AGREEMENT OF PURCHASE AND
SALE OF REAL PROPERTY
AND ESCROW INSTRUCTIONS
TABLE OF CONTENTS
PAGE
1. Parties 1
2. Recitals 1
3. Agreement to Purchase and Sell Property 1
4. Purchase Price and Terms 1
4.1 Payment of Purchase Price 1
4.2 RELEASE OF DEPOSIT 2
5. Escrow; Closing Date 2
5.1 Opening of Escrow 2
5.2 Close of Escrow 2
5.3 Termination of Escrow 2
5.4 No Liability for Escrow Holder 3
5.5 No Withdrawal of Funds 3
6. Representations and Warranties of Buyer 3
7. Representations and Warranties of Seller 4
7.1 Seller's Representations 4
7.2 AS-IS Conveyance 5
7.3 No Additional Representations by Seller 6
7.4 Release 7
7.5 Breach of Representations and Warranties 7
7.6 Limitation on Liability 7
8. Representations and Warranties of Seller and
Buyer Regarding Brokers 7
8.1 Brokers 7
8.2 Broker's Indemnity 7
9. Contingencies 8
9.1 Condition of Property 8
9.2 Title 8
9.3 Tenant Estoppels 9
10. Maintenance of the Property 10
11. Covenant to Convey; Title Insurance 10
11.1 Conveyance of Title 10
11.2 Title Policy 10
12. Deliveries 10
12.1 Seller's Deliveries 10
12.2 Buyer's Deliveries 11
12.3 Escrow Holder's Deliveries 11
13. Prorations, Costs 11
13.1 Prorations 11
13.2 Costs 12
13.3 Cancellation Fees 12
14. Conditions Precedent 12
15. Cooperation Regarding Tax-Deferred Exchange 13
16. Casualty; Condemnation 13
16.1 Partial Damage 14
16.2 Material Damage or Condemnation 14
17. Liquidated Damages 14
18. Notices 14
19. Further Assurances 15
20. Indemnification 15
20.1 Buyer's Indemnification 15
20.2 Seller's Indemnity 16
21. Attorneys' Fees 16
22. Miscellaneous Provisions 16
22.1 Entire Agreement 16
22.2 Partial Invalidity 16
22.3 No Waiver of Breach 17
22.4 Amendments 17
22.5 Waiver of Conditions 17
22.6 Successors and Assigns 17
22.7 Survival 17
22.8 Time 17
22.9 Remedies 17
22.10 Meaning of Certain Words 17
22.11 California Law 17
22.12 Headings and Labels 17
22.13 Counterparts 17
22.14 Exhibits 17
22.15 Construction 18
22.16 Performance 18
22.17 No Third Party Beneficiaries 18
22.18 Partial Invalidity 18
22.19 Limitation of Liability of Buyer and Seller 18
22.20 Assignment. 18
22.21 Audit Rights 18
AGREEMENT OF PURCHASE AND
SALE OF REAL PROPERTY
AND ESCROW INSTRUCTIONS
1. Parties. This Agreement of Purchase and Sale of Real
Property and Escrow Instructions ("Agreement") dated for
identification purposes August 6, 1997 is made and entered into
by and between South Spalding Associates, L.L.C., a Delaware
limited liability company, ("Seller") and Arden Realty Limited
Partnership, a Maryland limited partnership ("Buyer").
2. Recitals.
2.1 Seller is the owner of that certain real property (the
"Land") which is located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and is more particularly described on Exhibit
"A" attached hereto. The Land is improved with a commercial
office building containing approximately 62,700 square feet (the
"Improvements").
2.2 The Land and the Improvements, and all fixtures which
have attached to the Land and the Improvements are herein
collectively referred to as the "Property." As used herein the
term "Property" shall also include all right, title and interest
of Seller in and to (i) all streets, alleys, easements, and
rights of way in, on, across, in front of, abutting or adjoining
the Property; (ii) all oil, gas and hydrocarbons under the
surface of the Property; (iii) all rights as landlord under any
leases (the "Leases") for the Property; (iv) all water and water
rights pertaining to the Property; (v) all licenses, permits,
approvals, dedications and entitlements issued, approved or
granted by governmental authorities or otherwise in connection
with the Improvements or the use thereof; and (vi) all furniture,
apparatus, equipment and machinery, if any, owned by Seller and
which is attached to or appurtenant to the Improvements, as more
particularly described on Exhibit AB@ attached hereto and
incorporated herein by reference (the "Personal Property").
2.3 Seller desires to sell the Property to Buyer and Buyer
desires to purchase the Property from Seller upon and subject to
the terms and conditions set forth below.
3. Agreement to Purchase and Sell Property. Seller hereby
agrees to sell the Property to Buyer and Buyer hereby agrees to
purchase the Property from Seller on the terms and conditions of
this Agreement.
4. Purchase Price and Terms.
4.1 Payment of Purchase Price. The purchase price for the
Property (the "Purchase Price") shall be Eleven Million One
Hundred Thousand Dollars ($11,100,000), payable as follows:
1. On or before the Contingency Date (as defined
below), Buyer shall deposit with Escrow Holder immediately
available funds in the amount of Two Hundred Thousand Dollars
($200,000) (the "Deposit") which shall be applied toward the
Purchase Price upon the Close of Escrow.
1.
2. Buyer shall deposit with Escrow Holder no later
than one (1) day prior to the Closing Date immediately available
funds in the amount of the balance of the Purchase Price.
4.2 RELEASE OF DEPOSIT. BUYER HEREBY AUTHORIZES AND
INSTRUCTS ESCROW HOLDER TO RELEASE THE ENTIRE DEPOSIT TO SELLER
UPON RECEIPT THEREOF. BUYER FULLY UNDERSTANDS THAT NO FURTHER
WRITTEN INSTRUCTIONS WILL BE REQUIRED BY ESCROW HOLDER TO RELEASE
THE DEPOSIT. THE RELEASE OF THE DEPOSIT IS WITHOUT LIABILITY OR
RECOURSE TO ESCROW HOLDER. BUYER=S FAILURE TO TIMELY DELIVER THE
DEPOSIT AND CAUSE THE SAME TO BE RELEASED TO SELLER SHALL BE
DEEMED BUYER=S ELECTION TO TERMINATE THIS ESCROW. IF BUYER
DELIVERS THE DEPOSIT ON OR BEFORE THE CONTINGENCY DATE, BUYER
SHALL BE DEEMED TO HAVE IRREVOCABLY WAIVED ALL CONDITIONS SET
FORTH IN ARTICLE 9. IN SUCH EVENT, THE DEPOSIT SHALL BELONG TO
SELLER, SHALL BE NON-REFUNDABLE AND SHALL BE APPLIED AGAINST THE
PURCHASE PRICE AT CLOSING OR RETAINED BY SELLER AS LIQUIDATED
DAMAGES PURSUANT TO PARAGRAPH 17 BELOW; PROVIDED, HOWEVER, IF
ESCROW FAILS TO CLOSE FOR ANY REASON OTHER THAN BUYER=S DEFAULT,
BUYER SHALL BE ENTITLED TO A REFUND OF THE DEPOSIT.
/s/ VJC /s/RMP
BUYER'S INITIALS SELLER'S INITIALS
5. Escrow; Closing Date.
5.1 Opening of Escrow. A copy of this Agreement executed
by the parties shall be deposited in an escrow ("Escrow") with
Commerce Escrow Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Escrow Holder"), and shall serve as
the escrow instructions, together with such further instructions,
if any, as the parties shall provide by written agreement. The
parties agree to execute such further escrow instructions as
Escrow Holder may require as long as Escrow Holder shall not
require the imposition of any additional obligations or
liabilities on the parties. Such further instructions shall not
modify the provisions of this Agreement unless otherwise
expressly set forth therein. Escrow shall be deemed "opened" on
the date Escrow Holder accepts this Agreement in writing or as of
the date fully executed counterparts of any further escrow
instructions required by Escrow Holder are deposited, whichever
occurs first. The parties agree to perform all acts necessary to
open Escrow within three (3) business days of the execution of
this Agreement. Escrow Holder shall promptly give Buyer and
Seller written notice of its acceptance of this Agreement and of
the date on which Escrow has opened.
5.2 Close of Escrow. The terms "Close of Escrow" and
"Closing Date" shall mean that date on which the conveyance of
the Property to Buyer shall be consummated by the recording of
the Grant Deed, which date shall be on or before August 20, 1997.
5.3 Termination of Escrow. If Escrow Holder is unable to
close Escrow by the Closing Date in compliance with this
Agreement, Escrow Holder shall hold the Escrow open and effect
closing as soon as it is able to do so in compliance with this
Agreement unless Escrow Holder receives a written demand to
terminate Escrow from either Buyer or Seller, whereupon Escrow
Holder shall send a copy of such demand to the other party. If
the other party does not object to the termination of Escrow
within five (5) business days of its receipt of such demand, then
Escrow Holder shall terminate Escrow and return all of the
documents and funds then held by Escrow Holder to the party who
has deposited the same. If the other party objects to the
termination of Escrow within such five (5) day period, then
Escrow Holder shall not terminate Escrow but shall hold such
documents and funds then held by Escrow Holder until Escrow
Holder shall have received instructions signed by both parties
with respect to such funds and documents. At any time after one
party makes written demand for the termination of Escrow and the
other party objects thereto, Escrow Holder may deposit all
documents and funds then held by Escrow Holder in a court of
competent jurisdiction and, after giving written notice of the
same to Buyer and Seller, Escrow Holder's obligations hereunder
shall terminate.
5.4 No Liability for Escrow Holder. Escrow Holder is not
to be held liable for the sufficiency or correctness as to form,
manner of execution or validity of any instruments deposited with
Escrow Holder, as to the identity, authority or rights of any
person executing the same, nor for any failure to comply with any
of the provisions of any agreement, contract or other instrument
referred to in this Agreement. Escrow Holder's duties hereunder
shall be limited to the safekeeping of any documents or monies
received by it as Escrow Holder and for the disposition of the
same in accordance with the written instructions of the parties
hereto. Escrow Holder shall not be concerned with any agreements
contained herein not required by Escrow Holder to close the
Escrow.
5.5 No Withdrawal of Funds. Except for the release of the
Deposit, no party shall have the right to withdraw any monies or
documents deposited by it with Escrow Holder prior to the Close
of Escrow or the termination thereof in accordance with the terms
of this Agreement.
6. Representations and Warranties of Buyer. Buyer hereby
represents and warrants the following to Seller for the purpose
of inducing Seller to enter into this Agreement and to consummate
the transactions contemplated hereby, all of which shall be true
as of the date hereof and as of the Closing Date and shall
survive the Close of Escrow and conveyance of title to the
Property hereunder:
a. Buyer is a duly organized, validly existing
limited partnership in good standing under the laws of the State
of Maryland. Buyer has the legal power, right and authority to
enter into this Agreement and the instruments and documents
referenced herein, and to consummate the transaction contemplated
hereby. The individuals executing this Agreement and the
instruments referenced herein on behalf of Buyer hereby represent
and warrant that they have the power, right and authority to bind
Buyer.
b. All requisite action has been taken by Buyer and
all requisite consents have been obtained in connection with the
entering into this Agreement and the instruments and documents
referenced herein, and the consummation of the transaction
contemplated hereby, and no consent of any other party is
required.
c. This Agreement is, and all agreements, instruments
and documents to be executed by Buyer pursuant to this Agreement
shall be duly executed by and are, or shall be, valid and legally
binding upon Buyer and enforceable in accordance with their
respective terms.
d. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby shall result
in a breach of or constitute a default under any agreement,
document, instrument or any other obligation to which Buyer is a
party or to which Buyer may be bound or affected, or under any
law, statute, ordinance, rule, governmental regulation or any
writ, injunction, order or decree of any court or governmental
body, applicable to Buyer or to the Property.
7. Representations and Warranties of Seller.
7.1 Seller's Representations. Seller hereby represents and
warrants the following to Buyer for the purpose of inducing Buyer
to enter into this Agreement and to consummate the transactions
contemplated hereby, all of which shall be true as of the date
hereof and as of the Closing Date and shall survive the closing
and conveyance of title to the Property hereunder:
a. Seller is a duly organized, validly existing
limited liability company in good standing under the laws of the
State of Delaware. Seller has the legal power, right and
authority to enter into this Agreement and the instruments and
documents referenced herein, and to consummate the transaction
contemplated hereby. The individuals executing this Agreement
and the instruments referenced herein on behalf of Seller hereby
represent and warrant that they have the power, right and
authority to bind Seller.
b. All requisite action has been taken by Seller and
all requisite consents have been obtained in connection with the
entering into this Agreement and the instruments and documents
referenced herein, and the consummation of the transaction
contemplated hereby, and no consent of any other party is
required.
c. This Agreement is, and all agreements, instruments
and documents to be executed by Seller pursuant to this Agreement
shall be duly executed by and are, or shall be, valid and legally
binding upon Seller and enforceable in accordance with their
respective terms.
d. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby shall result
in a breach of or constitute a default under any agreement,
document, instrument, or other obligation to which Seller is a
party or by which Seller may be bound, or under any law, statute,
ordinance, rule, governmental regulation or any writ, injunction,
order or decree of any court or governmental body, applicable to
Seller or to the Property.
e. Except as disclosed to Buyer, there is no claim,
action, litigation, arbitration or other proceeding pending
against Seller which relates to the Property or the transactions
contemplated hereby and, to Seller's actual knowledge, there is
currently no governmental investigation, threatened litigation or
arbitration proceedings to which Seller is, or would be, a party
which relates or would relate to the Property.
f. The Property shall be sold subject to those
certain Leases (the "Leases") as shown on Exhibit "C" hereto.
The Leases constitute all of the leases currently in effect at
the Property and no other parties (other than the tenants named
in the Leases) have any right to possession of all or any portion
of the Property. Seller has previously delivered to Buyer true
and complete copies of all of the Leases, and any amendments or
modifications thereto. Prior to the Close of Escrow, the Leases
shall not be modified or amended nor shall Seller enter into any
new leases or terminate any existing Leases (or any related
guaranties) without the prior written consent of Buyer, which
consent shall not be unreasonably withheld. However, Buyer shall
pay the broker's commissions and tenant improvement allowances
payable in connection with any such new leases.
g. Except for the agreements (the "Service
Contracts") set forth in Exhibit "D" attached hereto, there are
no contracts or other agreements which affect or will affect or
which are or will be obligations of the Buyer, the Property or
the Improvements after the Close of Escrow. All of the Service
Contracts may be terminated without penalty or other payment upon
no more than thirty (30) days notice. Seller shall not, after
the date of this Agreement, modify, extend or otherwise change
any of the Service Contracts or enter into any new service
contracts or any other obligations or agreements affecting the
Property without the prior written consent of Buyer, which
consent shall not be unreasonably withheld.
h. There are no pending or, to Seller's actual
knowledge, contemplated condemnation, annexation or other
proceedings affecting the Property or any part thereof.
i. To Seller's actual knowledge, without inquiry, the
Property does not contain any Hazardous Materials except for
substances and chemicals used in the ordinary operation of the
Property (e.g. cleaning products, paints, toner, insecticides and
normal medical uses). Hazardous Materials shall mean any
flammable explosives, radioactive materials, hazardous wastes or
substances, toxic wastes or substances and other related
materials including without limitation any substances defined as
or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials" or "toxic substances"
under any applicable federal, state or local laws or regulations.
j. To Seller's actual knowledge, without inquiry, the
Property is not in violation, and Seller has not received any
notice of any violation of, any law, ordinance, regulation, order
or requirement applicable to the Property including without
limitation, requirements imposed under any recorded covenants,
conditions, restrictions, easements or other rights affecting the
Property.
k. To the best of Seller=s knowledge, the operating
statements and rent roll delivered to Buyer are true and
complete.
7.2 AS-IS Conveyance. Buyer expressly acknowledges and
agrees: (a) Seller has previously delivered or made available to
Buyer and Buyer's representatives for their review and inspection
all plans, drawings, reports and other documents with respect to
the Property which are in Seller's possession and which represent
Seller's good faith identification, after reasonable
investigation of its files, of those documents determined by
Seller as likely to be of material concern to a prudent purchaser
of the Property; (b) Seller is not making, has not made and
expressly disclaims any representation or warranty, express or
implied, that such documents delivered by Seller or made
available for Buyer's review and inspection constitute all of the
documents and information in Seller's files relating to the Prop
erty; (c) Buyer has made (or by the Contingency Date will make)
such independent factual, physical and legal examinations and
inquiries as Buyer deems necessary and desirable with respect to
the Property and the transaction contemplated by this Agreement;
(d) Buyer is specifically purchasing the Property on an "AS-IS
WITH ALL FAULTS BASIS" and is relying solely upon Buyer's own
independent factual, physical and legal investigations, examina
tions and inquiries and the materials and information prepared by
Buyer or by third parties at Buyer's request in determining that
the Property and each portion thereof is suitable and adequate in
all respects for any and all activities and uses which Buyer may
elect to conduct thereon; (e) Except as provided in this
Agreement, Seller is not making, has not made and expressly
disclaims any representation, warranty or other assurance
whatsoever with respect to the Property or any condition or
feature thereof, including without limitation, any representa
tion, warranty or assurance regarding the validity or accuracy of
any documents (or the date contained therein) delivered by Seller
to Buyer or made available for Buyer's review and inspection; (f)
Buyer shall verify the accuracy and reliability of such documents
and date with the third parties who prepared the same; and (g)
Buyer is (or by the Contingency Date will be) fully acquainted
with the nature and condition, in all respects, of the Property,
including the existence or availability of all permits and
approvals from governmental authorities and the soil and geology
thereof. The provisions of this Paragraph 7.2 shall survive the
Close of Escrow.
7.3 No Additional Representations by Seller. Subject to
Paragraph 7.1 above, neither Seller nor any of its agents,
partners or employees has made and does not make any
representations or warranties, whether oral or written, expressed
or implied, with respect to: (i) any physical or environmental
aspect or condition of the Property or any part thereof
(including, without limitation, the presence of any hazardous
materials); (ii) any dimension or specifications of the Property
or any part thereof, including, without limitation, the square
footage or rentable area of the improvements or the number or
sufficiency of parking spaces on or about the Property; (iii)
feasibility, desirability, suitability, habitability or
convertibility of the Property and any part thereof into or for
any particular use or purpose; (iv) the zoning, building or land
use restrictions applicable to the Property or any part thereof;
(v) the leases, the tenants, or the project income or expenses,
if any, for the Property; (vi) soil, seismic or other geological
conditions effecting the Property or any part thereof with any
applicable laws, rules or regulations, including, without
limitation, use permits, building codes, fire and safety codes
and handicapped access codes and regulations (including, without
limitation, the Americans With Disabilities Act); (vii) the
availability or unavailability of governmental, quasi-
governmental or other permits, approvals, licenses, or
entitlements, if any, in any way relating to the Property or any
part thereof; (viii) the operability, adequacy, state of repair
or useful life of any fixture, equipment, machinery or other
apparatus of the Property; (ix) restrictions on hours of
operation, parking, types of tenants and uses, signage,
architectural and other limitations imposed by zoning, use
permits and other restrictions effecting the Property; and (x)
any other matter of any nature whatsoever relating in any way to
the Property or to any of the documents delivered by Seller to
Buyer.
7.4 Release. Except as otherwise set forth in Paragraph
7.1 above, as of the Close of Escrow, Buyer fully releases and
discharges Seller from and relinquishes all rights, claims and
actions that Buyer may have against Seller which arise out of or
are in any way connected with the Property at Closing, including
but not limited to the existence or presence on the Property of
(i) construction, design or natural defects of any kind or
nature, whether patent or latent, (ii) hazardous materials, and
(iii) violations of any federal, state or local law or regulation
applicable to the physical condition of the Property. This
release applies to all described rights, claims and actions,
whether known or unknown, foreseen or unforeseen, present or
future. Buyer specifically waives application of California
Civil Code Section 1542, which provided as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor
at the time of executing the release, which if known by
him must have materially affected his settlement with
the debtor."
/s RSZ /s/ RMP
Buyer's Initials Seller's Initials
7.5 Breach of Representations and Warranties. If prior to
the Close of Escrow, Buyer learns of any fact or circumstances
which makes any of Seller's representations or warranties
materially untrue or misleading, Buyer's sole remedies shall be
to either (i) terminate this Agreement and to receive a refund of
its Deposit, it being understood that Buyer expressly waives any
right to close escrow and pursue any claims against Buyer for any
breach of such representations and warranties, or (ii) close
Escrow and waive any such breach without any reduction in the
Purchase Price.
7.6 Limitation on Liability. The liability of Seller for
breach of a representation or warranty made in this Article 7
shall terminate with respect to such representations and
warranties if Buyer has not commenced an action against Seller
within one (1) year after the Closing and shall otherwise be
limited as set forth in this Agreement.
8. Representations and Warranties of Seller and Buyer Regarding
Brokers.
8.1 Brokers. Each party represents and warrants that it
has not employed any brokers or finders in connection with the
transactions contemplated hereby other than ▇▇▇▇▇ & ▇▇▇▇▇
(ABroker@).
8.2 Broker's Indemnity. Except for the commissions due
Broker, which shall be paid by Buyer pursuant to a separate
agreement betweenBuyer and Broker, each party shall indemnify,
save, defend and hold the other party free and harmless from and
against any and all obligations or liabilities to pay any real
estate broker's commission, finder's fee, or other compensation
to any person, firm or corporation arising from or in connection
with this Agreement or the Property which results from any act or
agreement of such party.
9. Contingencies. Notwithstanding anything to the contrary
contained in this Agreement, Buyer's obligation to purchase the
Property and to close Escrow hereunder is subject to Buyer's
written approval or waiver of all of the following matters:
9.1 Condition of Property. On or before 5:00 p.m. on
August 15, 1997 (the "Contingency Date"), Buyer shall have
approved or disapproved (in its sole discretion) in writing, the
results of any and all inspections, tests and studies with
respect to the condition of the Property which Buyer may elect to
make or obtain. Buyer's failure to timely approve such results
in writing and to deliver the Deposit pursuant to Section 4.1
above, shall be deemed Buyer's disapproval thereof. Upon Buyer's
disapproval (or deemed disapproval) of such results, this
Agreement shall terminate, and neither party shall have any
further rights or obligations hereunder except for Buyer's
obligations under this Paragraph 9.1 and Paragraph 21 below. The
cost of any such inspections, tests and studies shall be borne
entirely by Buyer. For the sole purpose of conducting such
inspections, tests and studies, Buyer and Buyer's representatives
shall have the right, during reasonable business hours, upon
reasonable notice, to enter onto the Property. Buyer shall
repair any damage to, and remove any liens against, the Property
caused by such tests, inspections and studies. Buyer hereby
indemnifies, defends and holds Seller harmless from and against
any and all loss, cost, damage, liability and expense, including
without limitation attorney's fees and costs, arising out of the
entry onto the Property by Buyer or Buyer's representatives. In
connection with Buyer's investigation of the Property, Seller
shall make available to Buyer, upon the execution of this
Agreement, all of Seller=s files relating to the Property
including, without limitation, copies of all Leases, maps, plans,
surveys, governmental agency documents, engineering, soils and
geological studies, marketing analysis, drainage studies,
operating statements, environmental studies, and similar
materials which Seller has in its possession or which is
reasonably available to Seller. At Close of Escrow, Seller shall
assign to Buyer all of Seller's right title interest in and to
the such documents.
9.2 Title. Buyers shall, at its sole cost, obtain from
First American Title Company (the "Title Company") a preliminary
title report ("PTR") for the Property along with copies of all
items identified as exceptions in the PTR. If Buyer elects to
obtain an ALTA extended coverage policy of title insurance, Buyer
shall notify Seller of such election promptly after execution of
this Agreement and shall obtain a survey of the Property, at
Buyer's sole cost on or before the Contingency Date. Upon
receipt of such survey, Buyer shall deliver to Seller, without
charge, one (1) original thereof. If Buyer elects to obtain a
survey, the survey shall be sufficient to enable the Title
Company to update the PTR to: (i) delete the standard survey
exceptions, (ii) add any new title exceptions which are revealed
by said survey and an inspection of the Property, and (iii)
enable the Title Company at Closing to issue an ALTA extended
owner's policy of title insurance. Buyer shall notify Seller no
later than the Contingency Date of any exceptions disapproved by
Buyer on either the PTR or the survey. Buyer hereby disapproves,
and Seller hereby agrees to cause the Title Company to remove or
insure over, all monetary liens (other than non-delinquent real
property taxes) set forth in the PTR delivered to Buyer
concurrently herewith. Buyer's failure to timely disapprove of
the PTR and/or survey in writing shall be deemed Buyer's approval
thereof. Within five (5) days after receipt of Buyer=s
disapproved exceptions, Seller shall notify Buyer in writing of
any disapproved title exceptions which Seller will cause to be
removed or insured against prior to the Close of Escrow.
Seller=s failure to notify Buyer in writing during such period
shall be deemed to be Seller=s notification of its unwillingness
to remove or insure against such exceptions. With respect to
such exceptions which Seller will not remove or insure against,
Buyer shall then elect, by giving written notice to Seller within
five (5) days thereafter to either (i) terminate this Agreement
(in which case the Deposit shall be returned to Buyer and neither
party shall have any further rights or obligations hereunder
except for Buyer=s obligations under Paragraph 9.1 and Paragraph
21), or (ii) waive the disapproval of such exceptions, in which
case the exceptions shall then be deemed to be approved. Those
exceptions approved by Buyer, the standard printed exceptions in
the Title Policy and such items as a correct survey and
inspection of the Property would disclose shall be referred to
herein as "Permitted Exceptions." If on the Closing Date, there
are any liens, assessments or encumbrances that Seller is
obligated to pay and discharge, Seller shall deposit with Escrow
Holder sufficient monies (or authorize Escrow Holder to use the
cash portion of the Purchase Price), acceptable to and required
by Escrow Holder to insure the obtaining and recording of such
satisfactions and the issuance of the Title Policy either free of
any such liens, assessments and encumbrances, or with insurance
against any loss or damage that Buyer may suffer as a result
thereof.
9.3 Tenant Estoppels. Promptly following the mutual
execution of this Agreement, Seller shall prepare, and deliver to
each of the tenants, written estoppel certificates in the form
attached hereto as Exhibit "E" and incorporated herein by
reference (the "Tenant Estoppels"). Seller shall use
commercially reasonable efforts to obtain signed Tenant Estoppels
from each of the existing tenants on or before the Contingency
Date. If by the Contingency Date Seller has not received and
delivered to Buyer a Tenant Estoppel from each existing tenant or
Buyer has disapproved the content of any Tenant Estoppel, Buyer
shall have the right to terminate this Agreement upon written
notice to Seller on or before the Contingency Date. Buyer's
failure to timely disapprove any Tenant Estoppel shall be deemed
Buyer's approval thereof. Notwithstanding the following, Buyer
shall not have the right to disapprove any Tenant Estoppel which
is in form and substance materially the same as the form attached
hereto as Exhibit "E" and which is not materially inconsistent
with the rent roll and Leases delivered to Buyer and does not
otherwise disclose any quarrel or disagreement with Seller.
Additionally, if any Tenant Estoppel is not timely received by
Buyer, Seller shall prior to the Close of Escrow, deliver to
Buyer (and Buyer shall accept in lieu of a Tenant Estoppel) an
estoppel certified by Seller (to Seller's actual knowledge) with
respect only to the following matters: the amount of base rent
payable by such tenant (and the date through which such base rent
has been paid); the amount of the security deposit held by
Seller; the term of such lease including options; the amount and
date of the last payment of any pass-through expenses; and a
representation that there are no known defaults under such Lease
(or stating any known defaults). Such certification shall
survive the Close of Escrow for a maximum period of twelve (12)
months (provided, however, if Seller subsequently delivers a
Tenant Estoppel from such tenant(s) or Buyer obtains a Tenant
Estoppel from such tenant(s), Seller shall thereafter be
released from such certification if such Tenant Estoppel confirms
the matters in the estoppel certified by Seller).
10. Maintenance of the Property. From and after the date hereof
until the Close of Escrow, Seller shall maintain the Property in
its present condition, normal wear and tear and damage or
destruction excepted.
11. Covenant to Convey; Title Insurance.
11.1 Conveyance of Title. At the Close of Escrow, Seller
shall convey fee simple title to the Property to Buyer by grant
deed subject only to the Permitted Exceptions.
11.2 Title Policy. On the Closing Date, Seller shall cause
the Title Company to issue to Buyer the Title Company's CLTA
owner's policy of title insurance (or ALTA coverage if elected by
Buyer pursuant to Paragraph 9.2 above) (the "Title Policy") with
a liability limit in the amount of the Purchase Price showing fee
title to the Property to be vested in Buyer, subject only to the
Permitted Exceptions.
12. Deliveries.
12.1 Seller's Deliveries. At least two (2) business days
prior to the Closing Date, Seller shall deliver to Escrow Holder
the following documents, fully executed and acknowledged where
appropriate, and such other items as follows:
a. A grant deed ("Grant Deed") conveying fee simple
title to the Property to Buyer;
b. A ▇▇▇▇ of sale ("▇▇▇▇ of Sale") substantially in
the form and substance of Exhibit "F" hereto, conveying to Buyer,
without representation or warranty all of the Personal Property,
if any.
c. An Assignment and Assumption of Leases (the
"Assignment of Leases") substantially in the form and substance
of Exhibit "G" hereto, assigning to Buyer all of Seller's right,
title and interest as landlord under the Leases.
d. An Assignment of Service Contracts, Intangibles,
Warranties and Guarantees (the "Assignment of Service Contracts")
substantially in the form and substance of Exhibit "H" hereto,
assigning to Buyer all of Seller's right, title and interest in
and to the Service Contracts and other property described in the
Assignment of Service Contracts.
e. An original counterpart of the Leases and all
amendments thereto.
f. Notices to the tenants under the Leases of the
transfer of the Property to Buyer in form reasonably satisfactory
to the parties (including a certification that the security
deposit, if any, has been credited to Buyer).
g. A certificate duly executed by Seller under
penalty of perjury certifying that Seller is not a "foreign
person" in accordance with and for the purpose of provisions of
'1445 of the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder, together with California Form
590.
h. Such funds as may be necessary to comply with
Seller's obligation hereunder regarding prorations, costs,
expenses, assignment of security deposits, and removal of liens
or encumbrances, and payment of taxes and assessments, or
Seller's authorization to Escrow Holder to use the cash portion
of the Purchase Price to comply with such of Seller's
obligations.
12.2 Buyer's Deliveries. At least one (1) business day
prior to the Closing Date, Buyer shall deliver to Escrow Holder
the following documents, fully executed and acknowledged where
appropriate, and such other funds and items as follows:
a. A counterpart of the Assignment of Leases;
b. A counterpart of the Assignment of Service Contracts;
c. A Preliminary Change of Ownership Statement in
form suitable for filing with the Los Angeles County Tax
Collector; and
d. Immediately available funds in the amount of the
balance of the cash portion of the Purchase Price.
12.3 Escrow Holder's Deliveries. On the Close of Escrow,
subject to Escrow Holder having received the documents and monies
required to be deposited into Escrow pursuant to this Agreement
and Escrow having received no written notice by a party that a
condition precedent to its obligation to close has not been
satisfied, Escrow shall do each of the following:
a. Duly record the Grant Deed and arrange for the
delivery to the parties conformed copies thereof as soon as
available.
b. Deliver to Buyer originals of the ▇▇▇▇ of Sale,
Assignment of Leases, Assignment of Service Contracts, the Leases
(and all amendment thereto) and the items specified in Paragraph
12.1(f).
c. Deliver the Assignment of Leases, Assignment of
Service Contracts, and the Purchase Price to Seller.
d. Cause the Title Company to deliver the Title
Policy to Buyer.
13. Prorations, Costs.
13.1 Prorations. Monthly rent paid by the tenants under the
Leases (including, but not limited to, fixed monthly rentals,
additional rents, escalations, operating expense pass-throughs
and other sums and charges payable by the tenants under the
Leases), non-delinquent real property taxes, and other revenues,
income and receivables, and all items of costs and expenses with
respect to the Property (excluding any costs or expenses relating
to services, utilities or contracts which are to be terminated at
Closing or which are directly payable by tenants under the
Leases), shall be prorated as of the Close of Escrow. The
unapplied portion of any security deposits under the Leases shall
be credited at the Close of Escrow against Buyer's obligation to
deliver the cash portion of the Purchase Price. Seller reserves
all claims and causes of action against tenants and others who
are in arrears, and Buyer shall promptly remit to Seller any
arrearages upon receipt thereof provided that all current
obligations of such tenant have been paid. Additionally, with
respect to any property tax appeal or reassessment filed by
Seller for tax years (or portions thereof) prior to the Close of
Escrow, Seller shall be entitled to the full amount of any refund
or rebate resulting therefrom (less any credits owning to the
tenants under the Lease in connection with such refund or
rebate). Any items to be prorated that is not determined or
determinable at the Closing shall be promptly adjusted by Buyer
and Seller by appropriate cash payment outside of Escrow when the
amount due is determined. Either party shall be entitled to
request such an adjustment, by written demand on the other party,
at any time within two (2) months after the Closing Date.
13.2 Costs. Each party shall pay all attorneys' fees,
accounting fees, and other expenses incurred by it in connection
with the transactions contemplated hereby. Seller shall pay:
(i) the CLTA portion of the premium for the Title Policy, (ii)
one-half (2) of all escrow fees, and (iii) all recording fees and
documentary transfer taxes. Buyer shall pay: (a) one-half (2)
of all escrow fees, (b) the ALTA portion of the premium for the
Title Policy and the premiums and costs for any endorsements or
extended coverages obtained by Buyer in connection with the title
policy; and (c) the premiums for the lender's policy, if any.
All other closing costs shall be apportioned in the manner
customary in the county where the Property is located.
13.3 Cancellation Fees. Notwithstanding the foregoing
Paragraph 13.2, in the event of a default by Seller or Buyer
hereunder, all cancellation fees and other Escrow charges shall
be borne by the defaulting party.
14. Conditions Precedent.
14.1 The obligation of Buyer to consummate the conveyance of
the Property hereunder is subject to the satisfaction of each of
the following conditions precedent:
a. The representations and warranties of Seller
contained in Articles 7 and 8 shall be true on and as of the
Close of Escrow as if the same were made on and as of that date.
b. Seller shall have performed and complied with all
agreements, covenants and conditions required by this Agreement
to be performed or complied with by Seller prior to or on the
Close of Escrow.
c. There shall not have been filed by or against
Seller at any time prior to or on the Close of Escrow any
bankruptcy, reorganization or arrangement petition.
d. Buyer's timely approval or deemed approval of all
matters and items referred to in Article 9.
14.2 The obligation of Seller to consummate the conveyance
of the Property hereunder is subject to the satisfaction of each
of the following conditions precedent:
a. The representations and warranties of Buyer
contained in Articles 6 and 8 shall be true on and as of the
Close of Escrow as if the same were made on and as of that date.
b. Buyer shall have performed and complied with all
agreements, covenants and conditions required by this Agreement
to be performed or complied with by Buyer prior to or on the
Close of Escrow.
c. There shall not have been filed by or against
Buyer at any time prior to the Close of Escrow any bankruptcy,
reorganization or arrangement petition.
15. Cooperation Regarding Tax-Deferred Exchange. Although this
Agreement is not conditioned upon the consummation of a
concurrent or delayed exchange in accordance with Section 1031 of
the Internal Revenue Code of 1986, Buyer acknowledges that Seller
may desire to utilize all or a portion of the Purchase Price paid
by Buyer for the Property in this Escrow in connection with such
an exchange. Seller shall have the right, without the need of
any further approval or consent of Buyer at all times during the
term of the Escrow and prior to the Close of Escrow, to convey
all or a portion of the Property and assign and delegate Seller's
corresponding rights and obligations under this Agreement to an
intermediary party designated by Seller for the purpose of
effecting such an exchange. Upon the assumption by such
intermediary party of such obligations, Seller shall be released
and relieved of all further obligations and liabilities pursuant
to this Agreement, provided that Seller shall remain liable for
all the representations, warranties and indemnities of Seller as
set forth in this Agreement. Seller hereby indemnifies Buyer and
holds Buyer harmless from and against all loss, cost, damage,
liability and expense (including without limitation reasonable
attorneys' fees and costs) arising out of or incurred in
connection with Buyer's cooperation with Seller pursuant to this
Article 15. Seller acknowledges and agrees that Buyer shall
cooperate with Seller as provided above as an accommodation to
Seller only, and Buyer makes no representations or warranties of
any kind regarding whether the consummation of this Agreement or
any other escrow of Seller shall result in any tax benefit to
Seller or shall qualify as a tax-deferred exchange under Section
1031 of the Internal Revenue Code of 1986. Seller's failure to
close any other escrow in connection with such an exchange shall
have no effect upon or interfere with the Closing of this Close
of Escrow pursuant to this Agreement. Seller shall pay for
Buyer=s reasonable attorneys= fees and costs in connection with
Buyer=s review of such exchange documentation. Additionally,
Buyer shall not be required to take title to any other property
in connection with such exchange and the Closing shall not be
delayed.
16. Casualty; Condemnation.
16.1 Partial Damage. In the event of the occurrence of any
casualty to the Property prior to the Close of Escrow which shall
cost One Hundred Thousand Dollars ($100,000) or less to repair
(as determined by an independent contractor selected by Seller
and reasonably approved by Buyer), the obligations of the parties
hereunder shall be unaffected and the parties shall proceed to
closing without reduction of the Purchase Price. In such case,
Seller shall credit to Buyer the reasonable cost of such repair.
16.2 Material Damage or Condemnation. In the event of the
occurrence of any of the following prior to the Close of Escrow:
(i) the commencement of any eminent domain or condemnation
proceedings with respect to any portion of the Property, or (ii)
any casualty which shall cost in excess of One Hundred Thousand
Dollars ($100,000) to repair, Buyer may terminate this Agreement
on written notice to Seller given prior to the Close of Escrow in
which case Buyer shall be responsible for any escrow costs and
cancellation fees. If Buyer does not terminate this Agreement in
a timely manner pursuant to this Paragraph 16.2, then the parties
shall proceed to the Close of Escrow without any reduction of the
Purchase Price or other change in terms and Seller shall assign
to Buyer at closing all insurance or condemnation proceeds.
17. Liquidated Damages. IF BUYER SHOULD DEFAULT OR BREACH ITS
OBLIGATIONS UNDER THIS AGREEMENT, SELLER SHALL BE ENTITLED TO
RECEIVE AND RETAIN, AS LIQUIDATED DAMAGES, THE DEPOSIT OF TWO
HUNDRED THOUSAND DOLLARS ($200,000). THE PARTIES ACKNOWLEDGE
THAT SAID SUM IS FAIR AND REASONABLE IN LIGHT OF ALL OF THE
CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, INCLUDING
THE PARTIES' ESTIMATION OF THE POSSIBLE RANGE OF DAMAGES TO
SELLER IN THE EVENT OF SUCH A DEFAULT OR BREACH BY BUYER, THE
PARTIES HERETO HEREBY AGREEING THAT THE DAMAGES TO SELLER IN THE
EVENT OF BUYER'S DEFAULT OR BREACH WOULD BE IMPOSSIBLE TO
ACCURATELY DETERMINE AND THAT PROOF OF THE AMOUNT OF SUCH DAMAGES
WOULD BE COSTLY AND INCONVENIENT. SUCH LIQUIDATED DAMAGES SHALL
BE SELLER'S SOLE AND EXCLUSIVE REMEDY FOR BUYER'S DEFAULT OR
BREACH AND BUYER SHALL HAVE NO OTHER OR FURTHER OBLIGATION OR
LIABILITY UNDER THIS AGREEMENT TO SELLER ON ACCOUNT OF SUCH
DEFAULT OR BREACH. SELLER AND BUYER HEREBY AGREE, AND SO
INSTRUCT ESCROW HOLDER. BY INITIALING THIS PROVISION IN THE
SPACE BELOW, SELLER AND BUYER EACH SPECIFICALLY AFFIRM THEIR
RESPECTIVE AGREEMENTS CONTAINED IN THIS ARTICLE 17.
BUYER'S INITIALS: /s/ RSZ SELLER'S INITIALS:/s/RMP
18. Notices. Any notice, demand or document which any party is
required or may desire to give, deliver or make to any other
party shall be in writing, and may be personally delivered or
given or made by United States registered or certified mail,
return receipt requested, by overnight delivery service (e.g.,
Federal Express), or by facsimile transmission addressed as
follows:
To Seller: c/o ▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ Properties, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
To Buyer: Arden Realty Limited Partnership
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., #▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
With copy to: ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Any party may designate a different address for itself by notice
similarly given. Any notice, demand or document so given, deliv
ered or made by United States mail shall be deemed to have been
given seventy-two (72) hours after the same is deposited in the
United States mail as registered or certified matter, addressed
as above provided, with postage thereon fully prepaid. Any
notice, demand or document delivered by overnight delivery
service shall be deemed complete upon actual delivery or
attempted delivery, provided such attempted delivery is made on a
business day. Any such notice, demand or document not given by
registered or certified mail or by overnight delivery service as
aforesaid shall be deemed to be given, delivered or made upon
receipt of the same by the party to whom the same is to be given
or delivered. Any notice given by facsimile shall be deemed
delivered upon confirmed transmission by the sender.
19. Further Assurances. Seller and Buyer agree that at any time
or from time to time after the execution of this Agreement and
whether before or after the closing they shall, upon request of
each other, execute and deliver such further documents and do
such further acts and things as such party may reasonably request
in order to fully effect the purpose of this Agreement.
20. Indemnification.
20.1 Buyer's Indemnification. Buyer hereby saves,
indemnifies, defends and holds harmless Seller and its successors
and assigns from and against any and all loss, cost, damage,
liability and expenses (including without limitation attorneys'
fees and costs) resulting from or arising out of any failure or
breach of any of Buyer's warranties, representations, covenants,
agreements or obligations set forth in this Agreement or arising
with respect to the Property from and after the Close of Escrow.
Seller shall notify Buyer of any such claim within ten (10) days
after Seller has notice of such claim, but failure to notify
Buyer shall in no case prejudice the rights of Seller under this
Agreement unless Buyer shall be prejudiced by such failure and
then only to the extent of such prejudice. Buyer shall have the
right to defend such claim with counsel of its own choice,
subject to the reasonable written approval of such counsel by
Seller. Should Buyer fail to discharge or undertake to defend
Seller against such claim upon learning of the same, then Seller
may settle such claim and Buyer's liability to Seller shall be
conclusively established by such settlement, the amount of such
liability to include both the settlement consideration and the
reasonable costs and expenses, including attorneys' fees,
incurred by Seller in effecting such settlement.
20.2 Seller's Indemnity. Seller hereby saves, indemnifies,
defends and holds harmless Buyer and its successors and assigns
from and against any and all loss, cost, damage, liability and
expenses (including without limitation attorneys' fees and costs)
resulting from or arising out of any failure or breach of any of
Seller's warranties, representations, covenants, agreements or
obligations set forth in this Agreement. Buyer shall notify
Seller of any such claim within ten (10) days after Buyer has
notice of such claim, but failure to notify Seller shall in no
case prejudice the rights of Buyer under this Agreement unless
Seller shall be prejudiced by such failure and then only to the
extent of such prejudice. Seller shall have the right to defend
such claim with counsel of its own choice, subject to the
reasonable written approval of such counsel by Buyer. Should
Seller fail to discharge or undertake to defend Buyer against
such claim upon learning of the same, then Buyer may settle such
claim and Seller's liability to Buyer shall be conclusively
established by such settlement, the amount of such liability to
include both the settlement consideration and the reasonable
costs and expenses, including attorneys' fees, incurred by Buyer
in effecting such settlement.
21. Attorneys' Fees. In the event of any action for breach of,
to enforce the provisions of, or otherwise involving this
Agreement, the court in such action shall award a reasonable sum
as attorneys' fees to the party who, in the light of the issues
litigated and the court's decision on those issues, was more
successful in the action. The more successful party need not be
the party who recovers a judgment in the action. If a party
voluntarily dismisses an action, a reasonable sum as attorneys'
fees shall be awarded to the other party.
22. Miscellaneous Provisions.
22.1 Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto pertaining to the
subject matter hereof and supersedes all prior agreements, oral
or written, express or implied, and all understandings,
negotiations or discussions of the parties, whether oral or
written, and there are no warranties, representations or
agreements between the parties in connection with the subject
matter hereof except as are set forth herein.
22.2 Partial Invalidity. If any provision of this Agreement
is held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect
the remainder of such provision or any other provisions hereof.
22.3 No Waiver of Breach. No waiver by any party of any
breach hereunder shall be deemed a waiver of any other or
subsequent breach.
22.4 Amendments. This Agreement may not be altered,
amended, changed, waived, terminated or modified in any respect
or particular unless the same shall be in writing and signed by
or on behalf of the party to be charged therewith.
22.5 Waiver of Conditions. Either party may, at any time or
times, at its election, waive any of the conditions to its
obligations hereunder, but any such waiver shall be effective
only if contained in a writing signed by such party. No waiver
shall reduce the rights and remedies of such party by reason of
any breach of the other party.
22.6 Successors and Assigns. Subject to the provisions of
Section 22.20 below, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and to their
respective successors and assigns.
22.7 Survival. Except as specifically provided to the
contrary in this Agreement, each and every agreement, obligation,
warranty, representation, covenant and indemnification of Seller
and Buyer contained herein shall survive the closing hereunder
and the transfer and conveyance of the Property and any and all
performances hereunder.
22.8 Time. Time is of the essence of this Agreement
22.9 Remedies. Except as otherwise specifically provided
herein, no remedy conferred upon a party in this Agreement is
intended to be exclusive of any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be
in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute.
22.10 Meaning of Certain Words. Wherever appropriate in
this Agreement, the singular shall be deemed to refer to the
plural and the plural to the singular, and pronouns of certain
genders shall be deemed to include either or both of the other
genders.
22.11 California Law. This Agreement shall be construed
and enforced in accordance with the laws of the State of
California.
22.12 Headings and Labels. All article and paragraph
titles or captions are for convenience only and shall not be
deemed a part of this Agreement.
22.13 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but
which when taken together shall constitute one and the same
instrument.
22.14 Exhibits. All of the Exhibits attached to this
Agreement are incorporated herein as if set forth in full.
Exhibit A Legal Description
Exhibit B Personal Property
Exhibit C Schedule of Leases
Exhibit D Schedule of Service Contracts
Exhibit E Tenant Estoppel
Exhibit F ▇▇▇▇ of Sale
Exhibit G Assignment and Assumption of Leases
Exhibit H Assignment of Service Contracts, Intangibles,
Warranties and Guarantees
Exhibit I Audit Letter
22.15 Construction. This Agreement shall not be
construed as if it had been prepared by one of the parties, but
rather as if both parties had prepared the same.
22.16 Performance. If the date on which Buyer or Seller
is required to take any action under the terms of this Agreement
occurs on a Saturday, Sunday, or Federal or State Holiday, then
the action shall be taken on the next succeeding business day.
22.17 No Third Party Beneficiaries. The parties do not
intend to confer any benefit hereunder on any person, firm or
corporation other than the parties hereto.
22.18 Partial Invalidity. If any term or provision of
this Agreement or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Agreement, or the application of such term
or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected
thereby, and each such term and provision of this Agreement shall
be valid and be enforced to the fullest extent permitted by law.
22.19 Limitation of Liability of Buyer and Seller.
Notwithstanding any other provision of this Agreement to the
contrary, in no event shall Buyer or Seller have any liability
for speculative, special, consequential, punitive, or any other
damages than actual damages under any provision of this
Agreement.
22.20 Assignment. Buyer shall neither assign its rights
nor delegate its obligations hereunder unless (i) Buyer is the
general partner, member or controlling shareholder of such
assignee or assignee is an affiliate of Buyer; and (ii) such
assignee expressly agrees in writing to assume and be bound by
all of the duties, obligations, releases, waivers and liabilities
hereunder. In no event shall any such assignment relieve Buyer
from its obligations hereunder or delay the Close of Escrow.
22.21 Audit Rights. At Buyer=s request at any time from
and after the date hereof until the date that is one (1) year
after the Closing, Seller shall, at Buyer=s expense, provide to
Buyer=s designated independent auditor access to the books and
records of the Property, regarding the period for which Buyer is
required to have audited financial statements prepared with
respect to the Property as may be required by the Securities and
Exchange Commission, to the extent that such books, records and
related information are in Seller=s possession or control and
relate to the period during which Seller held title to the
Property. Further, Seller agrees to provide to such auditor a
representation letter regarding the books and records of the
Property, in substantially the form of Exhibit AI@ attached
hereto, in connection with the normal course of auditing the
Property in accordance with generally accepted auditing
standards.
IN WITNESS WHEREOF, the parties have executed this Agreement
of Purchase and Sale of Property and Escrow Instructions on the
dates and at the places set forth opposite their signatures
below.
"SELLER"
South Spalding Associates, L.L.C. Executed this 12th day of
a Delaware limited liability company August, 1997.
By: RPP VIII, L.P.
a California Limited Partnership
By: ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ Properties, Inc.,
a California corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Secretary
"BUYER"
ARDEN REALTY Limited Partnership Executed this 7th day of
a Maryland limited partnership August, 1997.
By: Arden Realty, Inc., a
Maryland Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: CEO
ACKNOWLEDGED AND ACCEPTED THIS ___ DAY OF ____________, 1997.
COMMERCE ESCROW COMPANY
By:
Its: