SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS Dated as of June 8, 2004 By and Between PARK PLACE HOTEL COMPANY LLC, a Delaware limited liability company "SELLER" And MAGUIRE PROPERTIES, L.P. a Maryland limited partnership" "PURCHASER" TABLE OF CONTENTS Page I.SALE AND PURCHASE; PROPERTY1 II.CONSIDERATION2 2.1 Purchase Price2 2.2 Escrow2 2.3 Deposit2 III.SURVEY4 IV.TITLE4 4.1 Title Report4 4.2 Title Objection5 4.3 Title Insurance7 V.INSPECTION7 5.1 Inspection Period7 5.2 Document Review8 5.3 Inspection Obligations10 5.4 Right of Termination Relating to Inspection11 5.5 Property Conveyed "As Is"11 5.6 Investigative Studies12 VI.CONTRACTS; LEASES; ASSIGNMENTS OF DEVELOPMENT AGREEMENT, CCRs AND ARSDO13 6.1 Assignment of Contracts13 6.2 Assignment of Rights Under REA13 6.3 Assignment of Development Agreement, CCRs and ARSDO14

 

	12.3    Place of Performance	34
	12.4   Jurisdiction and Venue	34
	12.5   Section Headings	35
	12.6   Number	35
	12.7   Merger	35
	12.8   Periods; Business Days	35
	12.9   No Recordation	35
	12.10   Multiple Counterparts	35
	12.11   Severability	35
	12.12   Assignment	35
	12.13   Entire Agreement	36
	12.14   Exculpation of Members, Officers and Directors	36
	12.15   Construction	36
	12.16   Post-Closing Audit	36

GENERAL PARTNER'S CONSENT AND ACKNOWLEDGMENT	39
FACILITY PARCEL OWNER'S CONSENT AND ACKNOWLEDGMENT	40

EXHIBIT A	Legal Description	41
EXHIBIT B	List of Service, Supply and Maintenance Contracts Which Relate to the Property	42
EXHIBIT C	Form of Surveyor's Certificate	42
EXHIBIT D	List of Items To Be Delivered To Purchaser Following Execution Of The Agreement	45
EXHIBIT E	Grant Deed	46
EXHIBIT F	Assignment of Contracts	51
EXHIBIT G	Certificate Regarding Foreign Investment In Real Property Tax Act	56
EXHIBIT H	Bill of Sale	60
EXHIBIT I	Partial Cancellation of Restrictions	63
EXHIBIT J	Assignment of CCRs	69
EXHIBIT K	Assignment of ARSDO	75

SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS

THIS SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this "Agreement") is dated as of June 8, 2004 (the "Effective Date"), by and between PARK PLACE HOTEL COMPANY LLC, a Delaware limited liability company ("Seller"), and MAGUIRE PROPERTIES, L.P., a Maryland limited partnership ("Purchaser").

Seller desires to sell and Purchaser desires to purchase the property described in Article 1 below on the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the mutual agreements contained below and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:

I. SALE AND PURCHASE; PROPERTY

Seller agrees to sell and convey unto Purchaser, and Purchaser agrees to purchase and accept from Seller, for the price and subject to the terms, covenants, conditions and provisions set forth below, the following:

(a)    All of that certain land in the City of Irvine, Orange County, California, which is described in Exhibit A attached hereto and made a part hereof (the "Land");

(b)    All right, title and interest of Seller in and to all structures, improvements and fixtures, if any, located on the Land (collectively, the "Improvements") (the Land and the Improvements are sometimes referred to in this Agreement collectively as the "Real Property.");

(c)    All right, title and interest of Seller in and to any land lying in the bed of any street, road or access way, opened or proposed, in front of, at a side of or adjoining the Land to the centerline thereof (the "Property Rights");

(d)    All right, title and interest of Seller, reversionary or otherwise, in and to all easements, covenants and other rights in or upon the Land and all other rights and appurtenances belonging or in any way pertaining thereto, if any (the "Appurtenances");

(e)    Seller's interest in all assignable service, supply and maintenance contracts which relate solely to the Real Property, and which have not been terminated by Seller prior to the Closing Date (a list of all service, supply and maintenance contracts which relate to the Real Property are identified on Exhibit B attached hereto and made a part hereof);

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    (f)   All right, title and interest of Seller in and to all assignable intangible property, if any, now or on the Closing Date relating to the ownership or operation of the Real Property, including, without limitation, licenses, entitlements, permits, guaranties, warranties and trade names, but in each case without warranty (the "Intangible Property"); and

    (g)   Seller's right, title and interest under (i) a Construction, Operation and Reciprocal Easement Agreement (the "REA") dated as of July 26, 1985, by and between Crow Winthrop Operating Partnership, a Maryland general partnership, and Crow Winthrop Development Limited Partnership, a Maryland limited partnership, recorded in the Official Records of Orange County, California recorded on July 30, 1985 as Instrument No. 85-279768, and relating to the Land and certain other real property, insofar but only insofar as such interest and rights affect and are appurtenant to the Land, (ii) the Development Agreement, (iii) the CCRs (defined below in Section 4.2(a)(iv)), and (iv) the ARSDO (defined below in Section 4.2(a)(v)).

The items described in (a) through (g) of this Article I are referred to in this Agreement collectively as the "Property.^"

    2.1   Purchase Price. The purchase price to be paid by Purchaser to Seller for the sale and conveyance of the Property shall be Fifteen Million Dollars ($15,000,000) (the "Purchase Price"). The Purchase Price shall be payable to Seller on or before 12:00 noon (Irvine, California time) on the day that the closing of the transaction contemplated hereby occurs (the "Closing") by Federal Reserve wire transfer of immediately available funds to an account or accounts which shall be designated by Seller to the Escrow Agent (as defined in Section 2.2) on or before the Closing Date (as defined in Section 8.1), plus or minus prorations and adjustments as provided below.

    2.2   Escrow. The transaction contemplated by this Agreement shall be effected through an escrow (the "Escrow") with Chicago Title Company, Margie Wheeler, Escrow Manager and Certified Senior Escrow Officer, 16969 Von Karman, Irvine, California 92606 (the "Escrow Agent") to be opened no later than 12:00 noon (Irvine, California time) on the first (1st) business day after the Effective Date. This Agreement shall constitute the "Escrow Instructions" for such transaction.

    2.3   Deposit.

    (a)   No later than 12:00 noon (Irvine, California time) on the first (1st) business day after the Effective Date (the "Escrow Deposit Date"), Purchaser shall deposit with Escrow the sum of Three Hundred Fifty Thousand Dollars ($350,000), of which Seventy Thousand Dollars ($70,000) shall be referred to in this Agreement as the "First Initial Payment".

 

No later than 5:00 p.m. (Irvine, California time) on the Escrow Deposit Date, Seller shall deliver to Purchaser (i) all Phase I environmental reports, if any, in the possession of Seller, and (ii) a list of all contracts affecting the Property which contracts are not terminable on thirty (30)-days' notice without breach, if any (the "Initial Documents"). If Purchaser does not terminate this Agreement on or before the second (2^nd) business day after the Escrow Deposit Date (the "Initial Inspection Termination Date") by delivering a writ ten notice of termination to Seller and the Escrow Agent on or before 5:00 p.m. (Irvine, California time) on the Initial Inspection Termination Date, the First Initial Payment shall become unconditionally payable to Seller at 5:01 p.m. (Irvine, California time), on the Initial Inspection Termination Date, in consideration for Seller's execution of this Agreement and the granting to Purchaser of the first fifteen (15) days of the Inspection Period (as defined in Section 5.1), and within one (1) business day thereafter, the Escrow Agent shall pay the amount of the First Initial Payment to Seller, and no portion of the First Initial Payment shall be refundable to Purchaser under any circumstances other than as expressly provided for in Section 9.4(b). The remaining deposit in the amount of Two Hundred Eighty Thousand Dollars ($280,000) shall be referred to in this Agreement as the "Second Initial Payment". (The First Initial Pa yment and the Second Initial Payment made by Purchaser pursuant to this Section 2.3(a) are collectively referred to as the "Initial Payment"). If Purchaser does not terminate this Agreement on or before the fifteenth (15^th) day following the Effective Date (the "Escrow Continuation Date") by delivering a written notice of termination to Seller and the Escrow Agent on or before 5:00 p.m. (Irvine, California time) on the Escrow Continuation Date, the Second Initial Payment shall become unconditionally payable to Seller at 5:01 p.m. (Irvine, California time), on the Escrow Continuation Date, in consideration for Seller's execution of this Agreement and the granting to Purchaser of the second fifteen (15) days of the Inspection Period, and within one (1) business day thereafter, the Escrow Agent shall pay the amount of the Second Initial Payment to Seller, and no portion of the Second Initial Payment shall be refundable to Purchaser under any circumstances other than as expressly provided for in Section 9.4(b). If Purchaser terminates this Escrow on or before the Escrow Continuation Date, as provided in this Section 2.3(a), then the provisions of Section 9.4(a) shall apply. On or before 5:00 p.m. (Irvine, California time) on the Escrow Continuation Date, Purchaser shall deposit with Escrow the sum of Three Hundred Fifty Thousand Dollars ($350,000) (together with all interest accrued thereon in Escrow, the "Deposit"). If Purchaser does not terminate this Agreement on or before the Risk Date (as defined in Section 5.1) by delivering a written notice of termination to Seller and the Escrow Agent on or before 5:00 p.m. (Irvine, California time) on the Risk Date, the Deposit shall become unconditionally payable to Seller at 5:01 p.m. (Irvine, California time), on the Risk Date, and within one (1) business day thereafter, the Escrow Agent shall pay the amount of the Deposit to Seller. If Purchaser does not deliver a written notice of termination of this Agreement to Seller and the Escrow Agent on or before 5:00 p.m. (Irvine, California time) on the Risk Date, Purchaser shall be entitled to a return of the Deposit only in the relevant circumstances specified in Section 9.4(b). The Deposit shall be paid to and retained by Seller pursuant

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to this Section 2.3(a) in consideration for Seller providing to Purchaser the right to elect to purchase the Real Property pursuant to the terms of this Agreement, and no portion of the Deposit shall be refundable to Purchaser except in the relevant circumstances expressly provided for in Sections 9.4(a) or 9.4(b). Any interest earned on the Deposit and the Initial Payment while held by Seller shall be for the benefit of Seller and under no circumstances shall be payable to, or for the benefit of, Purchaser.

(b)   The Escrow Agent shall deposit the Initial Payment and the Deposit into an interest-bearing money market account maintained at a federally insured bank located in Orange County, California, satisfactory to Seller and Purchaser. Such account shall have no penalty for early withdrawal, and Purchaser accepts all risks with regard to the account, specifically including the risk of closure of such bank by state or federal regulators, and all losses occasioned thereby. If the transaction contemplated by this Agreement is consummated in accordance with the terms and provisions hereof, the Initial Payment and the Deposit shall be credited against the Purchase Price at the Closing and, if not previously released by Escrow, paid to Seller in accordance w ith the terms of this Agreement. If the transaction contemplated by this Agreement is not so consummated, the Initial Payment and the Deposit shall be delivered by the Escrow Agent as provided in Section 9.4. All interest which constitutes a portion of the Initial Payment or the Deposit while held by Escrow shall be reported to the Internal Revenue Service as income of the party receiving such interest under this Agreement. Each party shall promptly execute all forms reasonably requested by the Escrow Agent, including, without limitation, Form W-9 and any necessary investment direction letters.

III. SURVEY

Seller shall deliver to Purchaser on or before three (3) business days after the Escrow Deposit Date (and in determining such three (3)-day period, the Escrow Deposit Date shall not be counted) a copy of the most recent survey of the Real Property dated   (the "Survey"), certified to Purchaser and the Escrow Agent in accordance with the form of certification attached hereto as Exhibit E and made a part hereof, qualifying as an ALTA certified completion survey acceptable to the Title Company (defined below).

4.1   Title Report. On or before three (3) business days after the Escrow Deposit Date (and in determining such three (3)-day period, the Escrow Deposit Date shall not be counted), Seller shall deliver to Purchaser a copy of a preliminary title report (the "Title Report") dated April 22, 2004, issued by Chicago Title Insurance Company (the "Title Company"), and relating to the Real Property, and a copy of the instruments listed in the Title Report as exceptions to the title of the Real Property (the " Underlying Documents").

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4.2   Title Objection.

(a)   As used in this Agreement, the term "Title Objection Period" shall mean a period commencing on the Effective Date and ending at 5:00 p.m. (Irvine, California time) on the date that is ten (10) calendar days after the Effective Date (and in determining such ten (10)-day period, the Effective Date shall not be counted). Purchaser may object to any matter shown on the Survey or any of the exceptions listed in the Title Report by delivery of a written notice ("Purchaser's Title Notice") to Seller prior to the expiration of the Title Objection Period; provided, however, Purchaser may not object to the following:

 

                (i)    the REA, which Purchaser shall be deemed to have approved;

 

                (ii)    the Development Agreement (defined below in Section 7.2(b)), which Purchaser shall be deemed to have approved;

 

                (iii)    the Declaration of Covenants, Conditions and Restriction, Option to Purchase and Right of First Refusal (the "CCRs") dated as of November 25, 2002, by and between the Seller and certain other owners at Park Place on the one hand and Irvine Residential Highrise LLC, a Delaware limited liability company on the other hand, and recorded November 27, 2002 in the Official Records, County of Orange, as In strument No. 2002001079917, which Purchaser shall be deemed to have approved;

 

                (iv)    the Agreement Regarding Satisfaction of Development Obligations (the "ARSDO") dated as of November 25, 2002, by and between the Seller and certain other owners at Park Place on the one hand and Irvine Residential Highrise LLC, a Delaware limited liability company on the other hand, and recorded November 27, 2002 in the Official Records, County of Orange, as Instrument No. 2002001079916, which Purcha ser shall be deemed to have approved; or

 

                (v)    the lien for general and special taxes and assessments, and a lien for supplemental taxes, if any, assessed pursuant to Chapter 3.5, commencing with Section 75, of the California Revenue and Taxation Code, which are not yet delinquent, which Purchaser shall be deemed to have approved.

Purchaser's Title Notice shall specify the matters shown on the Survey or the exceptions listed in the Title Report to which Purchaser objects (such matters and exceptions being herein referred to as "Purchaser's Title Objections"). If Purchaser fails to deliver Purchaser's Title Notice to Seller prior to the expiration of the Title Objection Period, all of the matters shown on the Survey and all of the exceptions listed in the Title Report shall be conclusively deemed to be acceptable to Purchaser. If Purchaser delivers Purchaser's Title Notice to Seller prior to the expiration of the Title Objection Period, all

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of the matters shown on the Survey and all of the exceptions listed in the Title Report other than Purchaser's Title Objections shall be conclusively deemed to be acceptable to Purchaser. All of the matters shown on the Survey and all of the exceptions listed in the Title Report which are deemed to be acceptable to Purchaser under this Section 4.2(a) are referred to collectively as the "Approved Title Exceptions."

 

            (b)    If Purchaser delivers Purchaser's Title Notice to Seller prior to the expiration of the Title Objection Period, Seller shall have the right, but not the obligation, to remove or otherwise satisfy any of Purchaser's Title Objections. Notwithstanding what is stated in the preceding sentence and regardless of whether Purchaser delivers a Purchaser's Title Notice, Seller shall remove or otherwise satisfy prior to the Closing Date all of exceptions listed in the Title Report which (i ) are monetary liens created by Seller, (ii) are real estate tax liens for the property tax year which commenced on July 1, 2003 and ended on June 30, 2004 and prior property tax years, or (iii) are mechanic's liens (items (i) through (iii) being collectively referred to as "Seller's Mandatory Cure Obligations"). Within four (4) calendar days after delivery of Purchaser's Title Notice, Seller shall deliver to Purchaser a written notice ("Seller's Title Notice") indicating (i) all of Purchaser's Title Objections which are not Seller's Mandatory Cure Obligations and which Seller shall attempt to cure prior to the Risk Date ("Seller's Optional Cure Title Objections"), and (ii) all of Purchaser's Title Objections which are not Seller's Mandatory Cure Obligations and which Seller is unable or unwilling to cure prior to the Risk Date ("Seller's Uncured Title Objections"). If Seller fails to timely deliver Seller's Title Notice to Purchaser, all of Purchaser's Title Objections which are not Seller's Mandatory Cure Obligations shall be deemed to be Seller's Uncured Title Objections.

 

            (c)    If Seller's Title Notice shall specify, or if pursuant to Section 4.2(b) above there are deemed to be, any Seller's Uncured Title Objections, then Purchaser may, on or before the Escrow Continuation Date (i) accept title to the Property subject to Seller's Uncured Title Objections without any reduction in the Purchase Price and without any other liability on the part of Seller, or (ii) terminate this Agreement by delivering a written notice of termination to Seller on or before the Escrow Continuation Date. Upon such termination, the provisions of Sections 9.4(a) and 9.3 shall be applicable. If Purchaser shall fail to timely deliver a notice to Seller on or before the Escrow Continuation Date objecting to one or more of Seller's Uncured Title Objections and terminating this Agreement as permitted by this Section 4.2(c), Purchaser shall be conclusively deemed to have approved all of Seller's Uncured Title Objections at 5:01 p.m. (Irvine, California time) on the Escrow Continuation Date.

 

            (d)    If any of Seller's Optional Cure Title Objections remain uncured on the date which is two (2) business days prior to the Risk Date, then Purchaser may (i) accept title to the Property subject to Seller's Optional Cure Title Objections without any reduction in the Purchase Price and without any other liability on the part of Seller, or (ii) terminate this Agreement by delivering a written notice of termination to Seller on or before the Risk Date.

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Upon such termination, the provisions of Sections 9.4(b) and 9.3 shall be applicable. If Purchaser shall fail to timely deliver a notice to Seller on or before the Risk Date objecting to any of Seller's Optional Cure Title Objections which remain uncured on the Risk Date and terminating this Agreement as permitted by this Section 4.2(d), Purchaser shall be conclusively deemed to have approved all of Seller's Optional Cure Title Objections at 5:01 p.m. (Irvine, California time) on the Risk Date.

(e)   As used in this Agreement, the term "Permitted Exceptions" shall mean (i) all of the Approved Title Exceptions, (ii) any Purchaser's Title Objection which is included in Seller's Uncured Title Objections and which Purchaser has approved in writing or is deemed to have approved as provided in Section 4.2(c), and (iii) any Purchaser's Title Objection which is included in Seller's Optional Cure Title Objections and which Purchaser has approved in writing or is deemed to have approved as provided in Section 4.2(d).

4.3   Title Insurance. At the Closing, Seller shall deliver, or cause to be delivered, to Purchaser, a CLTA Standard Form Owner Policy of Title Insurance with such endorsements as Purchaser may request (collectively referred to as the "Endorsements") (such title policy and the Endorsements being referred to collectively as the "Title Policy"), issued by the Title Company, in the amount of the Purchase Price, and insuring that good and marketable of record title to the Land and the Improvements are vested in Purchaser subject to no exceptions other than (a) the Permitted Exceptions; (b) liens placed on the Land and the Improvements in connection with Purchaser's financing of its purchase of the Property; and (c) standard printed exceptions and other common exceptions generally included in a CLTA Form Standard Coverage Owner Policy of Title Insurance. The base premium for the Title Policy shall be paid by Seller. The cost of including the Endorsements in the Title Policy shall be paid by Purchaser. Purchaser may elect, at its sole cost, to obtain an ALTA Policy of Title Insurance (the "ALTA Policy"); provided, however, that it shall not be a condition of Closing that Purchaser is able to obtain the ALTA Policy, nor shall the Closing be delayed or extended for the purpose of Purchaser obtaining the ALTA Policy.

5.1   Inspection Period. Subject to the provisions of this Article V (including, but not limited to, Section 5.3) and provided that this Agreement has not been terminated in accordance with the provisions of this Agreement, Seller shall permit Purchaser and its authorized agents and representatives the right to enter upon the Real Property during the hours of 9:00 a.m. and 4:00 p.m., Monday through Friday to inspect the Property and conduct such tests as Purchaser deems necessary. Such entry and inspections may be conducted during a period commencing on the Effective Date and ending at 5:00 p.m. (Irvine, California time) on the date that is thirty (30) calendar days after the Effective Date (and in de termining such thirty (30)-day period, the Effective Date shall not be counted) (such period is referred to as the "Inspection Period," and the expiration date for the Inspection Period is referred to as the "Risk Date").

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Purchaser shall coordinate in a reasonable manner with Seller concerning any such inspections and tests; and Purchaser shall have access to, and be entitled to enter upon, the Real Property, only after having given one (1) business day's prior notice of any such entry to Seller. Purchaser shall bear the cost of all inspections and tests. At Seller's option, one or more representatives of Seller may be present for any inspection or test.

5.2   Document Review.

(a)   Seller shall deliver to Purchaser on or before three (3) business days after the Escrow Deposit Date (and in determining such three (3)-day period, the Escrow Deposit Date shall not be counted) the following documents:

 

                (i)    The Survey, the Title Report and the Underlying Documents; and

 

                (ii)    The items listed in Exhibit D attached hereto and made a part hereof (the documents referred to in this Section 5.2(a)(ii) are referred to collectively as the "Preliminary Inspection Documents").

During the Inspection Period, Seller shall also make available such other documents relating to the Property as Purchaser may reasonably request in writing to the extent the same are in Seller's possession or control (the "Supplemental Inspection Documents") (the Preliminary Inspection Documents and the Supplemental Inspection Documents being referred to collectively as the "Due Diligence Documents"). However, in no event shall Purchaser have the right to inspect or make copies of any appraisals of the Property, any documents in Seller's possession involving either Seller's acquisition of the Property, any internal budgets or projections with respect to the Property, any offers from prospective purchasers of the Property, or any other documents or other materials which Seller determines to be proprietary or confidential to Seller.

(b)   Purchaser acknowledges that all of the non-public Due Diligence Documents are proprietary or confidential in nature, and all of the Due Diligence Documents shall be delivered by Seller to Purchaser solely to assist Purchaser in determining the feasibility of purchasing the Property. Purchaser agrees not to disclose the contents of the Due Diligence Documents, or any of the provisions or terms thereof or conditions thereto, to any party outside of Purchaser's organization other than its attorneys, accountants, lenders, investors, advisors, consultants, contractors or agents (collectively, the "Permitted Outside Parties" and individually a "Permitted Outside Party "), or as otherwise required by law; provided, however, such prohibition shall not apply to the contents of Due Diligence Documents which become available to the public other than as a result of a disclosure by or through Purchaser or any Permitted Outside Party. Purchaser further agrees that within its organization, or as to the Permitted Outside Parties, the Due Diligence Documents shall be disclosed and exhibited only to those persons within Purchaser's organization or to those Permitted Outside Parties who are

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responsible for, or who are assisting in, the determination of the feasibility of Purchaser's acquisition of the Property and who have agreed in writing to preserve the confidentiality of such information as required herein. Purchaser further acknowledges that the Due Diligence Documents and other information relating to the leasing arrangements between Seller and the Tenants or prospective tenants are proprietary or confidential in nature. Purchaser agrees not to divulge the contents of the Due Diligence Documents and other information except in strict accordance with the confidentiality standards set forth in this Section 5.2(b). Purchaser shall indemnify and hold harmless Seller from and against any liability Seller may suffer or incur as a result of the disclosure by persons within Purchaser's organization or the Permitte d Outside Parties of the contents of the Due Diligence Documents or of the results of any inspections conducted by Purchaser, any persons within Purchaser's organization or any of the Permitted Outside Parties in accordance with this Article V, to the extent that such disclosure, if made by Purchaser rather than such persons within Purchaser's organization or any Permitted Outside Parties, would constitute a breach of or default under this Article V. In permitting the Permitted Outside Parties to review the Due Diligence Documents or information to assist Purchaser, Seller has not waived any privilege or claim of confidentiality with respect thereto, and no third party benefits or relationships of any kind, either express or implied, have been offered, intended or created by Seller and any such claims are expressly rejected by Seller and waived by Purchaser and the Permitted Outside Parties, for whom, by its execution of this Agr eement, Purchaser is acting as an agent with regard to such waiver. This Section 5.2(b) shall terminate upon the consummation of the transaction contemplated by this Agreement.

 

            (c)    Purchaser shall return all copies of the Due Diligence Documents that Purchaser has received from Seller, and shall destroy (and, if requested by Seller, such destruction shall be certified to in writing by Purchaser to Seller) all documents, memoranda, notes and other writings (including computer disks) prepared by Purchaser or any of the representatives or agents of Purchaser as a result of the review of, or based upon, the Due Diligence Documents, on the first to occur of (i) such time as Purchaser determines that it shall not acquire the Property, or (i i) such time as this Agreement is terminated for any reason. This Section 5.2(c) shall terminate upon the consummation of the transaction contemplated by this Agreement.

 

            (d)    Purchaser acknowledges that some of the Initial Documents and/or the Due Diligence Documents may have been prepared by third parties and may have been prepared prior to Seller's ownership of the Property. Purchaser hereby acknowledges that Seller has not made and does not make any representation or warranty regarding the truth, accuracy or completeness of any of the Initial Documents and/or the Due Diligence Documents or the sources thereof, whether prepared by Seller or third parties. Seller has n ot undertaken any independent investigation as to the truth, accuracy or completeness of the Initial Documents and/or the Due Diligence Documents and is providing the Initial Documents and/or the Due Diligence Documents solely as an accommodation to Purchaser.

 

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(e)   Notwithstanding any provision of this Agreement to the contrary, no termination of this Agreement shall terminate the obligations of Purchaser pursuant to this Section 5.2. Except as expressly provided in Sections 5.2(b) and 5.2(c), the provisions of this Section 5.2 shall survive the Closing and the delivery of the Deed (as defined in Section 8.2(b)(i)).

5.3   Inspection Obligations.

(a)   In conducting any inspections, investigations or tests of the Property or the Due Diligence Documents, Purchaser and its agents and representatives shall fulfill the following obligations: (i) describe in a written notice to Seller any physical testing or sampling of the Property that Purchaser intends to do and obtain Seller's written consent prior to conducting any such physical testing or sampling; (ii) not disturb the Tenants or interfere with their use of the Property pursuant to their respective Leases; (iii) not interfere with the operation and maintenance of the Real Property; (iv) not communicate or meet with any (x) Tenants, (y) contractors working on the Property, or (z) except as provided in this Section 5.3(a), governmental officials regarding the entitlements, tax assessment or any other matter relating to the Property, without, in each case, obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld if Purchaser provides Seller with at least twenty-four (24) hours' notice of intent to communicate, which notice shall contain the following information (i) the name and position of the person to be contacted by Purchaser, (ii) the name of the Purchaser's representative who will be making the contact, (iii) when the contact will be attempted, and (iv) the location where the contact will take place. Seller reserves the right in each instance to have a representative present duri ng any such communications. Purchaser or a representative of Purchaser may contact governmental entities regarding the Property during and after the Inspection Period without obtaining the prior written consent of Seller; provided, however, Purchaser or any representative of Purchaser may not under any circumstances take any action to alter, affect, amend or in any way modify the existing development approval rights at the Property or at Park Place, including without limitation, the CUP (defined below in Section 7.2(b)), vesting tentative tract maps and the Development Agreement (defined below in Section 7.2(b)) for the Property; (v) not damage any part of the Property or any personal property owned or held by any Tenant or any other person or entity; (vi) not injure or otherwise cause bodily harm to Seller's agents, guests, invitees, contractors or employees or any Tenant or any other person or entity; (vii) maintain commercial general liability insurance issued by insurers of recognized responsibility authorized to do business in the State of California and having a Best's rating of A-VII or better, and naming Seller as an additional insured, providing protection in limits of not less than Five Million Dollars ($5,000,000) for bodily injury or death in any one occurrence, and not less than Five Million Dollars ($5,000,000) for

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property damage where said injury, death or damage arises in connection with the presence of Purchaser, its agents, consultants and representatives on the Real Property (the "Requisite Insurance Coverage"); (viii) deliver to Seller before entry upon the Real Property a certificate of insurance verifying that Purchaser has obtained the Requisite Insurance Coverage; (ix) promptly pay when due the costs of all tests, investigations and examinations performed by or on behalf of Purchaser with regard to the Property; (x) not permit any liens to attach to the Real Property by reason of the exercise of its rights hereunder; (xi) fully restore the Real Property to substantially the condition in which the same was found before any such inspection or tests were undertaken; and (xii) not reveal or disclose any information obtained during the Inspection Period concerning the Property and the Due Diligence Documents to anyone outside Purchaser's organization other than the Permitted Outside Parties except in accordance with the confidentiality standards set forth in Section 5.2(b).

 

            (b)    Purchaser agrees to indemnify, defend and hold Seller and its respective members, partners, agents, employees, successors and assigns and each of their respective affiliates harmless from and against any and all liens, claims, causes of action, damages, liabilities, demands, suits, obligations, losses, penalties, costs and expenses (including reasonable attorneys' fees) arising out of (i) Purchaser's inspections or tests permitted under this Article V, or (ii) Purchaser's violation of any of the obligations set forth in Section 5.3(a).

 

            (c)    Notwithstanding any provision of this Agreement to the contrary, no termination of this Agreement shall terminate the obligations of Purchaser pursuant to this Section 5.3. The provisions of this Section 5.3 shall survive the Closing and the delivery of the Deed (as defined in Section 8.2(b)(i)).

5.4   Right of Termination Relating to Inspection. If, during the Inspection Period, Purchaser shall, in Purchaser's sole discretion, conclude that it does not want to proceed with the purchase of the Property in accordance with this Agreement for any reason or for no reason, then Purchaser shall be entitled, as its sole and exclusive remedy, to terminate this Agreement by delivering a written notice of termination to Seller and the Escrow Agent on or before 5:00 p.m. (Irvine, California time) on or before the Risk Date. Upon such termination, the provisions of Sections 9.4(a) and 9.3 shall be applicable. If Purchaser does not deliver a written notice of termination of this Agreement to Seller and the Escrow Agent at or before 5:00 p.m. (Ir vine, California time) on the Risk Date, (a) the termination right described in this Section 5.4 shall automatically expire at 5:01 p.m. (Irvine, California time) on the Risk Date, and (b) thereafter, Purchaser shall be entitled to a return of the Deposit only in the relevant circumstances specified in Section 9.4(b).

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5.6   Investigative Studies. As additional consideration for the transaction contemplated herein, Purchaser agrees that, if Purchaser terminates this Agreement pursuant to Section 5.4, Purchaser shall simultaneously provide to Seller, at no cost to Seller, copies of any and all written inspections, reports, tests, studies or surveys that Purchaser made or caused to be made in connection with the Property and which relate to either the physical or environmental conditions of the Real Property (the "Physical Inspection Reports"). Purchaser does not make, and Purchaser shall not be deemed to have made, any representation or warranty regarding the truth, accuracy or completeness of any of the Physical Inspection Reports. The Physical

 

Inspection Reports shall be delivered by Purchaser to Seller solely as an accommodation to Seller and with no assurances by Purchaser with respect thereto; and Seller agrees that Seller shall not have any right to rely on the Physical Inspection Reports or any right to bring any action or to make any claim against the preparer of any Physical Inspection Report. The obligations of Purchaser under this Section 5.6 shall survive the termination of this Agreement for any reason.

6.1   Assignment of Contracts. If this Agreement is not terminated on or before the Risk Date, then Purchaser shall, either before or on the Risk Date, provide Seller with written notice (the "Contract Notice") indicating whether Purchaser wants Seller to terminate any assignable service, supply or maintenance contracts which relate to the Property and which, by their terms, are terminable prior to the Closing Date without cost to Seller. Seller shall terminate any assignable service, supply or maintenance co ntracts which relate to the Property and which, by their terms, are terminable prior to the Closing Date without cost to Seller, which are listed on Purchaser's Contract Notice. All of the assignable service, supply and maintenance contracts referred to in Article I(e), other than those contracts required to be terminated by Seller pursuant to the Contract Notice, are referred to collectively as the "Contracts" and individually as a "Contract." Seller shall timely perform all of the obligations on the part of Seller to be performed under the Contracts up to and including the Closing Date; provided, however, that nothing in this Section 6.1 shall prevent Seller from terminating a Contract (or Contracts) if Seller, in its sole and absolute discretion, deems suc h termination necessary to comply with Seller's obligation under Section 10.1 of this Agreement. Seller may enter into a contract with a new service, supply or maintenance vendor (i) in Seller's sole and absolute discretion any time prior to the earlier of the receipt by Seller of the Contract Notice or the Risk Date, or (ii) only with the prior written approval of Purchaser, which approval shall not be unreasonably withheld or delayed, if after the earlier of the receipt by Seller of the Contract Notice or the Risk Date. Any new contract entered into by Seller in accordance with the provisions of the immediately preceding sentence shall become a Contract. On the Closing Date, Seller shall assign and Purchaser shall assume all of the rights and obligations of Seller under the Contracts from and after Closing pursuant to an Assignment and Assumption of Contracts and Intangible Property in the form attached hereto and made a part hereof as Exhibit F< /font>.

6.2   Assignment of Rights Under REA. On the Closing Date, Seller shall assign to Purchaser all of the rights referred to in Section I(g), and Purchaser shall assume all of the obligations of Seller under the REA relating to such rights which are payable or performable on or after the Closing Date, pursuant to an Assignment and Assumption of Contracts and Intangible Property in the form attached hereto and made a part hereof as Exhibit F. Purchaser shall indemnify, defend and hold harmless Seller from and against any liability Seller may suffer or incur as a result of a failure of Purchaser to pay or perform any obligations of Seller assumed by Purchase r pursuant to such Assignment and Assumption of Contracts and Intangible Property.

 

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            6.3   Assignment of Development Agreement CCRs and ARSDO. On the Closing Date, Seller shall assign and Purchaser shall assume all of the rights and obligations of Seller under (i) the Development Agreement pursuant to an Assignment and Assumption of Development Agreement in the form attached hereto and made a part hereof as Exhibit I, (ii) the CCRs pursuant to an Assignment and Assumption of CCRs in the form attached hereto and made a part hereof as Exhibit J and (iii) the ARSDO pursuant to an Assignment and Assumption of ARSDO in the form attached hereto and made a part hereof as Exhibit K. Purchaser shall indemnify, defend and hold harmless Seller from and against any liability Seller may suffer or incur as a result of a failure of Purchaser or any of Purchaser's affiliates to pay or perform any obligations of Seller assumed by Purchaser pursuant to the assignments identified in clauses (i), (ii) and (iii) of this Section 6.3. Seller shall obtain all required consents, if any, from the City of Irvine in the case of the Assignment and Assumption of Development Agreement, and from the Developer (as that term is defined in the CCRs and the ARSDO) in the case of the Assignment and Assumption of CCRs and the Assignment and Assumption of ARSDO. Seller agrees that Seller will not execute a modification, supplement or amendment of the Development Agreeme nt, the CCRs, and/or the ARSDO for a period commencing on the Effective Date and continuing to the earlier of (i) forty-five (45) days following the Effective Date, (ii) default under any such agreement, or (iii) termination of any such agreement (the "No Modification Period"). At the termination of the No Modification Period, Seller may, in its sole and absolute discretion, enter into any modification, supplement or amendment of the Development Agreement, the CCRs and/or the ARSDO, whether or not the transaction contemplated by this Agreement has been consummated.