser pursuant
to this Agreement. If Seller fails to forward to Purchaser
a Qualifying Statement provided under 1445 of the Internal
Revenue Code and an equivalent Form 590RE provided under the
Revenue and Taxation Code of the State of California, Escrow
Agent shall be entitled to withhold and pay to the Internal
Revenue Service and the Franchise Tax Board such withholding
required of Purchaser pursuant to Internal Revenue Code 1445
and equivalent form provided under the Revenue and Taxation
Code of the State of California.
(c) The Deposit shall be at all times invested by
Escrow Agent in the following investments ("Approved
Investments"): (i) United States Treasury obligations, (ii)
United States Treasury-backed repurchase agreements issued
by a major money center banking institution reasonably
acceptable to Seller, (iii) Certificates of Deposit or Money
Market Accounts of institutions whose deposits are insured
by the FDIC or (iv) such other manner as may be reasonably
agreed to by Seller and Purchaser. The Deposit shall be
disposed of by Escrow Agent only as provided in this
Agreement.
(d) All payments required to be made under this
Agreement shall be made in U.S. funds.
3. Escrow.
(a) Opening of Escrow. As soon as commercially
reasonable after their complete execution of this Agreement
("Effective Date") and in any event not later than two
business days thereafter, Seller and Purchaser shall open an
escrow (the "Escrow") with Commerce Escrow, 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxx Xxxxxx ("Escrow Agent"), through which the
purchase and sale of the Property shall be consummated. A
fully executed copy of this Agreement shall be deposited
with Escrow Agent, duly executed by Seller, Purchaser and
Escrow Agent, to serve as Escrow instructions to Escrow
Agent, and Escrow Agent shall be and is hereby authorized
and instructed to deliver pursuant to the terms of this
Agreement the documents and monies to be deposited into the
Escrow. Escrow Agent may attach to this Agreement Escrow
Agent's standard form escrow agreement, to the extent that
the same is consistent with the terms hereof, and are
reasonably approved by Seller and Purchaser. Escrow Agent
shall immediately, upon receipt of such duly executed copy
of this Agreement, notify Seller and Purchaser of the
opening of Escrow. Should either party fail to open Escrow
in accordance with the provisions of this Paragraph 3(a),
such failure shall constitute a material breach of this
Agreement.
(b) Closing of Escrow. Escrow shall close not
later than three (3) business days following the expiration
of the Approval Period and upon one-days prior notice from
Purchaser, but in all events not later than January 15,
1997, provided the Tenant Estoppels satisfying the
requirements of paragraph 8(b) hereof have been received and
all other Purchaser's Conditions Precedent to Closing as set
forth in Paragraph 8 hereof have been satisfied. The term
"Closing" as used herein shall be deemed to be the date upon
which the respective Conditions Precedent to Purchaser's
Obligation to Close Escrow (set forth in Paragraph 8 below)
and the Conditions Precedent to Seller's Obligation to Close
Escrow (set forth in Paragraph 9 below) have been satisfied,
the Grant Deed ("Grant Deed" herein) hereinafter referred to
is recorded in the office of the County Recorder of Los
Angeles County and the net proceeds of sale are held by
Escrow Agent for disbursement to Seller. If the Closing as
provided herein does not occur, this Agreement and the
Escrow shall be cancelled and terminated and thereafter
neither party shall have any further obligation or liability
to the other party, except as expressly set forth in this
Agreement.
4. Title Matters.
(a) Title Report.
(i) Seller has ordered (and upon receipt
shall cause to be delivered to Purchaser) a CLTA Preliminary
Title Report covering the Real Property and the
Improvements, which may state that it is subject to any
matter that would be disclosed by a survey (the "Preliminary
Title Report"), issued by North American Title Company
("Title Agent"), together with true and legible copies of
all documents evidencing matters of record shown as
exceptions to title thereon. If Purchaser shall desire an
ALTA Survey of the Real Property and Improvements
("Survey"), Purchaser shall cause the same to be so made at
Purchaser's sole cost and expense before the expiration of
the Approval Period (and upon receipt shall deliver a copy
of the updated Survey to Seller). Purchaser shall have the
right to object to any exceptions contained in the
Preliminary Title Report or the Survey by giving notice to
Seller before the expiration of the Approval Period.
Notwithstanding any of the foregoing, Seller shall at
Closing (but shall not be obligated prior thereto) remove of
record all tax and mechanic's liens (except only for the
liens of the taxes and assessments to be prorated under
Paragraph 12(a)(ii)), at its sole cost and expense. Unless
Purchaser gives written notice that it disapproves any such
additional exceptions to title matters, stating the
exceptions so disapproved, before the expiration of the
Approval Period, Purchaser shall be deemed to have approved
said exceptions. Purchaser's approval of the Preliminary
Title Report shall be without prejudice to Purchaser's right
to disapprove additional survey matters or any supplementary
reports issued by Title Company or disclosed after the
expiration of the Approval Period; provided, however,
Purchaser's approval shall not be unreasonably withheld,
and, as to survey matters, shall only be applicable if
Purchaser shall have obtained a Survey before the expiration
of the Approval Period. If for any reason, on or before the
Closing Date Seller does not cause such exceptions to title
or survey matters which Purchaser timely disapproves (to the
extent Purchaser is permitted hereunder to so disapprove) to
be removed at no cost or expense to Purchaser (Seller having
the right but not the obligation to do so), the obligation
of Seller to sell, and Purchaser to buy, the Property as
herein provided shall terminate (and Seller and Purchaser
shall have no further obligations in connection herewith).
Purchaser shall have the option to waive the condition
precedent set forth in this paragraph 4(a) by notice to
Seller. In the event of such waiver, such condition shall
be deemed satisfied. All matters set forth on the
Preliminary Title Report, the Survey or any updated Survey
obtained by Purchaser which are not timely objected to by
Purchaser shall be permitted exceptions to title and shall
additionally include (i) any title or survey matters
objected to by Purchaser, which objections are subsequently
waived in writing by Purchaser, and (ii) any title or survey
matters objected to by Purchaser in accordance with the
terms and provisions of this Agreement, which objections are
cured to Purchaser's satisfaction, (iii) real estate taxes
and assessments not yet due and payable; and (iv) the
printed exceptions which appear in the standard form ALTA
owner's policy of title insurance (with extended coverage).
(ii) If at the date of Closing there are any
liens or encumbrances that Seller is obligated to pay and
discharge, Escrow Agent may use any portion of the Purchase
Price to satisfy the same (if the same are not bonded-over
or otherwise satisfied by title endorsement), provided
Seller shall simultaneously either deliver to Escrow Agent
at Closing title instruments in recordable form sufficient
to satisfy such liens and encumbrances of record, together
with the cost of recording or filing said instruments.
(b) Title Policy. The Title Policy shall be
First American Title Company's ALTA Owner's policy with
liability in the amount of the Purchase Price, showing fee
title to the Real Property and the Improvements as vested in
Purchaser, or in Purchaser's permitted assignee, subject
only to the permitted exceptions specified in Paragraph 4(a)
above.
5. Delivery of Information.
(a) As soon as practicable after the date hereof,
but in no event later than five (5) business days after the
Effective Date, except as otherwise set forth, Seller shall
have delivered or shall have caused to be delivered or made
available to Purchaser at the Property to Purchaser to the
extent they are in Seller's possession or under its control,
the following:
(i) Complete copies of all of the Tenant
Leases and all amendments thereto, a schedule of which is
attached hereto as Exhibit "B" and forms a part hereof.
(ii) Evidence that the Real Property complies
with the Subdivision Map Act of California, the Property has
all of the necessary valid Certificates of Occupancy and
otherwise complies with all construction and operational
laws, codes, ordinances, regulations and conditional use
permits.
(iii) The loss history of the Property
pertaining to any property damage or personal injury
suffered for which an insurance claim of more than Fifty
Thousand Dollars ($50,000) was submitted by Seller at any
time after January 1, 1995 to the extent available to
Seller;
(iv) A set of all "as built" plans,
specifications and structural drawings (including, but not
limited to, mechanical, electrical, air conditioning,
landscaping and sprinkler drawings), third-party soil,
geological, seismic, environmental and hazardous materials
and asbestos studies or reports, relating to the
Improvements or the subsurface conditions, grading plans,
water table or other matters bearing upon condition of the
Property;
(v) All electricity and property tax bills
for the period beginning January 1, 1995 to the extent
available to Seller;
(vi) Statements of income and expense for the
Property for the calendar year 1995 and current year to date
to the extent available to Seller;
(vii) All warranties and operating manuals
that Seller may have from vendors, contractors or servicing
agents with respect to the physical condition of the
Improvements, the Property or any portion thereof or the
equipment located therein;
(viii) Complete copies of all service and other
contracts pertaining to the Property (including, but not
limited to, HVAC, elevator, landscape, management, leasing
brokerage and parking) in respect to which Seller is
obligated (the "Service Contracts");
(ix) A list of all personal property
(including supplies) owned or leased by Seller and used in
connection with the operation, maintenance and repair of the
Property.
(b) Purchaser shall have until 5:00 P.M. on the
later of December 22, 1996 or 15 days following date that
(i) all of the materials listed in paragraph (a) above have
been delivered or made available to Purchaser and (ii)
Purchaser shall have obtained an ALTA Survey and Phase I
Environmental Report covering the Property (the "Approval
Period") in which to approve or disapprove all matters and
things that are subject to Purchaser's rights of review,
inspection and approval hereunder. Purchaser's failure
either to approve or disapprove said information before the
expiration of the Approval Period as aforesaid shall be
deemed its approval thereof. If Purchaser disapproves any
of said information, Purchaser shall notify Seller in
writing thereof within the time period specified above
whereupon, this Agreement shall terminate, however, notwith-
standing the foregoing, if Purchaser disapproves any Service
Contract, this Agreement shall not terminate and Seller
shall lawfully terminate such Service Contract not later
than thirty (30) days after the Closing, to the extent the
same can be so terminated and provided Purchaser shall pay
all cancellation or termination penalties, fees or costs in
connection therewith.
6. Inspections and Approval by Purchaser.
(a) From and after the date hereof, Purchaser and
its agents, employees and contractors shall be afforded full
access to the Property during normal business hours and upon
twenty-four (24) hours prior notice for the purpose of
making such investigations as Purchaser deems prudent with
respect to the physical condition of the Property,
including, but not limited to, engineering tests, subject to
the rights of tenants in possession. Seller shall
reasonably cooperate to assist Purchaser in completing such
inspection. However, Purchaser agrees not to contact any of
Seller's tenants without Seller's prior consent and to hold
Seller harmless from and against any loss, cost, damage,
claim or expense suffered by Seller or the Property and
caused by Purchaser's said investigations (the foregoing
obligation surviving any termination of this Agreement). In
no event shall Purchaser make any intrusive physical testing
(environmental, structural or otherwise) at the Property
(such as soil borings or the like) without Seller's prior
written consent. Purchaser shall promptly restore the
Property to its condition immediately prior to such
investigations. In addition, Purchaser agrees not to
unreasonably interfere with the use and enjoyment of the
Property by Seller, its agents, representatives, employees
or any tenants or other occupants. Seller shall have the
right, at its option, to cause a representative of Seller to
be present at all inspections, reviews and examinations
conducted hereunder. At the request of Seller, Purchaser
shall promptly deliver to Seller true, accurate and complete
copies of any written reports relating to the Property
prepared for or on behalf of Purchaser by any third party
and, in the event of termination hereunder, shall return all
documents and other materials furnished to or on behalf of
Purchaser by Seller hereunder. Purchaser shall keep all
information or data received or discovered in connection
with any of the inspections, reviews or examinations
strictly confidential and use such information or data
solely in connection with its examination of the Property
for the purpose of determining whether to purchase the
Property, and for no other purpose; provided; however, that
Purchaser shall be entitled to disclose such information to
Purchaser's attorneys, accountants and prospective debt and
equity financing sources who reasonably need to be informed
in connection with Purchaser's determinations hereunder (and
whom Purchaser shall require to keep such information and
data only for the specific purposes permitted hereunder).
(b) From and after the date hereof until Closing,
Purchaser and its agents shall be afforded full opportunity
by Seller during normal business hours and upon twenty-four
(24) hours prior notice to examine all operating books and
records that relate to the Property (including all
specifications and as-built drawings to the extent they are
in Seller's possession), all building permits, certificates
of occupancy, soil reports, engineers' reports and studies,
and similar information relating to the Property or its
management, operation, maintenance or use, and all
warranties and operating manuals that Seller may have from
vendors, contractors or servicing agents with respect to the
physical condition of the Property or any portion thereof or
the equipment located thereon.
(c) Purchaser shall have until the expiration of
Approval Period in which to approve or disapprove the
matters referred to in subparagraphs (a) and (b) above.
Purchaser's disapproval shall be in writing and shall be
delivered to Seller prior to the expiration of the Approval
Period. Failure to deliver such written disapproval shall
be deemed Purchaser's approval of said matters.
7. Operation of Property Pending Closing.
(a) Tenant Leases. Seller has leased portions of
the Property to various occupancy tenants. From and after
the date of execution of this Agreement and until the
Closing Date Seller shall not enter into any new leases or
amend or extend, terminate or accept the surrender of any
existing tenancies or approve any subleases without the
prior written consent of Purchaser (which consent shall not
be unreasonably delayed or withheld). In requesting such
consent, Seller shall inform Purchaser in writing of the
amount, if any, proposed to be required to pay for, or any
allowance proposed to be given for, tenant improvement work,
any leasing commissions and fees, in connection with such
lease and any rent concessions. Also included in the
request for consent, shall be Seller's proposed draft of the
lease or amendment agreement. The failure of Purchaser to
respond within five (5) business days after written request
for any such approval shall be deemed to constitute
approval. Seller shall not collect in advance any rent or
other sum due under any of the Tenant Leases, except for
collection of current rents no more than one month in
advance.
(b) Leasing Commissions; Tenant Improvements and
Rent Concessions. Seller covenants and agrees to be
responsible for all leasing commissions, tenant improvement
costs and unamortized rent concessions with respect to any
leases (including amendments and renewals) entered into on
or before November 22, 1996. Purchaser covenants and agrees
to be responsible for all leasing commissions, tenant
improvement costs and unamortized rent concessions with
respect to any new leases, extensions of existing leases and
renewals occurring after November 22, 1996, provided that
(i) Purchaser has approved or is deemed to have approved
such action or event by Seller and (ii) Seller has delivered
to Purchaser copies of the proposed lease and other
agreements with respect thereto and to which any brokerage
commissions are payable. Failing such delivery and approval
(or deemed approval), Seller shall remain responsible for
all of costs and expenses including commissions.
(c) Insurance Policies. Seller shall keep all of
the insurance policies covering the Property (or
substantially equivalent coverage) in full force and effect
between the date of this Agreement and Closing (the
"Insurance Policies").
(d) Service Contracts. Seller shall have the
right to renew or replace Service Contracts that expire
prior to Closing or to enter into new Service Contracts for
emergency purposes if deemed reasonably necessary by Seller
for any term provided that such Service Contracts are
terminable by Seller or its successors in interest upon not
more than thirty (30) days' notice to the service provider.
(e) Property Management. Seller shall maintain
the Property in the same manner as prior hereto pursuant to
its normal course of business (such maintenance obligations
not including extraordinary capital expenditures or
expenditures not incurred in such normal course of
business), subject to reasonable wear and tear and further
subject to destruction by casualty or other events beyond
the reasonable control of Seller.
8. Conditions Precedent to Purchaser's Obligation to
Close Escrow. The obligation of Purchaser to consummate the
transactions contemplated hereby is subject to the following
conditions, inserted for Purchaser's sole benefit and that
may be waived by Purchaser only in writing at its sole
option. Said conditions are as follows:
(a) Representations and Warranties True at Clos-
ing. The representations and warranties of Seller contained
in Paragraph 13 of this Agreement shall be true on the date
of Closing in all material respects as though such
representations and warranties were made on and as of such
date.
(b) Delivery of Tenant Estoppels. Seller shall
have delivered to Purchaser estoppel letters (the "Tenant
Estoppels") from tenants representing 85% of the leased area
and from all tenants leasing more than 3,500 square feet in
the Improvements in substantially the form of Exhibit "D"
attached hereto and forming a part hereof, consistent in all
material respects with the information to be provided by
Seller hereunder and certifying inter alia to the effect
that there are no defaults by landlord under the lease known
to tenant thereunder; that such lease is unmodified except
as may be set forth therein and in full force and effect;
that there are no defenses or offsets against the landlord
known to tenant thereunder; and that rental is current and
has not been paid more than one month in advance.
(c) Compliance with This Agreement. Seller shall
have performed and complied with in all material respects
all agreements and conditions required by this Agreement to
be performed or complied with by it on or prior to Closing.
(d) Title Policy. Title Company shall be ready,
willing and able to issue the Title Policy required by Para-
graph 4(b).
(e) Change in Condition. Subject to the pro-
visions of Paragraphs 15(b) and 15(c) hereof, there shall
exist no damage, destruction or condemnation of the Property
prior to Closing.
9. Conditions Precedent to Seller's Obligation to
Close Escrow. The obligation of Seller to consummate the
transactions contemplated hereby is subject to the following
conditions, inserted for Seller's sole benefit and that may
be waived solely by Seller only in writing at its sole
option. Said conditions are as follows:
(a) Representations and Warranties True at Clos-
ing. The representations and warranties of Purchaser con-
tained in this Agreement, or in any certificate or document
signed by Purchaser pursuant to the provisions hereof, shall
be true on and as of Closing in all material respects as
though such representations and warranties were made on and
as of such date.
(b) Delivery of Purchase Price and Documents.
Purchaser shall have delivered all funds and documents to
Escrow Holder required by it hereunder to enable it to close
the Escrow.
(c) Compliance with This Agreement. Purchaser
shall have performed and complied with all agreements and
conditions required by this Agreement to be performed or
complied with by it on or prior to Closing.
10. Remedy of Purchaser and Seller Upon Default.
(a) Remedies of Purchaser. In the event that
Seller fails to keep and perform each and every obligation,
covenant and agreement herein by Seller to be kept or per-
formed, then Purchaser may pursue such rights it may have
against Seller and the Property either at law or in equity.
(b) Remedy of Seller. THE PARTIES HERETO, BEFORE
ENTERING INTO THIS TRANSACTION, HAVE BEEN CONCERNED WITH THE
FACT THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY SELLER IF
PURCHASER SHOULD WRONGFULLY FAIL TO PURCHASE THE PROPERTY.
WITH THE FLUCTUATION IN VALUE OF REAL PROPERTY, THE CURRENT
AND HIGHLY UNPREDICTABLE STATE OF THE ECONOMY, THE
FLUCTUATING MONEY MARKET FOR REAL ESTATE LOANS OF ALL TYPES,
AND OTHER FACTORS THAT DIRECTLY AFFECT THE VALUE AND MARKET-
ABILITY OF THE PROPERTY, IT IS REALIZED BY THE PARTIES THAT
IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE, IF NOT
IMPOSSIBLE, TO ASCERTAIN WITH ANY DEGREE OF CERTAINTY PRIOR
TO SIGNING THIS AGREEMENT THE AMOUNT OF DAMAGES THAT WOULD
BE SUFFERED BY SELLER IN THE EVENT OF PURCHASER'S WRONGFUL
FAILURE TO PURCHASE THE PROPERTY. THE PARTIES, HAVING MADE
DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL
COMPENSATORY DAMAGES SELLER WOULD SUFFER IN THE EVENT OF
PURCHASER'S WRONGFUL FAILURE TO PURCHASE THE PROPERTY,
HEREBY AGREE THAT THE REASONABLE ESTIMATE OF SAID DAMAGES IS
AN AMOUNT EQUAL TO THE DEPOSIT; AND IN THE EVENT OF
PURCHASER'S WRONGFUL FAILURE TO PURCHASE THE PROPERTY,
SELLER SHALL BE ENTITLED TO SUCH AMOUNT AS FULL LIQUIDATED
DAMAGES, AND THAT PAYMENT OR TENDER TO SELLER BY PURCHASER
OF SUCH AMOUNT SHALL TERMINATE ALL OF SELLER'S RIGHTS AND
REMEDIES AT LAW OR IN EQUITY AGAINST PURCHASER WITH RESPECT
TO SUCH FAILURE TO PERFORM.
/s/ JP /s/ RSZ
Seller's Purchaser's
Initials Initials
11. Closing Procedure.
(a) At least one business day prior to the date
of Closing, Purchaser shall have delivered to Escrow Agent
counterpart executed originals of the following documents
and the following sums of money required to be delivered by
Purchaser hereunder:
(i) The Purchase Price in the manner set
forth in Paragraph 2;
(ii) Such funds as may be necessary to comply
with Purchaser's obligations hereunder regarding prorations,
costs and expenses; and
(iii) A signed counterpart of the Assignment
of Leases and a signed counterpart of the Assignment of
Service Contracts.
(b) At least one business day prior to the date
of Closing, Seller shall have delivered to Escrow Agent
counterpart executed originals of the following documents:
(i) The Grant Deed in the form of Exhibit
"E" attached hereto and forming a part hereof;
(ii) A Xxxx of Sale (the "Xxxx of Sale") in
the form of Exhibit "F" attached hereto covering the
Personal Property;
(iii) An Assignment and Assumption of Leases
and Security Agreements (the "Assignment of Leases")
substantially in the form and substance of Exhibit "G"
attached hereto and forming a part hereof;
(iv) An Assignment and Assumption of Service
and Miscellaneous Rights and Agreements (the "Assignment of
Service Contracts") substantially in the form and substance
of Exhibit "H" attached hereto and forming a part hereof;
(v) An original counterpart of each of the
Service Contracts, Leases and keys to the Property if in
Seller's possession or under its control;
(vi) Notices to each of the tenants and occu-
pants of the Property of the transfer of the Property to
Purchaser;
(vii) To the extent they are in Seller's
possession, a complete set of all plans, specifications and
as-built drawings, and all building permits, certificates of
occupancy, third-party soil reports, and environmental
reports and studies relating to the Improvements; and
(viii) All warranties and operating manuals
that Seller may have from vendors, contractors or servicing
agents with respect to the physical condition of the
Property or any portion thereof or the equipment located
thereon.
(c) Upon delivery of the foregoing sums and
documents, Escrow Agent shall cause Title Company to cause
the Grant Deed to be recorded (by a special recording if
necessary) in the Official Records of Los Angeles County,
California, and immediately to issue the Title Policy.
12. Costs and Prorations.
(a Prorations. All revenues, income, receiv-
xxxxx, costs, expenses and payables of the Property shall be
apportioned equitably between the parties as of Closing on
the basis of the actual number of days in a particular
month, and with respect to the items enumerated below where
a particular manner of apportionment is provided, then
apportionment of such item shall be made in such manner.
The obligation to make apportionments shall survive Closing.
Without limitation, the following items shall be so
apportioned:
(i) Monthly rents and percentage rent and
"passthroughs" of real estate taxes and operating expenses
due from occupancy tenants under Tenant Leases, as and when
collected. If at Closing there are any past due rents or
charges owed by occupancy tenants, they shall not be
prorated until received; Purchaser shall include such
delinquencies in its normal billing and shall pursue the
collection thereof in good faith after the Closing Date (but
Purchaser shall not be required to litigate or declare a
default in any Tenant Lease). To the extent Purchaser
receives amounts on account of Tenant Leases on or after the
Closing Date, such payments shall be applied first toward
then current rent owed to Purchaser in connection with the
applicable Tenant Lease for which such payments are
received, and any excess monies received shall be applied
toward the payment of any delinquent rents, with Seller's
share thereof being promptly delivered to Seller. Purchaser
may not waive any delinquent rents nor modify a Tenant Lease
so as to reduce or otherwise affect amounts owed thereunder
for any period in which Seller is entitled to receive its
share of charges or amounts without first obtaining Seller's
written consent. Seller hereby reserves the right to pursue
any remedy against any tenant owing delinquent rents and any
other amounts to Seller. Purchaser shall reasonably
cooperate with Seller in any collection efforts hereunder
(but shall not be require to litigate or declare a default
in any Lease). With respect to delinquent rents and any
other amounts or other rights of any kind respecting tenants
who are no longer tenants of the Property as of the Closing
Date, Seller shall retain all rights relating thereto.
(ii) Real estate and personal property taxes
and any special assessments, taking into consideration
discounts for the earliest permitted payment, based upon the
latest previous tax levies. Such items shall be
reapportioned between Seller and Purchaser if current tax
rates differ from the latest previous tax rates as soon as
the same are known. Seller agrees that to the extent any
additional taxes, assessments or levies are imposed,
assessed or levied against the Property, or any portion
thereof, the Seller or the Purchaser at any time subsequent
to Closing but with reference to any period prior thereto
during Seller's ownership thereof, Seller shall promptly pay
to Purchaser an amount equal to such additional assessments
or levies. Similarly, if tax refunds become payable for
periods during Seller's ownership of the Property, such
amounts (subject to adjustments for the potential claims of
occupancy tenants that paid tax increases by way of rent
escalations to Seller) shall be promptly paid over to
Seller. In the event that any assessments on the Property
are payable in installments, then the installment for the
current period shall be prorated (with Purchaser assuming
the obligation to pay any installment due after the Closing
Date). In no event shall Seller be charged with or be
responsible for any increase in the taxes on the Property
resulting from the sale of the Property or from any
improvements made or lease entered into on or after the
Closing Date.
(iii) Transferable annual permits, licenses,
and/or inspection fees, if any, on the basis of the duration
of the same;
(iv) Security Deposits, plus accrued
interest, if any, payable thereon to tenants, and any other
deposits and prepaid rent, shall be credited (or assigned)
to Purchaser;
(v) Subject to the provisions of Paragraph
12(c) below, utility charges levied against Seller or the
Property, and Purchaser shall transfer all such utility
services to its name and account immediately upon Closing;
(vi) Service Contracts on the basis of the
charge or premium for the period involved;
(vii) Tenant improvements costs and leasing
commissions for leases signed after the November 22, 1996
shall be paid by Purchaser if approved by Purchaser in
accordance with Paragraphs 7(a) and 7(b).
(viii) All other operating expenses incurred in
the management and operation of the Property.
No insurance policies shall be assigned hereunder, and
accordingly there shall be no proration of insurance
premiums.
(b) Expenses of Closing. The expenses of Closing
shall be paid in the following manner:
(i) Seller shall pay:
1. The cost of securing the CLTA standard
coverage portion of the Title Policy that is
attributable to the required ALTA Owner's coverage, the
cost of title endorsements deemed reasonably necessary
to satisfy a specific title exception objection by
Purchaser);
2. Documentary transfer tax (County and
City) imposed on the conveyance of title to the
Property to Purchaser;
3. Any sales or use taxes that may be owing
in connection with the transactions contemplated by
this Agreement; and
4. One-half of Escrow Agent's Escrow Fee.
(ii) Purchaser shall pay:
1. The cost of the Preliminary Title Report
and the cost of any Escrow or Title cancellation
charges in the event that the transaction fails to
close through no fault of the Seller and, if Closing
does occur, that portion of the cost of the Title
Policy that is not to be paid by Seller pursuant to
Subsection (b)(i)(1) above and the cost of the ALTA
Survey; and
2. The cost of recording the Grant Deed;
3. All expenses relating to Purchaser's
financing of its acquisition of the Property; and
4. One half of Escrow Agent's Escrow fee.
All other Closing fees and expenses, including, but not
limited to, the parties' legal expenses, accounting and con-
sulting fees, and other incidental expenses in connection
with this transaction shall be borne by the party incurring
same.
13. Representations, Warranties and Covenants of
Seller.
(a) Seller hereby makes the following representa-
tions, warranties and covenants, each of which is stated by
Seller to be true and correct on the date hereof and on the
Closing Date and each of which shall survive the Closing:
(i) Except as disclosed to Purchaser or its
agents prior to the expiration of the Approval Period,
Seller has no knowledge of any:
1. existing latent defects or seismic
conditions concerning the Real Property or materially
incorrect income or expense figures in any financial
statements prepared by or for Seller and delivered to
Purchaser regarding the Property.
2. any claim, litigation or
administrative action, arbitration, proceeding pending
before any court, agency or official, nor any such claim
or action threatened in writing, relating to the Seller
or the Property or with respect to the validity of any
statutes, ordinances, regulations or restrictions or any
permits or approvals thereunder relating to the
construction of any Improvements on the Property or the
operation thereof nor any outstanding contingent
liabilities affecting the Property;
3. written notice of violations of
City, County, State, Federal, building, zoning, fire or
health codes, regulations or ordinances, filed or issued
against the Property;
4. Hazardous Substance in existence on
or below the surface of the Real Property or in any
building located upon the Real Property, including,
without limitation, contamination of soil, subsoil or
ground water, which constitutes a violation of any
applicable law, rule or regulation of any government
entity having jurisdiction thereof except for office and
medical supplies in customary quantities;
5. thing that would suggest any
portion of the Property having ever been used by Seller
or any tenant of any portion of the Property during
Seller's ownership thereof as a waste storage or disposal
site or gasoline station. Without limiting the other
provisions of this Agreement, Seller shall reasonably
cooperate with Purchaser's investigation of matters
relating to the foregoing provisions of this paragraph
and to provide access to and copies of any data and/or
documents dealing with potentially Hazardous Substances
used at the Property and any disposal practices followed
in accordance with, and subject to the provisions of,
Paragraph 6 hereof. Seller agrees that Purchaser may
make inquiries of governmental agencies regarding such
matters, without liability for the outcome of such
discussions. For the purposes of this Agreement,
"Hazardous Substances" shall mean (A) substances defined
as "hazardous substances" in (i) the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S. C. ss. 9601 et seq.), or (ii)
the Resource Conservation and Recovery Act of 1976 (42
U.S.C. ss. 6901 et seq.), together with the regulations
enacted pursuant to such acts, and (B) those substances
defined as "hazardous wastes" in ss. 25117 of the
California Health and Safety Code or as "hazardous
substances" in ss. 25316 of the California Health and
Safety Code together with the regulations enacted
pursuant to such statutes.
(ii) The Tenant Leases and Service Contracts
and any other agreements, matters and things to be submitted
to Purchaser by Seller for approval pursuant to Paragraph 5
above, or otherwise, shall be true, correct and complete
copies thereof as of the date of submission thereof, and as
thereafter supplemented by supplements or additions,
approved in writing by Purchaser, on or before Closing.
Notwithstanding anything to the contrary contained herein,
Seller shall have no obligation or liability to Purchaser
with respect to any of the foregoing lease matters which
shall be confirmed as correct in any tenant estoppel
certificate delivered to Purchaser as provided in this
Agreement;
(iii) The operating financial information pre-
pared by Seller and delivered to Purchaser with respect to
the Property, consisting of Statements of Operations for the
calendar year ended December 31, 1995 and for the current
calendar year are true and correct in all material respects;
in this regard Seller agrees to make available to Purchaser
and its accountants, at Purchaser's cost, all accounting
records for the calendar year ended December 31, 1995 and
for the period from January 1, 1996 through the date of
Closing, including but not limited to all general ledgers,
cash receipts, cancelled checks and any other accounting
documents and information reasonably requested; and
(iv) As used in this Agreement, "to Seller's
knowledge" or other similar knowledge limitations as to
Seller shall mean the actual knowledge, without any duty to
investigate, of Xxxxxx Xxxxxxxxxx.
(b) Notwithstanding anything contained in Para-
graphs 5(a) or 13(a) to the contrary, Seller is neither
responsible nor liable for any representation or warranty,
either expressed or implied, guaranty, promise or other
information pertaining to the Property or the Improvements
made or furnished to Purchaser by any broker representing or
purporting to represent Seller.
(c) Notwithstanding anything to the contrary in
this Agreement, Seller's liability for representations or
warranties under Paragraph 13(a), or elsewhere in this
Agreement or in any agreement, instrument or document
contemplated hereby or delivered in connection herewith (i)
shall apply only to the extent that Purchaser's aggregate
damages for breach of such representations or warranties
exceeds One Hundred Thousand Dollars ($100,000) and (ii)
shall terminate one (1) year after the Closing Date.
14. Representations and Warranties of Purchaser. Pur-
chaser hereby makes the following representations and
warranties, each of which is deemed to be material and each
of which is stated by Purchaser to be true and correct on
the date hereof:
(a) Purchaser has full legal power and authority
to enter into and perform this Agreement in accordance with
its terms. This Agreement constitutes the valid and binding
obligation of Purchaser, enforceable in accordance with its
terms, except as such enforcement may be affected by bank-
ruptcy, insolvency and other laws affecting the rights of
creditors generally. The execution, delivery and
performance of this Agreement and all documents in
connection therewith are not in contravention of or in
conflict with any agreement or undertaking to which
Purchaser is a party or by which Purchaser may be bound or
affected; and
(b) The execution and delivery of this Agreement
and the payment and performance by Purchaser of its payments
and obligations hereunder require no further action or
approval in order to constitute this Agreement as a binding
and enforceable obligation of Purchaser, and all such
actions have been duly taken by Purchaser.
(c) As of the expiration of the Approval Period
and as of the Closing Date (i) Purchaser has received and
reviewed all materials provided to Purchaser by Seller
pursuant to Sections 4 and 5 above (collectively, the "Due
Diligence Materials"), (ii) Purchaser has inspected the
Property, (iii) Purchaser has made such investigation of the
information contained in the Due Diligence Materials as it
deems appropriate, and (iv) Purchaser is satisfied based
upon its examination of the Due Diligence Materials and its
investigation of all other aspects of the Property which
Purchaser deems material to its purchase thereof, including,
without limitation, the condition of title to the Property,
the zoning of the Property, the condition and physical
aspects of all structures located on the Real Property
(including the Improvements) and the presence or absence of
Hazardous Substances on the Property.
15. General Covenants and Agreements of Purchaser and
Seller.
(a) Delivery of Possession. Possession of the
Property shall be delivered to Purchaser upon Closing,
subject to the rights of tenants in possession.
(b) Damage to or Destruction of Property Prior to
Closing; Risk of Loss. If prior to Closing the Property
shall sustain damage caused by fire or other casualty that
is insured and that would cost Two Hundred Thousand Dollars
($200,000) or more to repair or if any uninsured loss or
casualty occurs that would cost Two Hundred Thousand Dollars
($200,000) or more to repair, either Seller or Purchaser may
respectively elect to terminate this Agreement by written
notice to the other within fifteen days after notice of such
event, or at Closing, whichever is earlier. If neither
Seller nor Purchaser so elects to terminate its obligations
under this Agreement, or if the loss or casualty would cost
less than Two Hundred Thousand Dollars ($200,000) to repair,
the Closing shall take place as provided herein and
Purchaser shall receive an assignment of Seller's rights to
insurance proceeds with respect to any unrepaired damage
(including any rental loss proceeds for periods after the
Closing), loss or casualty in question. Seller shall retain
all interest in and to the insurance proceeds that may be
payable to Seller on account of repaired and completed
damage, but Seller shall have no obligation of repair or
replacement.
(c) Condemnation of Property Prior to Closing. In
the event that the Property or any part thereof becomes the
subject of a condemnation proceeding other than of a minor
immaterial nature prior to Closing, Seller agrees to
immediately advise Purchaser thereof. In the event of such
condemnation, Purchaser shall have the option to (1) take
title in accordance with the terms and conditions of this
Agreement and negotiate with the said condemning authority
for the condemnation award and receive the benefits thereof
without affecting the Purchase Price, or (2) terminate this
Agreement and declare its obligations thereunder null and
void and of no further effect, in which event all sums
theretofore paid to Seller or to Escrow Agent hereunder
shall be returned to Purchaser as set forth herein. Notice
of the exercise of such option hereunder shall be in
writing, delivered to Seller at the address set forth in
Paragraph 16(g) of this Agreement (or such other address as
Seller may have theretofore designated in writing) at least
two days prior to Closing.
(d) Brokers' Commissions. Seller warrants that
Seller did not negotiate with respect to the purchase of the
Property through any broker, agent, finder, affiliate or
other third party other than Xxxxxxx & Wakefield of
California, Inc. ("Broker") or incur any liability,
contingent or otherwise, for brokerage or finder's fees or
agent's commissions or other like payments in connection
with this Agreement, or the transactions contemplated
hereby. Seller agrees to pay at Closing to Broker the
commission due it in connection with the within transaction
and Seller and hereby agrees to indemnify Purchaser against
and hold Purchaser harmless from any and all claims,
demands, causes of action or damages resulting from any
breach of this warranty. Purchaser hereby warrants that
Purchaser did not negotiate through any broker, agent,
finder, affiliate or other third party other than Broker or
incur any liability, contingent or otherwise, for any such
brokerage or finder's fees, agent's commissions or other
like payments, in connection with this Agreement, and hereby
agrees to indemnify Seller against and hold Seller harmless
from any and all claims, demands, causes of action or
damages resulting from any breach of this warranty. This
provision shall survive Closing.
(e) Further Assurances Prior to Closing. Seller
and Purchaser shall, prior to Closing, execute any and all
documents and perform any and all acts reasonably necessary,
incidental or appropriate to effect the purchase and sale
and the transactions contemplated in this Agreement.
(f) Time of Essence. Time shall be of the
essence with respect to the obligations of the parties
hereunder.
(g) Assignability. Purchaser may assign all of
its rights and duties hereunder to any entity with which
Purchaser is, directly or indirectly, affiliated or an
entity to be formed and controlled by the principals
(Xxxxxxx X. Xxxxx and Xxxxxx X. Xxxxxxx) of Purchaser,
without Seller's consent, upon the giving of written notice
to Seller, which notice may not be given less than three
days prior to Closing. For the purpose of this paragraph an
"affiliate" of or a person "affiliated" with, a specified
person, is a person that directly or indirectly, through one
or more intermediaries, controls or is controlled by, or is
under common control with, the person specified. Any such
assignment is conditional upon such assignee assuming the
obligations of Purchaser under this Agreement agreeing to be
bound by all consents and approvals theretofore given or
deemed to have been given by Purchaser, and such assignment
or nomination shall not relieve Purchaser of its obligations
hereunder.
(h) Waivers, Amendments and Modifications of
Provisions. Waivers, amendments or modifications of any
term or condition of this Agreement must be in writing
signed by the party against whom such waiver is sought to be
enforced. No waiver by any party of any breach hereunder
shall be deemed a waiver of any other or subsequent breach.
(i) Indemnification. Seller shall indemnify Pur-
chaser against and hold Purchaser harmless from any and all
loss, cost, damage, claim, liability or expense, including
court costs and reasonable attorneys' fees, for (1) any of
the matters and to the extent to be indemnified under the
Assignment of Leases or the Assignment of Service Contracts;
(2) breach of it confidentiality covenants under Paragraph
6(a); or (3) third party claims arising out of or in
connection with any tort committed by Seller (including any
personal injury or property damage or claim of personal
injury or property damage of any kind whatsoever, including
death, to property or persons, including employees of
Seller) unless caused by Purchaser, resulting from such tort
occasioned in or about the Property prior to Closing.
Purchaser shall indemnify Seller against and hold Seller
harmless from any and all loss, damage, claim of damage,
liability or expense, including court costs and reasonable
attorneys' fees, for (1) any of the matters and to the
extent to be indemnified under the Assignment of Leases or
the Assignment of Service Contracts; (2) breach of it
confidentiality covenants under Paragraph 6(a); or (3) third
party claims arising out of or in connection with any tort
committed by Purchaser (including any personal injury or
property damage or claim of personal injury or property
damage of any kind whatsoever, including death, to property
or persons, including employees of Purchaser) unless caused
by Seller, resulting from such tort occasioned in or about
the Property (a) as a result of its investigation of the
Property during the Approval Period or (b) on or subsequent
to Closing. These covenants shall survive Closing.
16. Miscellaneous Provisions.
(a) Successors and Assigns. Subject to the pro-
visions hereof, the terms and provisions hereof shall be
binding upon and inure to the benefit of the successors and
assigns of the parties hereto.
(b) Meaning of Terms. When necessary herein, all
terms used in the singular shall apply to the plural and
vice versa; and all terms used in the masculine shall apply
to the neuter and feminine genders.
(c) Entire Agreement. This Agreement is the
entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior
agreements between the parties hereto with respect thereto.
No claim of waiver, modification, consent or acquiescence
with respect to any of the provisions of this Agreement
shall be made against either party, except on the basis of a
written instrument executed by or on behalf of such party.
(d) Governing Law. This Agreement is to be
governed by and construed in accordance with the internal
laws of the State of California.
(e) Paragraph Headings. The headings of the sev-
eral paragraphs of this Agreement are inserted solely for
convenience of reference and are not a part of and are not
intended to govern, limit or aid in the construction of any
term or provision hereof.
(f) Attorneys' Fees. If either Seller or Pur-
chaser shall obtain legal counsel and bring an action or
proceeding against the other by reason of the breach of any
covenant, provision or condition hereof, or otherwise
arising out of this Agreement, the unsuccessful party shall
pay to the prevailing party reasonable attorneys' fees,
which shall be payable whether or not any proceeding is
prosecuted to judgment or award. The term "prevailing
party" shall include a party who brings an action or
proceeding against the other by reason of the other's breach
or default and obtains substantially the relief sought by
judgment or award.
(g) Notices. All notices, requests and other
communications hereunder shall be in writing and shall be
personally delivered or, in the alternative, deposited with
(1) the United States Postal Service, Certified Mail with
Return Receipt Requested, with postage prepaid or (2)
Federal Express or other overnight air freight forwarder for
delivery to the following addresses, and shall be effective
immediately upon delivery:
Seller: 6800 Owensmouth, Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
With a copy to: Xxxxx Xxxxxxxxx, Esq.
000 X. Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Purchaser: Arden Realty, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000 Xxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxx
With a copy to: Xxxx & Xxxxx
0000 Xxxxxxx Xxxx Xxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Escrow Agent: Commerce Escrow
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
All notices, requests and other communications shall be
deemed received on the date of acknowledgment or other
evidence of actual receipt.
(h) Severability. If any provision of this
Agreement or the application thereof to any person or cir-
cumstance shall be invalid or unenforceable to any extent,
the remainder of this Agreement and the application of such
provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest
extent permitted by law.
(i) Further Assurances on or After Closing. Each
party hereto agrees to do all acts and things and to make,
execute and deliver such written instruments as shall be
reasonably necessary to carry out the terms and provisions
of this Agreement. This covenant of further assurances
shall survive Closing.
(j) Other Parties. Nothing in this Agreement
shall be construed as giving any person, firm, corporation
or other entity, other than the parties hereto, their
successors and permitted assigns, any right, remedy or claim
under or with respect to this Agreement or any provision
hereof.
(k) Confidentiality. Seller and Purchaser agree
that it is in both of their best interests to keep this
Agreement and all information concerning the Property
confidential until Closing. Seller and Purchaser each
agrees that neither shall take any action nor conduct itself
in any fashion that would disclose to third parties
unrelated to Purchaser's acquisition or intended ownership
and operation of the Property, any aspect of the
contemplated transaction. After Closing, neither party
shall make any public announcement of the transaction that
has not been approved in advance and in writing by the other
party.
(l) Tax Deferred Exchange. Seller may desire to
dispose of the Property through a tax deferred exchange
which qualifies for non-recognition of gain under Section
1031 of the Internal Revenue Code. Purchaser shall
cooperate with Seller in attempting to effectuate such
exchange, including, but not limited to, the execution of
such documentation as may be reasonably necessary to effect
such exchange, provided that (i) Purchaser shall not incur
any additional liability in connection with an exchange for
the benefit of Seller, (ii) Purchaser shall not be obligated
to take title to any real property (other than the
Property), (iii) the date of Closing shall not be extended
as a result of the exchange, without Purchaser's prior
written consent, and (iv) any additional costs and charges
attributable to the exchange, including, but not limited to,
attorneys' fees, brokers' commissions and other transaction
related expenses shall be paid for by Seller. Purchaser and
Seller further agree that Seller may substitute an
intermediary ("Intermediary") to act in place of Seller as
the seller of the Property. The Intermediary shall be
designated in writing by Seller. Upon identification of
Intermediary, Intermediary shall be substituted for Seller
as the seller of the Property. Purchaser agrees to accept
the Property and all other required performance from
Intermediary and to render its performance of all of its
obligations to Intermediary. Purchaser agrees that
performance by Intermediary will be treated as performance
by Seller. Seller shall unconditionally guarantee the full
and timely performance by Intermediary of each and every one
of the representations, warranties, covenants, indemnities,
obligations and undertakings of Intermediary. As guarantor,
Seller shall be treated as a primary obligor with respect to
these representations, warranties, covenants, indemnities,
obligations and undertakings, and, in the event of breach,
Purchaser may proceed directly against Seller on this
guarantee without the need to join Intermediary as a party
to any action against Seller. Seller unconditionally waives
any defense that it might have as guarantor that it would
not have if it had made or undertaken these representations,
warranties, covenants, indemnities, obligations and
undertakings directly. In the event of the breach of any
representations, warranties, covenants, obligations and
undertakings by Seller or Intermediary or in the event of
any claim upon any indemnity of Seller or Intermediary
(whether the representation, warranty, covenant, indemnity,
obligation or undertaking is express or implied),
Purchaser's exclusive recourse shall be against the Seller
and Purchaser shall have no recourse of any type against the
Intermediary arising from this transaction.
(m) Condition of Property. Purchaser
acknowledges that it will inspect and examine the Property
and, except as expressly provided in this Agreement, will
rely solely on its own investigation of the Property and not
on any information provided or to be provided by or on
behalf of Seller. Except as otherwise expressly provided in
this Agreement, the sale of the Property to Purchaser is
made on an "AS IS" "WHERE IS" and "WITH ALL FAULTS" basis.
Purchaser acknowledges that in consideration of entering
into this Agreement, that, except as expressly provided in
this Agreement, Seller makes no warranty or representation,
with respect to the Property, or any portion thereof,
express or implied, or arising by operation of law,
including, but not limited to, any warranty of condition
(physical, environmental or otherwise), title (other than
the limited warranties of title contained in the grant
deed), habitability or fitness for a particular purpose or
otherwise.
(n) Counterparts. This Agreement may be executed
in any number of counterparts, each of which so executed
shall be deemed an original; such counterparts shall
together constitute but one agreement.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement the day and year first hereinabove written.
Seller: 6800 OWENSMOUTH, INC.,
a California corporation,
By:/s/ Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
Title: President
Purchaser: ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Arden Realty, Inc.,
a Maryland corporation,
Its general partner
By:/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx,
Chairman of the Board and
Chief Executive Officer
The undersigned hereby executes this Agreement to
evidence its agreement to act as Escrow Holder in accordance
with the terms of this Agreement.
AGREED AND ACCEPTED:
Escrow Agent:
COMMERCE ESCROW
By /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President
