EXHIBIT 10.60
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
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Table of Contents
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Paragraph
Number Page
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1. Purchase and Sale........................................... 2
2. Purchase Price.............................................. 2
3. Payment of Purchase Price................................... 2
4. Escrow...................................................... 2
5. Condition of Title.......................................... 3
6. Title Policy................................................ 3
7. Conditions to Close of Escrow............................... 3
8. Deposits by Seller.......................................... 7
9. Deposits by Buyer........................................... 7
10. Costs and Expenses.......................................... 8
11. Prorations.................................................. 8
12. Disbursements and Other Actions by Escrow Holder............ 9
13. Covenants of Seller......................................... 10
14. Seller's Representations and Warranties..................... 10
15. Buyer's Representations and Warranties...................... 11
16. Remedies.................................................... 12
17. Damage or Condemnation Prior to Closing..................... 13
18. Notices..................................................... 13
19. Brokers..................................................... 14
20. Legal Fees.................................................. 14
21. Assignment.................................................. 15
22. Indemnification............................................. 15
23. Miscellaneous............................................... 15
SIGNATURES........................................................ 17
EXHIBITS
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Exhibit "A" - Legal Description of the Land
Exhibit "B" - Rent Roll
Exhibit "C" - Grant Deed
Exhibit "D" - Estoppel Certificate
Exhibit "E" - Personal Property
Exhibit "F" - Tenant Lease Assignment
Exhibit "G" - Intentionally Omitted
Exhibit "H" - Bill of Sale
Exhibit "I" - Transferor's Certification of Non-Foreign Status
Exhibit "J" - General Assignment Agreement
Exhibit "K" - Copy of U.S. Marshall's Lease
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AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
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THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS
("Agreement") is made and entered into as of this 10th day of July, 1997 (the
"Effective Date"), by and between KILROY REALTY, L.P., a Delaware limited
partnership ("Buyer"), and MISSION SQUARE PARTNERS, a California general
partnership ("Seller"), with respect to the following:
R E C I T A L S :
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A. Seller desires to sell and convey to Buyer the following:
1. That certain real property located in the City of Riverside,
County of Riverside, State of California, commonly known as 3750 University
Avenue, consisting of improved land, legally described on Exhibit "A" attached
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hereto (the "Land"), together with one (1) office building located thereon,
associated parking areas, and all other improvements located thereon (the
"Improvements");
2. All of Seller's interest in all rights, privileges, easements and
appurtenances benefiting the Land and/or the Improvements, including, without
limitation, all mineral and water rights and all easements, rights-of-way and
other appurtenances used or connected with the beneficial use or enjoyment of
the Land and/or the Improvements (the Land, the Improvements and all such
rights, privileges, easements and appurtenances are sometimes collectively
hereinafter referred to as the "Real Property");
3. All of Seller's interest as lessor in the leases covering the Land
and the Improvements (said leases, together with any and all amendments,
modifications or supplements thereto, are hereinafter referred to collectively
as the "Leases" and are identified in the "Rent Roll" [as defined in Paragraph
7(a)(ii)(G) hereof] attached hereto as Exhibit "B");
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4. All personal property, equipment, supplies and fixtures
(collectively, the "Personal Property") owned by Seller and used or useful in
the operation of the Real Property which Personal Property is listed in Exhibit
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"E " attached hereto; and
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5. All of Seller's interest in any intangible property used in
connection with the foregoing, including, without limitation, all trademarks,
trade names (including, without limitation, the right to use the name "Mission
Square" (subject to Buyer's acknowledgment that no fictitious business name or
other filing or registration has been made by Seller in connection with its use
of such name)), goodwill, contract rights, warranties, guaranties, licenses,
permits, entitlements, governmental approvals and certificates of occupancy
which benefit the Real Property and/or the Personal Property (the "Intangible
Personal Property"). The Real Property, the Personal Property, Seller's
interest as lessor under the Leases and the Intangible Personal Property are
sometimes collectively hereinafter referred to as the "Property."
B. Seller's title to the Property is encumbered by a lien in favor of
Metropolitan Life Insurance Company ("Metropolitan") to secure a loan from
Metropolitan to Seller in the principal sum of FOURTEEN MILLION DOLLARS
($14,000,000) (the "Met Loan"). The Met Loan cannot be prepaid but may be
assumed upon satisfaction of certain conditions, including, without limitation,
payment of an assumption fee of one percent (1%) of the principal balance
("Assumption Fee").
C. Seller desires to sell the Property to Buyer and Buyer desires to
purchase the Property from Seller upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and Buyer agree
that the terms and conditions of this Agreement and the instructions to First
American Title Insurance Company ("Escrow Holder") with regard to the escrow
("Escrow") created pursuant hereto are as follows:
1. Purchase and Sale. Seller hereby agrees to sell the Property to
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Buyer, and Buyer hereby agrees to purchase the Property from Seller, upon the
terms and conditions herein set forth.
2. Purchase Price. The purchase price ("Purchase Price") for the
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Property shall be Twenty-Two Million Five Hundred Forty-Five Thousand and No/100
Dollars ($22,545,000.00).
3. Payment of Purchase Price. The Purchase Price for the Property
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shall be payable by Buyer as follows:
(a) Deposit. Within one (1) business day following the later of the
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Effective Date or Buyer's receipt of a fully executed original of this Agreement
from Seller, Buyer shall deposit or cause to be deposited with Escrow Holder in
cash, by a certified or bank cashier's check made payable to Escrow Holder, or
by a confirmed wire transfer of funds (hereinafter referred to as "Immediately
Available Funds"), the sum of Two Hundred Thousand and No/100 Dollars
($200,000.00) (the "Deposit"). Upon Escrow Holder's receipt of the Deposit,
Escrow Holder shall immediately invest it in a federally insured interest
bearing account inuring solely to the benefit of Buyer (subject to Seller's
rights in the event of Buyer's default as provided for under this Agreement)
maintained at a federally insured bank or savings and loan association
acceptable to Buyer. The Deposit and all interest accrued thereon (less Five
Hundred Dollars ($500.00) and one-half of any escrow cancellation fees)
(hereinafter the "Refundable Deposit") shall be fully refundable to Buyer if any
of the contingencies set forth in this Agreement for Buyer's benefit are not
satisfied or waived by Buyer on or before the expiration of the "Contingency
Period" (as defined in Paragraph 7(a)(ii) below). The Deposit shall be applied
to the payment of the Purchase Price upon the "Close of Escrow" (as defined in
Paragraph 4(b) below) or refunded to Buyer as above-provided or released to
Seller in accordance with the provisions of Paragraph 16(a) hereof.
(b) Assumption of Met Loan. Upon the Close of Escrow, Buyer shall
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receive a credit against the Purchase Price equal to the outstanding principal
balance of the Met Loan, (i) plus all accrued but unpaid interest and all other
amounts payable in connection with the Met Loan, including, but not limited to,
late charges and penalties, as of the Close of Escrow, but excluding the
Assumption Fee and any other charges arising out of Buyer's assumption of the
Met Loan (the "Met Fees"), and (ii) less the balance of all outstanding impounds
and other accounts then held by Metropolitan as additional security for the Met
Loan. Seller shall assign its interest in all such impounds and other accounts
to Buyer upon the Close of Escrow. Prior to signing this Agreement, Seller has
provided to Buyer the documents evidencing and securing the Met Loan (the "Met
Loan Documents"). Buyer shall complete, sign and submit all applications and
information reasonably requested by Metropolitan to process a request for
assumption of the Met Loan by buyer. All such applications and submission shall
be prepared and submitted at buyer's sole cost and expense. Seller shall
cooperate with buyer in pursuing approval provided seller shall not be
responsible for incurring or paying any out-of-pocket expenses in connection
with such cooperation. Buyer shall not be obligated to pay the met fees until
the close of escrow. At no time will seller be obligated to pay the met fees.
(c) Closing Funds. No later than the closing date, buyer shall
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deposit or cause to be deposited with escrow holder, in cash, by a certified or
bank cashier's check made payable to escrow holder or by a confirmed wire
transfer of funds, the balance of the purchase price, plus or minus buyer's
share of closing costs, prorations and charges payable pursuant to this
agreement.
4. Escrow.
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(a) Opening of Escrow. For purposes of this Agreement, the Escrow
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shall be deemed opened on the date Escrow Holder shall have received a fully
executed original or originally executed counterparts of this Agreement from
both Buyer and Seller and the Deposit (such date being referred to hereinafter
as the "Opening of Escrow"). Escrow Holder shall notify Buyer and Seller in
writing of the date Escrow is opened. Buyer and Seller agree to execute,
deliver and be bound by any reasonable or customary supplemental escrow
instructions of Escrow Holder or other instruments as may reasonably be required
by Escrow Holder in order to consummate the transaction contemplated by this
Agreement. Any such supplemental instructions shall not conflict with, amend or
supersede any portions of this Agreement. To the extent of any conflict or
inconsistency between such supplemental instructions and this Agreement, this
Agreement shall control.
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(b) Close of Escrow. For purposes of this Agreement, the "Close of
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Escrow" shall be the date that the grant deed, the form of which is attached
hereto as Exhibit "C" (the "Grant Deed"), conveying the Real Property to Buyer,
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is recorded in the Official Records of Orange County, California (the "Official
Records"). Unless extended in writing by Buyer and Seller or unless extended
pursuant to the terms and provisions of Paragraph 7(a)(ii) hereof, the Close of
Escrow shall occur on or before fourteen (14) days after the last day of the
Contingency Period (the "Closing Date"). Seller shall deliver possession of the
Property to Buyer upon the Close of Escrow, subject only to the "Approved
Condition of Title" (as defined in Paragraph 5 below).
5. Condition of Title. It shall be a condition to the Close of
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Escrow for Buyer's benefit that title to the Real Property be conveyed to Buyer
by Seller by the Grant Deed subject only to the following approved condition of
title ("Approved Condition of Title"):
(a) liens securing payment of any general or special real estate
taxes, and assessments and personal property taxes not delinquent;
(b) all liens securing the Met Loan and those additional documents
required by Metropolitan to be recorded in connection with the assumption of the
Met Loan by Buyer;
(c) the lien of supplemental taxes assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code ("Code"),
but only to the extent that such supplemental taxes are attributable to the
transaction contemplated by this Agreement. Seller shall be responsible for,
and shall indemnify, protect, defend (with counsel chosen by Buyer) and hold
harmless Buyer and the Real Property from and against any and all supplemental
taxes assessed pursuant to the Code, to the extent that such taxes relate to
events (including, without limitation, any changes in ownership and/or new
construction) occurring prior to the Close of Escrow and which are payable for
periods occurring solely prior to the Close of Escrow;
(d) matters affecting the Real Property created, directly or
indirectly, by Buyer; and
(e) exceptions which are disclosed by the Report and all the Surveys
described in Paragraph 7(a)(i) hereof and which are approved or deemed approved
by Buyer in accordance with such Paragraph 7(a)(i); and
(f) all standard exclusions to the "Title Policy" (as defined in
Paragraph 6 below);
(g) all Leases disclosed to Buyer in accordance with Paragraph
7(a)(ii) below.
Seller covenants and agrees that during the term of the Escrow, it
will not cause or expressly permit title to the Real Property to differ from the
Approved Condition of Title described in this Paragraph 5 other than for notices
of non-delinquent pending tax or assessment filed by any governmental agency.
Any liens, encumbrances, encroachments, easements, restrictions, conditions,
covenants, rights, rights-of-way or other matters affecting the Approved
Condition of Title which may appear of record or be revealed after the date of
the Report described in Paragraph 7(a)(i) below ("Additional Title Matters")
shall also be subject to Buyer's approval as a condition to the Close of Escrow
for Buyer's benefit. Buyer shall notify Seller of its approval or disapproval
of each Additional Title Matter within five (5) business days after Buyer
receives written notice of the same. Any additional Title Matters which are
caused or expressly permitted to be caused by Seller shall be eliminated or
ameliorated by Seller to Buyer's satisfaction prior to the Close of Escrow as a
condition to the Close of Escrow for Buyer's benefit.
6. Title Policy. It shall be a condition to the Close of Escrow for
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Buyer's benefit (which Buyer may waive in its sole and absolute discretion) that
the "Title Company" (as defined in Paragraph 7(a)(i) hereof) issue its ALTA
Extended Coverage (Form B-1970) Owner's Policy of Title Insurance ("Title
Policy") in the amount of the Purchase Price, showing title to the Real Property
vested in Buyer, subject only to the Approved Condition of Title and with title
endorsements reasonably requested by Buyer.
7. Conditions to Close of Escrow.
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(a) Conditions to Buyer's Obligations. The Close of Escrow and
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Buyer's obligation to consummate the transaction contemplated by this Agreement
are subject to the satisfaction of the following conditions (or Buyer's written
waiver thereof, it being agreed that Buyer may waive in
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writing any or all of such conditions) for Buyer's benefit on or prior to the
dates designated below for the satisfaction of such conditions. In the event
Buyer timely terminates this Agreement and the Escrow due to the nonsatisfaction
of any such conditions, in strict accordance with Paragraph 7(c) below, then
Buyer shall be entitled to the immediate return of the Refundable Deposit and
all interest accrued thereon:
(i) Title. Buyer shall have approved the legal description of the
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Land and any matters of title as disclosed by the following documents
(collectively, the "Title Documents") which are to be prepared at Buyer's sole
cost and expense: (A) a standard preliminary title report dated on or after the
date of this Agreement issued by First American Title Insurance Company (the
"Title Company") with respect to the Real Property, as such report may be
amended or supplemented from time to time to reflect additional title matters or
survey exceptions (the "Report"); (B) legible copies of all documents, whether
recorded or unrecorded, referred to in the Report; (C) a color-coded map
plotting all easements disclosed by the Report; and (D) an ALTA as-built survey
of the Real Property prepared by a licensed engineer or surveyor acceptable to
Buyer in Buyer's sole and absolute discretion (the "Survey"). Buyer agrees to
cause a copy of the Title Documents to be delivered to Seller at least five (5)
days prior to expiration of the Contingency period.
Buyer shall have until 5:00 p.m. Pacific Time on the date that is
thirty (30) days after the Effective Date (the "Title Approval Date") to give
Seller and Escrow Holder written notice ("Buyer's Title Notice") of Buyer's
disapproval or conditional approval of the legal description or any matters
shown in or disclosed by the Title Documents.
The failure of Buyer to give Buyer's Title Notice on or before the
Title Approval Date shall be deemed to constitute Buyer's approval of the
respective matters relating thereto. If Buyer disapproves or conditionally
approves any of the foregoing matters, Seller may, within five (5) days after
its receipt of Buyer's Title Notice, elect to eliminate or ameliorate to Buyer's
sole and absolute satisfaction such disapproved or conditionally approved
matters. Within such five (5) day period ("Seller's Title Notice Period"),
Seller shall give Buyer written notice (which shall hereinafter be referred to
as "Seller's Title Notice") of those disapproved or conditionally approved
matters, if any, which Seller covenants and agrees to either eliminate from the
Title Policy as exceptions to title to the Property or to ameliorate to Buyer's
sole and absolute satisfaction by the Closing Date as a condition to the Close
of Escrow for Buyer's benefit. If Seller does not elect in Seller's Title
Notice to eliminate or ameliorate any disapproved or conditionally approved
matters as provided above or fails to timely deliver Seller's Title Notice, or
if Buyer disapproves, in Buyer's sole and absolute discretion, Seller's Title
Notice, then Buyer shall have the right, by a writing delivered to Seller and
Escrow Holder within five (5) Business Days after the last day of Seller's Title
Notice Period, to (A) waive its prior disapproval, in which event said
disapproved matter(s) shall be deemed approved, or (B) terminate this Agreement
and the Escrow created pursuant hereto in accordance with Paragraph 7(c) below.
If Seller fails to timely deliver Seller's Title Notice, then Seller will be
deemed to have elected to not eliminate or ameliorate any disapproved or
conditionally approved matters set forth in Buyer's Title Notice.
Notwithstanding anything to the contrary contained in this Agreement, Buyer
hereby disapproves all liens evidencing monetary encumbrances (other than liens
for general and special non-delinquent real property taxes and assessments and
liens securing the Met Loan) and Seller agrees to cause all such liens to be
eliminated at Seller's sole cost and expense (including all prepayment penalties
and charges) prior to or concurrently with the Close of Escrow.
(ii) Review and Approval of Documents and Materials. Prior to the
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signing of this Agreement, Seller has delivered to Buyer the documents and
materials respecting the Property set forth below (the "Documents and
Materials"). From the Effective Date until 5 p.m. Pacific Time on that date
("Contingency Date") that is forty-five (45) days after the Effective Date (the
"Contingency Period"), Buyer shall have the right to review and approve or
disapprove, in its sole and absolute discretion, any or all of the Documents and
Materials and any other documents affecting or relating to the Property. Seller
shall have no liability for the quality, accuracy or completeness of any
Documents and Materials provided to Buyer which were prepared by third parties.
The failure of Buyer to disapprove any of the Documents and Materials on or
before the expiration of the Contingency Period shall be deemed to constitute
Buyer's approval thereof.
(A) Agreements. Legible copies of any maintenance contracts, service
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contracts, and any other contracts or agreements affecting or relating to the
leasing, ownership, operation, maintenance, construction or development of the
Property, which are (i) in Seller's possession; and (ii) require more than
thirty (30) days to terminate (collectively, the "Contracts");
(B) Personal Property Agreements. A copy of any warranties or
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guaranties applicable to the Personal Property listed in Exhibit "E" and copies
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of any and all security instruments or leases which affect or limit Seller's
interest in the Personal Property;
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(C) Leases. True, correct and complete copies of any and all Leases
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and all amendments thereto, and copies of any and all documents, agreements and
other writings referenced therein affecting the Leases (including, without
limitation, lease guaranties and tenant improvement contracts), as well as
copies of any letters of intent or other correspondence, pending lease
agreements, or the like, which relate to any potential leases with respect to
the Real Property. Seller shall also deliver to Buyer any and all financial
information concerning the lessees under the Leases which are in Seller's
possession;
(D) Rent Roll. The "Rent Roll" prepared as of the second business day
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before Seller's execution of this Agreement and attached hereto as Exhibit "B".
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During the term of this Agreement, Seller shall provide to Buyer an updated Rent
Roll and Delinquency Report (as defined below) within three (3) business days
following written request, but not more often than weekly:
(E) Schedule of Income and Expenses. A schedule reflecting all income
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generated by or from the property or from the use of all or any portion of the
property and reflecting any and all expenses for the ownership, operation,
maintenance and repair of the property for the full calendar years of 1995 and
1996 and for the calendar year 1997 up to and including the last day of May,
1997, which schedule shall include, without limitation, the following:
(1) annual insurance premiums for all forms of coverage;
(2) real property taxes and assessments;
(3) utility charges, management fees, maintenance and repair costs;
(4) any and all other costs and expenses incurred in connection with
the ownership, operation, maintenance and repair of the Property; and
(F) Delinquency Reports. Complete copies of all aged delinquency
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reports for the months of August, 1996 through and including May, 1997, which
sets forth the names of all Lessees that were delinquent during such time period
in the payment of any amounts owing pursuant to any of the Leases, together with
the amounts and the period of such delinquencies;
(G) Plans and Reports. Building plans, structural engineering reports
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and other materials concerning the physical condition of the Property which are
in Seller's possession.
(H) Miscellaneous. Buyer shall be provided with access to Seller's
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files and documents pertaining to the Property, and its management, which Seller
has located in its offices located at 2524 Santiago Boulevard, Orange,
California 92667. Such files and documents shall be made available to Buyer
during regular business hours, upon no less than one business day's prior
notice.
(iii) Inspections and Studies. On or before the expiration of the
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Contingency Period, Buyer shall have the right to approve or disapprove, in
Buyer's sole and absolute discretion, any aspect of the Property, including, but
not limited to the results of any and all inspections, investigations, tests and
studies, including, without limitation, investigations with regard to zoning,
building codes and other governmental regulations, architectural inspections,
engineering tests, economic feasibility studies and soils, seismic and geologic
reports, as well as toxic and environmental reports with respect to the
Property, inspections of all or any portion of the Improvements (including,
without limitation, structural, mechanical and electrical systems, roofs,
pavement, landscaping and public utilities), and any other physical inspections
and/or investigations as Buyer may elect to make or obtain. The failure of
Buyer to disapprove said results on or prior to the expiration of the
Contingency Period shall be deemed to constitute Buyer's approval thereof. As
additional consideration to Seller, if Buyer elects to terminate this Agreement,
Buyer shall deliver to Seller, within five (5) days of Buyer's election to
terminate, correct and complete copies of all reports, studies and
investigations prepared by Buyer's consultants which concern the physical
condition of the Property. Seller acknowledges that Buyer makes no
representation or warranty as to the accuracy of any information contained in
such materials. Prior to any entry upon the Property by Buyer's agents,
contractors, subcontractors or employees, Buyer shall deliver to Seller evidence
reflecting Buyer's commercial general liability insurance policy which evidences
that Buyer is carrying a commercial general liability insurance policy with a
financially responsible insurance company covering the activities of Buyer, and
Buyer's agents, contractors, subcontractors and employees on or upon the
Property and naming Seller as additional insured, with an agreement not to
cancel such coverage without at least ten (10) days' prior written notice to
Seller. Such
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evidence shall reflect that the insurance policy has a per occurrence limit of
at least One Million Dollars ($1,000,000).
During the term of this Escrow, upon no less than one (1) day's prior
notice to Seller identifying the proposed time of entry and naming the
consultants intending to enter, Buyer, its agents, consultants, contractors and
subcontractors shall have the right upon compliance with the insurance, prior
notice, indemnity and other provisions of this Agreement to enter upon the
Property (subject to the Leases) to conduct or make any and all inspections and
tests (including, without limitation, environmental assessments of the Real
Property) as may be necessary or desirable in Buyer's sole and absolute
discretion. Buyer hereby indemnifies and holds Seller and the Property harmless
from and against any and all costs, losses, damages, liabilities, claims and
expenses arising out of or resulting from such entry by Buyer and its agents,
consultants, contractors and subcontractors. In addition, Buyer agrees to review
and comply with all requirements arising under the Leases.
(iv) Representations, Warranties and Covenants of Seller. Seller
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shall have duly performed each and every covenant and agreement to be performed
by Seller pursuant to this Agreement and Seller's representations, warranties
and covenants set forth in Paragraph 14 hereof shall be true and correct as of
the Closing Date.
(v) No Material Changes. At the Closing Date, there shall have been
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no material adverse changes in the physical or financial condition of the
Property from and after the Opening of Escrow.
(vi) Rent Roll. The Rent Roll, as updated to the Closing Date,
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certified as to its accuracy and executed by Seller, does not materially differ
from the Rent Roll delivered by Seller to Buyer pursuant to Paragraph 7(a)(ii)
hereof.
(vii) Tenant Estoppel Certificates. Buyer shall have received
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estoppel certificates (collectively, "Estoppel Certificates" and individually,
an "Estoppel Certificate") satisfactory to Buyer, which Seller shall use its
best efforts to obtain, duly executed by tenants occupying at least ninety
percent (90%) of the rentable area of the Property, and to be dated not earlier
than thirty (30) days prior to the Closing Date. The Estoppel Certificates
shall be in the form of, and upon the terms contained in, Exhibit "D" attached
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hereto, with such modifications as may be required to satisfy the requirements
of Metropolitan in connection with the Buyer's assumption of the Met Loan and
with modifications for any particular Lessee as may be reasonably requested by
Buyer no less than twenty (20) days prior to the Close of Escrow. Seller shall
deliver the original executed Estoppel Certificates to Buyer no later than five
(5) business days prior to the Closing Date. Buyer's failure to disapprove each
executed Estoppel Certificate within three (3) business days of receipt shall be
deemed to constitute Buyer's approval thereof.
(viii) Seller's Performance. Seller shall have duly and timely
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performed all obligations and made all deposits with Escrow Holder required of
Seller pursuant to the provisions of this Agreement.
(ix) Leases. As of the Close of Escrow, all of the Leases approved by
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Buyer pursuant to Paragraph 7(a)(ii) hereof shall be in full force and effect
and shall not have been modified or amended without Buyer's prior written
consent.
(b) Conditions to Seller's Obligations. For the benefit of Seller,
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the Close of Escrow and Seller's obligation to sell the Property to Buyer are
subject to the satisfaction of the following conditions:
(i) Met Loan. As of the Close of Escrow, Metropolitan shall have
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approved and the parties shall have executed and delivered all documents and
satisfied all conditions to Metropolitan's approval of Buyer's assumption of the
Met Loan;
(ii) Buyer's Performance. Buyer shall have duly and timely performed
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all of the obligations required by the terms of this Agreement to be performed
by Buyer (or Seller's waiver thereof, it being agreed that Seller may waive such
condition) and Buyer's representations, warranties and covenants set forth in
Paragraph 14(b) hereof shall be true and accurate as of the Closing Date.
(c) Termination by Buyer on Failure of Condition. If Buyer elects to
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terminate this Agreement due to the failure of a condition set forth in this
Paragraph 7, Buyer shall have the right to terminate this Agreement and have the
Refundable Deposit, returned only if Buyer delivers a Termination Notice and
instructions to cancel the Escrow to Seller and Escrow Holder within the time
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period expressly set forth for such condition in this Paragraph 7. A
"Termination Notice" shall mean a written notice from Buyer to Seller and Escrow
Holder identifying the condition disapproved, Buyer's election to terminate this
Agreement and the Escrow and Buyer's advice on when all Documents and Materials
provided by Seller or Seller's broker to Buyer and all third-party inspections
and reports received by Buyer during its investigations (collectively, "Returned
Materials") will be returned or delivered to Seller. Buyer's right to purchase
the Property shall unconditionally terminate upon delivery of a Termination
Notice. Buyer and Seller shall each execute such instructions as Escrow Holder
may reasonably require to terminate the Escrow. Seller shall direct Escrow
Holder to return the Refundable Deposit to Buyer promptly following Seller's
receipt of the Termination Notice and instructions to cancel the Escrow from
Buyer. Following mutual execution of the cancellation instructions and the
return to Buyer of the Refundable Deposit, neither party shall have any further
obligation to the other under this Agreement, except for Buyer's indemnity of
Seller with respect to Buyer's entry in accordance with Paragraph 7(a)(iii)
above, Buyer's obligation to deliver the Returned Materials to Seller, and the
parties' obligations under Paragraphs 20 and 22 of this Agreement.
8. Deposits by Seller. At least one (1) business day prior to the
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Close of Escrow, Seller shall deposit or cause to be deposited with Escrow
Holder the following documents and instruments:
(a) Grant Deed. The Grant Deed conveying the Real Property to Buyer,
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duly executed as appropriate by Seller, acknowledged and in recordable form in
the form attached hereto as Exhibit "C";
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(b) Leases. The original Leases and lease guaranties and financial
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information and any letters of intent, pending lease agreements, or the like,
which relate or potentially relate to any space leases of the Improvements and
which have been approved by Buyer in accordance with Paragraph 7(a) hereof;
(c) Tenant Lease Assignment. Tenant Lease Assignment ("Assignment of
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Leases"), duly executed by Seller, in the form attached hereto as Exhibit "F",
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pursuant to which Seller shall assign to Buyer all of Seller's right, title and
interest in and to the Leases;
(d) Bill of Sale. Bill of Sale ("Bill of Sale"), duly executed by
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Seller, in the form attached hereto as Exhibit "H", conveying all of Seller's
-----------
right, title and interest in and to the Personal Property;
(e) Rent Roll. The Rent Roll, updated as of the Close of Escrow,
---------
certified as to its accuracy and executed by Seller, together with a list of
Lessees whose rent and/or other charges is/are past due as of such date;
(f) Tenant Letter. A letter signed by Seller, addressed to each of
-------------
the Lessees under the Leases advising the Lessees of the sale herein to Buyer,
the transfer of the security deposits, if any, to Buyer and directing that all
future rent payments and other charges are to be forwarded to Buyer at an
address to be supplied by Buyer;
(g) Transferor's Certification of Non-Foreign Status. The
------------------------------------------------
Transferor's Certification of Non-Foreign Status in the form attached hereto as
Exhibit "I", duly executed by Seller ("Firpta Certificate");
- -----------
(h) Withholding Exemption Certificate. A Withholding Exemption
---------------------------------
Certificate, California Form 590, certifying that Seller is exempt from
withholding under California law due to the fact that Seller resides or has a
permanent place of business in California ("Form 590");
(i) Permits, Entitlements and the Like. Any and all building and
----------------------------------
development permits, certificates of occupancy, utility will serve letters, use
permits and other governmental approvals and/or entitlements relative to the
Property which are in Seller's possession;
(j) General Assignment. General Assignment ("General Assignment"),
------------------
duly executed by Seller, in the form attached herein as Exhibit "J", conveying
-----------
all of Seller's right, title and interest in and to the Intangible Personal
Property; and
(k) Other Instruments. Such other instruments and documents as
-----------------
are described in Paragraph 22(b) herein.
9. Deposits by Buyer. No later than the Closing Date, Buyer shall
-----------------
deposit or cause to be deposited with Escrow Holder the funds which are to be
applied towards the payment of the
-7-
Purchase Price in the amounts and at the times designated in Paragraph 3 above
(as reduced by the prorations and credits hereinafter provided). In addition,
Buyer shall deposit with Escrow Holder prior to the Close of Escrow the
following documents and instruments:
(a) Met Loan Assumption Documents. The Assumption Documents duly
-----------------------------
executed and notarized by Buyer, and the Met Fees (as defined in Paragraph 3(b)
hereof);
(b) Assignment of Leases. Counterpart of the Assignment of
--------------------
Leases, duly executed by Buyer;
(c) General Assignment. Counterpart of the General Assignment,
------------------
duly executed by Buyer; and
(d) Other Instruments. Such other instruments and documents as
-----------------
are described in Paragraph 23(b) herein.
10. Costs and Expenses. The cost and expense of the CLTA portion of
------------------
the Title Policy shall be paid by Seller, and Buyer shall pay for the ALTA
portion thereof. The escrow fee of Escrow Holder shall be shared equally by
Seller and Buyer. Seller shall pay all documentary transfer taxes payable in
connection with the recordation of the Grant Deed. Buyer shall pay the Met
Fees. Buyer and Seller shall pay, respectively, the Escrow Holder's customary
charges to buyers and sellers for document drafting, recording and miscellaneous
charges. If, as a result of no fault of Buyer or Seller, Escrow fails to close,
Buyer and Seller shall share equally all of Escrow Holder's fees and charges.
11. Prorations. The following prorations between Seller and Buyer
----------
shall be made by Escrow Holder computed as of the Close of Escrow:
(a) Taxes. Real and personal property taxes and assessments on the
-----
Property shall be prorated on the basis that Seller is responsible for (i) all
such taxes for the fiscal year of the applicable taxing authorities occurring
prior to the "Current Tax Period" (as hereinafter defined) and (ii) that portion
of such taxes for the Current Tax Period determined on the basis of the number
of days which have elapsed from the first day of the Current Tax Period to the
Close of Escrow, inclusive, whether or not the same shall be payable prior to
the Close of Escrow. The phrase "Current Tax Period" refers to the fiscal year
of the applicable taxing authority in which the Close of Escrow occurs. In the
event that as of the Close of Escrow the actual tax bills for the year or years
in question are not available and the amount of taxes to be prorated as
aforesaid cannot be ascertained, then rates and assessed valuation of the
previous year, with known changes, shall be used, and when the actual amount of
taxes and assessments for the year or years in question shall be determinable,
then such taxes and assessments will be reprorated between the parties to
reflect the actual amount of such taxes and assessments.
(b) Rentals. Rentals and other payments payable by tenants,
-------
licensees, concessionaires and other persons using or occupying the Property or
any part thereof, if any, for or in connection with such use or occupancy
(including, without limitation, fixed monthly rentals, additional rentals,
percentage rentals, escalation rentals, retroactive rentals, operating cost
pass-throughs, common area maintenance charges, and other sums and charges
payable by the Lessees under the Leases [collectively, "Rentals"]) shall be
prorated as of the Close of Escrow. All Rentals owing for the calendar month in
which the Close of Escrow occurs shall be prorated between Seller and Buyer as
of the Close of Escrow, regardless of whether such Rentals have been collected
and regardless of whether the Rentals for such period are in arrears or are
payable in arrears pursuant to the lease terms as of the Close of Escrow (Seller
shall receive a credit for Rentals payable in arrears).
(i) Delinquent Rentals. Rentals are delinquent when payment thereof
is due on or prior to the Close of Escrow but has not been made by the Close of
Escrow. Delinquent rentals shall be prorated between Buyer and Seller as of the
Close of Escrow. Buyer shall have the right to collect any delinquent rentals,
but shall not have the obligation to do so. After the Close of Escrow, Seller
shall not take any action against a Lessee owing delinquent rentals. Seller
shall not be entitled to any rentals received from Lessees after the Close of
Escrow unless such Lessees are current in their rental obligations for periods
occurring from and after the Close of Escrow. Delinquent rentals collected by
the Buyer, net of the costs of collection (including attorneys' fees), shall be
applied first against any amount currently due and then to amounts most recently
overdue. For purposes hereof, "amounts currently due" shall include amounts
which would be due for a month which is to commence within ten (10) days after
receipt of such amounts. Buyer agrees that any payments due to Seller as a
result of collected delinquent rentals shall be payable upon receipt thereof.
(c) Security Deposits. Buyer shall be credited and Seller shall be
-----------------
charged with any security deposits and advanced rentals in the nature of
security deposits made by the Lessees
-8-
under the Leases, if any. Buyer shall also be credited and Seller shall be
charged for all operating cost pass-throughs paid by such tenants and held by
Seller in reserve for the benefit of the tenants for the repair and/or
improvement of the Property. Seller hereby agrees that it will not during the
term of this Escrow or upon the Close of Escrow apply any security deposits
toward any delinquent rental payments, or any other amounts, due under any
Leases which do not expire by their terms prior to the Close of Escrow.
(d) Operating Expenses. All utility service charges for electricity,
------------------
heat and air conditioning service, other utilities, elevator maintenance, common
area maintenance, taxes other than real estate taxes such as rental taxes, other
expenses incurred in operating the Property that Seller customarily pays, and
any other costs incurred in the ordinary course of business or the management
and operation of the Property, shall be prorated on an accrual basis. If such
bills are not available as of the Close of Escrow, the parties shall prorate the
same after the Closing Date, when such bills are received. Seller shall pay all
such expenses that accrue prior to the Close of Escrow, and Buyer shall pay all
such expenses accruing on the Close of Escrow and thereafter. Seller and Buyer
shall obtain billings and meter readings as of the Close of Escrow to aid in
such prorations. The parties' obligations under this Paragraph 11(d) shall
survive the Close of Escrow.
(e) Commissions. Seller shall pay in full all leasing commissions
-----------
with respect to the Leases entered into as of or prior to the Effective Date
without contribution or proration from Buyer, and Seller hereby indemnifies and
holds Buyer harmless from any claims respecting the same. Buyer shall pay in
full all leasing commissions with respect to Leases entered into after the
Effective Date without contribution or proration from Seller, and Buyer hereby
indemnifies and holds Seller harmless from any claims respecting the same. The
obligations of the parties under this Paragraph 11(e) shall survive the
recording of the Grant Deed and the Close of Escrow. Buyer hereby acknowledges
and agrees that Buyer has consented to that certain proposed lease with the U.S.
Marshal's Office (the "U.S. Marshal's Lease") a copy of which is attached hereto
as Exhibit "K" and agrees to pay any reasonable brokerage commissions owed by
-----------
Seller in connection with that lease.
(f) Tenant Improvements. All tenant improvements (including labor and
-------------------
materials) which are performed or contracted for by Seller at or prior to the
Effective Date will be paid by the Seller, without contribution or proration
from Buyer, and Seller hereby indemnifies and holds Buyer and the Property
harmless from any claims respecting same. All tenant improvements (including
labor and material) which are to be performed by Seller under any Lease executed
after the Effective Date will be paid for by Buyer, without contribution or
proration from Seller, provided that this Agreement is consummated and Buyer
acquires the Property from Seller, and Buyer hereby indemnifies and holds Seller
harmless from any Claims respecting the same. The obligations of the parties
under this Paragraph 11(f) shall survive the recording of the Grant Deed and the
Close of Escrow. Buyer agrees to pay for the cost of any tenant improvements
required under the U.S. Marshall's Lease in an amount not to exceed One Thousand
Seven Hundred and Fifty Dollars ($1,750.00).
At least three (3) business day prior to the Close of Escrow, the parties shall
agree upon all of the prorations to be made and submit a statement to Escrow
Holder setting forth the same. In the event that any prorations, apportionments
or computations made under this Paragraph 11 shall require final adjustment,
then the parties shall make the appropriate adjustments promptly when accurate
information becomes available and either party hereto shall be entitled to an
adjustment to correct the same. Any corrected adjustment or proration shall be
paid in cash to the party entitled thereto.
12. Disbursements and Other Actions by Escrow Holder. Upon the Close
------------------------------------------------
of Escrow, Escrow Holder shall promptly undertake all of the following in the
following manner:
(a) Prorations. Prorate all matters referenced in Paragraph 11(a),
----------
(b), (c) and (d) to the extent such prorations can be made as of the Close of
Escrow, based upon the statement delivered into Escrow signed by the parties;
(b) Recording. Cause the Grant Deed (with documentary transfer tax
---------
information to be affixed after recording) and any other documents which the
parties hereto may mutually direct, to be recorded in the Official Records in
the order directed by the parties;
(c) Funds. Disburse from funds deposited by Buyer with Escrow Holder
-----
towards payment of all items (including, without limitation, the Purchase Price
and the Met Fees) chargeable to the account of Buyer pursuant hereto in payment
of such costs and disburse the balance of such funds, if any, to Buyer;
(d) Documents to Seller. Deliver to Seller counterparts of the
-------------------
Assignment of Leases and the General Assignment executed by Buyer;
-9-
(e) Documents to Buyer. Deliver to Buyer originals of the Leases, the
------------------
Bill of Sale, the Firpta Certificate, the Form 590, and counterparts of the
Assignment of Leases and the General Assignment appropriately executed by
Seller, the approved form of letter described in Paragraph 8(h) above addressed
to the Lessees advising them of this transaction and any other documents which
are to be delivered to Buyer hereunder, and, when issued, the Title Policy; and
(f) Title Policy. Direct the Title Company to issue the Title
------------
Policy to Buyer.
13. Covenants of Seller. Seller hereby covenants with Buyer, as
-------------------
follows:
(a) From and after the date of this Agreement, Seller shall not,
without the prior written consent of Buyer, which consent Buyer may withhold in
its sole and absolute discretion, enter into any lease, rental agreement,
maintenance contract, service contract, listing agreement or any other contract
affecting or relating to the Property or any portion thereof which will survive
the Close of Escrow or will otherwise affect the use, operation or enjoyment of
the Property after the Close of Escrow. Buyer shall respond to any such request
for its consent within three (3) business days after receipt of such request
from Seller, and if Buyer fails to respond within three (3) business days, Buyer
shall be deemed to have given its approval. Subject to the limitation set forth
in Paragraph 11(f) hereof, Buyer acknowledges that it has approved the U.S.
Marshal's Lease;
(b) All insurance policies carried by Seller with respect to the
Property and in effect as of the date of this Agreement shall remain
continuously in full force and effect from the date of this Agreement through
the day upon which the Close of Escrow occurs;
(c) From and after the date of this Agreement, Seller shall not amend,
modify, alter or supplement any Lease which is approved by Buyer pursuant to
Paragraph 7(a) hereof;
(d) From the date of this Agreement until the Close of Escrow, Seller
shall (i) continue to operate and manage the Property in the same manner as
prior to signing the Agreement and shall maintain the Property in good
condition, repair and working order, and (ii) perform when due, and otherwise
comply with, all of Seller's obligations and duties under the Leases. None of
the Personal Property shall be removed from the Real Property, unless replaced
by unencumbered personal property of equal or greater utility and value. All
Personal Property and Intangible Personal Property shall be conveyed to Buyer by
Seller at the Close of Escrow free from any liens, encumbrances or security
interests of any kind or nature;
(e) After the date of this Agreement, Seller shall not alienate, lien,
encumber or otherwise transfer all or any portion of the Property (other than to
Buyer at the Close of Escrow) except as provided in Paragraph 13(a) above;
(f) Seller shall promptly notify Buyer of any change in any condition
with respect to the Property or of any event or circumstance which makes any
representation or warranty of Seller to Buyer under this Agreement materially
untrue or misleading, and of any covenant of Seller under this Agreement which
Seller will be incapable of performing or less likely to perform.
14. Seller's Representations and Warranties. In consideration of
---------------------------------------
Buyer entering into this Agreement and as an inducement to Buyer to purchase the
Property, Seller makes the following covenants, representations and warranties,
each of which is material and is being relied upon by Buyer (and the continued
truth and accuracy of which shall constitute a condition precedent to Buyer's
obligations hereunder). To the "actual knowledge" of Seller, as used in this
Paragraph 14, means the actual, current knowledge of Thomas C. Parker as of the
date of this Agreement without investigation or inquiry.
(a) Representations Regarding Seller's Authority.
--------------------------------------------
(i) Seller has the legal power, right and authority to enter into this
Agreement and the instruments referenced herein, and to consummate the
transaction contemplated hereby;
(ii) All requisite action (corporate, trust, partnership or otherwise)
has been taken by Seller in connection with the entering into this Agreement,
the instruments referenced herein, and the consummation of the transaction
contemplated hereby. No consent of any partner, shareholder, trustee, trustor,
beneficiary, creditor, investor, judicial or administrative body, governmental
authority or other party is required; and
-10-
(iii) The individuals executing this Agreement and the instruments
referenced herein on behalf of Seller and the partners of Seller, if any, have
the legal power, right, and actual authority to bind Seller to the terms and
conditions hereof and thereof.
(b) Threatened Actions. To seller's actual knowledge, there are no
------------------
pending or threatened actions, suits, arbitrations, claims or proceedings, at
law, in equity or otherwise, affecting, all or any portion of the Property or in
which Seller is a party by reason of Seller's ownership of the Property;
(c) Compliance with Law. Seller has not received notice of any
-------------------
alleged violation of any applicable laws, ordinances, rules, requirements,
regulations, building codes and environmental rules from any governmental
agency, body or subdivision thereof bearing on the Property or the construction
of the Improvements;
(d) Contracts. To Seller's actual knowledge, there are no maintenance
---------
contracts, service contracts or agreements or any other contracts (whether oral
or written) affecting or relating to the Real Property which will survive the
Close of Escrow. At the Close of Escrow, there will be no outstanding contracts
entered into by Seller for the construction or repair of any Improvements which
have not been fully paid for, and Seller shall cause to be discharged all
mechanics' and materialmen's liens arising from any labor or materials furnished
to the Real Property by or at the request of Seller prior to the Close of
Escrow;
(e) No Other Documents. The documents delivered by Seller to Buyer
------------------
pursuant to Paragraph 7(a)(ii) above and the documents made available to Buyer
for inspection at Seller's offices are all of the material documents known by
Seller to exist relative to the leasing, use, ownership and maintenance of the
Property;
(f) Hazardous Wastes. To Seller's actual knowledge, there is no
----------------
asbestos or materials containing asbestos incorporated into any of the
Improvements and the Property is not in violation of any federal, state or local
law, ordinance or regulation relating to Hazardous Materials including, but not
limited to, soil and groundwater conditions. For purposes of this subparagraph,
the term Hazardous Materials shall include, but not be limited to, asbestos,
petroleum and any petroleum by-products, urea formaldehyde, foam insulation,
polychlorinated biphenyls, and any other substance which is a "Hazardous
Substance" under California Health and Safety Code Section 25316 and in the
regulations adopted and publications promulgated pursuant to said statute and
any amendments thereto;
(g) Structural, Mechanical and Electrical Defects. To Seller's actual
---------------------------------------------
knowledge and except for items expressly disclosed in the Documents and
Materials, there are no physical or mechanical defects or deficiencies in the
condition of the Real Property, including, but not limited to, the roofs,
exterior walls or structural components of the Improvements and the heating, air
conditioning, plumbing, ventilating, utility, sprinkler and other mechanical and
electrical systems, apparatus and appliances located on the Real Property or in
the Improvements and all such items are in good operating condition and repair;
(h) FIRPTA; California Withholding. Seller is not a foreign person
------------------------------
within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986,
and Seller will furnish the Firpta Certificate to Buyer prior to the Close of
Escrow in accordance with the terms and provisions of Paragraph 8(i) hereof.
Seller is a resident of or has a permanent place of business in California and
no withholding of any portion of the Purchase Price is necessary under
California law relative to Seller being a non-resident of California;
(i) Hart-Scott-Rodino. For purposes of the Hart-Scott-Rodino
-----------------
Antitrust Improvements Act of 1976, as amended, and the rules and regulations
promulgated thereunder, neither Seller, nor any entity which controls Seller
(i.e., the "ultimate parent entity" of Seller), has total assets or annual net
- -----
sales of $100 million or more;
(j) Representations and Warranties at Closing. Seller shall promptly
-----------------------------------------
notify Buyer of any change in any condition with respect to the Property or of
any event or circumstance which makes any representation or warranty of Seller
to Buyer under this Agreement materially untrue or misleading. Subject to the
terms of Paragraph 23(a) of this Agreement, the representations and warranties
of Seller set forth in this Agreement shall be deemed to be remade and restated
by Seller on and as of the Close of Escrow but shall be modified to the extent
that Seller has provided written notice to Buyer of any changes.
-11-
15. Buyer's Representations and Warranties. In consideration of
--------------------------------------
Seller entering into this Agreement and as an inducement to Seller to sell the
Property to Buyer, Buyer makes the following covenants, representations and
warranties, each of which is material and is being relied upon by Seller.
(a) Representation Regarding Buyer's Authority
------------------------------------------
(i) Buyer has the legal power, right and authority to enter into this
Agreement and the instruments referenced herein, and to consummate the
transaction contemplated hereby;
(ii) All requisite action (corporate, trust, partnership or otherwise)
has been taken by Buyer in connection with the entering into this Agreement, the
instruments referenced herein, and the consummation of the transaction
contemplated hereby. No consent of any partner, shareholder, trustee, trustor,
beneficiary, creditor, investor, judicial or administrative body, governmental
authority or other party is required; and
(iii) The individuals executing this Agreement and the instruments
referenced herein on behalf of Buyer and the partners of Buyer, if any, have the
legal power, right, and actual authority to bind Buyer to the terms and
conditions hereof and thereof.
(b) Disclaimer. Prior to entering into this Agreement and during
----------
the Due Diligence Period, Buyer shall have had ample opportunity to review
all information concerning the Property and to conduct such other
independent investigations as Buyer requires to determine that it is
prepared to complete purchase of the Property on the terms and conditions
herein stated. Buyer acknowledges that the Documents and Materials
provided by Seller which are prepared by third party consultants are (a)
provided without representation or warranty by Seller as to quality,
accuracy or completeness; and (b) are provided by Seller to Buyer as a
convenience only, and Buyer shall conduct such independent investigations,
studies and reports as Buyer may reasonably require in deciding whether to
purchase the Property. Buyer acknowledges that, except as specifically set
forth in this Agreement, Seller, its officers, agents, employees and
representatives are making no representations or warranties as to the
physical condition of the Property or Improvements or in connection with
any matter, report or information relating to the Property's condition,
value, fitness, use, income or expense projections or zoning upon which
Buyer has relied either directly or indirectly. Further, except as
specifically set forth in this Agreement, Seller makes no representation or
warranty as to any operative or proposed governmental laws and regulations
(including, but not limited to, ADA, zoning, environmental and land use
laws and regulations) to which the Property may be subject. Buyer
acknowledges that the purchase of the Property will be on the basis of
Buyer's own investigation of (i) the physical condition of the Property,
including subsurface conditions, and the Improvements, and (ii) the
operative or proposed governmental laws and regulations affecting or
applicable to the Property. Buyer acknowledges that, except as expressly
set forth in this Agreement, it is purchasing the Property "AS-IS, WITH ALL
FAULTS" and Buyer is not relying upon any statements, representations or
warranties by Seller or any of its agents or representatives regarding the
Property's suitability for Buyer's intended purpose.
16. Remedies.
--------
(a) LIQUIDATED DAMAGES. IF BUYER BREACHES A MATERIAL OBLIGATION UNDER
------------------
THIS AGREEMENT AND THE CLOSE OF ESCROW FAILS TO OCCUR BY REASON OF SUCH BREACH,
THE DAMAGES THAT SELLER WILL INCUR BY REASON THEREOF ARE AND WILL BE IMPRACTICAL
AND EXTREMELY DIFFICULT TO ESTABLISH. BUYER AND SELLER, IN A REASONABLE EFFORT
TO ASCERTAIN WHAT SELLER'S DAMAGES WOULD BE IN THE EVENT OF SUCH A DEFAULT BY
BUYER, HAVE AGREED BY PLACING THEIR INITIALS BELOW, THAT THE DEPOSIT SHALL BE
DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF SELLER'S DAMAGES UNDER THE
PROVISIONS OF CALIFORNIA CIVIL CODE (S) 1671. IN THE EVENT OF SUCH BREACH BY
BUYER, THE DEPOSIT SHALL BE DELIVERED TO SELLER WITHOUT THE NECESSITY OF AN
INSTRUCTION BY BUYER, AND RETAINED BY SELLER AS LIQUIDATED DAMAGES, WHICH
DAMAGES SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY AT LAW OR IN EQUITY IN THE
EVENT OF AND FOR SUCH DEFAULT BY BUYER.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH, SELLER
WAIVES ANY AND ALL RIGHTS WHICH SELLER OTHERWISE WOULD HAVE HAD UNDER CALIFORNIA
CIVIL CODE SECTION 3389 TO SPECIFICALLY ENFORCE THIS AGREEMENT. SUBJECT TO THE
TERMS OF PARAGRAPH 7(C) OF THIS AGREEMENT, IF THE CLOSE OF ESCROW FAILS TO OCCUR
FOR ANY REASON OTHER
-12-
THAN BUYER'S DEFAULT UNDER THIS AGREEMENT, THEN ESCROW HOLDER SHALL RETURN TO
BUYER THE DEPOSIT, TOGETHER WITH ALL INTEREST ACCRUED THEREON. SELLER AND BUYER
ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS PARAGRAPH
16 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
Seller's Initials Buyer's Initials
T.C.P J.C.H.
----------------- ----------------
(b) Buyer's Remedies. Buyer and Seller hereby agree that, if the sale
----------------
contemplated by this Agreement is not completed as herein provided by reason of
any default of Seller hereunder, then in addition to the return of the Deposit
and all interest accrued thereon, Buyer shall be entitled to pursue any remedy
available under this Agreement or available at law or in equity, including,
without limitation, the right to specifically enforce this Agreement.
(c) Termination of Escrow. Notwithstanding anything in this Agreement
---------------------
to the contrary, if either party hereto wrongfully refuses to cause Escrow
Holder to cancel the Escrow, the other party shall be entitled to recover all
costs and expenses, including actual attorneys' fees incurred by the party
seeking to enforce its rights under this Paragraph 16. Further, Seller shall be
entitled to recover all costs and expenses, including actual attorneys' fees and
consequential damages, if any, which may be incurred by Seller, after the
closing date by reason of the cloud on title to the property which results
directly from Buyer's wrongful failure to cancel the Escrow and this Agreement..
In addition, the terms of this Paragraph 16 shall not apply to nor limit the
liability of Buyer under Section 7(a)(iii) of this Agreement.
17. Damage or Condemnation Prior to Closing. Seller shall promptly
---------------------------------------
notify Buyer of any casualty to the Property or any condemnation proceeding
commenced prior to the Close of Escrow. If any such damage or proceeding
relates to or may result in the loss of any material portion of the Property,
Seller or Buyer may, in their sole and absolute discretion, elect either to:
(i) terminate this Agreement, in which event all funds deposited into Escrow by
Buyer shall be returned to Buyer and neither party shall have any further rights
or obligations hereunder, or (ii) continue the Agreement in effect, in which
event upon the Close of Escrow, Buyer shall be entitled to any compensation,
awards, or other payments or relief resulting from such casualty or condemnation
proceeding relating to the Property and there shall be no adjustment to the
Purchase Price.
18. Notices. All notices or other communications required or
-------
permitted hereunder shall be in writing, and shall be personally delivered, sent
by overnight mail (Federal Express or the like) or sent by registered or
certified mail, postage prepaid, return receipt requested, telegraphed,
delivered or sent by telex, telecopy, facsimile, fax or cable and shall be
deemed received upon the earlier of (i) if personally delivered, the date of
delivery to the address of the person to receive such notice, (ii) if sent by
overnight mail, the business day following its deposit in such overnight mail
facility, (iii) if mailed, four (4) business days after the date of posting by
the United States post office, or (iv) if given by telex, telecopy, facsimile or
fax, when sent. Any notice, request, demand, direction or other communication
sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-
eight (48) hours by letter mailed or delivered in accordance with the foregoing.
To Buyer: Kilroy Realty, L.P.
c/o Kilroy Realty Corporation
2250 East Imperial Highway, Suite 1200
El Segundo, California 90245
Attention: Jeff C. Hawken
Phone No. (213) 772-1193
Fax No. (310) 322-5981
With a copy to: Allen, Matkins, Leck, Gamble & Mallory LLP
18400 Von Karman, Suite 400
Irvine, California 92612
Attention: R. Michael Joyce, Esq.
Phone No. (714) 553-1313
Fax No. (714) 553-8354
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To Seller: The Betty L. Hutton Title Holding Company
101 West Anapamu, Suite C
Santa Barbara, California 93101
Attention: Thomas C. Parker
Phone No. (805) 957-4740
Fax No. (805) 957-4743
With a copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, California 92628-1950
Attention: Marcia A. Forsyth, Esq.
Phone No. (714) 641-5000
Fax No. (714) 546-9035
To Escrow Holder: First American Title Insurance Company
114 East Fifth Street
Santa Ana, California 92701
Attention: Judy Moore
Phone No. (714) 647-4466
Fax No. (714) 647-2235
Notice of change of address shall be given by written notice in the manner
detailed in this Paragraph. Rejection or other refusal to accept or the
inability to deliver because of changed address of which no notice was given
shall be deemed to constitute receipt of the notice, demand, request or
communication sent.
19. Brokers. Upon the Close of Escrow, Seller shall pay a real
-------
estate brokerage commission to Voit Commercial Brokerage with respect to this
transaction in accordance with Seller's separate agreement with said broker and
Seller hereby agrees to indemnify, protect, defend (with counsel chosen by
Buyer) and hold Buyer free and harmless from and against any and all commissions
or other claims such broker may assert in connection with the parties entering
into, or consummating the transactions contemplated by, this Agreement. If any
additional claims for broker's or finders' fees or commissions for the
consummation of this Agreement arise, then Buyer hereby agrees to indemnify,
protect, save harmless and defend Seller from and against such claims if they
are based upon any statement, representation or agreement made by Buyer, and
Seller hereby agrees to indemnify, protect, save harmless and defend Buyer from
and against such claims if they are based upon any statement, representation or
agreement made by Seller.
20. Legal Fees. In the event of the bringing of any action or suit
----------
by a party hereto against another party hereunder by reason of any breach of any
of the covenants or agreements or any inaccuracies in any of the representations
and warranties on the part of the other party arising out of this Agreement,
then in that event, the prevailing party in such action or dispute, whether by
final judgment or out of court settlement, shall be entitled to have and recover
of and from the other party all costs and expenses of suit, including actual
attorneys' fees. Any judgment or order entered in any final judgment shall
contain a specific provision providing for the recovery of all costs and
expenses of suit, including actual attorneys' fees (collectively "Costs")
incurred in enforcing, perfecting and executing such judgment. For the purposes
of this paragraph, Costs shall include, without limitation, attorneys' fees,
costs and expenses incurred in (i) postjudgment motions, (ii) contempt
proceeding, (iii) garnishment, levy, and debtor and third party examination,
(iv) discovery, and (v) bankruptcy litigation.
-14-
21. Assignment. Seller may not assign, transfer or convey its rights
----------
or obligations under this Agreement without the prior written consent of Buyer,
and then only if Seller's assignee assumes in writing all of Seller's
obligations hereunder; provided, however, Seller shall in no event be released
from its obligations hereunder by reason of such assignment. Buyer, without
being relieved of liability hereunder and without obtaining Seller's consent,
shall have the right to assign its rights and obligations hereunder or to
nominate another person or entity in whom title to the Property shall vest
provided that Metropolitan has issued written approval of the assumption of the
Met Loan by the proposed assignee, and the proposed assignee has assumed in
writing, for the benefit of Seller, all of Buyer's obligations hereunder.
22. Indemnification. Seller hereby agrees to indemnify, protect,
---------------
defend (with counsel chosen by Buyer) and hold harmless Buyer, from and against
any and all obligations, liabilities, claims, liens, encumbrances, losses,
damages, costs and expenses, including without limitation, attorneys' fees,
incurred by Buyer relating to the Property and arising or accruing from acts,
occurrences or matters that take place on or before the Close of Escrow.
23. Miscellaneous.
-------------
(a) Survival of Covenants. The covenants, representations and
---------------------
warranties of both Buyer and Seller set forth in this Agreement, except for
Seller's representation contained in Subparagraph 14(g) hereof, shall survive
the recordation of the Grant Deed and the Close of Escrow for a period of twelve
(12) months. Seller's representation contained in Subparagraph 13(g) hereof
shall be deemed to have merged into the Grant Deed as of the Close of Escrow.
(b) Required Actions of Buyer and Seller. Buyer and Seller agree to
------------------------------------
execute such instruments and documents as may be reasonably required in order to
consummate the purchase and sale herein contemplated.
(c) Computation of Time Periods. If the date upon which the
---------------------------
Contingency Period expires, the Closing Date or any other date or time period
provided for in this Agreement is or ends on a Saturday, Sunday or federal,
state or legal holiday, then such date shall automatically be extended until 5
p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal,
state or legal holiday.
(d) Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original, but all of which,
together, shall constitute but one and the same instrument. In addition,
executed counterparts may be delivered by facsimile transmission with the same
force and effect as delivery of an original executed counterpart.
(e) Captions. Any captions to, or headings of, the paragraphs or
--------
subparagraphs of this Agreement are solely for the convenience of the parties
hereto, are not a part of this Agreement, and shall not be used for the
interpretation or determination of the validity of this Agreement or any
provision hereof.
(f) No Obligations to Third Parties. Except as otherwise expressly
-------------------------------
provided herein, the execution and delivery of this Agreement shall not be
deemed to confer any rights upon, nor obligate any of the parties hereto, to any
person or entity other than the parties hereto.
(g) Exhibits. The Exhibits attached hereto are hereby
--------
incorporated herein by this reference for all purposes.
(h) Amendment to this Agreement. The terms of this Agreement may not
---------------------------
be modified or amended except by an instrument in writing executed by each of
the parties hereto.
(i) Waiver. The waiver or failure to enforce any provision of this
------
Agreement shall not operate as a waiver of any future breach of any such
provision or any other provision hereof.
(j) Applicable Law. This Agreement shall be governed by and construed
--------------
in accordance with the laws of the State of California.
(k) Fees and Other Expenses. Except as otherwise provided herein,
-----------------------
each of the parties hereto shall pay its own fees and expenses in connection
with this Agreement.
-15-
(l) Entire Agreement. This Agreement supersedes any prior agreements,
----------------
negotiations and communications, oral or written, and contains the entire
agreement between Buyer and Seller as to the subject matter hereof. No
subsequent agreement, representation, or promise made by either party hereto, or
by or to an employee, officer, agent or representative of either party hereto
shall be of any effect unless it is in writing and executed by the party to be
bound thereby.
(m) Successors and Assigns. Subject to the restrictions set forth in
----------------------
Paragraph 21 hereof, this Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties hereto.
(n) Construction. The parties hereto hereby acknowledge and agree
------------
that (i) each party hereto is of equal bargaining strength, (ii) each such party
has actively participated in the drafting, preparation and negotiation of this
Agreement, (iii) each such party has consulted with such party's own,
independent counsel, and such other professional advisors as such party has
deemed appropriate, relative to any and all matters contemplated under this
Agreement, (iv) each such party and such party's counsel and advisors have
reviewed this Agreement, (v) each such party has agreed to enter into this
Agreement following such review and the rendering of such advice, and (vi) any
rule of construction to the effect that ambiguities are to be resolved against
the drafting parties shall not apply in the interpretation of this Agreement, or
any portions hereof, or any amendments hereto.
24. Election to Postpone Closing. If the Close of Escrow would
----------------------------
otherwise occur between the first (1st) and tenth (10th) day of any calendar
month, Seller may elect, in its reasonable discretion, to postpone the Close of
Escrow to the eleventh (11th) day of such month in order to provide Seller with
an opportunity to collect all Rentals that were due within such ten-day period.
Seller may make such election by providing written notice thereof to Buyer no
later than seven (7) business days prior to the then scheduled Closing Date.
-16-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
"Buyer" KILROY REALTY, L.P.,
a Delaware limited partnership
By: /s/ Jeffrey C. Hawken
--------------------------------------------
Name: Jeffrey C. Hawken
---------------------------------------
Title: Exec. Vice-President and
Chief Operating Officer
--------------------------------------
"Seller" MISSION SQUARE PARTNERSHIP, a California
general partnership
By: The Betty L. Hutton Title Holding Company,
Inc., (formerly known as The Betty L. Hutton
Company),
its general partner
By: /s/ Thomas C. Parker
--------------------------------------------
Name: Thomas C. Parker
---------------------------------------
Title: Chief Executive Officer
--------------------------------------
By: BB&K Mission Square Partners, a California
general partnership,
its general partner
By: /s/ Gregory L. Hardke
--------------------------------------------
Name: Gregory L. Hardke
---------------------------------------
Title: Managing Partner
--------------------------------------
By: /s/ John D. Wahlin
--------------------------------------------
Name: John D. Wahlin
---------------------------------------
Title: Managing Partner
--------------------------------------
Acceptance by Escrow Holder:
- ---------------------------
First American Title Insurance Company hereby acknowledges that it has
received a fully executed original or original executed counterparts of the
foregoing Agreement of Purchase and Sale and Joint Escrow Instructions and
agrees to act as Escrow Holder thereunder and to be bound by and strictly
perform the terms thereof as such terms apply to Escrow Holder.
Dated:__________________, 1997 FIRST AMERICAN TITLE INSURANCE COMPANY
By:__________________________________________
Its Authorized Agent
-17-
LEGAL DESCRIPTION OF THE LAND
-----------------------------
[To Be Supplied by Seller]
EXHIBIT "A"
-----------
RENT ROLL
---------
[To Be Supplied by Seller]
EXHIBIT "B"
-----------
WHEN RECORDED MAIL TO AND
MAIL TAX STATEMENTS TO:
KILROY REALTY, L.P.
c/o Kilroy Realty Corporation
2250 East Imperial Highway, Suite 1200
El Segundo, California 90245
================================================================================
(Above Space for Recorder's Use Only)
GRANT DEED
----------
The undersigned grantor declares:
Documentary Transfer Tax not shown pursuant
to Section 11932 of the Revenue and
Taxation Code, as amended
County of ___________________
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
__________________________________________, a ________________________, hereby
GRANTS to ____________________________________________, a ___________________,
that certain real property in the City of _______________, County of
______________, State of California, which is more particularly described on
Exhibit "1" which is attached hereto.
- -----------
IN WITNESS WHEREOF, the parties hereto have caused this Grant Deed to
be executed as of the _____ day of _____________, 199__.
_________________________________________________
_________________________________________________
By:______________________________________________
Print Name:___________________________________
Print Title:__________________________________
By:______________________________________________
Print Name:___________________________________
Print Title:__________________________________
[ATTACH APPROPRIATE ACKNOWLEDGMENTS]
EXHIBIT "C"
-----------
DESCRIPTION OF REAL PROPERTY CONVEYED
-------------------------------------
[To Be Supplied]
EXHIBIT "l"
-----------
Document No. _______________________
Recorded ____________________, 199___
STATEMENT OF TAX DUE AND REQUEST THAT TAX DECLARATION NOT BE MADE A
PART OF THE PERMANENT RECORD IN THE OFFICE OF THE COUNTY RECORDER
(PURSUANT TO SECTION 11932 OF THE CALIFORNIA REVENUE AND TAXATION
CODE)
TO: Recorder
County of _________________
Request is hereby made in accordance with the provisions of the
Documentary Transfer Tax Act that the amount of the tax due not be shown on the
original document which names:
Grantor: ______________________________, a __________________________________
Grantee: ______________________________, a __________________________________
The property described in the accompanying document is located in the
City of _____________, County of ___________________.
The amount of tax due on the accompanying document is $________________.
________ Computed on full value of property conveyed.
________ Or Computed on full value, less liens and encumbrances remaining at
the time of sale.
_______________________________________________
(Signature of Declarant or Agent)
_______________________________________________
(Firm Name)
Note: After the permanent record is made, this form will be affixed to the
conveying document and returned with it.
TENANT:__________________________
DATE OF LEASE:___________________
AMENDED:_________________________
PREMISES:________________________
ESTOPPEL CERTIFICATE
--------------------
To:
_______________________
_______________________
_______________________
_______________________
Re: Lease dated _________________, 19__ between
________________________________________________
and_____________________________________________
The undersigned hereby certifies to _________________________
("Buyer") as follows:
1. The undersigned is the "Tenant" under the above-referenced lease
("Lease") covering the above-referenced Premises ("Premises"). A true, correct
and complete copy of the Lease (including all addenda, riders, amendments,
modifications and supplements thereto) is attached as Exhibit "1".
-----------
2. The Lease constitutes the entire agreement between landlord under
the Lease ("Landlord") and Tenant with respect to the Premises and the Lease has
not been modified, changed, altered or amended in any respect except as set
forth above.
3. The term of the Lease commenced on _______________, 19__, and,
including any presently exercised option or renewal term, will expire on
____________________. Tenant has accepted possession of the Premises and is the
actual occupant in possession and has not sublet, assigned or hypothecated all
or any portion of Tenant's leasehold interest. All improvements to be
constructed on the Property by Landlord have been completed and accepted by
Tenant and any tenant construction allowances have been paid in full.
4. As of the date of this Estoppel Certificate, there exists no
breach or default, nor state of facts which, with notice, the passage of time,
or both, would result in a breach or default on the part of either Tenant or
Landlord. To the best of Tenant's knowledge, no claim, controversy, dispute,
quarrel or disagreement exists between Tenant and Landlord.
5. Tenant is currently obligated to pay annual rental of
$____________ in monthly installments of $___________ per month and monthly
installments of annual rental have been paid through _________________, 19__.
Tenant is obligated to pay monthly installments of common area maintenance
charges in the amount of $____________. No other rent has been paid in advance
and Tenant has no claim or defense against Landlord under the Lease and is
asserting no offsets or credits against either the rent or Landlord. Tenant has
no claim against Landlord for any security deposit or other deposits except
$___________ which was paid pursuant to the Lease.
6. Tenant has no option or preferential right to purchase all or any
part of the Premises (or the real property of which the Premises are a part) nor
any right or interest with respect to the Premises other than as Tenant under
the Lease.
7. Tenant has no option, right of first offer or right of first
refusal to lease or occupy any other space within the property of which the
Premises are a part, except ___________________________ [IF NONE, LEAVE BLANK].
Tenant has no right to renew or extend the terms of the Lease except ___________
________________________________[IF NONE, LEAVE BLANK].
8. Tenant has no preferential right to parking spaces or storage area
except __________________________________________________________________ [IF
NONE, LEAVE BLANK].
EXHIBIT "D"
-----------
9. Tenant has made no agreement with Landlord or any agent,
representative or employee of Landlord concerning free rent, partial rent,
rebate of rental payments or any other type of rental or other concession except
as expressly set forth in the Lease.
10. There has not been filed by or against Tenant a petition in
bankruptcy, voluntary or otherwise, any assignment for the benefit of
creditors, any petition seeking reorganization or arrangement under the
bankruptcy laws of the United States, or any state thereof, or any other action
brought under said bankruptcy laws with respect to Tenant.
11. All insurance required of Tenant by the Lease has been provided
by Tenant and all premiums have been paid.
12. The Premises contains approximately __________ square feet of
rentable area.
This Estoppel Certificate is made to Buyer in connection with the
prospective purchase by Buyer, or Buyer's assignee, of the property containing
the Premises. This Estoppel Certificate may be relied on by Buyer and any other
party who acquires an interest in the Premises in connection with such purchase
or any person or entity which may finance such purchase.
Dated this _____ day of _________________, 19__.
_________________________________________________
By:______________________________________________
Its:__________________________________________
"TENANT"
[Attach Lease as Exhibit "1"]
-----------
D-2
PERSONAL PROPERTY
EXHIBIT "E"
-----------
TENANT LEASE ASSIGNMENT
-----------------------
THIS TENANT LEASE ASSIGNMENT ("Assignment") is made this ____ day of
_______________, 19__ by and between _______________________________________, a
__________________ ("Assignor"), and ________________________________________, a
__________________ ("Assignee").
W I T N E S S E T H:
- - - - - - - - - -
A. Assignor and Assignee entered into that certain Agreement of
Purchase and Sale and Joint Escrow Instructions, dated as of _________________,
19__ ("Agreement"), respecting the sale of the "Property" (as defined in the
Agreement).
B. Under the Agreement, Assignor is obligated to assign to Assignee
any and all of Assignor's right, title and interest in and to all leases,
licenses, rental agreements or occupancy agreements relative to the real
property ("Real Property") described in Exhibit "1" attached hereto, together
-----------
with all rents, issues and profits thereunder (collectively, the "Tenant
Leases") and all security deposits, prepaid rentals, cleaning fees and other
deposits, plus any interest accrued thereon (which is payable to the tenant),
paid by tenants of the Real Property to Assignor or any other person ("Tenant
Deposits"), which Tenant Leases and Tenant Deposits are set forth on Exhibit "2"
-----------
attached hereto.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Assignor hereby assigns, sells, transfers, sets over and delivers
unto Assignee all of Assignor's estate, right, title and interest in and to the
Tenant Leases and the Tenant Deposits and Assignee hereby accepts such
assignment.
2. Assignor covenants, warrants and represents to Assignee that, (i)
except as shown on Exhibit "2", the Tenant Leases have not been modified,
-----------
amended or altered in writing or otherwise, and no concessions, abatements or
adjustments have been granted to tenants under the Tenant Leases, and (ii)
Assignor has not assigned to any other person or entity the Tenant Leases or
Tenant Deposits and Assignor shall indemnify, protect, defend (with counsel
chosen by Assignee) and hold harmless Assignee from and against any and all such
claims of prior assignment. Such covenants, warranties and representations
shall survive the execution and delivery of this Assignment.
3. Assignee hereby assumes the performance of all of the terms,
covenants and conditions imposed upon Assignor as landlord under the Tenant
Leases accruing or arising on or after the "Close of Escrow" (as defined in the
Agreement).
4. Assignor hereby agrees to indemnify, protect, defend (with counsel
chosen by Assignee) and hold harmless Assignee, Assignee's agents and Assignee's
and their successors and assigns from and against any and all claims, losses,
liabilities and expenses, including reasonable attorneys' fees, suffered or
incurred by Assignee by reason of any breach by Assignor prior to the Close of
Escrow, of any of Assignor's obligations under the Tenant Leases or with respect
to the Tenant Deposits.
5. Assignee hereby agrees to indemnify, protect, defend (with counsel
chosen by Assignor) and hold harmless Assignor, Assignor's agents and Assignor's
and their successors and assigns from and against any and all claims, losses,
liabilities and expenses, including reasonable attorneys' fees, suffered or
incurred by Assignor by reason of any breach by Assignee from and after the
Close of Escrow, of any of Assignee's obligations under the Tenant Leases or
with respect to the Tenant Deposits.
6. In the event of the bringing of any action or suit by a party
hereto against another party hereunder by reason of any breach of any of the
covenants, conditions, agreements or provisions on the part of the other party
arising out of this Assignment, then in that event the prevailing party shall be
entitled to have and recover of and from the other party all costs and expenses
of the action or suit, including reasonable attorneys' fees.
7. This Assignment may be executed in counterparts, each of which
shall be deemed an original, but all of which, together, shall constitute one
and the same instrument.
EXHIBIT "F"
-----------
8. This Assignment shall be binding upon and inure to the benefit of
the successors, assignees, personal representatives, heirs and legatees of all
the respective parties hereto.
9. This Assignment shall be governed by, interpreted under, and
construed and enforceable in accordance with, the laws of the State of
California.
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered
this Assignment as of the day and year first written above.
"Assignor" ___________________________________________
___________________________________________
___________________________________________
"Assignee" ___________________________________________
___________________________________________
By:________________________________________
Its:____________________________________
[Attach Real Property Description as Exhibit "1"
-----------
and Schedule of Leases and Security Deposits as Exhibit "2"]
-----------
F-2
ASSIGNMENT
OF
CONTRACTS AND ASSUMPTION AGREEMENT
----------------------------------
THIS ASSIGNMENT OF CONTRACTS AND ASSUMPTION AGREEMENT ("Assignment"),
is made as of the ____ day of _______________, 19__ by and between
_______________________________________, a __________________ ("Assignor"), and
________________________________________, a __________________ ("Assignee").
W I T N E S S E T H:
- - - - - - - - - -
A. Assignor and Assignee entered into that certain Agreement of
Purchase and Sale and Joint Escrow Instructions, dated ________________, 19__,
("Agreement"), for the purchase and sale of certain real property ("Property")
more particularly described in the Agreement.
B. This Assignment is being made pursuant to the terms of the
Agreement for the purpose of assigning to Assignee all of Assignor's right,
title and interest in and to those certain contracts, warranties and guaranties,
together with all supplements, amendments and modifications thereto approved by
Buyer pursuant to the Agreement (collectively, the "Contracts"). The Contracts
are more particularly described in Exhibit "1" attached hereto.
-----------
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Assignor hereby grants, assigns, transfers, conveys and delivers
to Assignee the Contracts and all of Assignor's right, title, interest, benefits
and privileges thereunder, and Assignee hereby accepts such Assignment.
2. Assignee hereby agrees to indemnify, protect, defend (with counsel
chosen by Assignor) and hold harmless Assignor, Assignor's agents and Assignor's
and their successors and assigns from and against any and all claims, losses,
liabilities and expenses, including reasonable attorneys' fees, suffered or
incurred by Assignor by reason of any breach by Assignee from and after the
Close of Escrow (as defined in the Agreement) of any of Assignee's obligations
under the Contracts.
3. Assignor hereby agrees to indemnify, protect, defend (with counsel
chosen by Assignee) and hold harmless Assignee, Assignee's agents and Assignee's
and their successors and assigns from and against any and all claims, losses,
liabilities and expenses, including reasonable attorneys' fees, suffered or
incurred by Assignee by reason of any breach by Assignor prior to the Close of
Escrow of any of Assignor's obligations under the Contracts.
4. By acceptance of this Assignment, Assignee hereby assumes and
agrees to perform and to be bound by all of the terms, covenants, conditions and
obligations imposed upon or assumed by Assignor under the Contracts. Said
assumption shall have application only to those obligations under the Contracts
first accruing or arising on or after the Close of Escrow and shall have no
application to obligations accruing or arising prior to said date.
5. This Assignment may be executed in counterparts, each of which
shall be deemed an original, but all of which, together, shall constitute one
and the same instrument.
6. This Assignment shall be binding upon and inure to the benefit of
the successors, assigns, personal representatives, heirs and legatees of the
respective parties hereto.
7. In the event of the bringing of any action or suit by a party
hereto against another party hereunder by reason of any breach of any of the
covenants, conditions, agreements or provisions on the part of the other party
arising out of this Assignment, then in that event the prevailing party shall be
entitled to have and recover of and from the other party all costs and expenses
of the action or suit, including reasonable attorneys' fees.
EXHIBIT "G"
-----------
8. This Assignment shall be governed by, interpreted under, and
construed in accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
"Assignor" _________________________________________________
_________________________________________________
_________________________________________________
"Assignee" _________________________________________________
_________________________________________________
By:______________________________________________
Its:__________________________________________
[Attach Schedule of Contracts
as Exhibit "1"]
-----------
G-2
BILL OF SALE
------------
THIS BILL OF SALE ("Bill of Sale") is made this _____ day of
_____________, 19__ by MISSION SQUARE PARTNERS, a California general partnership
("Seller"), in favor of KILROY REALTY, L.P., a Delaware limited partnership
("Buyer").
W I T N E S S E T H:
- - - - - - - - - -
A. Seller and Buyer entered into that certain Agreement of Purchase
and Sale and Joint Escrow Instructions dated as of ______________________, 19__
("Agreement") respecting the sale of certain "Property" (as defined in the
Agreement).
B. Under the Agreement, Seller is obligated to transfer to Buyer any
and all of Seller's right, title and interest in and to all equipment,
appliances, tools, machinery, supplies, building materials and other personal
property of every kind and character owned by Seller and attached to,
appurtenant to, located in or used in connection with the operation of the
"Improvements" (as defined in the Agreement) (collectively, the "Personal
Property").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller does hereby absolutely and
unconditionally give, grant, bargain, sell, transfer, set over, assign, convey,
release, confirm and deliver to Buyer all of the Personal Property, including,
without limitation, those certain items of personal property described on
Exhibit "1" attached hereto.
- -----------
1. Seller hereby represents and warrants to Buyer that: (i) the
Personal Property has been paid for and is not subject to any liens,
encumbrances or claims of any kind, such warranty and representation shall
survive the execution and delivery of this Bill of Sale and Buyer's subsequent
transfer of any of the Personal Property.
2. Seller warrants, and hereby covenants, at Seller's sole cost and
expense, to defend Buyer's title to the Personal Property against all lawful
claims and demands of all persons or entities whomsoever which may now exist or
which may have accrued as of the "Close of Escrow" (as defined in the
Agreement). Seller hereby agrees to indemnify, protect, defend (with counsel
chosen by Buyer) and hold Buyer free and harmless from and against any and all
liabilities, obligations, damages, causes of action, judgments, costs and
expenses (including reasonable attorneys' fees) which Buyer may incur or suffer
in connection with any breach by Seller of the preceding warranty and covenant.
3. This Bill of Sale shall be binding upon and inure to the benefit
of the successors, assigns, personal representatives, heirs and legatees of
Buyer and Seller.
EXHIBIT "H"
-----------
4. This Bill of Sale shall be governed by, interpreted under, and
construed and enforceable in accordance with, the laws of the State of
California.
IN WITNESS WHEREOF, Seller has executed and delivered this Bill of
Sale as of the date first written above.
"Seller" MISSION SQUARE PARTNERSHIP, a California general
partnership
By: The Betty L. Hutton Title Holding Company,
Inc., (formerly known as The Betty L. Hutton
Company),
its general partner
By:________________________________________
Name:___________________________________
Title:__________________________________
By: BB&K Mission Square Partners, a California
general partnership,
its general partner
By:________________________________________
Name:___________________________________
Title:__________________________________
By:________________________________________
Name:___________________________________
Title:__________________________________
[Attach Description of Personal Property
as Exhibit "1"]
-----------
H-2
TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
------------------------------------------------
To inform ___________________________________________, a _____________
(the "Transferee") that withholding of tax under Section 1445 of the Internal
Revenue Code of 1986, as amended ("Code") will not be required upon the transfer
by _________________________________________, a ______________________
("Transferor") of certain interests in real property to the Transferee, the
undersigned hereby certifies the following on behalf of the Transferor:
1. The Transferor is not a foreign corporation, foreign partnership,
foreign trust, foreign estate or foreign person (as those terms are defined in
the Code and the Income Tax Regulations promulgated thereunder); and
2. The Transferor's U.S. employer or tax (social security)
identification number is ________________________.
The Transferor understands that this Certification may be disclosed to
the Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this
Certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of the Transferor.
"TRANSFEROR" ____________________________________________
____________________________________________
____________________________________________
Dated: ___________________, 19__
EXHIBIT "I"
-----------
GENERAL ASSIGNMENT AGREEMENT
----------------------------
THIS GENERAL ASSIGNMENT AGREEMENT ("Assignment"), is made as of the
_____ day of _______________, 199__, by and among _____________________________,
a _____________________ ("Assignor") and ______________________________
("Assignee").
W I T N E S S E T H :
- - - - - - - - - -
Assignor is the owner of that certain land (the "Land") located in the
City of ______________, County of ______________, State of California more
particularly described in Exhibit "A" attached hereto, and all rights,
-----------
privileges and easements appurtenant to the Land (the "Appurtenances"), and all
buildings and other improvements thereon (the "Improvements"). The Land, the
Appurtenances and the Improvements are hereinafter referred to collectively as
the "Real Property." The Real Property is being conveyed by Assignor to
Assignee pursuant to a grant, bargain and sale deed ("Grant Deed") of on or
about even date herewith, pursuant to that certain Agreement of Purchase and
Sale and Joint Escrow Instructions dated ______________, 1997 (the "Agreement").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Assignor hereby grants, assigns, transfers, conveys and delivers
to Assignee all of Assignor's right, title, interest, benefits and privileges in
and to the following described property (collectively, the "Rights"):
(a) All construction, engineering, consulting, architectural and other
similar contracts, and any and all amendments and modifications thereto,
concerning the design or construction of any or all of the Real Property and all
warranties with respect thereto (including all statutory, express and implied
warranties);
(b) All architectural drawings, plans, specifications, soils tests,
appraisals, engineering reports and similar materials relating to any or all of
the Real Property;
(c) All payment and performance bonds or guaranties and any and all
modifications and extensions thereof relating to the Real Property;
(d) All governmental entitlements (including, but not limited to, all
environmental impact reports, negative declarations, map approvals, conditional
use permits, building permits and certificates of occupancy for the
Improvements), permissions, environmental clearances, authority to subdivide the
Land, rights, licenses and permits which relate to all or any of the Real
Property;
(e) All general intangibles relating to the development or use of the
Real Property, including, without limitation, all names under which or by which
the Real Property or any portion thereof may at any time be operated or known,
all rights to carry on business under any such names or any variant thereof, and
all trademarks and goodwill in any way relating to the Real Property;
(f) All refunds and payments of any kind relating to the construction,
operation, occupancy, use and/or disposition of any or all of the Real Property;
(g) All proceeds and claims arising on account of any damage to or
taking of the Real Property or any part thereof, and all causes of action and
recoveries for any loss or diminution in the value of the Real Property; and
(h) All of Assignor's interest in all impounds, accounts [,letters of
credit] and other security held by Metropolitan Life Insurance Company in
connection with the Met Loan.
2. Assignee hereby accepts the grant, assignment, transfer,
conveyance and delivery of the Rights set forth in Paragraph 1 hereof, effective
as of the recordation of the Grant Deed.
3. All rights are conveyed without representation or warranty,
subject to all proprietary interests that may exist with the parties preparing
the Rights, and subject to all conditions imposed upon issuance of the Rights.
EXHIBIT "J"
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4. This Assignment shall be binding upon and inure to the benefit of
the successors, assigns, personal representatives, heirs and legatees of the
respective parties hereto.
5. In the event of the bringing of any action or suit by a party
hereto against another party hereunder by reason of any breach of any of the
covenants, conditions, agreements or provisions on the part of the other party
arising out of this Assignment, then in that event the prevailing party shall be
entitled to have and recover of and from the other party all costs and expenses
of the action or suit, including reasonable attorneys' fees.
6. This Assignment shall be governed by, interpreted under, and
enforced and construed in accordance with the laws of the State of California.
7. This Assignment may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which together shall constitute
but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this instrument
as of the date first hereinabove written.
"Assignor" ___________________________________________
___________________________________________
___________________________________________
"Assignee" ___________________________________________
a _________________________________________
By:________________________________________
Its:____________________________________
J-2
LEGAL DESCRIPTION OF THE PROPERTY
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[To Be Provided]
EXHIBIT "A" to
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EXHIBIT "J"
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COPY OF U.S. MARSHALL'S LEASE
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[To Be Provided by Seller]
EXHIBIT "K"
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