SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) April 10, 1997
DEAN WITTER REALTY INCOME PARTNERSHIP II, L.P.
(Exact name of registrant as specified in its charter)
Delaware 0-18150 13-3244091
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
Two World Trade Center, New York, New York 10048
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 392-1054
(Former name or former address, if changed since last report)
<PAGE>
Item 2. Acquisition or Disposition of Assets
Pursuant to an agreement dated as of February 28, 1997, Century
Square Venture (which is owned 75% by the Partnership and 25% by
Dean Witter Realty Income Partnership I, L.P., an affiliated public
partnership) entered into an agreement with Spieker Properties,
L.P., an unaffiliated party, to sell the land and building which
comprise the Century Square property for a negotiated sale price of
$41,500,000.
The closing of the sale took place on April 10, 1997. The purchase
price was paid in cash at closing. The Partnership received
approximately $30.6 million, representing its 75% share of the cash
received by Century Square Venture net of closing costs.
<PAGE>
Item 7. Financial Statements and Exhibits
(b) Pro Forma Financial Information
(1) Pro Forma Balance Sheet as of January 31, 1997.
(2) Pro Forma Statements of Operations for the year ended
October 31, 1996 and the three months ended January 31,
1997.
(c) Exhibits
(1) Purchase and Sale Agreement dated as of February 28, 1997
between Century Square Venture as Seller and Spieker
Properties, L.P. as Purchaser.<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
DEAN WITTER REALTY INCOME PARTNERSHIP
II, L.P.
By: Dean Witter Realty Income Properties II,
Inc.
Managing General Partner
By: /s/E. Davisson Hardman, Jr,
E. Davisson Hardman, Jr.
President
Date: April 24, 1997
<PAGE>
<TABLE>
Dean Witter Realty Income Partnership II, L.P.
Pro Forma Consolidated Balance Sheet
January 31, 1997
The following unaudited pro forma balance sheet has been presented as if the Century Square
Venture property was sold as of January 31, 1997. The pro forma adjustments reflect a) the cash
proceeds from the sale, b) the elimination of the net carrying value of the property from real
estate held for sale and c) the elimination of other assets and liabilities relating to the
property sold.
<CAPTION>
Pro Forma
Historical Adjustments Pro Forma
<S> <C> <C> <C>
ASSETS
Cash and cash equivalents $ 3,188,203 $30,632,121 $33,820,324
Real estate 35,237,542 - 35,237,542
Real estate held for sale 53,434,820 (31,017,150) 22,417,670
Investment in joint venture 2,659,208 - 2,659,208
Other assets 4,947,957 (2,183,301) 2,764,656
$99,467,730 $ (2,568,330) $96,899,400
LIABILITIES AND PARTNERS' CAPTIAL
Accounts payable and other
liabilities $ 1,005,841 $ (86,312) $ 919,529
Minority interests in
joint ventures 8,378,496 (8,378,496) -
9,384,337 (8,464,808) 919,529
Partners' captial 90,083,393 5,896,478 95,979,871
$99,467,730 $(2,568,330) $96,899,400
</TABLE>
<PAGE>
<TABLE>
Dean Witter Realty Income Partnership II, L.P.
Pro Forma Consolidated Statement of Operations
Year ended October 31, 1996
The following unaudited pro forma consolidated statement of operations has been presented as if
the Century Square Venture property was sold as of the beginning of fiscal year 1996. The pro
forma adjustments reflect the elimination of rental and other revenues, property operating
expenses, depreciation, amortization and the minority interest's share of income relating to the
property sold. The pro forma adjustments do not reflect the Partnership's nonrecurring gain on
the sale of the property.
<CAPTION>
Pro Forma
Historical Adjustments Pro Forma
<S> <C> <C> <C>
Revenues:
Rental $16,206,557 $(5,761,715) $10,444,842
Equity in earnings of
joint venture 250,109 - 250,109
Interest and other 957,941 (69,838) 888,103
17,414,607 (5,831,553) 11,583,054
Expenses:
Property operating 6,459,867 (1,926,040) 4,533,827
Depreciation 5,011,419 (1,395,681) 3,615,738
Amortization 537,220 (152,386) 384,834
General and administrative 759,445 - 759,445
Loss on impairment of
real estate 11,870,000 - 11,870,000
24,637,951 (3,474,107) 21,163,844
Loss before minority interest(7,223,344) (2,357,446) (9,580,790)
Minority interest 589,362 (589,362) -
Net loss $(7,812,706) $(1,768,084) $(9,580,790)
Net loss per
Unit of Limited
Partnership interest $ (39.72) $ (8.99) $ (48.71)
/TABLE
<PAGE>
<TABLE>
Dean Witter Realty Income Partnership II, L.P.
Pro Forma Consolidated Statement of Income
Three months ended January 31, 1997
The following unaudited pro forma consolidated statement of operations has been presented as if
the Century Square Venture property was sold as of the beginning of fiscal year 1997. The pro
forma adjustments reflect the elimination of rental and other revenues, property operating
expenses, depreciation, amortization and the minority interest's share of income relating to the
property sold. The pro forma adjustments do not reflect the Partnership's nonrecurring gain on
the sale of the property.
<CAPTION>
Pro Forma
Historical Adjustments Pro Forma
<S> <C> <C> <C>
Revenues:
Rental $ 4,240,916 $(1,436,874) $ 2,804,042
Equity in earnings of
joint venture 62,900 - 62,900
Interest and other 49,603 (519) 49,084
4,353,419 (1,437,393) 2,916,026
Expenses:
Property operating 1,599,045 (526,907) 1,072,138
Depreciation 744,007 (295,296) 448,711
Amortization 139,490 (40,709) 98,781
General and administrative 191,413 - 191,413
2,673,955 (862,912) 1,811,043
Income before minority
interest 1,679,464 (574,481) 1,104,983
Minority interest 143,620 (143,620) -
Net income $ 1,535,844 $ (430,861) $ 1,104,983
Net income per
Unit of Limited
Partnership interest $ 7.81 $ (2.19) $ 5.62
/TABLE
<PAGE>
Exhibit Index for Dean Witter Realty Income Partnership II, L.P.
Exhibit Description
No
(1) Purchase and Sale Agreement
dated as of February 28, 1997
between Century Square Venture
as Seller and Spieker
Properties, L.P. as Purchaser.
E-1
TABLE OF DEFINED TERMS
The following capitalized terms are defined in the respective
Section of the Agreement identified below and are used in this
Agreement as so defined:
"A & A Agreements" - as such term is defined in Section 8(d)
hereof.
"Additional Rents" - as such term is defined in Section 3.2.2
hereof.
"Adjustment Date" - as such term is defined in Section 3 hereof.
"Agreement" - as such term is defined in the opening paragraph
hereof.
"Applicable Environmental Law" - as such term is defined in Section
6(f) hereof.
"Bill of Sale" - as such term is defined in Section 8(f) hereof.
"Broker" - as such term is defined in Section 11 hereof.
"Buildings" - as such term is defined in Section 1 hereof.
"Clearing House Bank" - as such term is defined in Section 2(a)
hereof.
"Closing" - as such term is defined in Section 1.2 hereof.
"Closing Date" - as such term is defined in Section 1.2 hereof.
"Contract and License Assignment" - as such term is defined in
Section 8(c) hereof.
"Contracts" - as such term is defined in Section 8(c) hereof.
"Deed" - as such term is defined in Section 8(a) hereof.
"Deposit" - as such term is defined in Section 15 hereof.
"Downpayment" - as such term is defined in Section 2(a)
hereof.
"Due Diligence Period" - as such term is defined in Section 4
hereof.
"Escrow Agent" - as such term is defined in Section 2(a)
hereof.
"Escrow Agreement" - as such term is defined in Section 15
hereof.
"Hazardous Substances" - as such term is defined in Section 6(f)
hereof.
"Intangible Property Assignment" - as such term is defined in
Section 8(d) hereof.
"Investigations" - as such term is defined in Section 4.1 hereof.
"Land" - as such term is defined in Section 1 hereof.
"Laws" - as such term is defined in Section 6(c) hereof.
"Lease Assignment" - as such term is defined in Section 8(b)
hereof.
"Leases" - as such term is defined in Section 6(d) hereof.
"Licenses" - as such term is defined in Section 8(c) hereof.
"Liens" - as such term is defined in Section 5.1 hereof.
"New Lease" - as such term is defined in Section 10.1.1 hereof.
"New Lease Expenses" - as such term is defined in Section 10.1.1
hereof.
"Other Purchase Agreement" - as such term is defined in Section
26 hereof.
"Permitted Encumbrances" - as such term is defined in Section 5
hereof.
"Personal Property" - as such term is defined in Section 1
hereof.
"Property" - as such term is defined in Section 1 hereof.
"Property Information" - as such term is defined in Section 17.3
hereof.
"Purchase Price" - as such term is defined in Section 2 hereof.
"Purchaser" - as such term is defined in the opening paragraph
hereof.
"Purchaser's Documents" - as such term is defined in Section 7(b)
hereof.
"Purchaser's Representatives" - as such term is defined in Section
17.3 hereof.
"Purchaser's Termination Notice" - as such term is defined in
Section 4.2 hereof.
"Rent Commencement Date" - as such term is defined in Section
10.1.2 hereof.
"Rents" - as such term is defined in Section 3 hereof.
"Sales Tax Return" - as such term is defined in Section 8(f)
hereof.
"Seller" - as such term is defined in the opening paragraph
hereof.
"Seller's Affiliates" - as such term is defined in Section 22
hereof.
"Seller's Documents" - as such term is defined in Section 6(b)
hereof.
"Survey" - as such term is defined in Section 5 hereof.
"Surviving Obligations" - as such term is defined in Section 14.1
hereof.
"Title Commitment" - as such term is defined in Section 5 hereof.
"Title Company" - as such term is defined in Section 5 hereof.
"Transfer Tax Payments" - as such term is defined in Section 5.6
hereof.
"Unacceptable Encumbrances" - as such term is defined in Section
5.1 hereof.
<PAGE>
PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as
of the 28th day of February, 1997, by and between CENTURY SQUARE
VENTURE, a California general partnership, having an office c/o Dean Witter
Realty Inc., Two World Trade Center, 64th Floor, New York, New York 10048,
(the "Seller"), and Spieker Properties, L.P., a California limited partnership,
having an office at 19600 Fairchild, Suite 285, Irvine, California 92612 (the
"Purchaser").
W I T N E S S E T H
WHEREAS, the Seller is the owner of the real property known and
numbered as 155 North Lake Avenue, Pasadena, California consisting of an
office building and related parking;
WHEREAS, the Seller and the Purchaser have entered into negotiations
wherein the Purchaser expressed its intent to purchase the Property (as defined
herein) from the Seller and the Seller expressed its intent to sell the
Property to the Purchaser; and
WHEREAS, the Seller and the Purchaser now desire to enter into an
agreement whereby, subject to the terms and conditions contained herein, the
Seller shall sell the Property to the Purchaser and the Purchaser shall purchase
the Property from the Seller.
NOW, THEREFORE, in consideration of ten ($10.00) dollars and the
mutual covenants and agreements hereinafter set forth, and intending to be
legally bound hereby, it is hereby agreed as follows:
1. Sale of the Property.
The Seller agrees to sell and convey to the Purchaser, and the Purchaser
agrees to purchase from the Seller, at the price and upon the terms and
conditions set forth in this Agreement, all those certain plots, pieces and
parcels of land described in Schedule 1 hereto (the "Land") listed thereon as
owned by the Seller, together with (i) all buildings and other improvements
situated on the Land (collectively, the "Buildings"), (ii) all easements,
rights of way, reservations, privileges, appurtenances, and other estates and
rights of the Seller pertaining to the Land and the Buildings, (iii) all right,
title and interest of the Seller in and to all fixtures, machinery, equipment,
supplies and other articles of personal property attached or appurtenant to the
Land or the Buildings, or used in connection therewith (collectively, the
"Personal Property"), and (iv) all right, title and interest of the Seller, if
any, in and to the trade names of the Buildings (the Land, together with all
of the foregoing items listed in clauses (i)-(iv) above being hereinafter
sometimes referred to as the "Property").
1.1. Excluded Property.
Specifically excluded from the Property and this sale are all items of
personal property not described in Section 1 (and all personal property of
tenants under the Leases) and the items described in Schedule 2 annexed
hereto and made a part hereof.
1.2. Closing Date.
The delivery of the Deed and the consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place at the Los
Angeles, California or other local California offices of the Escrow Agent at
10:00 A.M. on the date which is ten days after the end of the Due Diligence
Period unless such day is not a day on which the Recorder's Office of Los
Angeles County, California is open for business, in which case, the Closing
shall take place on the next day on which such Recorder's Office is open (the
"Closing Date") or such earlier or later date as the Seller and Purchaser may
agree in writing.
2. Purchase Price.
The purchase price to be paid by the Purchaser to the Seller for the Property
(the "Purchase Price") is Forty-One Million Five Hundred Thousand and NO/100
Dollars ($41,500,000.00) payable as follows:
(a) Five Hundred Thousand and NO/100 Dollars ($500,000.00)
Dollars (the "Downpayment") shall be payable simultaneously with the execution
and delivery of this Agreement, by delivery to First American Title Insurance
Company (the "Escrow Agent") of a certified or bank check drawn on or by a
bank which is a member of the New York Clearing House Association (a
"Clearing House Bank") or a certified or bank check drawn on or by a local
California bank which is approved by the Seller or by wire transfer of
immediately available funds to the Escrow Agent's account as set forth in the
Escrow Agreement. The Downpayment shall be held and disbursed by the
Escrow Agent in accordance with the terms of Section 15. At the Closing, the
Deposit shall be delivered to the Seller and such amount shall be credited
against the portion of the Purchase Price payable pursuant to Section 2(b);
(b) The balance of the Purchase Price (i.e., the Purchase Price
minus the credit set forth in Section 2(a) above), plus or minus the
apportionments set forth in Section 3, shall be paid at the Closing by bank wire
transfer of immediately available funds to the Seller's account or to the
account or accounts of such other party or parties as may be designated by the
Seller on or before the Closing Date.
3.Apportionments
The following shall be apportioned between the Seller and the Purchaser at the
Closing as of 11:59 p.m. of the day preceding the Closing Date (the "Adjustment
Date"):
(a) fixed or base rents ("Rents") which have been prepaid, security
deposits referred to in Section 8(e), Rents for the month in which the Closing
occurs and Additional Rents and other amounts paid by tenants applicable to
periods which expire after the Closing Date, which have been received by Seller;
(b) real estate taxes, special assessments (but only any installment
relating to the period in which the Adjustment Date occurs), water charges,
sewer rents and charges and vault charges, if any, on the basis of the fiscal
years (or applicable billing period if other than a fiscal year), respectively,
for which same have been assessed;
(c) value of prepaid fuel belonging to the Seller stored on the
Property, at the Seller's cost, including any taxes, on the basis of a statement
from the Seller's suppliers;
(d) charges and payments under Contracts that are being assigned
to the Purchaser pursuant to the terms of this Agreement and listed on Schedule
3 hereto or permitted renewals or replacements thereof;
(e) any prepaid items, including, without limitation, fees for
licenses which are transferred to the Purchaser at the Closing and annual permit
and inspection fees;
(f) utilities, to the extent required by Section 3.4;
(g) deposits with telephone and other utility companies, and any
other persons or entities who supply goods or services in connection with the
Property if same are assigned to the Purchaser at the Closing;
(h) personal property taxes, if any, on the basis of the fiscal year
for which assessed;
(i) all other revenues from the operation of the Property other than
Rents and Additional Rents (including, without limitation, parking charges,
tenant direct electrical reimbursements, HVAC overtime charges, and telephone
booth and vending machine revenues);
(j) New Lease Expenses as provided in Section 10.1.2; and
(k) such other items as are customarily apportioned between sellers
and purchasers of real properties of a type similar to the Property and located
in Los Angeles County, California.
3.1. Taxes.
If the amount of real estate taxes, special assessments or other taxes
for the Property for the fiscal year during which Closing occurs is not finally
determined at the Adjustment Date, such taxes shall be apportioned on the basis
of the full amount of the assessment for such period (or the assessment for the
prior tax period if the assessment for the current tax period is not then known)
and the rate for the immediately prior tax year, and shall be reapportioned as
soon as the new tax rate and valuation, if any, has been finally determined. If
any taxes which have been apportioned shall subsequently be reduced by
abatement, the amount of such abatement, less the cost of obtaining the same and
after deduction of sums payable to tenants under Leases or expired or terminated
Leases, shall be equitably apportioned between the parties hereto.
3.2. Rents.
3.2.1. Arrearages.
If on the Closing Date any tenant is in arrears in the payment
of Rent or has not paid the Rent payable by it for the month in which the
Closing occurs (whether or not it is in arrears for such month on the Closing
Date), any Rents received by the Purchaser or the Seller from such tenant after
the Closing shall be applied to amounts due and payable by such tenant in the
manner specified by such tenant, provided, that, if the tenant does not so
specify, such Rents shall be applied to amounts due and payable by such tenant
during the following periods in the following order of priority: (i) first,
to the month in which the Closing occurred, (ii) second, to the months following
the month in which the Closing occurred, and (iii) third, to the months
preceding the month in which the Closing occurred. If Rents or any portion
thereof received by the Seller or the Purchaser after the Closing are due and
payable to the other party by reason of this allocation, the appropriate sum,
less a proportionate share of any reasonable attorneys' fees and costs and
expenses expended in connection with the collection thereof, (to the extent not
collected from or reimbursed by tenants) shall be promptly paid to the other
party.
3.2.2. Additional Rents.
If any tenants are required to pay percentage rent, escalation
charges for real estate taxes, parking charges, operating expenses and
maintenance escalation charges, cost-of-living increases or other charges of a
similar nature ("Additional Rents") and any Additional Rents are collected by
the Purchaser or the Seller from a tenant after the Closing Date, then such
Additional Rents shall be applied to amounts due and payable by such tenant in
the manner specified by such tenant, provided, that, if the tenant does not
so specify, such Additional Rents shall be applied to amounts due and payable by
such tenant during the following periods in the following order of priority:
(i) first, to the month in which the Closing occurred, (ii) second, to the
months following the month in which the Closing occurred, and (iii) third, to
the months preceding the month in which the Closing occurred. If Additional
Rents or any portion thereof received by the Seller or the Purchaser after the
Closing are due and payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fees
and costs and expenses expended in connection with the collection thereof, (to
the extent not collected from or reimbursed by tenants) shall be promptly paid
to the other party..
3.2.3. Collection After the Closing.
After the Closing, the Seller shall continue to have the right,
in its own name, to demand payment of and to collect Rent and Additional Rent
arrearages owed to the Seller by any tenant, which right shall include, without
limitation, the right to continue or commence legal actions or proceedings
against any tenant (but which right shall specifically exclude any right to
terminate any Lease). The Purchaser agrees to cooperate with the Seller in
connection with all efforts by the Seller to collect such Rents and Additional
Rents and to take all steps, whether before or after the Closing Date, as may be
reasonably necessary to carry out the intention of the foregoing, including,
without limitation, the delivery to the Seller, upon demand, of any relevant
books and records (including any Rent or Additional Rent statements, receipted
bills and copies of tenant checks used in payment of such Rent or Additional
Rent), the execution of any and all consents or other documents, and the
undertaking of any act reasonably necessary for the collection of such Rents and
Additional Rents by the Seller, provided, that the cooperation required pursuant
to this sentence shall not require the Purchaser to incur any costs or initiate
any legal action against any tenant. If for any fiscal period which includes
the Adjustment Date tenants are paying Additional Rent based upon estimates
prepared by the Seller, such Additional Rents shall be reapportioned when the
actual expenses for the fiscal period are known.
3.3. Water.
If there is a water meter on the Property, the Seller shall furnish a
reading to a date not more than thirty (30) days prior to the Closing Date, and
the unfixed water charges and sewer rent, if any, based thereon for the
intervening time shall be apportioned on the basis of such last reading.
3.4. Utilities.
The Seller will attempt to obtain final cut-off readings of fuel,
telephone, electricity, and gas to be made as of the Adjustment Date. The
Seller shall pay the bills based on such readings promptly after the same are
rendered. If arrangements cannot be made for any such cut-off reading, the
parties shall apportion the charges for such services on the basis of the bill
therefor for the most recent billing period prior to the Adjustment Date, and
when final bills are rendered for the period which includes the Adjustment Date
the Seller and Purchaser shall promptly readjust the apportionments in
accordance with such final bills.
3.5. Post-Closing Adjustments.
The items set forth in this Section 3 shall be apportioned at the Closing
by payment of the net amount of such apportionments to the Seller in the manner
set forth herein for the payment of the Purchase Price if the net apportionment
is in favor of the Seller or by a credit against the Purchase Price if the net
apportionment is in favor of the Purchaser. However, if any of the items
subject to apportionment under the foregoing provisions of this Section 3 cannot
be apportioned at the Closing because of the unavailability of the information
necessary to compute such apportionment, or if any errors or omissions in
computing apportionments at the Closing are discovered subsequent to the
Closing, then such item shall be reapportioned and such errors and omissions
corrected as soon as practicable after the Closing Date and the proper party
reimbursed, which obligation shall survive the Closing for a period of one year
after the Closing Date. Notwithstanding any of the foregoing provisions of this
Section 3.5 to the contrary, the Purchaser and the Seller agree that the one
year limitation set forth in this Section 3.5 shall not apply to the parties'
obligations under Sections 3.1 and 3.2 and that such obligations shall survive
the Closing forever.
4. Due Diligence Period.
Notwithstanding anything to the contrary contained herein, the Purchaser shall
have a thirty-one (31) day period commencing on the date hereof (the "Due
Diligence Period") to examine title to the Property, to inspect the physical and
financial condition of the Property and to review the Property Information.
Neither the Purchaser nor the Purchaser's Representatives shall contact any
governmental authority or any of the Seller's tenants, vendors, employees,
consultants or contractors prior to the Closing without (i) providing one (1)
day's advance notice (which notice may be telephonic) of each such proposed
contact to the Seller, and (ii) providing the Seller and/or its representatives
an opportunity to be present at the time of any such contact.
4.1. Access to the Property.
During the Due Diligence Period, the Purchaser and the Purchaser's
Representatives shall have the right to enter upon the Property for the sole
purpose of inspecting the Property and making surveys, soil borings, engineering
tests and other investigations, inspections and tests (collectively,
"Investigations"), provided (i) the Purchaser shall give the Seller not less
than one (1) business days' prior written notice before each entry, (ii) the
first such notice shall include sufficient information to permit the Seller to
review the scope of the proposed Investigations, and (iii) neither the Purchaser
nor the Purchaser's Representatives shall permit any borings, drillings or
samplings to be done on the Property without the Seller's prior written consent.
Any entry upon the Property and all Investigations shall be during the Seller's
normal business hours and at the sole risk and expense of the Purchaser and the
Purchaser's Representatives, and shall not interfere with the activities on or
about the Property of the Seller, its tenants and their employees and invitees.
The Purchaser shall:
(a) promptly repair any damage to the Property resulting from any
such Investigations and replace, refill and regrade any holes made in, or
excavations of, any portion of the Property used for such Investigations so that
the Property shall be in the same condition as that which existed prior to such
Investigations;
(b) fully comply with all Laws applicable to the Investigations and
all other activities undertaken in connection therewith;
(c) permit the Seller to have a representative present during all
Investigations undertaken hereunder;
(d) take all actions and implement all protections necessary to
ensure that all actions taken in connection with the Investigations, and the
equipment, materials, and substances generated, used or brought onto the
Property pose no threat to the safety or health of persons or the environment,
and cause no damage to the Property or other property of the Seller or other
persons;
(e) if requested by the Seller, furnish to the Seller, at no cost or
expense to the Seller, copies of all surveys, soil test results, engineering,
asbestos, environmental and other studies and reports prepared by third parties
relating to the Investigations which the Purchaser shall obtain with respect to
the Property promptly after the Purchaser's receipt of same;
(f) maintain or cause to be maintained, at the Purchaser's expense,
a policy of comprehensive general public liability insurance with a combined
single limit of not less than $1,000,000 per occurrence for bodily injury and
property damage, automobile liability coverage including owned and hired
vehicles with a combined single limit of $1,000,000 per occurrence for bodily
injury and property damage, and an excess umbrella liability policy for bodily
injury and property damage in the minimum amount of $3,000,000, insuring the
Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule
4, as additional insureds, against any injuries or damages to persons or
property that may result from or are related to (i) the Purchaser's and/or the
Purchaser's Representatives' entry upon the Property, (ii) any Investigations or
other activities conducted thereon, and (iii) any and all other activities
undertaken by the Purchaser and/or the Purchaser's Representatives in
connection with the Property, and deliver evidence of such insurance policy to
the Seller at the earlier of ten (10) days after the date of this Agreement or
the first entry on the Property; and
(g) not, at any time, contact or communicate with any tenant of the
Property for any reason whatsoever without the prior written approval of the
Seller, which communications, whether by telephone, in writing or in person,
Seller or its designee shall have the right to be present at or otherwise
participate in.
The provisions of this Section 4.1 shall survive the termination of this
Agreement and the Closing.
4.2. Purchaser's Termination Notice.
Subject to the provisions of the last paragraph of this Section 4.2, the
Purchaser shall have the right to elect to terminate this Agreement by giving
written notice (the "Purchaser's Termination Notice") of such election to the
Seller at any time prior to the expiration of the Due Diligence Period if the
Purchaser shall determine (in the exercise of its reasonable discretion) that
any of the following conditions to termination are met as of the date of the
Purchaser's Termination Notice, in which event the provisions of Section 14.1
shall apply:
(a) The Purchaser shall have determined, based upon a site
assessment study conducted at Purchaser's sole expense by a qualified
engineering firm proposed by Purchaser and approved by Seller that there is
oil, hazardous substances, hazardous materials, hazardous or toxic waste, or
friable and accessible asbestos-containing materials present (i) on or under
the Property in an amount which would require remediation under Applicable
Environmental Law, or (ii) on or under any real property adjacent to the
Property and upgradient from the Property (and in the case of this clause (ii),
such engineering firm shall have determined that there is a high probability of
such adjacent property contamination spreading to the Property and having a
material adverse impact on the value of the Property).
(b) The Purchaser shall have determined, based upon a final
engineering study covering the Buildings and any other existing structures on
the Property, that there are material defects in any roof, foundation, sprinkler
mains, structural elements and masonry walls of any of the Buildings or related
heating, ventilating and air-conditioning, electrical, sanitation, water or
mechanical systems, or surface parking.
(c) The Purchaser shall have determined, based upon its
reasonable business judgment, that the Property including the Buildings as
presently constructed and used violate in a material respect applicable federal
or state law or governmental regulation, or local ordinance, order or
regulation, including but not limited to laws, regulations or ordinances
relating to land use, zoning, building use and occupancy, subdivision control,
fire protection, public health and safety, wetlands protection and protection of
the environment.
(d) The Purchaser shall have determined that the Leases, the
income and expenses and property tax bills for the Property do not conform in
all material respects to the information contained in the Confidential Offering
Memorandum, prepared by the Broker.
(e) The Purchaser shall have determined that the Contracts
are not in form and substance reasonably acceptable to the Purchaser. If any
Contracts are not reasonably acceptable to the Purchaser, the Purchaser shall
notify the Seller which Contracts are not acceptable to the Purchaser and the
reasons therefor. Any so identified Contracts which Seller agrees to terminate
or accept financial responsibility for on the Closing Date shall not give rise
to a right of termination by Purchaser hereunder.
If for any reason whatsoever the Seller shall not have received the
Purchaser's Termination Notice prior to the expiration of the Due Diligence
Period, the Purchaser shall be deemed to have irrevocably waived the right of
termination granted under this Section 4.2, and such right of termination shall
be of no further force or effect.
Purchaser's Termination Notice shall state with sufficient particularity
the conditions precedent to the Purchaser's obligation to purchase the Property
which have not been satisfied and the Seller shall have the option, exercisable
by giving written notice of such exercise to the Purchaser within seven (7) days
of the Seller's receipt of the Purchaser's Termination Notice, to elect to use
reasonable efforts (the cost of which shall not exceed $25,000 in the aggregate)
to cause the satisfaction of such unsatisfied conditions precedent specified in
Purchaser's Termination Notice, in which event this Agreement shall not
terminate as a result of the Purchaser delivery of the Purchaser's Termination
Notice and the Closing Date shall be extended for a period specified by the
Seller (provided, that in no event shall the Closing Date be extended more than
forty-five (45) days in the aggregate). The Purchaser acknowledges and agrees
that, in the case of a Purchaser's Termination Notice citing matters under
Section 4.2(c) as the basis for termination, such matters shall be deemed cured
upon delivery to the Purchaser of an opinion letter of counsel reasonably
acceptable to the Purchaser indicating that no such violation of law, ordinance,
order or regulation as is cited in such Purchaser's Termination Notice exists,
or that such violation shall not have a material adverse impact upon the use of
the Property as currently used.
4.3. Estoppel Certificates.
Promptly after execution and delivery of this Agreement, the Seller
agrees to request an Estoppel Certificate from each tenant under a Lease, but in
no event shall it be deemed to be an obligation of the Seller under this
Agreement to obtain executed Estoppel Certificates, except for Estoppel
Certificates from Countrywide Credit Industries, Inc., and all tenants who
lease space in excess of 15,000 square feet area of the Buildings plus two-
thirds of all other tenants at the Building. The Estoppel Certificates shall
be in the form annexed hereto as Exhibit G and made a part hereof; provided,
however, if any tenant is required or permitted under its Lease to make
different statements in a certificate of such nature than are set forth in
Exhibit G, prior to requesting an Estoppel Certificate from such tenant, the
Seller may modify the Estoppel Certificate for such tenant to set forth only the
statements required under such tenant's Lease to be made by such tenant in such
a certificate. Subject to the first sentence of this Section 4.3, if any
tenant fails to deliver an Estoppel Certificate in the form required by this
Agreement, Seller shall substitute in lieu thereof an estoppel certificate
substantially in such form executed by Seller. Each Estoppel Certificate shall
be dated not earlier than forty-five (45) days prior to the Closing Date,
provided, that, if the Closing Date is extended by the Purchaser pursuant to the
terms hereof (or otherwise extended at the request of the Purchaser), such
Estoppel Certificates shall be dated not earlier than forty-five (45) days prior
to the Closing Date as in effect prior to such extension.
5. Title.
The Seller shall convey and the Purchaser shall accept title to the Property
subject to those matters set forth on Schedule 5 hereto (collectively the
"Permitted Encumbrances"). The Seller shall deliver to the Purchaser, with
costs therefor allocated as set forth on Schedule 6 within five (5) days after
the execution of this Agreement, a commitment for an owner's fee title
insurance policy with respect to the Property (the "Title Commitment") from
First American Title Insurance Company (the "Title Company"), together with
true and complete copies of all instruments giving rise to any defects or
exceptions to title to the Property. The Seller has delivered to the
Purchaser, with costs therefor allocated as set forth on Schedule 6, hereto,
an as-built survey ("Survey") of the Land and Building dated November 18, 1996
and prepared by Grimes Surveying & Mapping, Inc. in accordance with the
"Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys"
jointly established and adopted by ALTA and ACSM.
5.1. Unacceptable Encumbrances.
If the Title Commitment or the Survey indicate the existence of any
liens or encumbrances (collectively, "Liens") or other defects or exceptions in
or to title to the Property other than the Permitted Encumbrances (collectively,
the "Unacceptable Encumbrances") subject to which the Purchaser is unwilling to
accept title and the Purchaser gives the Seller notice of the same within ten
(10) days after the date hereof, the Seller shall undertake to eliminate the
same (or to arrange for title insurance insuring against enforcement of such
Unacceptable Encumbrances against, or collection of the same out of, the
Property) subject to Section 5.2. The Purchaser hereby waives any right the
Purchaser may have to advance as objections to title or as grounds for the
Purchaser's refusal to close this transaction any Unacceptable Encumbrance
which the Purchaser does not notify the Seller of within such ten (10) day
period unless (i) such Unacceptable Encumbrance was first raised by the Title
Company subsequent to the date of the Title Commitment or the Purchaser shall
otherwise first discover same or be advised of same subsequent to the date of
the Title Commitment, and (ii) the Purchaser shall notify the Seller of the same
within five (5) days after the Purchaser first becomes aware of such
Unacceptable Encumbrance. The Seller, in its sole discretion, may adjourn the
Closing one or more times for up to sixty (60) days in the aggregate in order to
eliminate Unacceptable Encumbrances.
5.2. Removal of Unacceptable Encumbrances.
The Seller shall not be obligated to bring any action or proceeding,
to make any payments or otherwise to incur any expense in order to
eliminate Unacceptable Encumbrances not waived by the Purchaser or
to arrange for title insurance insuring against enforcement of such
Unacceptable Encumbrances against, or collection of the same out of,
the Property; except that the Seller shall satisfy Unacceptable
Encumbrances which are (i) mortgages and past due real estate taxes
and assessments secured by or affecting the Property, and (ii)
judgments against the Seller or other Liens secured by or affecting
the Property which judgments and other Liens can be satisfied by
payment of liquidated amounts not to exceed $50,000 in the aggregate
for all such judgments and other Liens. The Seller may eliminate
any such Unacceptable Encumbrance by the payment of amounts
necessary to cause the removal thereof of record, by bonding over
such Unacceptable Encumbrance in a manner reasonably satisfactory to
the Purchaser or by arranging for title insurance reasonably satisfactory to
the Purchaser insuring against enforcement of such Unacceptable Encumbrance
against, or collection of the same out of, the Property.
5.3. Options Upon Failure to Remove Unacceptable Liens.
If the Seller is unable or is not otherwise obligated (pursuant to
Section 5.2) to eliminate all Unacceptable Encumbrances not waived
by the Purchaser, or to bond over in a manner reasonably
satisfactory to the Purchaser any Unacceptable Encumbrances not
waived by the Purchaser, or to arrange for title insurance
reasonably acceptable to the Purchaser insuring against enforcement
of such Unacceptable Encumbrances against, or collection of the same
out of, the Property, and to convey title in accordance with the
terms of this Agreement on or before the Closing Date (whether or
not the Closing is adjourned as provided in Section 5.1), the
Purchaser shall elect on the Closing Date, as its sole remedy for
such inability of the Seller, either (i) to terminate this Agreement
by notice given to the Seller pursuant to Section 14.1, in which
event the provisions of Section 14.1 shall apply, or (ii) to accept
title subject to such Unacceptable Encumbrances and receive no
credit against, or reduction of, the Purchase Price.
5.4. Use of Purchase Price.
If on the Closing Date there may be any Liens or other encumbrances
which the Seller must pay or discharge in order to convey to the Purchaser such
title as is herein provided to be conveyed, the Seller may use any portion of
the Purchase Price to satisfy the same, provided:
(a) the Seller shall deliver to the Purchaser or the
Title Company, at the Closing, instruments in recordable
form and sufficient to satisfy such Liens or other
encumbrances of record together with the cost of recording
or filing said instruments; or
(b) the Seller, having made arrangements with the Title
Company, shall deposit with said company sufficient moneys acceptable to said
company to insure the obtaining and the recording of such satisfactions.
5.5. Franchise Taxes.
Any franchise or corporate tax open, levied or imposed against the
Seller or other owners in the chain of title that may be a Lien on the Closing
Date shall not be an objection to title if the Title Company omits same from the
title policy issued pursuant to the Title Commitment or excepts same but insures
the Purchaser against collection thereof out of the Property.
5.6. Transfer Taxes; Title Insurance Premiums.
At the Closing, the Seller and the Purchaser shall each pay fifty
percent (50%) of all documentary transfer and recording taxes (the "Transfer Tax
Payments") imposed pursuant to the Laws of the State of California or any other
governmental authority in respect of the transactions contemplated by this
Agreement by delivery to the Title Company of sufficient funds to pay such
taxes. The Purchaser shall not be entitled to receive a credit against or
abatement of the Purchase Price payable to the Seller at the Closing as a
result of the Purchaser's share of the Transfer Tax Payments. At the Closing,
the premiums due the Title Company to obtain title insurance policies in the
form contemplated by the Title Commitment (as the same may be amended pursuant
to this Agreement), the cost of obtaining the survey and other Closing-related
expenses shall be paid in the manner set forth on Schedule 6 hereto.
5.7. Discharges of Undischarged Mortgages.
The Seller and the Purchaser acknowledge and agree that certain
deeds of trust recorded as Instrument No.'s 83-962209, 83-962211,
and 84-1360320 (the "Undischarged Mortgages") continue to be in the
record chain of title of the Property as of the date hereof. The
Seller represents and warrants to the Purchaser that the obligations
secured by the Undischarged Mortgages have been paid in full. The
Seller further covenants and agrees that it will use reasonable
efforts to obtain discharges of the Undischarged Mortgages prior to the Closing
Date. If the Seller fails to obtain any such discharges, the Purchaser
acknowledges and agrees that the existence of the Undischarged Mortgages shall
not constitute a basis for the Purchaser terminating this Agreement or refusing
to complete the Closing so long as the Title Commitment (as revised prior to the
Closing Date) does not take exception for the Undischarged Mortgages and the
Title Company provides written assurances that it will provide a title insurance
commitment without exception for the Undischarged Mortgages to a subsequent
purchaser. The Purchaser shall in no event be obligated to incur any expense in
connection with the discharge of the Undischarged Mortgages.
6. Representations and Warranties of the Seller.
The Seller represents and warrants to the Purchaser as follows:
(a) The Seller is a duly formed and validly existing limited
partnership organized under the laws of the State of Delaware and is qualified
under the laws of the State of California to conduct business therein.
(b) The Seller has the full, legal right, power and authority to
execute and deliver this Agreement and all documents now or hereafter to be
executed by the Seller pursuant to this Agreement (collectively, the "Seller's
Documents"), to consummate the transaction contemplated hereby, and to
perform its obligations hereunder and under the Seller's Documents.
(c) This Agreement and the Seller's Documents do not and will
not contravene any provision of the limited partnership agreement of
the Seller, any judgment, order, decree, writ or injunction issued
against the Seller, or, to the Seller's actual knowledge, any
provision of any laws or governmental ordinances, rules,
regulations, orders or requirements (collectively, the "Laws")
applicable to the Seller. The consummation of the transactions
contemplated hereby will not result in a breach or constitute a
default or event of default by the Seller under any agreement to
which the Seller or any of its assets are subject or bound and will
not result in a violation of any Laws applicable to the Seller.
(d) The Seller has no actual knowledge of any leases, licenses
or other occupancy agreements affecting any portion of the Property
(collectively,
the "Leases") on the date hereof, except for the Leases listed in Schedule 7
annexed hereto and made a part hereof. To Seller's actual knowledge, the copies
of the Leases furnished by the Seller to the Purchaser are true and complete.
To the Seller's actual knowledge, the Leases are in full force and effect,
without any material default by the Seller thereunder. To the Seller's actual
knowledge, except as listed on Schedule 7, the Seller has not given or received
any notice of default which remains uncured or unsatisfied, with respect to any
of the Leases.
(e) To the Seller's actual knowledge, there are no pending
actions, suits, proceedings or investigations to which the Seller is
a party before any court or other governmental authority with
respect to the Property owned by the Seller except as set forth on
Schedule 8 hereto.
(f) Except as disclosed on Schedule 9 hereto, since the date the
Seller acquired legal and beneficial title to the Property (i) to Seller's
actual knowledge, neither Seller nor any third party has engaged in the
generation, use, manufacture, treatment, storage or disposal of any Hazardous
Substance (as hereinafter defined) on the Property in violation of Applicable
Environmental Law (as hereinafter defined), the cost of correction or
remediation of which would have a material adverse effect upon the value of the
Property, and (ii) to Seller's actual knowledge, neither Seller nor any third
party has received any written notice from any governmental authority having
jurisdiction over the Property of any violation of Applicable Environmental Law
with respect to the Property which requires corrective action, the cost of which
would have a material adverse effect upon the value of the Property.
Disclosure of any matter on Schedule 9 hereto shall not constitute any
admission by Seller that such matter was material or a violation of Applicable
Environmental Law. As used in this Agreement, the term "Hazardous Substance"
shall mean any substance, chemical or waste that is currently listed as
hazardous, toxic or dangerous under Applicable Environmental Law. As used in
this Agreement, the term "Applicable Environmental Law" shall mean the
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. 9601 et seq.; the Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C. 6901, et seq.; the Water Pollution Control Act, 33 U.S.C.
1251 et seq.; the Clean Air Act, 42 U.S.C. 7401 et seq.; and the Toxic
Substances Control Act, 15 U.S.C. 2601 et seq.; as the foregoing have been
amended from time to time to the date of this Agreement; and any similar
federal, state and local laws and ordinances and the regulations implementing
such statutes in effect on the date hereof imposing liability or establishing
standards of conduct for environmental protection.
(g) Schedule 11 contains a list of the Licenses. To the
Seller's knowledge, the Licenses are in full force and effect and
are sufficient for the operation of the Property as currently
operated.
(h) The Seller has not entered into any agreement for the sale
of all or any portion of the Property, or any option agreement for
the acquisition of all or any portion of the Property, with any
person other than the Purchaser.
(i) The Seller has no knowledge of any Contracts on the date
hereof, except for the Contracts listed on Schedule 3 annexed hereto. The
copies of the Contracts furnished by the Seller to the Purchaser are true and
complete. To Seller's knowledge, there are no existing Seller defaults under
any of the Contracts.
(j) To the Seller's knowledge it has not received any written
notice from any governmental authority regarding any violation of
any federal, state or local land use, zoning or other similar
statute, regulation, ruling or order applicable to the Property.
6.1. Survival of Representations.
The representations and warranties of the Seller set forth in this
Section 6 (i) shall be true, accurate and correct in all material respects upon
the execution of this Agreement and shall be deemed to be repeated on and as of
the Closing Date (except as they relate only to an earlier date), and (ii) shall
remain operative and shall survive the Closing and the execution and delivery of
the Deed for a period of one year following the Closing Date and then shall
expire, and no action or claim based thereon shall be commenced after such
period.
6.2. Discovery of Untrue Representation.
If at or prior to the Closing, (i) the Purchaser shall become aware
that any of the representations or warranties made herein by the
Seller is untrue, inaccurate or incorrect in any material respect
and shall give the Seller notice thereof at or prior to the Closing,
or (ii) the Seller shall notify the Purchaser that a representation
or warranty made herein by the Seller is untrue, inaccurate or
incorrect, then the Seller may, in its sole discretion, elect by notice to the
Purchaser to adjourn the Closing one or more times for up to sixty (60) days in
the aggregate in order to cure or correct such untrue, inaccurate or incorrect
representation or warranty. If any such representation or warranty is not cured
or corrected by the Seller on or before the Closing Date (whether or not the
Closing is adjourned as provided above), then the Purchaser, as its sole remedy
for such inability of Seller, shall elect either (i) to waive such
misrepresentations or breaches of warranties and consummate the transactions
contemplated hereby without any reduction of or credit against the Purchase
Price, or (ii) to terminate this Agreement by notice given to Seller pursuant
to the provisions of Section 14.1. In the event the Closing occurs, the
Purchaser hereby expressly waives, relinquishes and releases any right or
remedy available to it at law, in equity or under this Agreement to make a
claim against the Seller for damages that the Purchaser may incur, or to
rescind this Agreement and the transactions contemplated hereby, as the result
of any of the Seller's representations or warranties being untrue, inaccurate
or incorrect if the Purchaser knew, should have known or is deemed to have
known that such representation or warranty was untrue, inaccurate or incorrect
at the time of the Closing and the Purchaser nevertheless closes title
hereunder.
6.3. Limited Nature of Representations.
The Purchaser acknowledges that neither the Seller nor any of the
Seller's Affiliates, nor any of their agents or representatives, nor Broker has
made any representations or held out any inducements to the Purchaser other than
those specifically set forth in this Agreement. The Purchaser acknowledges that
the Seller, pursuant to the terms of this Agreement, has afforded the Purchaser
the opportunity for full and complete investigations, examinations and
inspections of the Property and all Property Information. The Purchaser
acknowledges and agrees that (i) the Property Information delivered or made
available to the Purchaser and the Purchaser's Representatives by the Seller
or the Seller's Affiliates, or any of their agents or representatives may have
been prepared by third parties and may not be the work product of the Seller
and/or any of the Seller's Affiliates; (ii) neither the Seller nor any of the
Seller's Affiliates has made any independent investigation or verification of,
or has any knowledge of, the accuracy or completeness of, the Property
Information; (iii) the Purchaser is relying solely on its own investigations,
examinations and inspections of the Property and those of the Purchaser's
Representatives and is not relying in any way on the Property Information
furnished by the Seller or any of the Seller's Affiliates, or any of their
agents or representatives; and (iv) except as otherwise expressly set forth
herein, the Seller expressly disclaims any representations or warranties with
respect to the accuracy or completeness of the Property Information, and the
Purchaser releases the Seller and the Seller's Affiliates, and their agents and
representatives, from any and all liability with respect thereto. The Purchaser
or anyone claiming by, through or under the Purchaser, hereby fully and
irrevocably releases the Seller and the Seller's Affiliates from any and
all claims that it may now have or hereafter acquire against any of the Seller
or the Seller's Affiliates for any cost, loss, liability, damage, expense,
action or cause of action, whether foreseen or unforeseen, arising from or
related to the presence of environmentally hazardous, toxic or dangerous
substances, or any other conditions (whether patent, latent or otherwise)
affecting the Property, except for (i) claims against the Seller based upon any
obligations and liabilities of the Seller expressly provided in this Agreement
or any other document to be executed and delivered by the Seller pursuant to
Section 8 hereof, and (ii) claims based upon the fraudulent actions (or failure
to act) of the Seller.
The provisions of this Section 6 shall survive the Closing.
7. Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the Seller as follows:
(a) The Purchaser is a duly formed and validly existing limited
partnership organized under the laws of the State of California, and is
qualified under the laws of the State of California to conduct business therein
on the date hereof.
(b) The Purchaser has the full, legal right, power, authority
and financial ability to execute and deliver this Agreement and all
documents now or hereafter to be executed by it pursuant to this
Agreement (collectively, the "Purchaser's Documents"), to consummate
the transactions contemplated hereby, and to perform its obligations
hereunder and under the Purchaser's Documents.
(c) This Agreement and the Purchaser's Documents do not and will
not contravene any provision of the limited partnership agreement of the
Purchaser, any judgment, order, decree, writ or injunction issued against the
Purchaser, or any provision of any Laws applicable to the Purchaser. The
consummation of the transactions contemplated hereby will not result in a breach
or constitute a default or event of default by the Purchaser under any agreement
to which the Purchaser or any of its assets are subject or bound and will not
result in a violation of any Laws applicable to the Purchaser.
(d) To the Purchaser's actual knowledge, there are no pending
actions, suits, proceedings or investigations to which the Purchaser is a party
before any court or other governmental authority which may have an adverse
impact on the transactions contemplated hereby.
The representations and warranties of the Purchaser set forth in this
Section
7 and elsewhere in this Agreement shall be true, accurate and correct in all
material respects upon the execution of this Agreement, shall be deemed to be
repeated on and as of the Closing Date (except as they relate only to an earlier
date) and shall survive the Closing.
8. Documents to be Delivered by the Seller at Closing.
At the Closing, the Seller shall execute, acknowledge and/or deliver, as
applicable, the following to the Purchaser or the Title Company:
(a) A grant deed or its equivalent (the "Deed") conveying title
to the Property in the form of Exhibit A annexed hereto and made a
part hereof.
(b) The Assignment and Assumption of Leases and Security
Deposits in the form of Exhibit B annexed hereto and made a part hereof
assigning without warranty or representation all of the Seller's right, title
and interest, if any, in and to the Leases in effect on the Closing Date, all
guarantees thereof and the security deposits thereunder in the Seller's
possession, if any (the "Lease Assignment").
(c) The Assignment and Assumption of Contracts and Licenses in
the form of Exhibit C annexed hereto and made a part hereof (the "Contract and
License Assignment") assigning without warranty or representation all of the
Seller's right, title and interest, if any, in and to (i) all of the assignable
licenses, permits, certificates, approvals, authorizations and variances issued
for or with respect to the Property by any governmental authority (collectively,
the "Licenses"), and (ii) all assignable purchase orders, equipment leases,
advertising agreements, franchise agreements, license agreements, management
agreements, leasing and brokerage agreements and other service contracts
relating to the operation of the Property (collectively, the "Contracts") not
terminated by Seller pursuant to the terms of this Agreement.
(d) The Assignment and Assumption of Intangible Property in the
form of Exhibit D annexed hereto and made part hereof assigning without
warranty or representation all of the Seller's right, title and interest, if
any, in and to all intangible property owned by the Seller with respect to the
operation of the Property, including, without limitation, the trade name
"Century Square" (the "Intangible Property Assignment") (the Lease Assignment,
the Contract and License Assignment and the Intangible Property Assignment are
herein referred to collectively as the "A & A Agreements").
(e) To the extent in the Seller's possession, executed
counterparts of all Leases and New Leases and any amendments,
guarantees and other documents relating thereto, together with a
schedule of all tenant security deposits thereunder and the
accrued interest on such security deposits payable to tenants
which are in the possession of or received by the Seller.
(f) A bill of sale in the form of Exhibit E annexed hereto and
made a part hereof (the "Bill of Sale") conveying, transferring and selling to
the Purchaser without warranty or representation all right, title and interest
of the Seller in and to all Personal Property.
(g) Notices to the tenants of the Property in the form of
Exhibit F annexed hereto and made a part hereof advising the tenants
of the sale of the Property to the Purchaser and directing that
rents and other payments thereafter be sent to the Purchaser or as
the Purchaser may direct.
(h) A certificate of a general partner of the Seller that the
Seller has taken all necessary partnership action to authorize the
execution, delivery and performance of this Agreement and the
consummation of the transaction contemplated hereby.
(i) Executed originals of all Estoppel Certificates required by
Section 4.3 and any other Estoppel Certificates, received by the Seller from
tenants prior to the Closing Date and not previously delivered to the Purchaser;
provided, that all required Estoppel Certificates shall be delivered to the
Purchaser not later than three (3) days prior to the Closing Date.
(j) To the extent in the Seller's possession and not already
located at the Property, keys to all entrance doors to, and
equipment and utility rooms located in, the Property.
(k) To the extent in the Seller's possession and not already
located at the Property, all Licenses.
(l) To the extent in the Seller's possession, executed
counterparts of all Contracts and all warranties in connection
therewith which are in effect on the Closing Date and which are
assigned by the Seller.
(m) To the extent in the Seller's possession and not located at
the Building, plans and specifications of the Buildings.
(n) A "FIRPTA" affidavit sworn to by the Seller in the form of
Exhibit H annexed hereto and made a part hereof. The Purchaser acknowledges
and agrees that upon the Seller's delivery of such affidavit, the Purchaser
shall not withhold any portion of the Purchase Price pursuant to Section 1445 of
the Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder.
(o) A California Form 590.
(p) A closing statement setting forth the adjustments
contemplated by Section 3 hereof.
(q) All other documents the Seller are required to deliver
pursuant to the provisions of this Agreement.
9. Documents to be Delivered by the Purchaser at Closing.
At the Closing, the Purchaser shall execute, acknowledge and/or deliver, as
applicable, the following to the Seller or the Title Company, as applicable:
(a) The cash portion of the Purchase Price payable at the
Closing pursuant to Section 2, subject to apportionments, credits
and adjustments as provided in this Agreement.
(b) The Bill of Sale.
(c) If the Purchaser is a corporation, (i) copies of the
certificate of incorporation and by-laws of the Purchaser and of
the resolutions of the board of directors of the Purchaser
authorizing the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated by this
Agreement certified as true and correct by the Secretary or Assistant Secretary
of the Purchaser; (ii) a good standing certificate issued by the state of
incorporation of the Purchaser, dated within thirty (30) days of the Closing
Date; (iii) a qualification to do business certificate issued by the State of
California, dated within thirty (30) days of the Closing Date; and (iv) an
incumbency certificate executed by the Secretary or Assistant Secretary of
the Purchaser with respect to those officers of the Purchaser executing any
documents or instruments in connection with the transactions contemplated
herein.
(d) If the Purchaser is a partnership, (i) copies of the
Purchaser's partnership agreement and partnership certificate (if
applicable) and, if required
by law or its partnership agreement, copies of partnership resolutions and/or
consents of the partners authorizing the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated by this
Agreement, all certified as true and correct by the managing general partner of
the Purchaser, or in the absence thereof, then by all of the Purchaser's general
partners; (ii) a legal existence certificate issued by the state of organization
of the Purchaser, dated within ninety (90) days preceding the Closing Date;
and (iii) a qualification to do business certificate issued by the State of
California, dated within ninety (90) days preceding the Closing Date.
(e) If the Purchaser is a limited liability company, (i) copies
of the Purchaser's operating agreement and, if required by law or
its operating agreement, copies of resolutions of the manager
authorizing the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by
this Agreement, all certified as true and correct by
the manager of the Purchaser; (ii) a good standing certificate issued by the
state of organization of the Purchaser, dated within thirty (30) days of the
Closing Date; and (iii) a qualification to do business certificate issued by
the State of California, dated within thirty (30) days of the Closing Date.
(f) The A & A Agreements.
(g) The payments of the Purchaser as set forth in Schedule 6
hereto.
(h) All other documents the Purchaser is required to deliver
pursuant to the provisions of this Agreement.
10. Operation of the Property prior to the Closing Date.
Between the date hereof and the Closing Date, the Seller shall, subject to
this Section 10, continue to operate and maintain the Property in a manner
consistent with past practices.
10.1. New Leases.
Except as hereinafter provided in this Section 10.1, the Seller may
not modify, extend, renew, cancel or permit the expiration of any
Lease or enter into
any proposed Lease of all or any portion of the Property without the Purchaser's
written consent which consent shall not be unreasonably withheld (and which
consent shall be deemed given three (3) business days following the Seller's
notifying the Purchaser of its proposed action under this Section 10.1, unless
Purchaser expressly objects to such action in writing prior to such time);
provided, however, that such Lease is on Seller's standard form with such
changes as Seller deems appropriate in the exercise of its reasonable discretion
(or, in the case of any Lease amendment, such amendment is in a form commonly
used by landlords operating properties similar to the Property). After the
expiration of the Due Diligence Period, the Seller shall not modify, extend,
renew or cancel (subject to Section 10.2) any Lease or enter into any proposed
Lease of all or any portion of the Property if such then existing or proposed
Lease demises more than 5,000 rentable square feet of the Property without the
Purchaser's prior consent in each instance, which consent shall not be
unreasonably withheld and shall be given or denied, with the reasons for any
such denial, within five (5) days after receipt by the Purchaser of the Seller's
notice requesting the Purchaser's consent to the proposed action relating to
such existing or proposed Lease. If the Purchaser fails to reply to the
Seller's request for
consent in a notice given within such period or if the Purchaser expressly
denies its consent but fails to provide the Seller with the reasons for such
denial, the Purchaser's consent shall be deemed to have been granted.
10.1.1. New Lease Expenses.
If after the date of this Agreement the Seller enters into
any Leases, or if there is any extension or renewal of any
Leases, whether or not such
Leases provide for their extension or renewal, or any expansion or modification
of any Leases (each, a "New Lease"), the Seller shall keep accurate records of
all expenses (collectively, "New Lease Expenses") incurred in connection with
each New Lease, including, without limitation, the following: (i) brokerage
commissions and fees relating to such leasing transaction, (ii) expenses
incurred for repairs, improvements, equipment, painting, decorating,
partitioning and other items to satisfy the tenant's requirements with regard
to such leasing transaction, (iii) reimbursements to the tenant for the cost
of any of the items described in the preceding clause (ii), (iv) rent
concessions relating to the demised space
provided the tenant has the right to take possession of such demised space
during the period of such rent concessions, and (v) expenses incurred for the
purpose of satisfying or terminating the obligations of a tenant pursuant to
a New Lease with the Seller as landlord that may be due under another lease
(whether or not such other lease covers space in the Property).
10.1.2. Allocation of New Lease Expenses.
The New Lease Expenses for each New Lease allocable to and
payable by the Seller shall be determined by multiplying the amount of such New
Lease Expenses by a fraction, the numerator of which shall be the number of
days contained in that portion, if any, of the term of such New Lease
commencing on the date on which the tenant thereunder shall have commenced
to pay fixed rent ("Rent Commencement Date") and expiring on the date
immediately preceding the Closing Date, and the denominator of which shall be
the total number of days contained in the period commencing on the Rent
Commencement Date and expiring on the date of the scheduled expiration of the
term of such New Lease, without provision for any optional extensions or
renewals, and the remaining balance of the New Lease Expenses for each New
Lease shall be allocable to and payable by the Purchaser by addition to the
Purchase Price. At the Closing, the Purchaser shall reimburse the Seller for
all New Lease Expenses theretofore paid by the Seller, if any, in excess of the
portion of the New Lease Expenses allocated to the Seller pursuant to the
provisions of the preceding sentence. At the Closing, the Seller shall
reimburse the Purchaser for all New Lease Expenses not theretofore paid by the
Seller, if any, attributable to the portion of the New Lease Expenses allocated
to the Seller pursuant to the provisions of the preceding sentence. For
purposes of this Section 10.1.2, the Rent Commencement Date under a renewal,
extension, expansion or modification of a Lease shall be deemed to be (i) in
the case of a renewal or extension (whether effective prior to or after the
Closing, or in the form of an option exercisable in the future), the first date
during such renewal or extension period after the originally scheduled
expiration of the term of such Lease on which the tenant under such Lease
commences to pay fixed rent, (ii) in the case
of an expansion (whether effective prior to or after the Closing, or in the form
of an option exercisable in the future), the date on which the tenant under such
Lease commences to pay fixed rent for the additional space, and (iii) in the
case of a modification not also involving a renewal, extension or expansion of
such Lease, the effective date of such modification agreement. The provisions
of this Section 10.1.2 shall survive the Closing.
10.2. Termination of Existing Leases.
Notwithstanding anything to the contrary contained in this
Agreement,
the Seller may, with the written consent of the Purchaser, which consent shall
not be unreasonably withheld (and which consent shall be deemed given three (3)
business days following the Seller's notifying the Purchaser of its proposed
action under this Section 10.2, unless Purchaser expressly objects to such
action in writing prior to such time), but is not obligated, to institute
summary proceedings against any tenant or terminate any Lease as a result of
a default by the tenant thereunder prior to the Closing Date. The Seller makes
no representations and assumes no responsibility with respect to (i) the
continued occupancy of the Property or any part thereof by any tenant and (ii)
the fulfillment by any tenant of its obligations under any Lease. The removal
of a tenant whether by summary proceedings or otherwise prior to the Closing
Date shall not give rise to any claim on the part of the Purchaser. Further,
the Purchaser agrees that it shall not be grounds for the Purchaser's refusal
to close this transaction that any tenant is a holdover tenant or in default
under its Lease pursuant to any economic or non-economic terms of its Lease on
the Closing Date and the Purchaser shall accept title subject to such holding
over or default without credit against, or reduction of, the Purchase Price.
10.3. Contracts.
Except as hereinafter provided in this Section 10.3, the Seller may
cancel, modify, extend, renew or permit the expiration of Contracts and may
enter into any new Contract without the Purchaser's prior consent. After the
expiration of the Due Diligence Period, the Seller shall not modify, extend,
renew or cancel (except as a result of a default by the other party thereunder
or if Purchaser has given notice pursuant to Section 4.2(e) that a Contract is
unacceptable) any Contracts, or enter into any new Contract without the
Purchaser's prior consent in each instance, which consent shall not be
unreasonably withheld or delayed, and if withheld, the Purchaser shall promptly
give the Seller a notice stating the reasons therefor. If the Purchaser fails
to reply
within five (5) days to the Seller's request for consent in a notice given
pursuant to this Section 10.3 or if the Purchaser expressly denies its consent
but fails to provide the Seller with the reasons for such denial, the
Purchaser's consent shall be deemed to have been granted.
11. Broker.
The Purchaser and the Seller represent and warrant to each other that
Eastdil Realty Company, L.L.P. and Metrospace Corporation (collectively,
the "Broker") is the sole broker with whom they have dealt in connection
with the Property and the transactions described herein. The Seller shall
be liable for, and shall indemnify the Purchaser against, all brokerage
commissions or other compensation due to the Broker arising out of the
transaction contemplated in this Agreement, which compensation shall be
paid subject and pursuant to a separate agreement between the Seller and
the Broker. Each party hereto agrees to indemnify, defend and hold the
other harmless from and against any and all claims, causes of action,
losses, costs, expenses, damages or liabilities, including
reasonable attorneys' fees and disbursements, which the other may sustain,
incur or be exposed to, by reason of any claim or claims by any broker, finder
or other person, except (in the case of the Purchaser as indemnitor hereunder)
the Broker, for fees, commissions or other compensation arising out of the
transactions contemplated in this Agreement if such claim or claims are based
in whole or in part on dealings or agreements with the indemnifying party.
The obligations and representations and warranties contained in this Section 11
shall survive the termination of this Agreement and the Closing.
12. Casualty; Condemnation.
12.1. Damage or Destruction.
If a "material" part (as hereinafter defined) of the Property is
damaged or destroyed by fire or other casualty, the Seller shall
notify the Purchaser of such fact and the Purchaser shall have the
option to terminate this Agreement upon notice to the Seller
given not later than ten (10) days after receipt of the
Seller's notice; provided, however, that the Purchaser's election shall be
ineffective if within ten (10) days after the Seller's receipt of the
Purchaser's election notice, the Seller shall elect by notice to the Purchaser
to repair such damage or destruction and shall thereafter complete such repair
within 90 days after the then scheduled Closing Date at the time of the
Purchaser's election. If the Seller makes such election to repair, the Seller
shall have the right to adjourn the Closing Date one or more times for up to 90
days in the aggregate in order to complete such repairs and shall have the right
to retain all insurance proceeds which the Seller may be entitled to receive as
a result of such damage or destruction. If (i) the Purchaser does not elect to
terminate this Agreement as to the damaged Property, (ii) the Purchaser elects
to terminate this Agreement as to the damaged Property but such election is
ineffective because the Seller elects to repair such damage and completes such
repair within such 90-day period provided above, or (iii) there is damage to or
destruction of an "immaterial" part ("immaterial" is herein deemed to be any
damage or destruction which is not "material", as such term is hereinafter
defined) of the Property, the Purchaser shall close title as provided in this
Agreement and, at the Closing, the Seller shall, unless the Seller has repaired
such damage or destruction prior to the Closing, (x) pay over to the Purchaser
the proceeds of any insurance collected by the Seller, plus an amount equal to
any deductible attributable to such insurance policy, less the amount of all
costs incurred by the Seller in connection with the repair of such damage or
destruction, and (y) assign and transfer to the Purchaser all right, title and
interest of the Seller in and to any uncollected insurance
proceeds which the Seller may be entitled to receive from such damage or
destruction. A "material" part of the Property shall be deemed to have been
damaged or destroyed if the cost of repair or replacement shall be fifteen
percent (15%) or more of the Purchase Price, or if such damage or destruction is
not an insured casualty.
12.2. Condemnation.
If, prior to the Closing Date, all or any "significant" portion (as
hereinafter defined) of the Property is taken by eminent domain or condemnation
(or is the subject of a pending taking which has not been consummated), the
Seller shall notify the Purchaser of such fact and the Purchaser shall have the
option to terminate this Agreement upon notice to the Seller given not later
than ten (10) days after receipt of the Seller's notice. If the Purchaser does
not elect to terminate this Agreement, or if an "insignificant" portion
("insignificant" is herein deemed to be any taking which is not "significant",
as such term is herein defined) of the Property is taken by eminent domain or
condemnation, at the Closing the Seller shall assign and turnover, and the
Purchaser shall be entitled to receive and keep, all awards or other proceeds
for such taking by eminent domain or condemnation. A "significant" portion of
the Property means (i) 10% or more of the main office building on the Land,
(ii) a portion of the parking areas if the taking thereof reduces the
remaining available number of parking spaces below the minimum legally required,
or (iii) a legally required driveway on the Land if such driveway is the
predominant means of ingress thereto or egress therefrom.
12.3. Termination.
If the Purchaser effectively terminates this Agreement pursuant to
Section 12.1 or 12.2, this Agreement shall be terminated and the rights of the
parties shall be the same as if notice of termination were given pursuant to
Section 14.1.
13. Conditions Precedent to Closing.
13.1. Conditions Precedent to the Purchaser's Obligations to
Perform.
The Purchaser's obligation under this Agreement to purchase the
Property is subject to the fulfillment of each of the following conditions: (i)
the representations and warranties of the Seller contained herein shall be
materially true, accurate and correct as of the Closing Date except to the
extent they relate only to an earlier date; (ii) the Seller shall be ready,
willing and able to deliver
title to the Property in accordance with the terms and conditions of this
Agreement; (iii) any conditions precedent to the Purchaser's obligation to
purchase the Property is validly listed in the Purchaser's Termination Notice as
being unsatisfied has been satisfied; (iv) the Closing shall have occurred under
and as defined in the Other Purchase Agreement, or shall occur simultaneously
with the Closing hereunder; and (v) the Seller shall have delivered all the
documents and other items required pursuant to Section 8, and shall have
performed all other covenants, undertakings and obligations, and complied with
all conditions required by this Agreement to be performed or complied with by
the Seller at or prior to the Closing.
13.2. Conditions Precedent to the Seller's Obligations to
Perform.
The Seller's obligation under this Agreement to sell the Property to
the Purchaser is subject to the fulfillment of each of the following
conditions: (i) the
representations and warranties of the Purchaser contained herein shall be
materially true, accurate and correct as of the Closing Date; (ii) the Purchaser
shall have delivered the funds required hereunder and all the documents to be
executed by the Purchaser set forth in Section 9 and shall have performed all
other covenants, undertakings and obligations, and complied with all conditions
required by this Agreement to be performed or complied with by the Purchaser
at or prior to the Closing; (iii) all consents and approvals of governmental
authorities and parties to agreements to which the Purchaser is a party or by
which the Purchaser's assets are bound that are required with respect to the
consummation of the transactions contemplated by this Agreement shall have been
obtained and copies thereof shall have been delivered to the Seller at or prior
to the Closing; (iv) the Closing shall have occurred under and as defined in
the Other Purchase Agreement, or shall occur simultaneously with the Closing
hereunder; and (v) the additional matters set forth in Schedule 10 annexed
hereto and made a part hereof shall have occurred or been delivered to the
Seller, as applicable, at or prior to the Closing.
13.3.
Remedies Upon Failure to Satisfy Conditions.
In the event that any condition contained in Sections 13.1 or 13.2
is not satisfied, the party entitled to the satisfaction of such
condition as a condition to its obligation to close title shall have
as its sole remedy hereunder the right to elect to (i) waive such
unsatisfied condition whereupon title shall close as
provided in this Agreement or (ii) proceed as provided in Section 14 hereof.
14. Remedies.
14.1. Seller's Inability to Perform.
If the Closing fails to occur by reason of the Seller's inability to perform
its obligations under this Agreement which has not been waived pursuant to
Section 13.3, then the Purchaser, as its sole remedy for such inability
of the Seller, may terminate this Agreement by notice to the Seller. If
the Purchaser elects to terminate this Agreement, then this Agreement shall
be terminated and neither party shall have any further rights, obligations
or liabilities hereunder, except as
otherwise expressly provided herein (collectively, the "Surviving Obligations"),
and except that the Purchaser shall be entitled to a return of the Deposit
provided the Purchaser is not otherwise in default hereunder. Except as set
forth in this Section 14.1, the Purchaser hereby expressly waives, relinquishes
and releases any other right or remedy available to it at law, in equity or
otherwise by reason of the Seller's inability to perform its obligations
hereunder. Notwithstanding anything to the contrary herein, if the Seller's
inability to perform its obligations under this Agreement is a result of any
action of, or failure to act by, the Purchaser or any of the Purchaser's
Representatives, the Purchaser shall not be relieved of its obligations under
this Agreement and Purchaser shall not be entitled to any right or remedy
provided in this Section 14.1 or elsewhere in this Agreement.
14.2. Purchaser's Failure to Perform.
In the event of a default hereunder by the Purchaser or if the Closing fails
to occur by reason of the Purchaser's failure or refusal to perform its
obligations hereunder, then the Seller may terminate this Agreement by
notice to the Purchaser. PURCHASER AND SELLER AGREE THAT IT WOULD BE
IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, AT THE TIME
OF SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH
WOULD BE SUFFERED IF THE PURCHASER FAILS OR REFUSES TO
PERFORM ITS OBLIGATIONS HEREUNDER. THEREFORE, IF
PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS
UNDER THIS AGREEMENT AND If the Seller elects to terminate this
Agreement, then this Agreement shall be terminated and the Seller may retain the
Deposit as liquidated damages for all loss, damage and expenses suffered by the
Seller, and neither party shall have any further rights, obligations or
liabilities hereunder, except for the Surviving Obligations.
_________________ ______________
Purchaser Initials Seller Initials
Nothing contained herein shall limit or restrict the Seller's ability to
pursue any rights or remedies it may have against the Purchaser with
respect to the Surviving Obligations. Except as set forth in this Section
14.2 and the Surviving Obligations, the Seller hereby expressly waives,
relinquishes and releases any other right or remedy available to them at
law, in equity or otherwise by reason of the Purchaser's default hereunder
or the Purchaser's failure or refusal to perform its obligations hereunder.
Notwithstanding anything to the contrary herein, if the Purchaser's default
or the Purchaser's failure or refusal to perform its obligations under
this Agreement is a result of any action of, or failure to act by, the
Seller or any of the Seller's Affiliates, the Seller shall not be relieved
of its obligations under this Agreement and the Seller shall not be entitled
to any right or remedy provided in this Section 14.2 or elsewhere in this
Agreement.
14.3. Seller's Failure to Perform.
If the Closing fails to occur by reason of the Seller's failure or refusal
to perform its obligations hereunder which has not been waived by the Purchaser,
then the Purchaser, as its sole remedy hereunder, may (i) terminate this
Agreement by notice to the Seller or (ii) seek specific performance from the
Seller. If the Purchaser elects to terminate this Agreement, the Deposit shall
be refunded to the Purchaser as set forth in the Escrow Agreement attached
hereto as Exhibit I. As a condition precedent to the Purchaser exercising any
right it may have to bring an action for specific performance as the result of
the Seller's failure or refusal to perform their obligations hereunder, the
Purchaser must commence such an action within ninety (90) days after the
occurrence of such default. The Purchaser agrees that its failure to timely
commence such an action for specific performance within such ninety (90) day
period shall be deemed a waiver by it of its right to commence such an action.
Notwithstanding anything to the contrary herein, if the Seller's failure or
refusal to perform its obligations under this Agreement is a result of any
action of, or failure to act by, the Purchaser or any of the Purchaser's
Representatives, the Purchaser shall not be relieved of its obligations under
this Agreement and Purchaser shall not be entitled to any right or remedy
provided in this Section 14.3 or elsewhere in this Agreement.
15. Escrow.
The Escrow Agent shall hold the Downpayment and all interest accrued
thereon, if any (collectively, the "Deposit") in escrow and shall dispose of the
Deposit only in accordance with the provisions of that certain Escrow Agreement
of even date herewith by and among the Escrow Agent, the Purchaser and the
Seller relating to the Property (the "Escrow Agreement") in the form of Exhibit
I hereto. Simultaneously with their execution and delivery of this Agreement,
the Purchaser and the Seller shall furnish the Escrow Agent with their true
Federal Taxpayer Identification Numbers so that the Escrow Agent may file
appropriate income tax information returns with respect to any interest earned
on or credited to the Deposit. The party entitled to the economic benefit of
the Deposit representing interest earned on the Downpayment shall be the party
responsible for the payment of any tax due thereon.
The provisions of the Escrow Agreement shall survive the termination of this
Agreement and the Closing.
16. Notices.
All notices, elections, consents, approvals, demands, objections, requests
or other communications which the Seller or the Purchaser may be required or
desire to give pursuant to, under or by virtue of this Agreement must be
in writing and (i) delivered by hand to the addresses set forth below, or
(ii) (a) sent by express mail or courier (for next business day delivery),
or (b) sent by certified or registered mail, return receipt requested with
proper postage prepaid, addressed as follows:
If to the Seller:
Century Square Venture
c/o Dean Witter Realty Inc.
Two World Trade Center
64th Floor
New York, NY 10048
Attention: Robert B. Austin
with copies to:
Vincent M. Sacchetti, Esq.
Bingham, Dana & Gould LLP
150 Federal Street
Boston, Massachusetts 02110
If to the Purchaser:
Spieker Properties, L.P.
19600 Fairchild
Suite 285
Irvine, CA 92612
Attention: John Davenport, Regional Senior Vice President
with a copy to:
Philip Levine, Esq.
Morrison & Foerster, LLP
755 Page Mill Drive
Palo Alto, CA 94304
The Seller or the Purchaser may designate another addressee or change its
address for notices and other communications hereunder by a notice given to the
other parties in the manner provided in this Section 16. A notice or other
communication sent in compliance with the provisions of this Section 16 shall be
deemed given and received (i) if by hand, at the time of the delivery thereof to
the receiving party at the address of such party set forth above (or to such
other address as such party has designated as provided above), (ii) if sent by
express mail or overnight courier, on the date it is delivered to the other
party, or (iii) if sent by registered or certified mail, on the third business
day following the day such mailing is made.
17. Property Information and Confidentiality.
The Purchaser agrees that, prior to the Closing, all Property Information
shall be kept strictly confidential and shall not, without the prior
consent of the Seller, be disclosed by the Purchaser or the Purchaser's
Representatives, in any manner whatsoever, in whole or in part, and will
not be used by the Purchaser or the Purchaser's Representatives, directly
or indirectly, for any purpose other than evaluating the Property.
Moreover, the Purchaser agrees that, prior to the Closing, the Property
Information will be transmitted only to the Purchaser's
Representatives (i) who need to know the Property Information for the purpose
of evaluating the Property, and who are informed by the Purchaser of the
confidential nature of the Property Information, (ii) who agree to be bound by
the terms of this Section 17 and Section 6.3 and (iii) who have executed and
delivered to the Seller the letter regarding use of the Property Information in
the
form of Exhibit J hereto. The provisions of this Section 17 shall in no event
apply to Property Information which is a matter of public record and shall not
prevent the Purchaser from complying with Laws, including, without limitation,
governmental regulatory, disclosure, tax and reporting requirements.
17.1. Press Releases.
The Purchaser and Seller, for the benefit of each other, hereby
agree that between the date hereof and the Closing Date, they will
not release or cause or permit to be released any press notices,
publicity (oral or written) or advertising promotion relating to,
or otherwise announce or disclose or cause or permit to be announced
or disclosed, in any manner whatsoever, the terms, conditions or
substance of this Agreement or the transactions contemplated herein,
without first obtaining the written consent of the other party
hereto. It is understood that the foregoing shall not preclude
either party from discussing the substance or any relevant details
of the transactions contemplated in this Agreement with any of its
attorneys, accountants, professional consultants or potential
lenders, as the case may be, or prevent either party hereto from
complying with Laws, including, without limitation, governmental regulatory,
disclosure, tax and reporting requirements.
17.2. Return of Property Information.
In the event this Agreement is terminated, the Purchaser and the
Purchaser's Representatives shall promptly deliver to the Seller all originals
and copies of the Property Information (other than materials prepared by the
Purchaser, its employees or its officers) in the possession of the Purchaser and
the Purchaser's Representatives. Notwithstanding anything contained herein to
the contrary, in no event shall the Purchaser be entitled to receive a return of
the Downpayment or the accrued interest thereon, if any, if and when otherwise
entitled thereto pursuant to this Agreement until such time as the Purchaser and
the Purchaser's Representatives shall have performed the obligations contained
in the preceding sentence.
17.3. Property Information Defined.
As used in this Agreement, the term "Property Information" shall
mean (i) all information and documents in any way relating to the Property, the
operation thereof or the sale thereof (including, without limitation, Leases,
Contracts and Licenses) furnished to, or otherwise made available for review by,
the Purchaser or its directors, officers, employees, affiliates, partners,
brokers, agents or other representatives, including, without limitation,
attorneys, accountants, contractors, consultants, engineers and financial
advisors (collectively, the "Purchaser's Representatives"), by the Seller or
any of the Seller's Affiliates, or their agents or representatives, including,
without limitation, their contractors, engineers, attorneys, accountants,
consultants, brokers or advisors, and (ii) all analyses, compilations, data,
studies, reports or other information or documents prepared or obtained by the
Purchaser or the Purchaser's Representatives containing or based, in whole or
in part, on the information or documents described in the preceding clause (i),
or the Investigations, or otherwise reflecting their review or investigation of
the Property.
17.4. Remedies.
In addition to any other remedies available to the Seller, the
Seller shall have the right to seek equitable relief, including,
without limitation, injunctive relief or specific performance,
against the Purchaser or the Purchaser's Representatives in order
to enforce the provisions of this Section 17.
The provisions of this Section 17 shall survive the termination of this
Agreement and the Closing.
18. Access to Records.
For a period of seven (7) years subsequent to the Closing Date, the Seller,
the Seller's Affiliates and their employees, agents and representatives
shall be entitled to access during business hours to all documents, books
and records given to the Purchaser by the Seller at the Closing for tax
and audit purposes, regulatory compliance, and cooperation with governmental
investigations upon reasonable prior notice to the Purchaser, and shall have
the right, at their sole cost and expense, to make copies of such
documents, books and records.
19. Assignments.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and to their respective heirs, executors, administrators,
successors and permitted assigns. This Agreement may not be assigned by the
Purchaser without the prior written consent of the Seller and any assignment
or attempted assignment by the Purchaser without such prior written consent
shall constitute a default by the Purchaser hereunder and shall be null and
void. Notwithstanding the foregoing, the Purchaser may assign this Agreement
to a person controlling, controlled by or under common control with the
Purchaser, provided, that the Purchaser shall remain liable for all obligations
of Purchaser hereunder notwithstanding any such assignment.
20. Entire Agreement, Amendments.
All prior statements, understandings, representations and agreements between
the parties, oral or written, are superseded by and merged in this Agreement,
which alone fully and completely expresses the agreement between them in
connection with this transaction and which is entered into after full
investigation, neither party relying upon any statement, understanding,
representation or agreement made by the other not embodied in this Agreement.
This Agreement shall be given a fair and reasonable construction in accordance
with the intentions of the parties hereto, and without regard to or aid of
canons requiring construction against the Seller or the party drafting this
Agreement. This Agreement shall not be altered, amended, changed, waived,
terminated or otherwise modified in any respect or particular, and no consent
or approval required pursuant to this Agreement shall be effective, unless the
same shall be in writing and signed by or on behalf of the party to be charged.
21. Merger.
Except as otherwise expressly provided herein, the Purchaser's acceptance of
the Deed shall be deemed a discharge of all of the obligations of the Seller
hereunder and all of the Seller's representations, warranties, covenants and
agreements herein shall merge in the documents and agreements executed at the
Closing and shall not survive the Closing.
22. Limited Recourse.
The Purchaser agrees that it does not have and will not have any claims or
causes of action against any disclosed or undisclosed officer, director,
employee, trustee, shareholder, partner, principal, parent, subsidiary or
other affiliate of the Seller, including, without limitation, Dean Witter Realty
Inc. and the parent and affiliates of Dean Witter Realty Inc. (collectively,
the "Seller's Affiliates"), arising out of or in connection with this Agreement
or the transactions contemplated hereby. The Purchaser agrees to look solely
to the Seller and the Seller's assets directly attributable to the Building for
the satisfaction of the Seller's liability or obligation arising under this
Agreement or the transactions contemplated hereby, or for the performance of
any of the covenants, warranties or other agreements of the Seller contained
herein, and further agrees not to sue or otherwise seek to enforce any personal
obligation against any of the Seller's Affiliates with respect to any matters
arising out of or in connection with this Agreement or the transactions
contemplated hereby. The total liability of the Seller hereunder shall in no
event exceed $500,000.00.
23. Miscellaneous.
Neither this Agreement nor any memorandum thereof shall be recorded and
any attempted recordation hereof shall be void and shall constitute a default.
Each of the Exhibits and Schedules referred to herein and attached hereto is
incorporated herein by this reference. The caption headings in this Agreement
are for convenience only and are not intended to be a part of this Agreement and
shall not be construed to modify, explain or alter any of the terms, covenants
or conditions herein contained. If any provision of this Agreement shall be
unenforceable or invalid, the same shall not affect the remaining provisions of
this Agreement and to this end the provisions of this Agreement are intended to
be and shall be severable. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of California without reference to
principles of conflicts of laws.
24. Time of the Essence.
Time is of the essence with respect to this Agreement, including but not
limited to the occurrence of the Closing as of the originally scheduled date.
25. IRS Form 1099-S Designation.
In order to comply with information reporting requirements of Section
6045(e) of the Internal Revenue Code of 1986, as amended, and the Treasury
Regulations thereunder, the parties agree (i) to execute an IRS Form 1099-S
Designation Agreement in the form attached hereto as Exhibit K at or prior
to the Closing to designate the Title Company as the party who shall be
responsible for reporting the contemplated sale of the Property to the
Internal Revenue Service (the "IRS") on IRS Form 1099-S; (ii) to provide
the Title Company with the information necessary to complete Form 1099-S;
(iii) that the Title Company shall not be liable for the actions taken
under this Section 25, or for the consequences of those actions, except
as they may be the result of gross negligence or willful misconduct on the
part of the Title Company; and (iv) that the Title Company shall be
indemnified by the parties for any costs or expenses incurred as a result
of the actions taken under this Section 25, except as they may be the result of
gross negligence or willful misconduct on the part of the Title Company. The
Title Company shall provide all parties to this transaction with copies of the
IRS Forms 1099-S filed with the IRS and with any other documents used to
complete IRS Form 1099-S.
26. Other Purchase Agreement.
Reference is hereby made to that certain Purchase and Sale Agreement of
even date herewith, by and between, Lake Colorado Associates and the
Purchaser, concerning the office building located at 35 North Lake Avenue,
Pasadena, California, and commonly referred to as the Pasadena Financial Center
(the "Other Purchase Agreement"). The Seller and the Purchaser acknowledge
and agree that the Closing hereunder and the "Closing" under and as defined in
the Other Purchase Agreement shall occur simultaneously, and neither such
Closing shall occur unless both such Closings shall occur.
27. Access to Records.
Subsequent to the Closing Date and until the fourth anniversary thereof,
Purchaser shall have the right to audit the books and records of Seller in
respect of the Property for the last two entire fiscal years of the Seller
ending prior to the Closing Date and the portion of the Seller's fiscal year
in which the Closing occurs to and including the Closing Date.
28. Attorney's Fees.
In any event that at any time Seller or Purchaser shall institute any action
or proceeding against the other relating to this Agreement or any default
hereunder, then and in that event the prevailing party in such action or
proceeding shall be entitled to recover from the other party its reasonable
attorneys' fees which shall be deemed to have accrued on the commencement
of such action or proceeding and shall be payable whether or not such
action is prosecuted to judgment.
29. Counterparts.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one and the same
instrument.
30. Tax Free Exchange.
Purchaser may consummate the purchase of the Property as part of a so-called
like kind exchange (the "Exchange") pursuant to 1031 of the Internal Revenue
Code of 1986, as amended (the "Code"), provided that: (i) the Closing shall not
be delayed or affected by reason of the Exchange nor shall the consummation or
accomplishment of the Exchange be a condition precedent or condition subsequent
to Purchaser's obligations under this Agreement; (ii) Purchaser shall effect the
Exchange through an assignment of this Agreement, or its rights under this
Agreement, to a qualified intermediary; (iii) Seller shall not be required to
take an assignment of the purchase agreement for the relinquished property or be
required to acquire or hold title to any real property for purposes of
consummating the Exchange; and (iv) Purchaser shall pay any additional costs
that would not otherwise have been incurred by Purchaser or Seller had Purchaser
not consummated its purchase through the Exchange. Seller shall not by this
agreement or acquisescent to the Exchange (1) have its rights under this
Agreement affected or diminished in any manner or (2) be responsible for
compliance with or be deemed to have warranted to Purchaser that the Exchange
in fact complies with 1031 of the Code.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
SELLER:
CENTURY SQUARE VENTURE,
a California general partnership
By: Dean Witter Realty Income
Partnership I, L.P., a
Delaware limited
partnership,
its General Partner
By: Dean Witter Realty Income
Properties I, Inc. a
Delaware
corporation,
its General Partner
By:
Name:
Title:
By: Dean Witter Realty Income
Partnership II, L.P., a
Delaware limited
partnership,
its General Partner
By: Dean Witter Realty Income
Properties II, Inc. a
Delaware
corporation,
its General Partner
By:
Name:
Title:
<PAGE>
PURCHASER:
SPIEKER PROPERTIES, L.P.
By: Spieker Properties, Inc.,
its General Partner
By:
Name:
Title:
