REAL ESTATE SALES CONTRACT
FOR THE PURCHASE AND SALE
OF
CROWN CABOT FINANCIAL CENTER
LAGUNA NIGUEL, CALIFORNIA
THIS REAL ESTATE SALES CONTRACT (the "Contract") is made and
entered into as of the ____ day of May, 1997, by and between
LEISURE COLONY MANAGEMENT CORP., a Florida corporation
("Seller"), and ARDEN REALTY LIMITED PARTNERSHIP, a Maryland
limited partnership, or its permitted assigns ("Buyer").
In consideration of the mutual terms, covenants,
conditions and agreements hereinafter contained and other
good and valuable consideration, it is hereby agreed by and
between the parties hereto as follows:
1. Sale of Property. Seller agrees to sell, convey,
assign, transfer and deliver to Buyer and Buyer agrees to
purchase, acquire and take from Seller the following
described property (the property described below sometimes
hereinafter being collectively called the "Property"):
A. All of Seller's right, title and interest in
and to that real property located in the City of
Laguna Niguel, County of Orange, and State of
California, more particularly described on Exhibit
"A" attached hereto and hereby made a part hereof,
together with all easements, rights-of-way,
hereditaments and appurtenances thereunto
belonging or in any way appertaining, and all
buildings and improvements situated thereon, if
any (hereinafter collectively called the "Subject
Premises").
B. All furniture, fixtures, equipment,
appliances and other items of personal property
owned by Seller and used in connection with the
operation of the Subject Premises and now located
upon the Subject Premises, if any.
C. Seller's interest in all leases, lease
guarantees and tenancies for the Subject Premises,
as well as any refundable security deposits made
by tenants of the Subject Premises, to be adjusted
for new deposits collected by Seller and deposits
refunded or paid by Seller.
D. All of Seller's right, title and interest, if
any, in and to any assignable licenses, permits,
service contracts, and all other contracts
affecting the Property.
E. All Seller's right, title and interest, if
any, in and to the non-exclusive business and
trade name "Crown Cabot Financial Center" under
which the Subject Premises have been managed and
operated.
2. Price. The purchase price to be paid by Buyer to
Seller for the Property shall be TWENTY-EIGHT MILLION TWO HUNDRED
TWENTY-FIVE THOUSAND DOLLARS AND NO/100 DOLLARS ($28,225,000.00)/s/VJC /s/
(hereinafter referred to as the ("Purchase Price"), payable as follows:
A. $ 500,000.00 cash in ▇▇▇▇▇▇▇ money delivered
in escrow to Chicago Title Insurance Company (the
"Escrow Agent"), with an address at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, acting as escrow agent, simultaneously with
the execution hereof by Buyer (such deposit, plus
all interest earned thereon, being hereinafter
referred to as the "Initial ▇▇▇▇▇▇▇ Money").
B. An additional $1,500,000.00 cash in ▇▇▇▇▇▇▇
money (the "Additional ▇▇▇▇▇▇▇ Money") shall be
delivered by Buyer to Escrow Agent on or before
5:00 p.m. PST on the last day of the "Inspection
Period" (as hereinafter defined in Paragraph 27)
unless Buyer shall have timely terminated this
Contract on or before the expiration of the
Inspection Period as provided in Paragraph 27
hereof.
C. The Initial ▇▇▇▇▇▇▇ Money and the Additional
▇▇▇▇▇▇▇ Money are hereinafter sometimes
collectively referred to as the "▇▇▇▇▇▇▇ Money".
All interest earned on the ▇▇▇▇▇▇▇ Money shall
become a part of the ▇▇▇▇▇▇▇ Money and shall be
disbursed in accordance with the provisions of
this Contract regarding ▇▇▇▇▇▇▇ Money. The
parties hereby agree that, pending the closing
hereunder, or the termination of this Contract,
the ▇▇▇▇▇▇▇ Money shall be deposited in an
interest bearing account or in such other
investment as the parties may mutually agree. The
Tax Identification Number of the Buyer
is_____________________. If the transaction
contemplated by this Contract is consummated in
accordance with the terms hereof, or is not
consummated due exclusively to the material
default of Seller hereunder, the ▇▇▇▇▇▇▇ Money
together with an amount (payable by Seller in
addition to, but inclusive of, any interest earned
thereon) sufficient to yield a cumulative return
thereon of 8% per annum, compounded montlhy, shall
be credited against the cash due on the Date of
Closing (as hereinafter defined) or returned to
Buyer in accordance with Paragraph 8 hereof and
other applicable provisions of this Contract. In
the event the transaction contemplated by this
Contract is not consummated in accordance with the
terms hereof for any reason other than the
aforesaid material default of Seller, the ▇▇▇▇▇▇▇
Money together with the accrued interest derived
from the investment in the aforesaid interest
bearing account or other investment, shall be
delivered in accordance with Paragraph 8 hereof
and other applicable provisions of this Contract.
C. The balance of the Purchase Price, after a
credit for the ▇▇▇▇▇▇▇ Money and all interest or
other yield as provided for or set forth in
Paragraph 2.B above, shall be payable in cash by
federal wire transfer or other good federal funds
to be received by Seller on the Date of Closing
(as hereinafter defined) with such amount to be
increased or decreased by prorations and other
adjustments, if any, as provided herein.
3. Disclaimer of Warranties; "As-Is" Conveyance;
Inspection.
A. EXCEPT AS OTHERWISE SET FORTH IN THIS
CONTRACT, BUYER REPRESENTS, WARRANTS AND
ACKNOWLEDGES TO AND AGREES WITH SELLER THAT BUYER
IS PURCHASING THE PROPERTY IN AN "AS-IS" CONDITION
"WITH ALL FAULTS" AND SPECIFICALLY AND EXPRESSLY
WITHOUT ANY WARRANTIES, REPRESENTATIONS OR
GUARANTEES, EITHER EXPRESSED OR IMPLIED, OF ANY
KIND, NATURE, OR TYPE WHATSOEVER FROM OR ON BEHALF
OF SELLER. Except as otherwise set forth in this
Contract, Buyer acknowledges that Seller has
little or no direct knowledge concerning the
physical or economic characteristics of the
Property. Buyer acknowledges that Buyer has not
relied, and is not relying, upon any information,
document, sales brochures or other literature,
maps or sketches, projection, proforma, statement,
guarantee, representation or warranty (whether
expressed or implied, or oral or written, or
material or immaterial except as otherwise set
forth in this Contract) that may have been given
by or made by or on behalf of Seller.
B. Except as otherwise set forth in this
Contract, Buyer hereby acknowledges that it shall
not be entitled to, and should not, rely on Seller
or its agents as to (i) the quality, nature,
adequacy or physical condition of the Property
including, but not limited to, the structural
elements, foundation, roof, appurtenances, access,
landscaping, parking facilities or the electrical,
mechanical, HVAC, plumbing, sewage or utility
systems, facilities or appliances at the Property,
if any; (ii) the quality, nature, adequacy or
physical condition of soils, sub-surface support
or ground water at the Property; (iii) the
existence, quality, nature, adequacy or physical
condition of any utilities serving the Property,
or access thereto; (iv) the development potential
of the Property, its habitability, merchantability
or fitness, suitability or adequacy of the
Property for any particular purpose; (v) the
zoning classification, use or other legal status
of the Property; (vi) the Property's, or its
operations' compliance with any applicable codes,
laws, regulations, statutes, ordinances,
covenants, setback requirements, conditions or
restrictions of any governmental or quasi-
governmental entity or of any other person or
entity; (vii) the quality of any labor or
materials relating in any way to the Property; or
(viii) the condition of title to the Property or
the nature, status and extent of any right of way,
lease, right of redemption, possession, lien,
encumbrance, license, reservations, covenant,
condition, restriction or any other matter
affecting title to the Property.
C. EXCEPT AS OTHERWISE SET FORTH IN THIS
AGREEMENT, BUYER ACKNOWLEDGES TO AND AGREES WITH
SELLER THAT, WITH RESPECT TO THE PROPERTY, SELLER
HAS NOT, DOES NOT AND WILL NOT MAKE ANY WARRANTIES
OR REPRESENTATIONS, EXPRESSED OR IMPLIED, OR
ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO
WAY LIMITED TO, ANY WARRANTY OF CONDITION,
MERCHANTABILITY, HABITABILITY OR FITNESS FOR A
PARTICULAR USE, OR WITH RESPECT TO THE VALUE,
PROFITABILITY OR MARKETABILITY OF THE PROPERTY.
D. BUYER ACKNOWLEDGES THAT SELLER HAS NOT, DOES
NOT AND WILL NOT MAKE ANY REPRESENTATION OR
WARRANTY WITH REGARD TO COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE
LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS
INCLUDING BUT NOT LIMITED TO, THOSE PERTAINING TO
THE HANDLING, GENERATING, TREATING, STORING OR
DISPOSING OF ANY HAZARDOUS WASTE, MATERIAL OR
SUBSTANCE. Without limiting the foregoing, Seller
does not make and has not made and specifically
disclaims any representation or warranty regarding
the presence or absence of any hazardous
substances, as hereinafter defined, at, on, under
or about the Property or the compliance or non-
compliance of the Property with the Comprehensive
Environmental Response, Compensation and Liability
Act, the Superfund Amendment and Reauthorization
Act, the Resource Conservation Recovery Act, the
Federal Water Pollution Control Act, the Federal
Environmental Pesticides Act, the Clean Water Act,
The Clean Air Act, any Federal, State or local so-
called "Superfund" or "Superlien Statute," or any
other statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating
to or imposing liability or standards of conduct
concerning any hazardous substances including the
laws, ordinances and regulations of the County of
Orange, the City of Laguna Niguel and the State of
California (collectively, the "Hazardous Substance
Laws"). The disclaimer set forth herein shall not
be affected or limited in any way by any
investigation conducted by Seller or any
contractor, agent or employee of Seller, or
delivery by Seller to Buyer of copies of any
environmental study or report prepared by any
environmental testing firm on behalf or at the
direction of Seller, Buyer or any other party.
Seller has not conducted any independent
investigation or verification of the contents of
any such study or report, and makes no
representation or warranty with respect to the
accuracy or completeness of the information
contained therein. For purposes of this Contract,
"hazardous substance" shall mean and include those
elements or compounds which are contained in the
list of Hazardous Substances adopted by the United
States Environmental Protection Agency and the
list of toxic pollutants designated by Congress or
the Environmental Protection Agency or under any
Hazardous Substance Laws. Hazardous substances
shall also include petroleum products and radon
gas. Buyer further acknowledges that neither
Seller, nor any broker(s), nor any agent(s) or
representative(s) of Seller has provided any
representation or warranty with respect to the
existence of asbestos or other hazardous substance
on the Property. Buyer shall have no recourse or
claim against Seller, any broker or any agent or
representative of Seller with respect to any loss
or damage claimed or suffered by any third party
arising from the condition of the Property, or
arising from the existence of any hazardous
substance on the Property based on events or
activities occurring or arising prior to September
28, 1995, the date on which Seller acquired title
to the Property, or after the Date of Closing.
The foregoing "As-Is" provisions shall constitute
a waiver and release of all claims by Buyer
against Seller, any broker or any agent or
representative of Seller, under all federal,
state, and local, laws, ordinances, rules and
regulations relating to environmental matters of
any kind which are attributable to activities or
events occurring or arising prior to September 28,
1995, the date on which Seller acquired title to
the Property, or after the Date of Closing.
E. Buyer acknowledges that Buyer has had and/or
will have, pursuant to this Contract, an adequate
opportunity to make such legal, factual and other
inquiries and investigation as Buyer deems
necessary, desirable or appropriate with respect
to the Property. Such inquiries and
investigations of Buyer shall be deemed to
include, but shall not be limited to, any leases
and contracts pertaining to the Property, the
physical components of all portions of the
Property, the existence of any wood destroying
organisms on the Property, such state of facts as
an accurate survey and inspection would show, the
present and future zoning ordinances, resolutions
and regulations of the city, county and state
where the Property is located and the value and
marketability of the Property. If Buyer elects
not to inspect the Property or to terminate this
Contract within the Inspection Period (as
hereinafter defined), Buyer acknowledges such
election will be made at Buyer's sole discretion,
in reliance solely upon the tests, analyses,
inspections and investigations that Buyer makes,
or had the right to make and opted not, or
otherwise failed, to make, and not in reliance
upon any alleged representation made by or on
behalf of Seller.
F. Except as otherwise set forth in this
Contract, Seller does not make and has not made
and specifically disclaims any representation or
warranty regarding the compliance or non-
compliance of the Property with the Americans With
Disabilities Act, or any other statute, law,
ordinance, code, rule, regulation, order or decree
regulating, relating to or imposing liability or
standards of conduct concerning access and
accommodation for disabled persons.
G. Without in any way limiting the generality of
the preceding subparagraphs A through F, Buyer
specifically acknowledges and agrees that as to
all events or activities occurring or arising
prior to September 28, 1995, the date on which
Seller acquired title to the Property or after the
Date of Closing: (i) it hereby waives, releases
and discharges any claim it has, might have had or
may have against Seller with respect to the
condition of the Property, either patent or
latent, its ability or inability to obtain or
maintain building permits, either temporary or
final certificates of occupancy or other licenses
for the use or operation of the Property, and/or
certificates of compliance for the Property, the
actual or potential income or profits to be
derived from the Property, the real estate taxes
or assessments now or hereafter payable thereon,
the compliance with any environmental protection,
pollution or land use laws, rules, regulations or
requirements, and any other state of facts which
exist with respect to the Property, and (ii)
Buyer, on behalf of itself and its permitted
assigns, acknowledges and agrees that it
understands the meaning and effect of and waives
the benefit of, the principal set forth in Section
1542 of the California Civil Code or in any
similar rule of law in California. Section 1542
provides:
1542. General Release; Extent. A
general release does not extend to a claim
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.
H. Seller's Representations and Warranties.
Seller hereby represents and warrants to Buyer as
of the Effective Date and the Closing Date as
follows:
(i) Seller is a corporation organized under
the laws of the State of Florida, is qualified
to do business in the State of California;
(ii) Neither the execution nor the delivery of
this Contract, nor the consummation of the
purchase and sale contemplated hereby, nor the
fulfillment of or compliance with the terms
and conditions of this Contract conflict with
or will result in the breach of any of the
terms, conditions, or provisions of any
agreement or instrument to which Seller, or
any shareholder, partner, or related entity or
affiliate of Seller, is a party or by which
Seller, or any shareholder, partner or related
entity or affiliate of Seller, or any of
Seller's assets is bound.
(iii) To the best of Seller's knowledge,
all taxes (rental, real and personal) relating
to the Property have been paid; there are no
special assessments with respect to the
Property that are due and payable; and Seller
has no actual knowledge of any pending or
threatened assessments or condemnation
proceedings relating to the Property.
(iv) To the best of Seller's knowledge, there
are no outstanding suits, actions, or
proceeding relating to the Property.
(v) That Seller is not subject to any
commitment, obligation or agreement,
including, any right of first refusal or
option to purchase granted to a third party
which would or could prevent it from
completing the sale of the Property under this
Contract or which would bind Buyer subsequent
to consummation of this Contract.
(vi) Seller has not received any written
notice of any intention on the part of the
issuing authority to cancel, suspend or modify
or take any action or institute any proceeding
to effect such cancellation, suspension or
modification, of any permit, license or other
approval required by Seller from any
governmental or quasi-governmental authority
for the occupancy, operation, maintenance and
ownership of the Property.
(vii) To the best of Seller's knowledge
and belief, Seller has received no written
notice of any existing violations of any
federal, state, county or municipal laws,
ordinances, orders, codes, regulations or
requirements affecting the Property.
(viii) To the best of Seller's knowledge,
attached hereto as Exhibit "I" is a list of
all studies and reports within Seller's
possession or control addressing or evaluating
the environmental condition of the Property.
(ix) To the best of Seller's knowledge, (i)
the rent roll attached hereto as Exhibit "J"
(the "Rent Roll") accurately sets forth and
lists all leases (the "Leases") and all
tenants presently in possession or entitled to
possession of the Property, all security
deposits from such tenants currently in the
possession of the Seller, and the status of
the payment of all rents and other charges due
Seller from said tenants pursuant to the
Leases listed.
(x) Within five (5) days of the Effective
Date, Seller shall provide to Buyer a true and
accurate list of contracts for the management,
repair and/or operation of the Property and
Subject Premises (other than leases)
(collectively the "Contracts"), which list
shall then be deemed to be attached hereto as
Exhibit "K" and incorporated herein.
(xi) Within five (5) days of the Effective
Date, Seller shall provide to Buyer true and
correct copies of all Leases and amendments in
Seller's possession and that all of such
Leases are in full force and effect; that
there are no other documents or agreements
with respect to the tenants under the Leases
or regarding occupancy of the Property other
than the Leases; that, except as set forth in
the Leases, there are no rent concessions
given to any of the tenants except as set
forth on the Rent Roll, and all rental and
other payments due under such Leases, as of
the date thereof, have been paid in full;
that, except as set forth on the Rent Roll,
the tenants under such Leases are not, as of
the date thereof, in default thereunder; that
as of the date thereof, there are no
commissions or other fees payable to any
person, entity or agent with respect to the
execution of such Leases.
(xii) The Disclosure Materials (as herein
defined) contain all material documents,
instruments, correspondence and other writings
in Seller's possession relating to the
ownership and operation of the Property,
except for appraisals and internal memoranda
and documents related solely to Seller's
valuation of, and marketing efforts with
respect to, the Property.
(xiii) To the best of Seller's knowledge,
except as disclosed in the Disclosure
Materials there are no pending condemnation or
similar proceedings, existing contracts or
leases, violations of laws, ordinances or
regulations, pending actions, suits or
proceedings, or parties in possession that
would reasonably be expected to have a
material, adverse effect on the Property.
I. Seller's Obligations. Seller hereby
covenants to Buyer, upon which covenants Buyer has
relied and will continue to rely, that from the
Effective Date through and including the Closing
Date:
i. Seller will not subject the
Property to any additional liens,
encumbrances, covenants, conditions,
easements, rights of way or similar matters
or modify, extend, renew, replace or
otherwise change any of the terms, covenants
or conditions of existing agreements, or
enter into any new agreements, affecting the
Property without Buyers prior written
approval, after the expiration of the
Inspection Period (as herein defined). Prior
to the expiration of the Inspection Period
(as herein defined) Seller will not subject
the Property to any additional liens,
encumbrances, covenants, conditions,
easements, rights of way or similar matters
or modify, extend, renew, replace or
otherwise change any of the terms, covenants
or conditions of existing agreements, or
enter into any new agreements, affecting the
Property without providing prior written
notice of same to Buyer.
ii. From the Effective Date through the
end of the Inspection Period, Seller shall
promptly provide notice to Buyer of any new
lease affecting the Property or material
change in any of the Leases, including but
not limited to, any renewal, extension,
notice of default by Landlord or Tenant, or
termination of any lease term not provided
for in the subject lease. From the end of
the Inspection Period through the Date of
Closing, Seller shall not, without first
obtaining Buyer's prior written consent,
which consent shall not be unreasonably
withheld, conditioned or delayed, enter into
or effect any new lease affecting the
Property or material change to any of the
Leases. Buyer shall be deemed to have
consented to any proposed lease or lease
modification if it neither approves nor
rejects same within five (5) business of
receipt of Seller's request for same. Upon
Buyer's approval or deemed approval, Seller
shall be entitled to enter into such lease or
lease modification on Seller's standard lease
form, without material change, and Buyer will
be deemed to have assumed all expenses for
concessions, tenant improvement allowances
and/or brokerage commissions previously
disclosed to Buyer and included in such lease
or modification.
iii. From and after the expiration of
the Inspection Period, Seller shall not apply
for or otherwise deal with any governmental
authority regarding the development,
entitlement or subdivision of the Property
without prior written consent of Buyer, which
may be withheld in Buyer's sole and absolute
discretion.
iv. Seller shall maintain the Property
in a good and business-like manner. Seller
shall provide all services and operate,
manage and maintain the Subject Premises
(including mechanical equipment of every kind
used in the operation thereof) in such a
manner that it shall be in the same condition
on the Closing Date as on the Effective Date,
ordinary wear and tear excepted and subject
to the provisions of Paragraph 10 herein.
Without limiting the foregoing, Seller shall
perform all of its obligations under the
Leases and the Contracts.
v. Seller shall comply with all
statutes, ordinances, regulations, orders or
other laws with respect to the Property.
vi. Seller shall notify Buyer promptly
of any lawsuits, condemnation proceedings,
rezoning, or other governmental order or
action or any threat thereof known to Seller
which might affect the Property.
vii. Seller shall maintain in full force
and effect all existing insurance policies
insuring the Property and the Subject
Premises through and including the Closing
Date.
viii. Prior to or on the Closing
Date, Seller shall, at its sole cost and
expense, pay in full all outstanding
brokerage and leasing commissions, finders
fees or like sums pertaining to any and all
Leases (other than those approved or deemed
assumed by Buyer pursuant to Subparagraph
3.I.ii above.
ix. Seller shall cooperate with Buyer
and its accountants, counsel and/or other
representatives in providing information and
materials pertaining to the operation of the
Property, including reasonable access to the
Property.
x. Seller will not remove any of
personal property from the Subject Premises
unless the personal property so removed is
simultaneously replaced with substantially
similar personal property of similar quality
or utility.
xi. Seller shall deliver notices of
termination to any vendors under the
Contracts which have been designated in
writing by Buyer to be terminated
("Disapproved Contract List") provided that
the Disapproved Contract List is delivered by
Buyer to Seller on or before the expiration
of the Inspection Period. Seller shall
within two (2) days following the later of
the expiration of the Inspection Period or
Buyer's delivery of the Disapproved Contract
List, deliver termination notices to each of
the vendors with respect to the Contracts so
designated by Buyer in the Disapproved
Contract List.
xii. Seller agrees to terminate, at
Seller's sole cost and expense, any property
management agreement and brokerage leasing
agreement effective as of the Closing Date.
xiii. At Buyer's request at any
reasonable time from the Effective Date to
the date that is one (1) year from the
Closing Date, Seller shall, at Buyer's sole
cost and expense, provide to Buyer's
designated independent auditor access to
Seller's books and records regarding 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 and records are in Seller's
possession and control and relate to the
period during which Seller held title to the
Property. Further Seller agrees, on a one
time basis at Buyer's sole, reasonable cost
and expense, to provide a representation
letter regarding the books and records of the
Property, in substantially the form of
Exhibit "M" attached hereto, in connection
with the normal course of auditing the
Property in accordance with generally
accepted accounting standards.
"Disclosure Materials" means (i) the asset files of
Seller's servicer, Lennar Georgia Partners, Inc., maintained
in Atlanta, Georgia, which shall, within five (5) days of
the Effective Date be delivered to the Subject Premises and
made available to Buyer (the "Seller Files"), (ii) the files
maintained by Seller's property manager at the Property and
related to the maintenance and operation thereof, which will
be made available to Buyer (the "Property Manager Files"),
(iii) all schedules and exhibits attached to this Contract
and the other matters expressly set forth in this Contract,
(iv) all matters disclosed in the public records of the city
and county in which the Property is located, and (v) all
matters which would be revealed by an accurate survey or
physical inspection of the Property.
References in this Contract to "the best of Seller's
knowledge" and similar phrases shall be deemed to mean the
actual, subjective knowledge, without duty of inquiry and
without constructive knowledge, of ▇▇▇▇▇ ▇▇▇▇▇▇, Director of
Sales and Marketing, and ▇▇▇▇ ▇▇▇▇▇▇▇, Asset Manager and
▇▇▇▇ ▇▇▇▇▇▇▇, Property Manager. The foregoing
representations, warranties and obligations of Seller shall
be true, correct and fulfilled as of the Effective Date (as
herein defined) and the Date of Closing; and shall survive
beyond the Date of Closing for a period of nine (9) months.
4. Closing. The closing of the transaction (the
"Closing") contemplated hereunder shall take place on the
ninetieth (90th) day following the Effective Date (as
hereinafter defined) of this Contract, or the first business
day thereafter if the ninetieth (90th) day falls on a non-
business day, or such day prior thereto as may be mutually
agreed to by Buyer and Seller which day is herein referred
to as the "Date of Closing" or "Closing Date."
Notwithstanding the foregoing, in the event that Seller
elects to satisfy any title objections pursuant to the terms
of Paragraph 7 hereof and such objections have not been
satisfied prior to the Date of Closing, Seller shall have
the option to extend the Date of Closing for up to thirty
(30) days to attempt to satisfy such title objections.
A. On the Date of Closing, Seller shall execute
and deliver to Buyer the following documents:
i. A Grant Deed, in recordable form,
conveying title to the Subject Premises to
Buyer subject to the "Permitted Exceptions"
(as hereinafter defined). The form of Grant
Deed is attached hereto as Exhibit "B".
ii. A ▇▇▇▇ of Sale, without warranty,
conveying the furniture, fixtures, equipment,
and personal property set forth in
Subparagraph 1(B) hereof. The form of such
▇▇▇▇ of Sale is attached hereto as Exhibit
"C".
iii. An assignment of Seller's interest
in and under all leases, lease guaranties,
and tenancies of the Property and of all
refundable escrow and security deposits (plus
any interest required to be paid thereon)
made by existing tenants, provided, however,
that Buyer shall assume all of Seller's
liabilities and responsibilities thereunder
arising on the Date of Closing and
thereafter. The form of the Assignment of
Seller's Interest in Leases and Assumption
Agreement is attached hereto as Exhibit "D".
iv. An assignment of Seller's interest
in any assignable licenses, permits, service
contracts, brokerage agreements and all other
contracts affecting the Property, and an
assumption by Buyer of all responsibilities
and liabilities thereunder arising on or
after the Date of Closing. The form of
Assignment of Licenses, Permits and Contracts
and Assumption Agreement is attached hereto
as Exhibit "E".
v. Such documents of Seller which
authorize the sale of the Property to Buyer
and the execution of all closing documents by
Seller as are required by the title insurance
company issuing the Title Commitment
described in Paragraph 7 hereof (the "Title
Insurance Company").
vi. An affidavit sufficient to cause
the Title Insurance Company issuing the Title
Commitment described in Paragraph 7 hereof to
remove the mechanic's lien exception as a
standard exception from its title policy. A
form of Seller's Affidavit of Title is
attached hereto as Exhibit "F".
vii. An affidavit sufficient to comply
with the non-foreign affidavit exemption to
the withholding requirement of Section 1445
of the Internal Revenue Code, as amended, and
Sections 18662 and 18668 of the Revenue and
Taxation Code of California. A form of
FIRPTA Affidavit is attached hereto as
Exhibit "G".
viii. Closing Statement.
ix. A notice to each of the tenants and
vendors in a form provided by Buyer advising
of the sale of the Property and directing the
tenants to make all future payments under the
leases, and directing the vendors to forward
all future invoices to Buyer at the address
designated in the notice.
x. Keys to all doors on any structures
and improvements situated on the Property,
and keys to all items of personal property
located on the Property, which keys shall be
properly tagged for identification.
B. On the Date of Closing, Buyer shall deliver
to Seller the following:
i. The Purchase Price calculated
pursuant to Paragraph 2 hereof.
ii. Assignment of Seller's Interest in
Leases and Assumption Agreement in the form
of Exhibit "D" hereto.
iii. An Assignment of Licenses, Permits
and Contracts and Assumption Agreement in the
form of Exhibit "E" attached hereto.
iv. Such documents as are necessary to
fully authorize the purchase of the Property
by Buyer and the execution of all closing
documents.
v. Closing Statement.
Buyer shall pay all recording costs in connection with
the transaction contemplated by this Contract, including one-
half of the escrow or disbursement fees and any survey costs
and Seller shall pay one-half of the escrow or disbursement
fees and any title insurance premiums and transfer taxes,
documentary stamps and any applicable surtax; provided,
however, that each party shall pay its own attorneys' fees.
All other costs associated with closing shall be apportioned
in the manner customary in Orange County, California. The
closing and delivery of all such documents shall take place,
in escrow, at the offices of Escrow Agent or at such other
place as may be mutually agreed to by the parties.
In the event that the transaction contemplated by this
Contract fails to close by the Date of Closing (as may be
extended by Seller for up to 30 days to attempt to satisfy
title objections), this Contract, and all of Buyer's rights
with respect to the acquisition of the Property, shall
terminate, and each party shall have the rights and remedies
set forth in Paragraph 8 hereof.
In addition to the foregoing deliveries to be made by
Seller on or before the Date of Closing, Seller shall
deliver, to the extent within Seller's possession of
control, the following items within two (2) days after the
Date of Closing:
A. Originals of all Leases and an updated Rent
Roll current as of Closing;
B. Originals or best evidence of all of the
Intangible Property (as defined in the Assignment
of Licenses, Permits and Contracts and Assumption
Agreement);
C. Final Certificates of Occupancy respecting
all premises at the Property, to the extent the
same are in Seller's possession or control;
D. Copies of any and all other written
contracts, agreements or documents and any other
matters affecting the Property as Buyer may
reasonably request;
E. All current real estate and personal property
tax bills for the Property; and,
F. The following information on both diskette
and hardcopy:
(i) Final income statement through Closing;
(ii) Final cumulative general ledger through
Closing; and
(iii) Final aged delinquency listing,
including all deposits held by Seller.
5. Taxes. All real estate taxes and assessments and
personal property taxes payable upon the Property shall be
prorated between Seller and Buyer for the tax year in which
the Closing is held on the basis of the tax statements for
such year; provided, however, that if tax statements for the
current year are not available as of the Date of Closing,
the tax proration between Seller and Buyer shall be made on
the basis of the taxes for the immediately prior tax year
(with a subsequent adjustment). Notwithstanding the
foregoing, if the tax assessment for the prior year is under
protest, then the closing tax proration shall be re-prorated
between Buyer and Seller at such time as there is a final
determination on such protest.
6.0 Income and Expenses.
6.1 All income and expenses of the Property incurred
by Seller shall be prorated on a daily basis (based upon
each party's respective days of ownership for such month in
which the closing occurs) between Seller and Buyer as of
12:01 a.m. of the Date of Closing or other such date as the
parties agree in writing (said date and time of proration
shall be referred to in this Paragraph 6 as the "Proration
Date").
6.2 Buyer shall receive all income from the Property
attributable to the period after the Proration Date and
shall be responsible for all expenses of the Property
attributable to the period after the Proration Date. Seller
shall be entitled to all income from the Property attributed
to the period up to and including the Proration Date and
shall be responsible for all expenses attributable to the
Property (including capital expenditures and tenant
improvement allowances not approved or deemed assumed by
Buyer pursuant to Subparagraph 3.I.ii herein) for the
Period prior to the Proration Date. Such items to be
prorated shall include:
A. Rents and income due for the month of
closing, if any;
B. Utility charges, if any (with Seller to use
its best efforts to have applicable utility
companies make final meter readings on the Date of
Closing);
C. Payments under service agreements, if any;
D. Periodic charges or fees assessed by any
governmental authority, if any; and,
E. Sanitary sewer taxes, if any.
6.3 The proration of rent shall include a proration of
all common area maintenance charges and all percentage rents
and in the event that such charges are not due and payable
prior to the Closing Date, the proration shall be based on
the previous period for which such charges were assessed
(with a subsequent adjustment). In the event that any
tenant is entitled to a refund arising from the overpayment
of common area maintenance charges, Seller shall pay its pro-
rata share of such refund.
6.4 Any escrow accounts held by any utility company
shall be either paid to Seller or, if assigned to Buyer,
Seller shall receive a credit at closing for any such
deposit.
6.5 Buyer shall use reasonable efforts to assist
Seller in collecting all accounts receivable (such efforts
not to include initiation of litigation), including accounts
receivable for rent, which are attributable to the period up
to and including the Proration Date and which remain
outstanding on the Date of Closing. If Seller or Buyer
receives any payment from a tenant with a past-due account,
said payment shall first be applied to current accounts then
due and then shall be paid to Seller to be applied to past
due accounts.
6.6 Seller shall cancel its insurance as of the
Proration Date, and Seller shall be entitled to any refund
or premiums prepaid thereon.
7. Title Examination and Survey. Buyer acknowledges
that Seller has provided to Buyer a commitment for the
issuance of a CLTA owner's policy of title insurance, in the
amount of the Purchase Price, issued by Chicago Title
Insurance Company (the "Title Commitment"). Subject to
Buyer's right to make title objections as hereinafter
provided, the exceptions shown on Schedule B of the Title
Commitment shall be deemed the "Permitted Exceptions" for
all purposes of this Contract. Those matters set forth in
the Title Commitment, together with any applicable zoning
ordinances, other land use laws and regulations together
with taxes for the current tax year not then due and payable
shall also be deemed Permitted Exceptions. Within five (5)
days after the Effective Date, Buyer shall be entitled to
deliver to Seller a written statement of any objections to
Seller's title. In objecting to Seller's title, Buyer shall
be obligated to act reasonably and agrees not to object to
easements of record and other matters which would not
materially affect the operation of the Property in its
present use. If Seller cures the objections, Buyer's
objections shall be deemed satisfied. If said objections
are satisfied on or before the Date of Closing (as the same
may be extended by Seller pursuant to the provisions of
Paragraph 4, above), Buyer shall be obligated to close
unless a later encumbrance shall be filed of record on or
before the Date of Closing. Seller shall have the same
right to cure said later encumbrance. If such later
encumbrance is satisfied, Buyer shall thereupon be obligated
to close. If any objections to title are not timely made or
if Seller is not properly notified in accordance with the
notice provisions of this Contract, all such objections
shall be deemed waived. Buyer agrees that Seller shall have
no obligation to satisfy any title objections, including but
not limited to, expending more than $25,000.00 in the
aggregate to remove mechanic's or materialman's liens
encumbering the Property or to obtain affirmative title
insurance. For purposes of this Contract, a title objection
shall be deemed cured if the title insurance company is
induced to remove the item objected to from the Title
Commitment such that it no longer appears as an exception
thereon. The rights of the parties with respect to any
uncured objections to title which are timely made and with
respect to which Seller has been properly notified shall be
governed by Paragraph 8, below.
In the event Buyer elects to have made a survey of the
Subject Premises, then any objections to title based upon
such survey shall be governed by the preceding paragraph.
Any such objections shall be due to Seller on the same date
as the title objections are due, and the failure to deliver
any such objections shall constitute a waiver thereof.
8. Default. If any objections to title are timely
made and Seller is properly notified, all as herein
provided, and if such objections are not cured prior to
the Date of Closing (as the same may be extended by Seller
pursuant to the provisions of Paragraphs 4 or 7, above),
or if Seller materially defaults in any of its obligations
hereunder, or if any conditions precedent to Buyer's
obligations as provided herein have not been met or have
not occurred or otherwise waived as of the Date of
Closing, Buyer may, as its sole remedies hereunder, by
serving notice in writing upon Seller in the manner
provided herein, either (i) elect to terminate this
Contract and to declare it null and void and receive a
refund of all ▇▇▇▇▇▇▇ Money deposited; or (ii) elect to
terminate this Contract, receive a refund of all ▇▇▇▇▇▇▇
Money and seek actual damages, which damages would be
limited to Purchaser's actual and reasonable out of pocket
expenses not to exceed $200,000.00 or (iii) elect to waive
any such conditions, title objections, or defaults and to
consummate the transaction contemplated by this Contract
in the same manner as if there had been no title
objections, conditions or defaults without any reduction
in the Purchase Price and without any further claim
against Seller therefor; (iv) seek specific performance of
Seller's obligations, hereunder, except that the parties
hereto hereby agree that the remedy of specific
performance will not be applicable in situations where
there are outstanding title objections unless all said
title objections are waived by Buyer (except that Buyer
need not waive objections which Seller is obligated to
cure pursuant to Paragraph 7 herein) or (v) in the event
that the remedy of specific performance is not available
due to a default of Seller not reasonably discoverable and
not discovered by Buyer, despite Buyer's reasonable
diligence in such regard, until after the consummation of
the transaction contemplated by this Contract, Buyer shall
be entitled to seek actual damages, which damages shall be
limited to a maximum amount of $250,000.00.
IF BUYER SHALL DEFAULT IN THE PERFORMANCE OF ANY OF
ITS OBLIGATIONS HEREUNDER, SELLER SHALL BE ENTITLED TO
RETAIN COPIES OF ALL SURVEY, INSPECTION, EVALUATION AND
OTHER REPORTS ON THE PROPERTY PREPARED BY OR FOR BUYER AND
TO RETAIN THE ▇▇▇▇▇▇▇ MONEY, TOGETHER WITH ALL INTEREST
EARNED THEREON, AS AND FOR ITS LIQUIDATED DAMAGES AND SOLE
REMEDY FOR SAID BREACH, AND NOT AS A PENALTY OR
FORFEITURE, ACTUAL DAMAGES BEING DIFFICULT OR IMPOSSIBLE
TO MEASURE, AND NO PARTY SHALL HAVE ANY FURTHER CLAIM
AGAINST EACH OTHER.
________________ /s/ VJC
Seller's initials Buyer's initials
Notwithstanding the foregoing provisions of this
Paragraph 8, and notwithstanding anything to the contrary in
this Contract, the following provisions of this Contract
shall survive any termination of this Contract for any
reason whatsoever or the closing of this Contract, and
remain in full force and effect: (i) the acknowledgments,
agreements, waivers and releases of Buyer and the
disclaimers of Seller set forth in Paragraph 3 of this
Contract; (ii) the indemnification obligations of Buyer and
Seller, as the case may be, set forth in Paragraph 11 of
this Contract; (iii) the indemnification obligations of
Buyer and Seller set forth in Paragraph 27 of this Contract;
and, (iv) the indemnification obligations of Buyer and
Seller set forth in Paragraph 29 of this Contract. No
limitation of remedies contained in this Paragraph 8 or
elsewhere in this Contract shall limit any and all rights
and remedies available to Buyer or Seller at law or in
equity in connection with the enforcement of any of the
obligations described in the preceding sentence.
9. Conditions To Close.
A. Seller's Conditions. Seller shall not be
obligated to proceed with the closing, nor make a
tender of the documents required to be delivered
by Seller on the Date of Closing pursuant to
Subparagraph 4 (A) or any other provision of this
Contract, unless and until each of the following
conditions has been fulfilled or waived in writing
by Seller:
i.Buyer shall be prepared to pay to Seller all
amounts to be paid to it on the Date of
Closing, pursuant to the provisions of this
Contract;
ii. Buyer shall be prepared to deliver to
Seller all instruments and documents to be
delivered to Seller on the Date of Closing,
pursuant to Subparagraph 4 (B) or any other
provision of this Contract; and
iii. This Contract shall not have been
previously terminated pursuant to any other
provisions hereof.
B. Buyer's Conditions. Buyer shall not be
required to close the transaction provided for
under this Contract, unless and until each and
every material one of the following conditions has
been fulfilled:
i. Representations, Warranties and
Covenants of Seller. Seller shall have duly
and timely performed each and every covenant
to be performed by Seller under this Contract
and the representations and warranties set
forth in this Contract shall be true and
correct as of the Closing in all material
respects. Provided, however, that in the
event Buyer discovers, or with reasonable
diligence should have discovered, prior to
the expiration of the Inspection Period (as
herein defined), a default, breach or
violation by Seller of any covenant,
representation or warranty of Seller, Buyer
shall be deemed to have forever waived such
default, breach or violation upon expiration
of said Inspection Period.
ii. Seller's Deliveries. Seller shall
have duly and timely delivered to Buyer all
of the items described in Section 4.A of this
Contract.
iii. No Material Changes. At the
Closing, there will be no material adverse
changes in the physical or financial
condition of the Property from those
discovered by Buyer during the Inspection
Period (defined below), subject, however, to
the provision of Paragraph 10 herein.
iv. Estoppel Certificates. Seller
shall have delivered to Buyer current
estoppel certificates in the form attached
hereto as Exhibit "L" (or such other form as
may be required by the respective tenants'
Lease), from tenants occupying at least 85%
of the total rentable square footage of the
Subject Premises (the "Estoppel
Certificate(s)"). Seller shall make a
reasonable good faith attempt to obtain
Estoppel Certificates from every tenant of
the Property. Should Seller not be able to
obtain Estoppel Certificates from every
tenant, Seller agrees to represent and
warrant to Buyer with respect to the items
contained in the Estoppel Certificates as to
those tenants from whom estoppels cannot be
obtained.
vi. Title Policy. Chicago Title
Insurance Company is prepared to ▇▇▇▇ the
Title Commitment and issue a title insurance
policy with liability limits equal to the
Purchase Price and with such endorsements as
may be reasonably acceptable to Buyer.
10. Damage, Destruction and Condemnation.
A. In the event that all or any substantial
portion of the Property shall be taken in
condemnation or under the right of eminent domain
before the Closing Date, Buyer may, at its option,
either (a) terminate this Contract by delivering
written notice thereof to Seller and receive an
immediate refund of the ▇▇▇▇▇▇▇ Money, or (b)
proceed to close the transaction contemplated
herein pursuant to the terms hereof, in which
event Seller shall deliver to Buyer at the
Closing, or as soon as available, any proceeds
actually received by Seller attributable to the
Property from such condemnation or eminent domain
proceeding, shall assign to Buyer any right it may
have to receive proceeds attributable to the
Property from such condemnation or eminent domain
proceeding, and there shall be no reduction in
the Purchase Price. For the purposes of this
provision, a "substantial portion" of the Property
shall be deemed to include any taking (i) equal to
or greater than 20% of the gross number of square
feet contained in the buildings and other
improvements that are situated on the Subject
Premises or (ii) which would result in any tenant
in the Subject Premises having the right under its
lease to terminate its lease or reduce its payment
of rent thereunder, and shall be deemed to exclude
all other takings.
B. In the event that all or any substantial
portion of the Property shall be damaged or
destroyed by fire or other casualty after the
Effective Date and before the Closing Date, Buyer
may, at its option, either (a) terminate this
Contract by written notice thereof to Seller and
receive an immediate refund of the ▇▇▇▇▇▇▇ Money,
or (b) proceed to close the transaction
contemplated herein pursuant to the terms hereof,
in which event Seller shall deliver to Buyer at
the Closing, or as soon as available, any
insurance proceeds actually received by Seller
attributable to the Property from such casualty
together with any deductible amount payable by
Seller or the reasonable repair costs in the event
such casualty is not insured, shall assign to
Buyer any right it may have to receive insurance
proceeds attributable to the Property from such
casualty (including any rental income insurance
proceeds), and there shall be no reduction in the
Purchase Price. For the purposes of this
provision, a "substantial portion" of the Property
shall be deemed to include any casualty loss
affecting a portion of the Subject Premises equal
to or greater than 20% of the gross number of
square feet contained in the buildings and other
improvements that are situated on the Subject
Premises and shall be deemed to exclude all other
casualty losses.
C. In the event a less than a substantial
portion of the Property shall be damaged or
destroyed by a casualty or taken in condemnation
or under the right of eminent domain before the
Closing Date or in the event the circumstances
specified in Paragraph 10A or 10B, above are
applicable and Buyer fails to give Seller proper
notice of termination, then the parties shall
proceed to close this transaction, any proceeds
actually received by Seller attributable to the
Property together with the amount of any
deductible payable by Seller under its insurance
policy or the reasonable repair costs in the event
such casualty is not insured, from such casualty,
condemnation or eminent domain and any right
Seller may have to receive proceeds attributable
to the Property from such casualty, condemnation
or eminent domain shall be delivered or assigned
to Buyer at closing or as soon as available, and
there shall be no reduction in the Purchase Price.
11. Broker's Commission. Seller shall pay
THE ▇▇▇▇▇▇ COMPANY ("Broker") a broker's commission in
connection with this transaction and in accordance with a
separate written agreement, which commission shall only be
due in the event this transaction closes in accordance with
the terms hereof. Buyer represents to Seller that Buyer has
not been contacted by or dealt with any broker, finder or
intermediary of any kind in connection with this transaction
other than Broker. Seller represents to Buyer that Seller
has not been contacted by or dealt with any broker, finder
or intermediary of any kind in connection with this
transaction other than Broker. Buyer agrees to indemnify
and hold harmless Seller against and from all claims,
demands, causes of action, judgments and liabilities which
may be asserted or recovered for fees, commissions or other
compensation claimed to be due to any broker, finder or
intermediary with whom Buyer has dealt in connection with
this transaction other than Broker, including costs and
reasonable attorneys' fees incident thereto. Seller hereby
agrees to indemnify and hold harmless Buyer against and from
all claims, demands, causes of action, judgments and
liabilities which may be asserted or recovered for fees,
commissions or other compensation claimed to be due to any
broker, finder or intermediary with whom Seller has dealt in
connection with this transaction, including costs and
reasonable attorneys' fees incident thereto.
12. Assignment. Buyer shall not assign its rights,
duties or obligations under this Contract without the prior
written consent of Seller, which approval shall be at the
sole discretion of Seller.
13. Survival. The terms, covenants, conditions,
indemnities, representations, warranties, disclaimers and
agreements of this Contract shall survive and remain
enforceable after the Date of Closing, except as expressly
provided herein.
14. Notices. Any notice or election required or
permitted to be given or served by any party hereto upon any
other party shall be deemed given or served in accordance
with the provisions of this Contract when delivered or
mailed as follows: notices shall be personally delivered or
mailed in a sealed wrapper by United States registered or
certified mail, return receipt requested, postage prepaid or
delivered to a courier who guarantees overnight delivery,
properly addressed as follows:
In the case of notices directed to Seller:
Leisure Colony Management Corp.
c/o Lennar Partners, Inc.
NationsBank Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & Associates, P.C.
NationsBank Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer:
Arden Realty Limited Partnership
c/o Arden Realty Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Jeffer, Mangels, ▇▇▇▇▇▇ & Marmaro
2121 Avenue of the Stars, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Agent:
Chicago Title Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Each such notice or communication shall be deemed to
have been given to or served upon the party to which
addressed on the date the same is delivered, if personally
delivered, or on the day after it is deposited with a
courier service guaranteeing overnight delivery or two days
after deposit in the United States registered or certified
mail, return receipt requested, postage prepaid, properly
addressed in the manner above provided and upon receipt if
delivered via facsimile (provided that any original of such
notice is received by the addressee the next day via
overnight mail). Each such delivered notice or
communication shall be deemed to have been given to or
served upon the party to whom delivered upon the delivery
thereof in the manner above provided. Any party hereto may
change its address for the service of notice hereunder by
delivering written notice of said change to the other
parties hereunder, in the manner above specified, ten (10)
days prior to the Effective Date of said change.
15. Headings. The paragraph headings or captions
appearing in this Contract are for convenience only, are not
part of this Contract, and are not to be considered in
interpreting this Contract.
16. Entire Contract; Modification. This written
Contract constitutes the entire and complete agreement
between the parties hereto and supersedes any prior oral or
written agreements between the parties with respect to the
Property. It is expressly agreed that there are no verbal
understandings or agreements which in any way change the
terms, covenants, and conditions herein set forth, and that
no modification of this Contract and no waiver of any of its
terms and conditions shall be effective unless made in
writing and duly executed by the parties hereto.
17. Binding Effect. All covenants, agreements,
warranties, and provisions of this Contract shall be binding
upon and inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
18. Controlling Law. This Contract has been made and
entered into under the laws of the State of California, and
said laws shall control the interpretation hereof.
19. Effective Date. The "Effective Date" of this
Contract shall mean, and all references to the date of
execution of this Contract shall refer to, the date on which
the later of Buyer or Seller executes this Contract.
Submission of an unexecuted Contract by Seller shall not
constitute an offer by Seller, and Buyer acknowledges that
this Contract shall not be deemed to be a binding contract
unless and until it is fully executed by Buyer and Seller.
20. Time. Time is of the essence of this Contract and
the performance of the terms and conditions hereof.
21. Recordation Not Permitted. Except as may be
required pursuant to applicable regulations of the Security
and Exchange Commission, in no event shall this Contract or
any Memorandum hereof be recorded in the official or public
records where the Property is located, and any such
recordation or attempted recordation shall constitute a
default under this Contract by the party responsible for
such recordation or attempted recordation.
22. Condition of Property. Commencing upon the date
of this Contract and extending through the Date of Closing
hereunder, the Property shall remain in the same condition
as on the date hereof, except, however, for natural wear and
tear, condemnation, eminent domain, damage and destruction
due to casualties, acts of God and occurrences over which
Seller has no control and further subject to the provisions
regarding damage, destruction and condemnation set forth in
Paragraph 10, herein.
23. Attorneys' Fees. Should either Buyer or Seller
employ an attorney or attorneys to enforce any of the terms
and conditions hereof, or to protect any right, title, or
interest created or evidenced hereby, or to recover damages
for the breach of the terms and conditions hereof, the non-
prevailing party in any action pursued in a court of
competent jurisdiction shall pay to the prevailing party all
reasonable cost, damages, and expenses, including attorneys'
fees, expended or incurred by the prevailing party.
24. Waiver. Either Buyer or Seller may specifically
waive any breach of the terms and conditions hereof by the
other party, but no waiver specified in this Paragraph 24
shall constitute a continuing waiver of similar or other
breaches of the terms and conditions hereof. A waiving
party may at any time upon written notice to the breaching
party, direct future compliance with the waived terms and
conditions hereof, and the breaching party shall thereafter
comply as directed from such time forward. All remedies,
rights, undertaking, obligations, and agreement contained
herein shall be cumulative and not mutually exclusive.
25. Severability. If any of the terms and conditions
hereof shall for any reason be held to be invalid, illegal,
or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other
of the terms and conditions hereof and the terms and
conditions hereof shall thereafter be construed as if such
invalid, illegal, or unenforceable terms or conditions had
never been contained herein.
26. Counterparts. This Contract may be executed in
any number of identical counterparts, and each counterpart
hereof shall be deemed to be an original instrument, but all
counterparts hereof taken together shall constitute but a
single instrument.
27. Inspection and Improvements by Buyer.
A. Inspection by Buyer. Buyer will have the
period from the Effective Date until 6:00 p.m. EST
on May 14, 1997 (the "Inspection Period") to
conduct (as applicable) and review and approve any
and all inspections, investigations, tests,
studies (including feasibility studies and other
economic models) and appraisals as Buyer may have
elected to make or obtain with respect to the
Property and/or the operation and financial
condition of the Property, including, without
limitation, financial analyses of the books and
records, environmental inspections and studies,
structural and mechanical investigations,
appraisals, and analyses of the Property's
compliance with applicable governmental
regulations. Buyer and Buyer's representatives,
agents and designees will have the right to enter
the Property at all reasonable times, during
normal business hours, upon reasonable oral notice
to conduct interviews with property management
personnel of Seller, and to perform such
investigations, tests and studies of the Property,
provided such inspections, tests and studies shall
not interfere with or damage the Property and
provided further that Buyer shall leave the
Property in the same or better condition as it was
prior to the entry onto the Property by Buyer or
its agents or employees or, in the event of any
damage to the Property, shall repair and restore
the Property to its prior condition.. In
accordance with Subparagraph 3.H hereof, Seller
shall deliver to the Property and make available
to Buyer, at Seller's sole cost and expense,
within five (5) days (unless indicated otherwise
below) following the Effective Date, the
Disclosure Materials, which shall include all
information in Seller's possession or control
which is reasonably related to the Property,
including the following items:
i. To the extent in Seller's
possession, an ALTA "as-built" survey of the
Real Property prepared by a licensed
surveyor;
ii. Any and all Leases and all
modifications or amendments and guaranties
relating thereto; all tenant correspondence
and all current financial statements of
tenants to the extent the same are in
Seller's possession or control; all contracts
(including the Contracts), agreements and
management agreements; all "operating
statements" for the Property for the period
in which Seller owned the Property; and a
year-to date operating statement for the
calendar year 1997, a balance sheet dated no
earlier than December 31, 1996; an income
statement for the last two (2) calendar years
and a year-to-date income statement for the
calendar year 1997, each statement certified
by Seller as being true, correct and complete
reports prepared by Seller in the ordinary
course of business; all "Base Year"
information applicable to the Leases to the
extent in Seller's possession); a cumulative
general ledger for year-to-date 1997; reports
(including all environmental reports, soil
reports, surveys and plans and specifications
affecting or relating to the Property, and
all modifications or amendments thereto);
evidence of the "Intangible Property"
obtained or held by Seller and relating to
the development, construction, operation, use
or occupancy of any of the Property.
iii. A current rent roll (to be updated
as of the expiration of the Inspection Period
and as of the Closing), prepared and
certified by Seller as being true, correct
and complete and listing each tenant at the
Property.
Buyer may, by written notice to Seller
within the Inspection Period, at Buyer's sole and
absolute discretion, elect to terminate this
Contract, in which event Buyer shall deliver all
Due Diligence Materials (hereinafter defined) to
Buyer, and thereafter the ▇▇▇▇▇▇▇ Money shall be
refunded to Buyer and neither party shall have any
further claim against the other under this
Contract. In the event Buyer fails to so notify
Seller in writing of its desire to terminate this
Contract during the Inspection Period, Buyer shall
have waived its right to terminate this Contract
within the Inspection Period. Whether or not
Buyer elects to terminate this Contract pursuant
to this provision, Buyer shall furnish Seller with
copies of all surveys, engineering, soil, and
other inspection reports, government permits,
feasibility studies, and any other documents
obtained in connection with Buyer's inspection
(the "Due Diligence Materials"), as and when
received by Buyer.
B. Improvements by Buyer. From and after the
expiration of the Inspection Period, Buyer shall
be entitled, at Buyer's sole cost and expense, to
improve or repair the Subject Premises, subject to
Seller's prior written approval, which approval
shall not be unreasonably withheld or delayed.
Seller's approval shall be based upon Seller's
review of such plans and specifications (prepared
for and at the expense of Buyer) as Seller shall
deem reasonably necessary for the proper execution
of the proposed improvement or repair. Following
receipt of Seller's written approval as aforesaid,
Buyer and Buyer's representatives, agents and
designees will have the right to enter the
Property at all reasonable times, upon reasonable
prior written notice to Seller and Seller's
property manager, to so improve or repair the
Property, provided such entry and improvement or
repair shall not interfere with the current
operation of or unnecessarily damage the Property.
C. Indemnity. Buyer agrees to indemnify and
hold harmless Seller from any and all injuries,
losses, liens, claims, judgments, obligations,
liabilities, costs, expenses or damages,
including reasonable attorneys' fees and court
costs, arising out of the entry upon the Property
by Buyer, its agents or employees or arising out
of the inspections, tests or studies, repairs
maintenance or improvements that Buyer, its agents
or employees may conduct pursuant to this
Paragraph 27.
28. Tax-Free Exchange. At Seller's option, Buyer
shall cooperate fully in facilitating a tax-deferred
exchange of the Property by Seller, either simultaneously or
non-simultaneously, pursuant to Section 1031 of the Internal
Revenue Code, including the execution and immediate
delivery, before, on, or after the Date of Closing, of any
documents and agreements reasonably requested by Seller for
such purpose, provided, however, that (i) Buyer shall not be
obligated to incur any costs or liabilities or postpone the
Date of Closing in connection therewith; and, (ii) Buyer
shall be provided with all documents to be executed by Buyer
pursuant to this Paragraph 28 not less than forty-eight
hours in advance of the date on which such execution shall
be required.
29. Escrow Agent. Escrow Agent accepts its
appointment hereunder subject to the following conditions:
A. The ▇▇▇▇▇▇▇ Money may be processed for collection
in the normal course of business by Escrow Agent, who
may commingle funds received by it with escrow funds of
others in its regular escrow account maintained at a
bank selected by Escrow Agent insured by the Federal
Deposit Insurance Corporation (hereafter the
"Depository").
B. Escrow Agent shall not be liable for any loss
caused by the failure, suspension, bankruptcy or
dissolution of the Depository.
C. Escrow Agent shall be liable only for loss or
damage resulting from the malfeasance or negligence of
Escrow Agent or its employees and shall not be liable
for loss or damage resulting from (a) any good faith
act or forbearance of Escrow Agent; (b) any default,
error, action or omission of any party, other than
Escrow Agent; (c) any defect in the title to any
property unless such loss is covered under a policy of
title insurance issued by Escrow Agent; (d) the
expiration of any time limit or other delay which is
not caused by the failure of Escrow Agent to proceed in
its ordinary course of business, and in no event where
such time limit is not disclosed in writing to the
Escrow Agent; (e) the lack of authenticity of any
writing delivered to Escrow Agent or of any signature
thereto, or the lack of authority of the signatory to
sign such writing; (f) Escrow Agent's compliance with
all attachments, writs, orders, judgments or other
legal process issued out of any court; (g) Escrow
Agent's assertion or failure to assert any cause of
action or defense in any judicial or administrative
proceeding; (h) any loss or damage which arises after
the ▇▇▇▇▇▇▇ Money has been disbursed in accordance with
the terms of this Contract.
D. Investment of the ▇▇▇▇▇▇▇ Money shall be subject
to the rules, regulations, policies and procedures of
the Depository.
E. If written notice of default, non-performance or
dispute by or between the other parties hereto is given
to Escrow Agent, Escrow Agent may in its sole
discretion, perform in accordance with its obligations
hereunder or prepare to and shortly thereafter file an
interpleader action to resolve the conflict. Escrow
Agent shall be indemnified, saved and held harmless by
the other parties hereto for all of its expenses, costs
and reasonable attorneys' fees incurred in connection
with said interpleader action and such expenses, costs
and fees may be deducted from the funds held hereunder
except to the extent that such expenses costs and fees
are the result of the negligence or willful misconduct
of Escrow Agent.
F. If Escrow Agent is made a party to any judicial,
non-judicial or administrative action, hearing or
process based on acts of any of the other parties
hereto and not on the malfeasance and/or negligence of
Escrow Agent in performing its duties hereunder, the
expenses, costs and reasonable attorney fees incurred
by Escrow Agent in responding to such action, hearing
or process may be deducted from the funds held
hereunder and the party/parties whose alleged acts are
a basis for such proceedings shall indemnify, save or
hold Escrow Agent harmless from said expenses, costs
and fees so incurred.
[SIGNATURES COMMENCE ON NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this
Real Estate Sales Contract For The Purchase And Sale Of
Crown Cabot Financial Center, Laguna Niguel, California, to
be executed as of the Effective Date referenced herein.
SELLER:
LEISURE COLONY MANAGEMENT CORP.,
a Florida corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice-President
BUYER:
ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Arden Realty, Inc.,
a Maryland corporation
general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and COO
BROKER:
THE ▇▇▇▇▇▇ COMPANY, a
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
ESCROW AGENT SIGNATURE PAGE
Received of Arden Realty, two million Dollars
($2,000,000.00), and Chicago Title Company
agrees to hold same, in accordance with the terms hereof.
ESCROW AGENT
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇
Date May 29, 1997 ▇▇▇▇▇ ▇▇▇▇▇
Sr. National Closing Coordinator