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EXHIBIT 10.2
INDUSTRIAL PORTFOLIO
AGREEMENT OF PURCHASE AND SALE
This Agreement of Purchase and Sale ("Agreement"), dated as of October
2, 1998, is between RREEF Performance Partnership - I, LP, an Illinois limited
partnership ("Seller"), and Pacific Gulf Properties Inc., a Maryland corporation
("Buyer").
ARTICLE I
PURCHASE AND SALE OF PROPERTY
SECTION 1.1 SALE.
Seller agrees to sell to Buyer, and Buyer agrees to purchase from
Seller, subject to the terms, covenants and conditions set forth herein, (i)
that certain industrial real property, together with any and all rights,
privileges and easements appurtenant thereto owned by Seller, (ii) all
improvements, buildings systems and fixtures located therein or thereon owned by
Seller, which real property is more particularly described in EXHIBIT A attached
hereto and made a part hereof (collectively the "Real Property"), together with
Seller's interest in all tenant leases and any other occupancy agreements
(hereinafter collectively referred to as the "leases") affecting the right to
occupy any portion of the Real Property, Seller's interest in any intangible
personal property now or hereafter used in connection with the operation,
Seller's interest in maintenance, management, or occupancy of the Real Property,
including, without limitation, Seller's interest in any trade names and
trademarks associated with the Real Property (provided Seller makes absolutely
no representation that it has any rights whatsoever with respect to trade names
or trademarks), and (iii) any personal property owned by Seller, if any, located
on the Real Property and used exclusively in the operation or maintenance of the
Real Property, as the same may be further described in any list which is in
Seller's possession and is furnished to Buyer within the Delivery Period as
defined in Section 2.1(a) below (the "Personal Property"). The Real Property and
Personal Property are collectively referred to herein as the "Property."
SECTION 1.2 PURCHASE PRICE.
(a) The purchase price of the Property is Seventy-Six Million
Three Hundred Thousand Dollars ($76,300,000) (the "Purchase Price"); the
allocated values of the indicated portions of the Property are set forth on
EXHIBIT A-1 attached hereto.
(b) The Purchase Price shall be paid as follows:
(1) Upon the execution of this Agreement by Buyer and
Seller, Buyer shall deposit in escrow with Chicago Title Company (the "Title
Company") an all-cash payment in the amount of One Hundred Forty-Two Thousand
Eight Hundred Seventy-Five Dollars ($142,875) (the "Deposit"). Prior to the end
of the Contingency Period, Buyer shall increase the amount of the Deposit by One
Million Two Hundred Eighty-Five Thousand Eight Hundred Seventy-Five Dollars
($1,285,875) for a total Deposit of One Million Four Hundred Twenty-Eight
Thousand Seven Hundred Fifty Dollars ($1,428,750) by depositing in escrow with
the Title Company said amount of One Million Two Hundred Eighty-Five Thousand
Eight Hundred
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Seventy-Five Dollars ($1,285,875) either in cash or in the form of an
irrevocable standby letter of credit in favor of Seller in a form and from an
institutional bank reasonably approved by Seller ("Letter of Credit"). The
expiration date of the Letter of Credit shall be no sooner than thirty (30) days
after the Closing Date (as defined below). The Letter of Credit shall recite
that it may be drawn down upon by Title Company in full upon presentation to the
issuing bank of a certificate executed by Seller stating that Buyer is default
under the terms of this Agreement. Immediately after the expiration of the
Contingency Period, Title Company, without direction from Buyer, shall, upon
receipt from Seller of a written statement declaring Buyer to be in default,
immediately draw down on the Letter of Credit and deposit such funds into
escrow. Buyer shall have the right at any time to substitute cash for Buyer's
Letter of Credit and Buyer shall substitute cash for the Letter of Credit prior
to the Closing Date. Upon such substitution, the Letter of Credit shall be
returned to Buyer. Upon such cash and Letter of Credit, if any, being deposited
in escrow, the amount of the Deposit for all purposes shall be One Million Four
Hundred Twenty-Eight Thousand Seven Hundred Fifty Dollars ($1,428,750).
(2) THE DEPOSIT WHICH IS IN THE FORM OF CASH SHALL BE
HELD IN AN INTEREST BEARING ACCOUNT AND ALL INTEREST THEREON SHALL IN ALL EVENTS
BELONG SOLELY TO BUYER. IF THE SALE OF THE PROPERTY AS CONTEMPLATED HEREUNDER IS
CONSUMMATED, THEN THE DEPOSIT (IN THE FORM OF CASH) SHALL BE PAID TO SELLER AT
THE CLOSING AND CREDITED AGAINST THE PURCHASE PRICE. IF THE SALE OF THE PROPERTY
IS NOT CONSUMMATED DUE TO SELLER'S DEFAULT HEREUNDER, THEN, AS BUYER'S SOLE
REMEDIES, BUYER MAY EITHER: (1) TERMINATE THIS AGREEMENT AND RECEIVE A REFUND OF
THE DEPOSIT, IN WHICH EVENT NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR
OBLIGATIONS HEREUNDER EXCEPT AS PROVIDED IN SECTIONS 6.1, 9.3 AND 9.10 BELOW, OR
(2) BUYER MAY ENFORCE SPECIFIC PERFORMANCE OF THIS AGREEMENT. IF THE SALE IS NOT
CONSUMMATED DUE TO ANY DEFAULT BY BUYER HEREUNDER, THEN SELLER SHALL RETAIN THE
DEPOSIT (IN THE FORM OF CASH) AS LIQUIDATED DAMAGES. THE PARTIES HAVE AGREED
THAT SELLER'S ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO CONSUMMATE THIS SALE
DUE TO BUYER'S DEFAULT, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO
DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE
CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE DEPOSIT
IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT.
BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY
OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY
COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF
THIS LIQUIDATED DAMAGES PROVISION. IF THE SALE OF THE PROPERTY IS NOT
CONSUMMATED DUE TO ANY REASON OTHER THAN BUYER OR SELLER'S DEFAULT HEREUNDER,
THEN, THE DEPOSIT SHALL BE RETURNED TO BUYER AND NEITHER PARTY SHALL HAVE ANY
FURTHER RIGHTS OR OBLIGATIONS HEREUNDER EXCEPT AS PROVIDED IN SECTIONS 6.1, 9.3
AND 9.10 BELOW. THE FOREGOING IS NOT INTENDED TO LIMIT BUYER'S OBLIGATIONS UNDER
SECTIONS 6.1, 9.3 AND 9.9.
INITIALS: SELLER ________ BUYER _______
(3) The balance of the Purchase Price, which is
Seventy-Four Million Eight Hundred Seventy-One Thousand Two Hundred Fifty
Dollars ($74,871,250) (after substitution of cash for the Letter of Credit, if
any), shall be paid to Seller all in cash at the consummation of the purchase
and sale contemplated hereunder (the "Closing").
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ARTICLE II
CONDITIONS
SECTION 2.1 CONDITION PRECEDENT.
Buyer's obligation to purchase the Property is conditioned upon the
following:
(a) Buyer's review and approval of updated preliminary title
report, together with copies of the underlying documents, and any survey of the
Property in Seller's possession. Seller shall furnish to Buyer a copy of such
report, together with the underlying documents, and any survey in Seller's
possession, within ten (10) days after the date Seller receives a fully executed
original of this Agreement (the "Delivery Period").
(b) Buyer's review and approval of all leases affecting the
Property and any rent roll in Seller's possession provided that, notwithstanding
any other provision of this Agreement, Seller makes no representation as to, and
Buyer agrees that it shall not rely on, the accuracy of any information
contained in such rent roll. Seller shall furnish to Buyer copies of the leases
and any rent roll within the Delivery Period.
(c) Buyer's review and approval of the physical condition of the
Property.
(d) Buyer's review and approval of all zoning, land use,
building, environmental and other statutes, rules, or regulations applicable to
the Property.
(e) Buyer's review and approval of operating statements with
respect to the Property for 1996, 1997 and for the first eight (8) months of
1998, bills for the most recent real property taxes and assessments for the
Property, certificates of occupancy, plans and specifications, soils,
environmental and other reports, service contracts, guaranties, warranties and
other contracts or documents which will be binding on Buyer, or benefit the
Property, after the Closing. Seller shall make available to Buyer within the
Delivery Period copies of all such items in Seller's possession for Buyer's
inspection and copying, at Buyer's expense, during reasonable business hours.
Notwithstanding the foregoing, Buyer's review shall not include a review of
Seller's internal economic memoranda or reports, attorney-client privileged
materials or Seller's appraisals of the Property, if any.
(f) Buyer's review and approval of any other matters Buyer deems
relevant to the Property.
(g) Approval by Buyer's Executive Committee of the transactions
contemplated by this Agreement by September 23, 1998. If Buyer does not notify
Seller that Buyer's Executive Committee has disapproved the transactions
contemplated by this Agreement on or before said date, this condition shall be
deemed satisfied.
SECTION 2.2 CONTINGENCY PERIOD.
Buyer shall have until the date which is thirty (30) days after the date
of mutual execution and delivery hereof (such period being referred to herein as
the "Contingency Period") to review
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and approve the matters described in Sections 2.1(a)-(f) above in Buyer's sole
discretion. If Buyer determines to proceed with the purchase of the Property,
then Buyer shall, before the end of the Contingency Period, notify Seller in
writing that Buyer has approved all of the matters described in Section
2.1(a)-(f) above, including, without limitation, all documents, agreements,
surveys, reports and other items and materials delivered to or made available to
Buyer in connection with this Agreement (the "Due Diligence Materials"). If
before the end of the Contingency Period Buyer fails to give Seller such written
notice, then Buyer shall be deemed to have elected to terminate this Agreement,
the Deposit shall be returned to Buyer, and neither party shall have any further
rights or obligations hereunder except as provided in Sections 6.1, 9.3 and 9.9
below.
SECTION 2.3 CONSIDERATION.
Notwithstanding anything in this Agreement to the contrary, to induce
Buyer to enter into this Agreement and to expend the time and resources
necessary to evaluate the Property and possibly forego other opportunities while
doing so, Seller hereby grants to Buyer the rights to terminate this Agreement
as provided herein. Such expenditures of time and resources and possible loss of
opportunity by Buyer constitute adequate consideration for Seller's remaining
bound by this Agreement notwithstanding such termination rights in Buyer.
ARTICLE III
BUYER'S EXAMINATION
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
Subject to the provisions of Sections 3.2 and 3.3 below, Seller hereby
makes the following representations and warranties with respect to the Property,
provided that Seller makes no representations or warranties with respect to the
matters (the "Disclosure Items") which are set forth in SCHEDULE 1 attached
hereto and made a part hereof. Notwithstanding anything to the contrary
contained herein or in any document delivered in connection herewith, Seller
shall have no liability with respect to the Disclosure Items.
(a) Seller has not (i) made a general assignment for the benefit
of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the
filing of any involuntary petition by Seller's creditors, (iii) suffered the
appointment of a receiver to take possession of all, or substantially all, of
Seller's assets, (iv) suffered the attachment or other judicial seizure of all,
or substantially all, of Seller's assets, (v) admitted in writing its inability
to pay its debts as they come due, or (vi) made an offer of settlement,
extension or composition to its creditors generally.
(b) Seller is not a "foreign person" as defined in Section 1445
of the Internal Revenue Code of 1986, as amended (the "Code") and any related
regulations.
(c) This Agreement and all documents executed by Seller which
are to be delivered at the Closing (i) have been or will be duly authorized,
executed and delivered by Seller, and (ii) do not or will not violate any
provision of any agreement or judicial order to which Seller is a party or to
which Seller or the Property is subject.
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(d) Seller has the power and authority to enter into this
Agreement and to perform its obligations hereunder.
(e) Copies of the leases and contracts delivered or made
available to Buyer by Seller are true and accurate copies of such items.
(f) The only tenant leases and amendments thereto in force for
the Property as of the date hereof are set forth in a list which is attached
hereto as EXHIBIT B and made a part hereof.
(g) To the best of Seller's knowledge, there is no litigation
pending with respect to the Property.
(h) To the best of Seller's knowledge, Seller has received no
written notice that the Property or its current use and operation are in
material violation of any applicable law.
(i) To the best of Seller's knowledge, the documents which will
be delivered by Seller to Buyer or made available by Seller to Buyer for Buyer's
inspection and copying are true and complete copies of all documents in Seller's
possession related to the Property except for Seller's internal economic
memoranda and reports, attorney-client privileged materials and Seller's
appraisals of the Property, if any.
(j) To the best of Seller's knowledge, Seller has received no
written notice of any (i) condemnation, environmental, zoning or other land-use
proceedings, instituted or threatened, against the Property, or (ii) special
assessment proceedings affecting the Property (other than as set forth in the
preliminary title report).
(k) To the best of Seller's knowledge, Seller has received no
written notice of any material litigation or arbitration, instituted or intended
to be instituted, against the Property or against Seller as owner of the
Property except as set forth on SCHEDULE 1.
(l) To the best of Seller's knowledge, Seller has received no
written notice that any tenant of the Property has either filed or been the
subject of any filing of a petition under any federal or state bankruptcy or
insolvency laws except as set forth on SCHEDULE 1.
(m) Seller has received no written notice of any defaults by
Seller under any of the leases except as set forth on SCHEDULE 1. Except as set
forth on SCHEDULE 1, Seller has given no written notice to any tenants of the
Property of any defaults under its lease which has not been cured.
(n) Seller has received no written notice of any defaults by
Seller which have not been cured under the service contracts, guaranties, or
warranties which will be binding on Buyer, after the Closing.
(o) Seller is duly formed, validly existing and in good standing
under the laws of the State of Illinois and is qualified to do business as a
foreign limited partnership in California, Arizona and Oregon.
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(p) SCHEDULE 2 attached hereto is a complete and accurate list
of all employee benefit or other plans described in Section 3.5(e) below which
are investors in Seller.
Each of the representations and warranties of Seller contained in this
Section 3.1: (1) is true as of the date of this Agreement; (2) except for the
representations and warranties contained in Sections 3.1 (l) and (m), shall be
deemed remade by Seller, and shall be true in all material respects as of the
date of Closing, subject in either case to (A) any Exception Matters (as defined
below), (B) the Disclosure Items, and (C) other matters expressly permitted in
this Agreement or otherwise approved in writing by Buyer including, without
limitation, the Due Diligence Materials; and (3) shall survive the close of
escrow as provided in Section 3.3 below. In connection with the representations
and warranties contained in Sections 3.1 (l) and (m), Seller shall deliver to
Buyer: (x) three (3) days prior to the expiration of the Contingency Period, an
updated SCHEDULE 1, as necessary, effective as of said date, for matters
relating to the representation and warranty in Section 3.1(l), and (y) three (3)
days prior to the end of the Contingency Period, an updated aged receivable
report, effective as of the date that is seven (7) days prior to the expiration
of the Contingency Period, for matters relating to the representation and
warranty in Section 3.1(m).
SECTION 3.2 NO LIABILITY FOR EXCEPTION MATTERS.
As used herein, the term "Exception Matter" shall refer to a matter
disclosed to Buyer in writing or discovered by Buyer before the Closing, that
would make a representation or warranty of Seller contained in this Agreement
untrue or incorrect, including, without limitation, matters disclosed in writing
to Buyer by Seller or by any other person. If Buyer obtains knowledge of any
Exception Matter after the date hereof, Buyer may terminate this Agreement and
receive a return of the Deposit upon written notice to Seller within five (5)
business days after Buyer learns of such Exception Matter. (For purposes of this
Agreement, "business day" shall mean any day other than a Saturday or Sunday, a
California, Arizona or Oregon State holiday, a national holiday or other day on
which commercial bankers in California, Arizona or Oregon are generally not open
for business.) Buyer shall promptly notify Seller in writing of any Exception
Matter of which Buyer obtains knowledge before the Closing. If Buyer obtains
knowledge of any Exception Matter before the Closing, but nonetheless elects to
proceed with the acquisition of the Property, Buyer shall consummate the
acquisition of the Property subject to such Exception Matter and Seller shall
have no liability with respect to such Exception Matter, notwithstanding any
contrary provision, covenant, representation or warranty contained in this
Agreement. If Buyer elects to terminate this Agreement on the basis of any
Exception Matter, Buyer shall so notify Seller in writing within five (5)
business days following Buyer's discovery of the Exception Matter, and the
Deposit shall be returned to Buyer. Buyer's failure to give such notice within
such 5 business-day period shall be deemed a waiver by Buyer of such Exception
Matter. Upon a termination of this Agreement pursuant to this Section 3.2,
neither party shall have any further rights or obligations hereunder, except as
provided in Sections 6.1, 9.3 and 9.9 below. If Buyer first obtains knowledge of
an Exception Matter within five (5) business days of the Closing Date, the
Closing shall be automatically extended for the number of business days
necessary to give Buyer five (5) business days to respond to such Exception
Matter. Seller shall have no obligation to cure or remedy any Exception Matter,
and, subject to Buyer's right to terminate this Agreement as set forth above,
Seller shall have no liability whatsoever to Buyer with respect to any Exception
Matters.
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SECTION 3.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties of Seller and Buyer contained herein
shall survive for a period of twelve (12) months after the Closing, except that
Buyer's representations and warranties in Sections 3.5(d) and 3.5(e), Seller's
representations and warranties in Sections 3.1(p) and Seller's and Buyer's
representations and warranties in Section 6.1 shall survive indefinitely. Any
claim which Buyer or Seller may have at any time against the other for a breach
of any such representation or warranty (other than those contained in Sections
3.1(p), 3.5(d), 3.5(e) and 6.1), whether known or unknown, which is not asserted
by written notice to Seller or Buyer within such twelve (12) month period shall
not be valid or effective, and the party shall have no liability with respect
thereto.
SECTION 3.4 SELLER'S KNOWLEDGE.
For purposes of this Agreement and any document delivered at Closing,
whenever the phrase "to the best of Seller's knowledge" or the "knowledge" of
Seller or words of similar import are used, they shall be deemed to refer to the
current actual knowledge of Xxxx Xxxxxxx (the person at Seller who is in charge
of disposition of the Property) and Xxxxx Xxxxxx as to Portland Airport
Industrial Park, Xxxxx Xxxxxx as to Hesperian Industrial Park, Contra Costa
Diablo Industrial Park, Sierra Trinity Industrial Park, and Xxxxx Xxxx as to
Hohokam 10 East and West (the district managers of the indicated portions of the
Property, except for Xxxxx Xxxxxx who is Vice President and Director of
Properties) at the times indicated only and not any implied, imputed or
constructive knowledge, without any independent investigation having been made
or any implied duty to investigate.
SECTION 3.5 REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer represents and warrants to Seller as follows:
(a) Buyer represents and warrants to Seller that this Agreement
and all documents executed by Buyer which are to be delivered to Seller at
Closing do not and at the time of Closing will not violate any provision of any
agreement or judicial order to which Buyer is a party or to which Buyer is
subject.
(b) Buyer represents and warrants to Seller that Buyer has not
(i) made a general assignment for the benefit of creditors, (ii) filed any
voluntary petition in bankruptcy or suffered the filing of any involuntary
petition by Buyer's creditors, (iii) suffered the appointment of a receiver to
take possession of all, or substantially all, of Buyer's assets, (iv) suffered
the attachment or other judicial seizure of all, or substantially all, of
Buyer's assets, (v) admitted in writing its inability to pay its debts as they
come due, or (vi) made an offer of settlement, extension or composition to its
creditors generally.
(c) Buyer is duly formed, validly existing and in good standing
under the laws of the State of Maryland. Buyer has duly authorized, executed and
delivered this Agreement.
(d) Buyer is purchasing the Property as investment rental
property, and not for Buyer's own operations or use.
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(e) Buyer is not a party in interest with respect to any
employee benefit or other plan within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or of
Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
"Code"), which is subject to ERISA or Section 4975 of the Code and which is
listed on SCHEDULE 2 attached hereto.
Each of the representations and warranties of Buyer contained in this Section
shall be deemed remade by Buyer as of the Closing and shall survive the Closing
as provided in Section 3.3 above.
SECTION 3.6 BUYER'S INDEPENDENT INVESTIGATION.
(a) Buyer acknowledges and agrees that it has been given or will
be given before the end of the Contingency Period, a full opportunity to inspect
and investigate each and every aspect of the Property, either independently or
through agents of Buyer's choosing, including, without limitation:
(1) All matters relating to title, together with all
governmental and other legal requirements such as taxes, assessments, zoning,
use permit requirements and building codes.
(2) The physical condition and aspects of the Property,
including, without limitation, the interior, the exterior, the square footage
within the improvements on the Real Property and within each tenant space
therein, the structure, seismic aspects of the Property, the paving, the
utilities, and all other physical and functional aspects of the Property. Such
examination of the physical condition of the Property shall include an
examination for the presence or absence of Hazardous Materials, as defined
below, which shall be performed or arranged by Buyer at Buyer's sole expense.
For purposes of this Agreement, "Hazardous Materials" shall mean inflammable
explosives, radioactive materials, asbestos, polychlorinated biphenyls, lead,
lead-based paint, under and/or above ground tanks, hazardous materials,
hazardous wastes, hazardous substances, oil, or related materials, which are
listed or regulated in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. Sections 6901, et seq.), the
Resources Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901, et
seq.), the Clean Water Act (33 U.S.C. Section 1251, et seq.), the Safe Drinking
Water Act (14 U.S.C. Section 1401, et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801, et seq.), the and Toxic Substance
Control Act (15 U.S.C. Section 2601, et seq.), the California Hazardous Waste
Control Law (California Health and Safety Code Section 25100, et seq.), the
Xxxxxx-Cologne Water Quality Control Act (California Water Code Section 13000,
et seq.), and the Safe Drinking Water and Toxic Enforcement Act of 1986
(California Health and Safety Code Section 25249.5, et seq.) the Arizona
Environmental Quality Act, A.R.S. ss. 49-201, et seq.; the Arizona "State
Superfund" provisions, A.R.S. ss. 49-281, et seq.; the Arizona Solid Waste
Management provisions, A.R.S. ss. 49-701, et seq.; the Arizona Hazardous Waste
Management Act, A.R.S. ss. 49-921, et seq.; and the Arizona Underground Storage
Tank provisions, A.R.S. ss. 49-1001, applicable Oregon laws and regulations, and
any other applicable federal, state or local laws and regulations.
(3) Any easements and/or access rights affecting the
Property.
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(4) The leases and all matters in connection therewith,
including, without limitation, the ability of the tenants to pay the rent and
the economic viability of the tenants.
(5) The service contracts and any other documents or
agreements of significance affecting the Property.
(6) All other matters of material significance affecting
the Property.
(b) BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SELLER IS
SELLING AND BUYER IS PURCHASING THE PROPERTY ON AN "AS IS WITH ALL FAULTS" BASIS
AND THAT BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND
WHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER, ITS AGENTS, OR BROKERS AS TO ANY
MATTERS CONCERNING THE PROPERTY EXCEPT AS EXPRESSLY SET FORTH IN SECTION 3.1
ABOVE, INCLUDING WITHOUT LIMITATION: (i) the quality, nature, adequacy and
physical condition and aspects of the Property, including, but not limited to,
the structural elements, seismic aspects of the Property, foundation, roof,
appurtenances, access, landscaping, parking facilities and the electrical,
mechanical, HVAC, plumbing, sewage, and utility systems, facilities and
appliances, the square footage within the improvements on the Real Property and
within each tenant space therein, (ii) the quality, nature, adequacy, and
physical condition of soils, geology and any groundwater, (iii) the existence,
quality, nature, adequacy and physical condition of utilities serving the
Property, (iv) the development potential of the Property, and the Property's
use, habitability, merchantability, or fitness, suitability, value or adequacy
of the Property for any particular purpose, (v) the zoning or other legal status
of the Property or any other public or private restrictions on use of the
Property, (vi) the compliance of the Property or its operation with any
applicable codes, laws, regulations, statutes, ordinances, covenants, conditions
and restrictions of any governmental or quasi-governmental entity or of any
other person or entity, (vii) the presence of Hazardous Materials on, under or
about the Property or the adjoining or neighboring property, (viii) the quality
of any labor and materials used in any improvements on the Real Property, (ix)
the condition of title to the Property, (x) the leases, service contracts, or
other agreements affecting the Property and (xi) the economics of the operation
of the Property.
SECTION 3.7 RELEASE.
(a) Without limiting the above, and subject to the
representations and warranties of Seller contained in Section 3.1 hereof, Buyer
on behalf of itself and its successors and assigns waives its right to recover
from, and forever releases and discharges, Seller, Seller's affiliates, Seller's
investment manager, the partners, trustees, beneficiaries, shareholders,
members, directors, officers, employees and agents of each of them, and their
respective heirs, successors, personal representatives and assigns
(collectively, the "Seller Related Parties"), from any and all demands, claims,
legal or administrative proceedings, losses, liabilities, damages, penalties,
fines, liens, judgments, costs or expenses whatsoever (including, without
limitation, attorneys' fees and costs), whether direct or indirect, known or
unknown, foreseen or unforeseen, that may arise on account of or in any way be
connected with (i) the physical condition of the Property including, without
limitation, all structural and seismic elements, all mechanical, electrical,
plumbing, sewage, heating, ventilating, air conditioning and other systems, the
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environmental condition of the Property and Hazardous Materials on, under or
about the Property, or (ii) any law or regulation applicable to the Property,
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 6901, et
seq.), the Resources Conservation and Recovery Act of 1976 (42 U.S.C. Section
6901, et seq.), the Clean Water Act (33 U.S.C. Section 1251, et seq.), the Safe
Drinking Water Act (14 U.S.C. Section 1401, et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801, et seq.), the and Toxic Substance
Control Act (15 U.S.C. Section 2601, et seq.), the California Hazardous Waste
Control Law (California Health and Safety Code Section 25100, et seq.), the
Xxxxxx-Cologne Water Quality Control Act (California Water Code Section 13000,
et seq.), and the Safe Drinking Water and Toxic Enforcement Act of 1986
(California Health and Safety Code Section 25249.5, et seq.) the Arizona
Environmental Quality Act, A.R.S. ss. 49-201, et seq.; the Arizona "State
Superfund" provisions, A.R.S. ss. 49-281, et seq.; the Arizona Solid Waste
Management provisions, A.R.S. ss. 49-701, et seq.; the Arizona Hazardous Waste
Management Act, A.R.S. ss. 49-921, et seq.; and the Arizona Underground Storage
Tank provisions, A.R.S. ss. 49-1001, applicable Oregon laws and regulations, and
any other applicable federal, state or local laws and regulations.
(b) In connection with section 3.7(a) above, Buyer expressly
waives the benefits of Section 1542 of the California Civil Code, which provides
as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
SECTION 3.8 SURVIVAL.
The provisions of this Article III shall survive the Closing subject to
the limitations and qualifications contained in such provisions.
ARTICLE IV
TITLE
SECTION 4.1 CONDITIONS OF TITLE.
At the Closing, Seller shall convey title to the Property to Buyer by
grant deed for those real properties in California, in the form attached hereto
as EXHIBIT C-1, and, for those real properties outside of California, special
warranty deeds, in the forms attached hereto as EXHIBITS C-2 and C-3,
respectively, (collectively the "Deeds") subject to no exceptions other than:
(a) Interests of tenants in possession;
(b) Non-delinquent liens for real estate taxes and assessments;
and
(c) Any exceptions disclosed by the preliminary title report and
any amendments or supplements thereto, the public records or the Due Diligence
Materials, and any other exceptions to title which would be disclosed by an
inspection and/or survey of the Property except for trust deeds, mortgages and
other monetary liens granted or caused by Seller other than
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non-delinquent liens for real estate taxes and assessments. Buyer may at its
option approve or disapprove exceptions which are first disclosed to Buyer after
the date which is five (5) days prior to the end of the Contingency Date within
five (5) days of the date of such disclosure to Buyer. If Buyer disapproves of
such new exceptions, Buyer may, as Buyer's sole rights and remedies, either: (i)
terminate this Agreement in which event the Deposit shall be returned to Buyer,
and neither party under this Agreement shall have any rights or obligation
except as provided in Sections 6.1, 9.3 and 9.9 below, or (ii) waive its
disapproval and take title to the Property subject to such new exceptions.
All of the foregoing exceptions shall be referred to collectively as the
"Conditions of Title." By acceptance of the Deed and the Closing of the purchase
and sale of the Property, (i) Buyer agrees it is assuming for the benefit of
Seller all of the obligations of Seller with respect to the Conditions of Title
but only to the extent such obligations arise from and after the Closing, and
(ii) Buyer agrees that Seller shall have conclusively satisfied its obligations
with respect to title to the Property. The provisions of this Section shall
survive the Closing.
SECTION 4.2 EVIDENCE OF TITLE.
Delivery of title in accordance with the foregoing shall be evidenced by
the willingness of the Title Company to issue, at Closing, its Owner's ALTA
Policy of Title Insurance (Form B, rev. 10/17/70) in the amount of the Purchase
Price showing title to the Real Property vested in Buyer, subject to the
Conditions of Title and with the following CLTA endorsements: 100 (modified for
an owner), 101.4, 103.7, 116, 116.1, 116.4 and 116.7 (the "Title Policy"), or
the equivalent, but only to the extent that Buyer shall confirm in writing with
the Title Company prior to the end of the Contingency Period that the Title
Company will issue the aforesaid form of title insurance and endorsements at
Closing and Buyer shall, prior to the end of the Contingency Period, provide
Seller with a copy of such confirmation. Seller is under no obligation to
provide any indemnity or other agreement or undertaking to the Title Company in
order for Title Company to issue the foregoing endorsements. Buyer shall have
prepared, at Buyer's cost, the ALTA survey of the Property necessary to support
the issuance of the Title Policy.
ARTICLE V
RISK OF LOSS AND INSURANCE PROCEEDS
SECTION 5.1 MINOR LOSS.
Buyer shall be bound to purchase, and Seller shall be bound to sell, the
Property for the full Purchase Price as required by the terms hereof, without
regard to the occurrence or effect of any damage to the Property or destruction
of any improvements thereon or condemnation of any portion of the Property,
provided that: (a) the cost to repair any such damage or destruction, or the
diminution in the value of the remaining Property as a result of a partial
condemnation, does not exceed Five Hundred Thousand Dollars ($500,000) and (b)
upon the Closing, there shall be a credit against the Purchase Price due
hereunder equal to the amount of any insurance proceeds or condemnation awards
collected by Seller as a result of any such damage or destruction or
condemnation, plus the amount of any insurance deductible, less any sums
expended by Seller
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toward the restoration or repair of the Property. If the proceeds or awards have
not been collected as of the Closing, then such proceeds or awards shall be
assigned to Buyer, except to the extent needed to reimburse Seller for sums
expended to repair or restore the Property, and Seller shall retain the rights
to such proceeds and awards.
SECTION 5.2 MAJOR LOSS.
If the amount of the damage or destruction or condemnation as specified
above exceeds Five Hundred Thousand Dollars ($500,000), then Buyer may, at its
option to be exercised within five (5) business days of Buyer's receipt of
Seller's notice of the occurrence of the damage or destruction or the
commencement of condemnation proceedings, either terminate this Agreement or
consummate the purchase for the full Purchase Price as required by the terms
hereof. If Buyer elects to terminate this Agreement or fails to give Seller
notice within such 5 business-day period that Buyer will proceed with the
purchase, then the Deposit shall be returned to Buyer and neither party shall
have any further rights or obligations hereunder except as provided in Sections
6.1, 9.3 and 9.9 below. If Buyer elects to proceed with the purchase, then upon
the Closing, there shall be a credit against the Purchase Price due hereunder
equal to the amount of any insurance proceeds or condemnation awards collected
by Seller as a result of any such damage or destruction or condemnation, plus
the amount of any insurance deductible, less any sums expended by Seller toward
the restoration or repair of the Property. If the proceeds or awards have not
been collected as of the Closing, then such proceeds or awards shall be assigned
to Buyer, except to the extent needed to reimburse Seller for sums expended to
repair or restore the Property, and Seller shall retain the rights to such
proceeds and awards.
ARTICLE VI
BROKERS AND EXPENSES
SECTION 6.1 BROKERS.
The parties represent and warrant to each other that no broker or finder
was instrumental in arranging or bringing about this transaction except for
Xxxxxxx & Xxxxxxxxx of California, Inc. ("Seller's Broker"). At Closing, Seller
shall pay the commission due, if any, to Seller's Broker, which shall be paid
pursuant to a separate agreement between Seller and Seller's Broker. If any
other person brings a claim for a commission or finder's fee based upon any
contact, dealings or communication with Buyer or Seller, then the party through
whom such person makes his claim shall defend the other party (the "Indemnified
Party") from such claim, and shall indemnify the Indemnified Party and hold the
Indemnified Party harmless from any and all costs, damages, claims, liabilities
or expenses (including without limitation, reasonable attorneys' fees and
disbursements) incurred by the Indemnified Party in defending against the claim.
The provisions of this Section 6.1 shall survive the Closing or, if the purchase
and sale is not consummated, any termination of this Agreement.
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SECTION 6.2 EXPENSES.
Except as provided in Sections 4.2 above and 8.5(b) below, each party
hereto shall pay its own expenses incurred in connection with this Agreement and
the transactions contemplated hereby.
ARTICLE VII
LEASES AND OTHER AGREEMENTS
SECTION 7.1 BUYER'S APPROVAL OF NEW LEASES AND AGREEMENTS AFFECTING THE
PROPERTY.
Between the date hereof and the Closing, Seller shall not enter into any
new lease or other agreement affecting the Property, or modify or terminate any
existing lease or other agreement affecting the Property, without first
obtaining Buyer's approval, which will not be unreasonably withheld or delayed
and which approval may take into account, without limitation, any tenant
improvement work, leasing commissions, free rent and other concessions for which
Buyer may be responsible or which may be allocated to Buyer. If Buyer fails to
give Seller notice of its approval or disapproval of any such proposed action
within two (2) business days after Seller notifies Buyer of Seller's desire to
take such action, then Buyer shall be deemed to have given its approval.
SECTION 7.2 TENANT IMPROVEMENT COSTS AND LEASING COMMISSIONS.
Seller shall be responsible for the cost of any and all tenant
improvement work and leasing commissions for the current term of any lease
affecting the Property fully executed and delivered by Seller and a tenant prior
to the date of this Agreement, provided that to the extent there are any such
outstanding tenant improvement costs as of the Closing, Buyer shall receive a
credit therefor and shall assume all such obligations on and after the Closing.
With respect to any new lease or lease modification entered into by Seller,
between the date of this Agreement and the Closing Date and approved, or deemed
approved, by Buyer pursuant to Section 7.1, or lease renewal or lease extension
pursuant to the existing terms of a lease which is exercised after the date
hereof, if Seller performs or pays or contracts for any tenant improvement work
or pays or contracts for any leasing commissions before the Closing, then at
Closing, such expenses shall be prorated as provided hereafter, and Buyer shall
assume pursuant to the assignment and assumption agreement described in Section
8.3(a)(3) any and all obligations outstanding with respect to Buyer's share of
such tenant improvements and leasing commissions. On and after the Closing,
Seller shall have no further obligations with respect to Buyer's share of such
costs which are prorated as hereafter provided. Notwithstanding the foregoing,
Buyer hereby approves the leases set forth on SCHEDULE 3 attached hereto. With
respect to any tenant improvement work, or leasing commissions, to be prorated
pursuant to this Section 7.2, such shall be prorated between Buyer and Seller as
follows: If, as a result of such new lease or lease modification, lease renewal
or lease extension, the gross rent payable by all tenants of the Property does
not exceed the gross rent payable pursuant to all leases in effect as of the
date of this Agreement which gross rent shall be determined as set forth on
SCHEDULE 4 attached hereto and made a part hereof, all such tenant improvement
work, and leasing commissions, attributable to such new lease, lease
modification, lease renewal or lease extension shall be paid by Seller. If, as a
result of such new lease or lease modification, lease renewal or lease extension
the gross rent payable by all tenants of the Property does exceed the gross rent
payable pursuant to all leases in effect as of the date of this Agreement, all
such tenant improvement work, and leasing commissions attributable to such new
lease, lease modification, lease renewal or lease extension
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shall be prorated so that Seller pays or Buyer receives a credit (if Seller has
not paid) for a portion thereof determined by multiplying the amounts thereof by
the number of days of the initial term of the applicable lease which have
elapsed at the Closing, dividing by the total number of days in the initial term
of such lease, and further multiplying by a fraction which is the portion of the
gross rent under such lease which does not represent an increase in the gross
rent payable pursuant to all leases in effect as of the date of this Agreement,
and Buyer pays or Seller receives a credit (if Seller has paid) for the balance.
Anything contained herein to the contrary notwithstanding, Seller shall pay and
Buyer shall have no liability for, any and all commissions, bonuses or
incentives payable to Seller's employees arising out of any such new lease,
lease modification, lease renewal or lease extension. The provisions of this
Section shall survive the Closing.
SECTION 7.3 SERVICE CONTRACTS.
Seller will terminate all property management, brokerage and leasing
contracts affecting the Property at Closing.
SECTION 7.4 TENANT NOTICES.
At the Closing, Seller shall furnish Buyer with a signed notice to be
given to each tenant of the Property. The notice shall disclose that the
Property has been sold to Buyer, that, after the Closing, all rents should be
paid to Buyer at an address to be supplied by Buyer and that Buyer shall be
responsible for all the tenant's security deposit. The form of the notice and
the amount of each tenant's security deposit listed therein shall be otherwise
reasonably acceptable to the parties.
ARTICLE VIII
CLOSING AND ESCROW
SECTION 8.1 ESCROW INSTRUCTIONS.
Upon execution of this Agreement, the parties hereto shall deposit an
executed counterpart of this Agreement with the Title Company, and this
instrument shall serve as the instructions to the Title Company as the escrow
holder for consummation of the purchase and sale contemplated hereby. Seller and
Buyer agree to execute such reasonable additional and supplementary escrow
instructions as may be appropriate to enable the Title Company to comply with
the terms of this Agreement; provided, however, that in the event of any
conflict between the provisions of this Agreement and any supplementary escrow
instructions, the terms of this Agreement shall control.
SECTION 8.2 CLOSING.
The Closing hereunder shall be held and delivery of all items to be made
at the Closing under the terms of this Agreement shall be made at the offices of
the Title Company on the date which is fifteen (15) days after the expiration of
the Contingency Period, and before 9:00 a.m. local time, or such other earlier
date and time as Buyer and Seller may mutually agree upon in writing (the
"Closing Date"). Except as expressly provided in this Agreement, such date and
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time may not be extended without the prior written approval of both Seller and
Buyer. All funds of Buyer to be deposited in escrow for the Closing shall be
deposited by Buyer in escrow no later than the last business day prior to the
Closing Date.
SECTION 8.3 DEPOSIT OF DOCUMENTS.
(a) At or before the Closing, Seller shall deposit into escrow
the following items:
(1) the duly executed and acknowledged Deeds conveying
the Real Property to Buyer subject to the Conditions of Title;
(2) four (4) duly executed counterparts of the Xxxx of
Sale in the form attached hereto as EXHIBIT D (the "Xxxx of Sale"), with Exhibit
C to said Xxxx of Sale listing the Conditions of Title;
(3) four (4) duly executed counterparts of an Assignment
and Assumption of Leases, Service Contracts and Warranties in the form attached
hereto as EXHIBIT E pursuant to the terms of which Buyer shall assume all of
Seller's obligations under the leases, equipment leases, service contracts,
leasing commission agreements and tenant improvement agreements affecting the
Property to the extent set forth in said EXHIBIT E (the "Assignment of Leases"),
with Exhibit D to said document listing the Conditions of Title;
(4) an affidavit pursuant to Section 1445(b)(2) of the
Federal Code, and on which Buyer is entitled to rely, that Seller is not a
"foreign person" within the meaning of Section 1445(f)(3) of the Federal Code;
(5) California 590RE Certificate;
(6) An Affidavit of Property Value for each of the real
properties located in Arizona allocating the value of said real properties in
accordance with EXHIBIT A-1; and
(7) Four (4) duly executed counterparts of a closing
statement in form and content satisfactory to Buyer and Seller (the "Closing
Statement") duly executed by Seller.
(b) At or before Closing, Buyer shall deposit into escrow the
following items:
(1) funds necessary to close this transaction;
(2) four (4) duly executed counterparts of the Xxxx of
Sale;
(3) four (4) duly executed counterparts of the
Assignment of Leases;
(4) An Affidavit of Property Value for each of the real
properties located in Arizona allocating the value of said real properties in
accordance with EXHIBIT A-1; and
(5) Four (4) duly executed counterparts of the Closing
Statement.
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(c) Buyer and Seller shall each deposit such other instruments
as are reasonably required by the Title Company or otherwise required to close
the escrow and consummate the purchase and sale of the Property in accordance
with the terms hereof, including, without limitation, an agreement (the
"Designation Agreement") designating Title Company as the "Reporting Person" for
the transaction pursuant to Section 6045(e) of the Federal Code and the
regulations promulgated thereunder, and executed by Seller, Buyer and Title
Company. The Designation Agreement shall appear in Seller's and Buyer's escrow
instructions and shall be in a form reasonably acceptable to the parties, and,
in any event, shall comply with the requirements of Section 6045(e) of the
Federal Code and the regulations promulgated thereunder.
(d) Seller shall deliver to Buyer originals of the leases,
copies of the tenant correspondence files (for the three (3) most recent years
of Seller's ownership of the Property only), and originals of any other items
which Seller was required to furnish Buyer copies of or make available at the
Property pursuant to Section 2.1(e) above, except for Seller's general ledger
and other internal books or records which shall be retained by Seller, within
five (5) business days after the Closing Date. Seller shall deliver to Buyer a
set of keys to the Property on the Closing Date.
SECTION 8.4 ESTOPPEL CERTIFICATES.
(a) Seller shall use its reasonable efforts to obtain estoppel
certificates from each tenant of the Property in the form attached hereto as
EXHIBIT F. Subject to the provisions of Section 8.4(b), it shall be a condition
to Buyer's obligation to close the sale and purchase of the Property that on or
before three (3) days prior to the end of the Contingency Period, Buyer is able
to obtain an estoppel certificate in the form described above from tenants
occupying ninety percent (90%) (the "Required Percentage") of the area of the
Property actually rented to tenants.
(b) For any tenant from whom Seller is unable to obtain such an
estoppel certificate, provided that such tenants occupy an aggregate of no more
than ten percent (10%) of the area of the Property actually rented to tenants,
Seller may, but shall not be obligated to, deliver to Buyer prior to the end of
the Contingency Period a Seller's certificate stating that as of the date
delivered (1) to the best of Seller's knowledge, as such term is defined in this
Agreement, the tenant is not in default under its lease except for the defaults
specified in the certificate, (2) the date through which base rent has been
paid; (3) to the best of Seller's knowledge, the lease is in full force and
effect, (4) except as specified in the certificate, all tenant improvements to
be constructed by Seller have been completed and approved by the tenant, and (5)
the amount of the security deposit for such tenant. If after Seller delivers
such Seller's estoppel certificate with respect to a tenant, Buyer receives an
estoppel certificate in the form described in Section 8.4(a) executed by such
tenant, Seller shall have no liability or obligation to Buyer arising out of
Seller's estoppel certificate. Any claim which Buyer may have arising out of a
breach of any statement contained in Seller's certificate, whether known or
unknown, which is not asserted by written notice from Buyer to Seller within
twelve (12) months after Closing shall not be valid or effective, and Seller
shall have no liability with respect thereto. Buyer shall be obligated to accept
Seller's estoppel certificate with respect to a tenant in lieu of the estoppel
certificate from the tenant; provided, however, that Buyer shall not be
obligated to accept or
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approve any estoppel provided by Seller if there is reasonable evidence to
believe that any statement contained therein would be disputed or denied by the
applicable tenant.
(c) If the condition contained in Section 8.4(a) above is not
satisfied on or before five (5) days prior to the end of the Contingency Period,
then Buyer may, by written notice given to Seller before the end of the
Contingency Period, elect to terminate this Agreement and receive a refund of
the Deposit or waive said condition. If said condition is not satisfied and if
Buyer fails to give said notice on or before the end of the Contingency Period,
Buyer shall be deemed to have waived said condition. If Buyer so elects to
terminate this Agreement, neither party shall have any further rights or
obligations hereunder except as provided in Section 6.1 above and Sections 9.3
and 9.9 below.
SECTION 8.5 PRORATIONS.
(a) Rents, including, without limitation, percentage rents, if
any, and any additional charges and expenses payable under tenant leases, all as
and when actually collected (whether such collection occurs prior to, on or
after the Closing Date); real property taxes and assessments; water, sewer and
utility charges; amounts payable under any service contracts; annual permits
and/or inspection fees (calculated on the basis of the period covered); and any
other expenses of the operation and maintenance of the Property (including,
without limitation, those expenses listed on SCHEDULE 5 attached hereto already
paid by Seller but which are being amortized over time by Seller and with
respect to which Seller shall receive a credit at Closing in the amount of the
unamortized portion thereof), together with tenant improvement costs, leasing
commissions, as provided in Section 7.2 above, shall all be prorated as of 12:01
a.m. on the date the Deed is recorded, on the basis of a 365-day year. Any sums
collected by Buyer from tenants after the Closing shall be promptly paid to
Seller to the extent of any rents and other sums which were delinquent at
Closing, after first applying all such amounts collected to current obligations.
Buyer shall use reasonable efforts to collect such delinquent rents but shall
not be obligated to expend any sums, commence any litigation, terminate any
lease or threaten to terminate any lease to do so. Seller retains the rights to
collect any such delinquent rents from tenants after Closing provided that
Seller shall not commence any legal or equitable proceedings in the nature of an
unlawful detainer, eviction or other proceeding which would have the effect of
interfering with any tenant's quiet enjoyment of its leased premises or result
in a lien or encumbrance on such leased premises. The amount of any security
deposits under tenant leases shall be credited against the Purchase Price.
Seller shall receive credits at Closing for the amount of any utility or other
deposits with respect to the Property, in which case all such deposits for which
Seller receives credit shall remain in place for the benefit of Buyer and Seller
shall execute and deliver such documents as shall be necessary to assign such
deposits to Buyer. Buyer shall cause all utilities to be transferred into
Buyer's name and account at the time of Closing. Seller and Buyer hereby agree
that if any of the aforesaid prorations and credits cannot be calculated
accurately on the Closing Date, then the same shall be calculated as soon as
reasonably practicable after the Closing Date and either party owing the other
party a sum of money based on such subsequent proration(s) or credits shall
promptly pay said sum to the other party. Seller and Buyer shall jointly prepare
and approve a preliminary Closing Statement on the basis of the leases and other
sources of income and expenses, and shall deliver such computation to the Title
Company prior to the Closing.
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(b) The parties shall pay the closing costs below as follows:
(1) Portland Airport Business Park. Seller shall pay the
escrow fee, and the costs of obtaining the CLTA portion of the title insurance
policy. Buyer shall pay the costs of obtaining the ALTA portion of the title
insurance policy and the cost of any endorsements. Buyer and Seller shall each
pay one-half (1/2) the escrow fee. Recording charges and any other expenses of
the escrow for the sale shall be paid by Buyer and Seller in accordance with
customary practice as determined by the Title Company. In addition, Seller shall
be liable for any prepayment fee or other charge payable in connection with any
payoff of deeds of trusts or mortgages entered into by Seller.
(2) Hesperian Industrial Park. Seller shall pay any
county transfer taxes applicable to the sale and one-half (1/2) of any other
transfer taxes applicable to the sale. Buyer shall pay the costs of obtaining
the ALTA title insurance policy, the cost of any endorsements, one-half (1/2) of
any transfer taxes applicable to the sale other than county transfer taxes and
the escrow fee. Recording charges and any other expenses of the escrow for the
sale shall be paid by Buyer and Seller in accordance with customary practice as
determined by the Title Company. In addition, Seller shall be liable for any
prepayment fee or other charge payable in connection with any payoff of deeds of
trusts or mortgages entered into by Seller.
(3) Contra Costa Diablo Industrial Park and Sierra
Trinity Industrial Park. Seller shall pay any county transfer taxes applicable
to the sale. Buyer shall pay the costs of obtaining the ALTA title insurance
policy, the cost of any endorsements and the escrow fee. Recording charges and
any other expenses of the escrow for the sale shall be paid by Buyer and Seller
in accordance with customary practice as determined by the Title Company. In
addition, Seller shall be liable for any prepayment fee or other charge payable
in connection with any payoff of deeds of trusts or mortgages entered into by
Seller.
(4) Hohokam 10 East / West. Seller shall pay one-half
(1/2) of the escrow fee and the costs of obtaining the CLTA portion of the title
insurance policy. Buyer shall pay the costs of obtaining the ALTA portion of the
title insurance policy, the cost of any endorsements, and one-half (1/2) of the
escrow fee. Recording charges and any other expenses of the escrow for the sale
shall be paid by Buyer and Seller in accordance with customary practice as
determined by the Title Company. In addition, Seller shall be liable for any
prepayment fee or other charge payable in connection with any payoff of deeds of
trusts or mortgages entered into by Seller.
(c) The provisions of this Section 8.5 shall survive the
Closing.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 NOTICES.
Any notices required or permitted to be given hereunder shall be given
in writing and shall be delivered (a) in person, (b) by certified mail, postage
prepaid, return receipt requested, (c) by facsimile with confirmation of
receipt, or (d) by a commercial overnight courier that
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guarantees next day delivery and provides a receipt, and such notices shall be
addressed as follows:
To Buyer: Pacific Gulf Properties Inc.
0000 Xxx Xxxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax No.: (000) 000-0000
with a copy to: Xxx, Castle & Xxxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Fax No.: (000) 000-0000
To Seller: c/o RREEF America L.L.C.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Fax No.: (000) 000-0000
with a copy to: Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Fax No.: (000) 000-0000
To Title Company: Chicago Title Company
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx Xxxxx
Telephone: (000) 000-0000
Fax No.: (000) 000-0000
or to such other address as either party may from time to time specify in
writing to the other party. Any notice shall be effective only upon delivery.
SECTION 9.2 ENTIRE AGREEMENT.
This Agreement, together with the Exhibits hereto, contains all
representations, warranties and covenants made by Buyer and Seller and
constitutes the entire understanding between the parties hereto with respect to
the subject matter hereof. Any prior correspondence,
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memoranda or agreements are replaced in total by this Agreement together with
the Exhibits hereto.
SECTION 9.3 ENTRY AND INDEMNITY.
In connection with any entry by Buyer, or its agents, employees or
contractors onto the Property, Buyer shall give Seller reasonable advance notice
of such entry and shall conduct such entry and any inspections in connection
therewith so as to minimize, to the extent reasonably possible, interference
with Seller's business and the business of Seller's tenants and otherwise in a
manner reasonably acceptable to Seller. Without limiting the foregoing, prior to
any entry to perform any on-site testing, Buyer shall give Seller written notice
thereof, including the identity of the company or persons who will perform such
testing and the proposed scope of the testing. Seller shall approve or
disapprove, in Seller's sole discretion, the proposed testing within three (3)
business days after receipt of such notice. If Seller fails to respond within
such three (3) business day period, Seller shall be deemed to have disapproved
the proposed testing. If Buyer or its agents, employees or contractors take any
sample from the Property in connection with any such approved testing, Buyer
shall provide to Seller a portion of such sample being tested to allow Seller,
if it so chooses, to perform its own testing. Seller or its representative may
be present to observe any testing or other inspection performed on the Property.
Buyer shall not contact any governmental authority with respect to any
environmental matter relating to the Property, except for the sole and limited
purpose of obtaining information necessary to prepare a Phase I environmental
study, without first obtaining the prior written consent of Seller thereto, and
Seller, at Seller's election, shall be entitled to have a representative on any
phone or other contact made by Buyer to a governmental authority and present at
any meeting by Buyer with a governmental authority. In the event Buyer contacts
any governmental authority with respect to any matter other than environmental
matters relating to the Property, Buyer shall provide Seller with prior notice
of such contact. Buyer shall maintain, and shall assure that its contractors
maintain, public liability and property damage insurance in amounts and in form
and substance adequate to insure against all liability of Buyer and its agents,
employees or contractors, arising out of any entry or inspections of the
Property pursuant to the provisions hereof, and Buyer shall provide Seller with
evidence of such insurance coverage upon request by Seller. Buyer shall
indemnify and hold Seller harmless from and against any costs, damages,
liabilities, losses, expenses, liens or claims (including, without limitation,
reasonable attorney's fees) arising out of or relating to any entry on the
Property by Buyer, its agents, employees or contractors in the course of
performing the inspections, testings or inquiries provided for in this
Agreement. The foregoing indemnity shall survive beyond the Closing, or, if the
sale is not consummated, beyond the termination of this Agreement.
SECTION 9.4 TIME.
Time is of the essence in the performance of each of the parties'
respective obligations contained herein.
SECTION 9.5 ATTORNEYS' FEES.
If either party hereto fails to perform any of its obligations under
this Agreement or if any dispute arises between the parties hereto concerning
the meaning or interpretation of any
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provision of this Agreement, then the defaulting party or the party not
prevailing in such dispute, as the case may be, shall pay any and all costs and
expenses incurred by the other party on account of such default and/or in
enforcing or establishing its rights hereunder, including, without limitation,
court costs and reasonable attorneys' fees and disbursements. Any such
attorneys' fees and other expenses incurred by either party in enforcing a
judgment in its favor under this Agreement shall be recoverable separately from
and in addition to any other amount included in such judgment, and such
attorneys' fees obligation is intended to be severable from the other provisions
of this Agreement and to survive and not be merged into any such judgment. As
used in this Agreement, the term "attorneys' fees" or "expenses" (or similar
references to attorneys' fees and costs or expenses) shall include, without
limitation, all attorneys' and paralegals' fees and expenses, whether in action
or proceeding, upon appeal therefrom, or in connection with any petition for
review or action to rescind this Agreement, or in a case or proceeding under the
Bankruptcy Code or successor statute, or in connection with any other action to
enforce any provision of this Agreement.
SECTION 9.6 ASSIGNMENT.
Buyer's rights and obligations hereunder shall not be assignable without
the prior written consent of Seller. Notwithstanding the foregoing, Seller's
consent shall not be required for any assignment by Buyer to an entity of which
Buyer has majority ownership and control. Buyer shall in no event be released
from any of its obligations or liabilities hereunder in connection with any
assignment. Without limiting the above, in no event shall Buyer have the right
to assign its rights or obligations hereunder to any party which could not make
the representation and warranty contained in subsection 3.5(e) above, and in
connection with any assignment pursuant to the terms hereof, the assignee shall
reconfirm in a written instrument acceptable to Seller and delivered to Seller
prior to the assignment said representation and warranty as applied to the
assignee. Subject to the provisions of this Section, this Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns.
SECTION 9.7 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
SECTION 9.8 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
SECTION 9.9 CONFIDENTIALITY AND RETURN OF DOCUMENTS.
Buyer and Seller shall each maintain as confidential any and all
material obtained about the other or, in the case of Buyer, about the Property,
this Agreement or the transactions contemplated hereby, and shall not disclose
such information to any third party other than (i) each party's respective
consultants and professionals in connection with their review, evaluation,
negotiation and closing of the subject transaction, (ii) the parties' actual and
prospective lenders and investors, or (iii) the parties' officers, directors,
employees, agents,
21
22
contractors, affiliates and representatives (collectively, the
"Representatives"), provided that all such parties shall keep such information
confidential as provided herein. The parties agree to keep, and to use all
reasonable efforts to cause the Representatives to keep, any information and
documents received from the other party (or based upon the party's evaluation of
the Property) confidential, except to the extent (a) such information was known
by the party prior to the date hereof on the basis of information provided to
the party by persons other than the other party or its agents, (b) such
information was of general public knowledge prior to the date hereof, or (c)
disclosure is required by law or court order or is used in connection with any
litigation between the parties hereto. This provision shall survive the Closing
or any termination of this Agreement.
SECTION 9.10 INTERPRETATION OF AGREEMENT.
The article, section and other headings of this Agreement are for
convenience of reference only and shall not be construed to affect the meaning
of any provision contained herein. Where the context so requires, the use of the
singular shall include the plural and vice versa and the use of the masculine
shall include the feminine and the neuter. The term "person" shall include any
individual, partnership, joint venture, corporation, trust, unincorporated
association, any other entity and any government or any department or agency
thereof, whether acting in an individual, fiduciary or other capacity.
SECTION 9.11 LIMITED LIABILITY.
The obligations of Seller are intended to be binding only on the
property of Seller and shall not be personally binding upon, nor shall any
resort be had to, the private properties of any of its trustees, officers,
beneficiaries, directors, members, or shareholders, or of its investment
manager, the general partners, officers, directors, members, or shareholders
thereof, or any employees or agents of Seller or its investment manager. The
obligations of Buyer are intended to be binding only on the property of Buyer
and shall not be personally binding upon, nor shall any resort be had to, the
private properties of any of its trustees, officers, beneficiaries, directors,
members, or shareholders, or any employees or agents of Buyer.
SECTION 9.12 AMENDMENTS.
This Agreement may be amended or modified only by a written instrument
signed by Buyer and Seller.
SECTION 9.13 NO RECORDING.
Neither this Agreement or any memorandum or short form thereof may be
recorded by Buyer.
SECTION 9.14 DRAFTS NOT AN OFFER TO ENTER INTO A LEGALLY BINDING
CONTRACT.
The parties hereto agree that the submission of a draft of this
Agreement by one party to another is not intended by either party to be an offer
to enter into a legally binding contract with respect to the purchase and sale
of the Property. The parties shall be legally bound with respect to the purchase
and sale of the Property pursuant to the terms of this Agreement only if and
when
22
23
the parties have been able to negotiate all of the terms and provisions of
this Agreement in a manner acceptable to each of the parties in their respective
sole discretion, including, without limitation, all of the Exhibits and
Schedules hereto, and both Seller and Buyer have fully executed and delivered to
each other a counterpart of this Agreement, including, without limitation, all
Exhibits and Schedules hereto.
SECTION 9.15 ERISA.
Prior to Seller's execution of this Agreement, Buyer shall furnish to
Seller all information regarding Buyer, its affiliates and the shareholders,
members, investors or partners of each of them (collectively, the "Buyer Related
Parties") as Seller requests in order to enable Seller to determine to Seller's
sole satisfaction that Buyer's representation and warranty contained in Section
3.5(e) of this Agreement is true and correct. Buyer represents and warrants to
Seller that there will not be any change in any such information regarding Buyer
or the Buyer Related Parties prior to or on the Closing. Buyer's representation
and warranty in Section 3.5(e) shall be deemed qualified in all respects by any
such information provided to Seller.
SECTION 9.16 NO PARTNERSHIP.
The relationship of the parties hereto is solely that of Seller and
Buyer with respect to the Property and no joint venture or other partnership
exists between the parties hereto. Neither party has any fiduciary relationship
hereunder to the other.
SECTION 9.17 NO THIRD PARTY BENEFICIARY.
The provisions of this Agreement are not intended to benefit any third
parties.
SECTION 9.18 SEC COMPLIANCE.
Seller hereby agrees to (i) cooperate with the auditors for Buyer to
allow Buyer's auditors to perform and complete in an expeditious manner from the
date hereof and no later than thirty (30) days after the Closing Date, an audit
of financial information prepared in accordance with GAAP for calendar year 1997
for the 314 Securities and Exchange Commission filing report and (ii) execute a
management representation letter in form reasonably acceptable to Seller and
limited to the actual knowledge of the portfolio manager of the Property (the
"Representation Letter"). The word "knowledge" shall be deemed to refer to the
current actual knowledge at the time indicated only and not implied, imputed or
constructive knowledge, without any independent investigation having been made
or any implied duty to investigate. Any representation or warranty contained in
such Representation Letter shall be considered representations of Seller under
this Agreement and shall be subject to all terms and conditions contained in
this Agreement, including without limitation, Sections 3.3, 9.2, 9.11 and 9.19
herein.
SECTION 9.19 LIMITATION ON LIABILITY.
Notwithstanding anything to the contrary contained herein, after the
Closing the maximum aggregate liability of Seller, and the maximum aggregate
amount which may be awarded to and collected by Buyer under this Agreement
(including, without limitation, for any
23
24
breach of representation and warranty contained herein), and any and all
documents executed pursuant hereto or in connection herewith (collectively the
"Other Documents") including, without limitation, the Deed, the Bills of Sale
and the Assignment of Leases, shall under no circumstances whatsoever exceed
Three Percent (3%) of the Purchase Price.
SECTION 9.20 SURVIVAL.
Except as expressly set forth to the contrary herein, no
representations, warranties, covenants or agreements of the Seller contained
herein shall survive the Closing.
SECTION 9.21 OREGON STATUTORY DISCLAIMER.
THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN A FIRE
PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE
LAWS AND REGULATIONS, WHICH, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE
CONSTRUCTION OR SITING A RESIDENCE AND WHICH LIMIT LAWSUITS AGAINST FARMING OR
FOREST PRACTICES AS DEFINED IN ORS 30.930 IN ALL ZONES. BEFORE SIGNING OR
ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD
CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED
USES AND EXISTENCE OF FIRE PROTECTION FOR STRUCTURES.
SECTION 9.22 SURVIVAL OF ARTICLE IX.
The provisions of this Article IX shall survive the Closing.
SECTION 9.23 POSSESSION.
Seller shall deliver possession of the Property to Buyer upon the
Closing, subject to the Conditions of Title.
SECTION 9.24 MAINTENANCE.
Between the date hereof and Closing, Seller shall operate the Property
pursuant to Seller's customary procedures consistent with the manner in which
Seller has operated the Property during Seller's ownership, provided Seller
shall not be obligated to make any capital expenditures in connection with such
operation.
SECTION 9.25 INSURANCE.
Between the date hereof and Closing, Seller shall keep in effect all
blanket insurance policies presently in effect as of the date hereof, except
that Seller may modify its insurance coverage as long as Seller is doing so for
all or substantially all of the properties covered by such blanket policies.
24
25
SECTION 9.26 SECTION 1031 EXCHANGE.
Buyer may consummate the purchase of the Property as part of a so-called
like kind exchange (the "Exchange") pursuant to ss. 1031 of the Internal Revenue
Code of 1986, as amended (the "Code"), provided that: (a) 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 Buyer's obligations under this Agreement; (b) Buyer shall effect the Exchange
through an assignment of this Agreement, or its rights under this Agreement, to
a qualified intermediary, provided that such assignment shall not release Buyer
of its obligations hereunder and that all Closing documents, including, without
limitation, the Deed, Xxxx of Sale and Assignment of Leases shall be directly
between Buyer and Seller; (c) Seller shall not be required to take an assignment
of the purchase agreement for other property or be required to acquire or hold
title to, or any beneficial interest in, any real property for purposes of
consummating the Exchange; and (d) Buyer shall pay any additional costs or
expenses that would not otherwise have been incurred by Buyer or Seller had
Buyer not consummated its purchase through the Exchange. Seller shall not by
this Agreement or acquiescence to the Exchange have its rights under this
Agreement affected or diminished in any manner or be responsible for compliance
with or be deemed to have warranted to Buyer that the Exchange in fact complies
with ss. 1031 of the Code and Buyer, will rely solely and exclusively on its own
tax advice with respect thereto. Seller shall have the right to review and
approve any documents to be executed by Seller in connection with the Exchange,
provided that Seller shall have no obligation to execute any documents or to
undertake any action by which Seller would or might incur any liability or
obligation not otherwise provided for in the other provisions of this Agreement.
Buyer shall indemnify and defend Seller and hold Seller harmless from and
against any and all claims, damages, liabilities, losses, costs and expenses,
including, without limitation, attorneys' fees and costs, arising out of or in
any way connected with the Exchange that Seller would not have incurred but for
the Exchange.
25
26
The parties hereto have executed this Agreement as of the respective
dates written below.
SELLER: RREEF PERFORMANCE PARTNERSHIP - I, L.P.,
an Illinois limited partnership
By: RREEF Performance Partnership-I, L.P.,
an Illinois limited partnership
as its General Partner
By: RREEF Capital, Incorporated,
an Illinois corporation,
as its General Partner
By: ___________________________
Xxxxxxx X. Xxxxxx
Its: Vice-President
Date: ___________________, 1998
26
27
BUYER: PACIFIC GULF PROPERTIES INC.,
a Maryland corporation
By: _________________________
Its: _________________________
Date: ___________________, 1998
By: _________________________
Its: _________________________
Date: ___________________, 1998
27
28
COUNTERPART SIGNATURE PAGE TO
AGREEMENT OF PURCHASE AND SALE
DATED AS OF OCTOBER 2, 1998
(TITLE COMPANY)
Title Company agrees to act as escrow holder and title company in
accordance with the terms of this Agreement and to act as the Reporting Person
in accordance with Section 6045(e) of the Internal Revenue Code and the
regulations promulgated thereunder.
CHICAGO TITLE COMPANY
By: _________________________
Its: _________________________
Date: ___________________, 1998
28
29
LIST OF EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A Real Property Description
Exhibit A-1 Allocated Value of Property
Exhibit B List of Tenant Leases
Exhibit C-1 California Grant Deed
Exhibit C-2 Arizona Special Warranty Deed
Exhibit C-3 Oregon Special Warranty Deed
Exhibit D Xxxx of Sale
Exhibit E Assignment of Leases, Service Contracts and Warranties
Exhibit F Estoppel Certificate
SCHEDULES
Schedule 1 Disclosure Items
Schedule 2 Employee Benefit Plans
Schedule 3 Leases Approved by Buyer
Schedule 4 Gross Rent
Schedule 5 Unamortized Expenses
30
REVISED SCHEDULE 1
------------------
DISCLOSURE ITEMS
1. With respect to the properties located in California, natural hazards
described in the following California code sections (the "Natural Hazard Laws")
may affect such properties: (A) Govt. Code Section 8589.4; (B) Govt. Code
Section 51183.4 (Fire Hazard Severity Zone); (C) Public Resource Code Section
2621.9 (Earthquake Fault Zone); (D) Public Resource Code Section 2694 (Seismic
Hazard Zone); and (E) Public Resource Code Section 4136 (Wildland Area). Buyer
acknowledges and agrees that Buyer will independently evaluate and investigate
whether any or all of such Natural Hazards affect such properties and Seller
shall have no liabilities or obligations with respect thereto. Without limiting
the foregoing, Buyer acknowledges and agrees that Buyer knowingly and
intentionally waives any disclosures, obligations or requirements of Seller with
respect to Natural Hazards, including, without limitation, any disclosure
obligations or requirements under the aforementioned code sections. BUYER
ACKNOWLEDGES AND REPRESENTS THAT BUYER HAS EXTENSIVE EXPERIENCE ACQUIRING AND
CONDUCTING DUE DILIGENCE REGARDING COMMERCIAL PROPERTIES. THIS WAIVER BY BUYER
OF ANY RIGHTS IT MAY HAVE HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THE
BARGAIN BETWEEN THE PARTIES.
2. All Properties.
(a) Seller acknowledges the possible presence of asbestos in
mastic, certain drywall past, and floor tiles as well as PCB's in light
fixtures, although Seller has received no actual written notice of the presence
or absence of these materials.
(b) Seller and Buyer acknowledge the existence of the repair,
maintenance, and improvement work on the attached Schedule 1-A in connection
with and as applicable to the Property and Buildings listed therein.
3. Portland Airport Business Park.
(a) Tenant, Xxx Xxxx Electric, is in default for abandonment and
past-due rent; litigation regarding this matter is pending; and
(b) The City of Portland Bureau of Fire has notified Seller of
violations with respect to door locks pursuant to that certain Fire Inspection
Report dated August 27, 1998, a copy of which has been provided to Buyer.
4. Hesperian Industrial Park.
An underground storage tank is present on the property as disclosed in
environmental reports provided by Seller to Buyer.
5. Hohokam Industrial Park.
(a) Stormwater from adjacent property to the east washes fine
soil onto the drive lane behind 0000 X. Xxxx Xxxx.
S1-1
31
(b) Dectectable levels of VOC's noted in one dry well at both
East and West properties as disclosed in environmental reports provided by
Seller to Buyer.
(c) Tenant, L & J Investments, Suite 311, 10 West, is past-due
on rent since July and is currently locked out of the space.
S1-2
32
SCHEDULE 2
----------
EMPLOYEE BENEFIT PLANS
The Raytheon Company Master Trust and all other employee and pension plans of
The Raytheon Company.
S2-1
33
SCHEDULE 3
----------
LEASES APPROVED BY BUYER
None.
S3-1
34
SCHEDULE 4
----------
GROSS RENT
----------------------------------------------------------------
Hohokam 00 Xxxx / Xxxx $188,790.00
----------------------------------------------------------------
Hesperian Industrial Park $ 74,391.00
----------------------------------------------------------------
Sierra Trinity Industrial Park $196,310.00
----------------------------------------------------------------
Contra Costa Diablo Industrial Park $ 61,712.00
----------------------------------------------------------------
Portland Airport Business Park $ 89,721.00
----------------------------------------------------------------
For purposes hereof, "Gross Rent" shall mean the total of the monthly base rent
payable by the existing tenants of each Property as of October 1998.
S4-1
35
SCHEDULE 5
----------
UNAMORTIZED EXPENSES
1. Portland Airport Business Park. Parking lot seal coat and striping:
Twenty-Seven Thousand Two Hundred Seventeen and 34/100 Dollars ($27,217.34)
amortized monthly from 7/1/98 to 6/30/2001.
2. Sierra Trinity Industrial Park. Parking lot seal coat and striping:
Forty-Six Thousand Sixty-Five Dollars ($46,065.00) amortized monthly from 7/1/98
to 6/30/2001.
3. Contra Costa Diablo Industrial Park. Parking lot seal coat and
striping: Thirty-Six Thousand Three Hundred Ten Dollars ($36,310.00) amortized
monthly from 7/1/98 to 6/30/2001.
4. Hohokam 10 East.
(a) Parking lot seal coat: Forty Thousand Four Hundred
Eighty-Two and 30/100 Dollars ($40,483.30) amortized monthly from 4/1/98 to
3/1/2002 and Thirteen Thousand Seven Hundred Dollars ($13,700.00) amortized
monthly from 6/1/95 to 5/1/99.
(b) Exterior painting: Eighty-Eight Thousand Six Hundred
Twenty-Eight and 87/100 Dollars ($88,628.87) amortized monthly from 6/1/98 to
5/1/2003.
5. Hohokam 10 West.
(a) Parking lot seal coat: Twenty-Five Thousand Seventy-One and
09/100 Dollars ($27,071.09) amortized monthly from 4/1/98 to 3/1/2002.
(b) Exterior painting: Nine Thousand Four Hundred Forty-Six and
75/100 Dollars ($9,446.75) amortized monthly from 10/1/97 to 9/1/2002.
(c) Roof replacement: Twenty-Four Thousand Seven Hundred Eleven
Dollars ($24,711.00) amortized monthly from 5/1/96 to 4/1/2000.
S5-1
36
EXHIBIT A
---------
REAL PROPERTY DESCRIPTION
A-1
37
EXHIBIT A-1
-----------
ALLOCATED VALUE OF PROPERTY
PROPERTY LOCATION PRICE
-------- -------- -----
Hohokam 00 Xxxx/ Xxxx Xxxxxxx, XX $21,000,000
Hesperian Industrial Park Hayward, CA $8,200,000
Sierra Trinity Industrial Park Dublin, CA $26,500,000
Contra Costa Diablo Industrial Park Concord, CA $9,500,000
Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxx Xxxxxxxx, XX $11,100,000
===========
TOTAL: $76,300,000
A1-1
38
EXHIBIT B
---------
LIST OF TENANT LEASES
B-1
39
EXHIBIT C-1
-----------
FORM OF CALIFORNIA GRANT DEED
RECORDING REQUESTED BY
WHEN RECORDED RETURN TO:
Xxx, Castle & Xxxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxx, Esq.
AND MAIL TAX STATEMENTS TO:
___________________________
___________________________
___________________________
Attention: ________________
Documentary Transfer Tax is not of public record and is shown on a separate
sheet attached to this deed.
------------------------------------------------------------------------
GRANT DEED
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged,
________________________ ("Grantor") hereby grants to ________________________
("Grantee", the real property located in the City of
_____________, County of _____________, State of California, described on
EXHIBIT A attached hereto and made a part hereof. Grantor is conveying the
Property to Grantee subject to the exceptions to title thereto described on
EXHIBIT B attached hereto and made a part hereof.
Executed as of ______________, 1998.
[SELLER],
a __________________________
By: ____________________
Its: ____________________
X0-0
00
XXXXX XX XXXXXXXXXX )
) ss
COUNTY OF __________________)
On _____________, 1998, before me, ______________________, a notary
public for the State of California, personally appeared ______________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity on
behalf of which the person acted, executed the instrument.
Witness my hand and official seal.
--------------------------
Signature
[SEAL]
C1-2
41
EXHIBIT A
---------
TO GRANT DEED
[LEGAL DESCRIPTION]
C1-3
42
EXHIBIT B
---------
TO GRANT DEED
(a) Interests of tenants in possession pursuant to the terms of
their leases;
(b) Non-delinquent liens for real estate taxes and assessments; and
(c) Any exceptions disclosed by the preliminary title reports and
amendments thereto received by Grantee, the public records or
other documents or items delivered to Grantee, and any other
exceptions to title which would be disclosed by an inspection
and/or survey of the Property.
C1-4
43
________________, 199__
____________ County Recorder
Re: Request That Statement of Documentary
Transfer Tax Not be Recorded
----------------------------
Dear Sir or Madam:
Request is hereby made in accordance with Section 11932 of the Revenue
and Taxation Code that this statement of tax due not be recorded with the
attached deed but be affixed to the deed after recordation and before return as
directed on the deed.
The attached deed names _______________________, a _______________, as
grantor, and ________________________, a _______________________, as grantee.
The property being transferred and described in the attached deed is
located in the City of ______________, ____________ County, California.
The amount of Documentary Transfer Tax due on the attached deed is
$____________, computed on full value of the property conveyed.
[SELLER]
a _______________________
By: _____________________________
Its: _____________________________
C1-5
44
EXHIBIT C-2
-----------
FORM OF ARIZONA SPECIAL WARRANTY DEED
RECORDATION REQUESTED BY AND WHEN
RECORDED RETURN TO:
Xxx, Castle & Xxxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxx, Esq.
MAIL TAX STATEMENT TO:
______________________
______________________
______________________
================================================================================
(Space above this line for Recorder's use)
SPECIAL WARRANTY DEED
---------------------
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby acknowledged, ________________________________, the Grantor herein, does
hereby convey to ___________________________________, the Grantee, the real
property described on EXHIBIT A attached hereto and made a part hereof, together
with all rights and privileges appurtenant thereto, subject only to those
matters shown on EXHIBIT B attached hereto and made a part hereof.
AND THE Grantor hereby binds itself and its successors to warrant and
defend the title as against all acts of the Grantor herein and no other, subject
to all matters of record.
DATED this _____ day of ________, 1998.
Assessor's Parcel No.
-----------------
[insert Seller's Signature Block]
________________________________,
a ______________________________
By: __________________________
Its: __________________________
X0-0
00
XXXXX XX XXXXXXXXXX )
) ss
COUNTY OF __________________ )
On _____________, 1998, before me, ______________________, a notary
public for the State of California, personally appeared ______________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity on
behalf of which the person acted, executed the instrument.
Witness my hand and official seal.
---------------------------
Signature
[SEAL]
C2-2
46
EXHIBIT A
---------
TO SPECIAL WARRANTY DEED
[LEGAL DESCRIPTION]
C2-3
47
EXHIBIT B
---------
TO SPECIAL WARRANTY DEED
(d) Interests of tenants in possession pursuant to the terms of
their leases;
(e) Non-delinquent liens for real estate taxes and assessments; and
(f) Any exceptions disclosed by the preliminary title reports and
amendments thereto received by Grantee, the public records or
other documents or items delivered to Grantee, and any other
exceptions to title which would be disclosed by an inspection
and/or survey of the Property.
C2-4
48
EXHIBIT C-3
-----------
FORM OF OREGON SPECIAL WARRANTY DEED
Recordation requested by:
After recordation return to:
Xxx, Castle & Xxxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxx, Esq.
================================================================================
(Space above this line for Recorder's use)
STATUTORY
SPECIAL WARRANTY DEED
---------------------
__________________________________, a ____________________, Grantor,
conveys and specially warrants to_____________________________ a
______________________, Grantee, the following-described real property free of
encumbrances created or suffered by the Grantor or any persons claiming under
Grantor except as specifically set forth herein:
The real property described on the attached Exhibit A, subject to
exceptions for the encumbrances listed on the attached Exhibit B.
The true consideration for this conveyance is $______________.
THIS INSTRUMENT WILL NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS
INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE
SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE
PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO
VERIFY APPROVED USES AND TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR
FOREST PRACTICES AS DEFINED IN ORS 30.930
-------------------------------------------------------------------------------
Until a change is requested, all tax statements shall be sent to the following
address:
-------------------------------------------------------------------------------
Property tax account No.:
-------------------------------------------------------------------------------
C3-1
49
Dated this _____ day of _____, 1998.
[insert Seller's Signature Block]
_________________________________,
a _______________________________
By: ____________________________
Its: ___________________________
ACKNOWLEDGMENT (MULTI-STATE FORMAT)
-----------------------------------
STATE OF )
)
County of )
On this ____ day of ________, 199_, before me, ____________________
[notary's name], a Notary Public of the State of _______________, duly
commissioned and sworn, personally appeared __________________________, to me
personally known to me (or proved tome on the basis of satisfactory evidence) to
be the person who executed the written instrument as the _____________________
of __________________, as Member of and on behalf of
___________________________, a ____________, and acknowledged to me that such
______________________ executed the same.
------------------------------------------
Notary Public for the State of ___________
My commission expires:____________________
ACKNOWLEDGMENT (OREGON STATUTORY FORMAT - CORPORATE OR OTHER ENTITY)
--------------------------------------------------------------------
STATE OF )
)
County of )
The foregoing instrument was acknowledged before me on this ____ day of
____________, 199_, by ___________________[name], the __________________[title]
of _________________________________, a(n) ___________________.
------------------------------------------
Notary Public for the State of ___________
My commission expires:____________________
C3-2
50
EXHIBIT A
---------
TO STATUTORY SPECIAL WARRANTY DEED
[LEGAL DESCRIPTION]
C3-3
51
EXHIBIT B
---------
TO STATUTORY SPECIAL WARRANTY DEED
(g) Interests of tenants in possession pursuant to the terms of
their leases;
(h) Non-delinquent liens for real estate taxes and assessments; and
(i) Any exceptions disclosed by the preliminary title reports and
amendments thereto received by Grantee, the public records or
other documents or items delivered to Grantee, and any other
exceptions to title which would be disclosed by an inspection
and/or survey of the Property.
C3-4
52
EXHIBIT D
---------
XXXX OF SALE
----------------------------------------
This Xxxx of Sale (the "Xxxx of Sale") is made and entered into
____________, 199__, by and between ____________________("Assignor"), and
__________________("Assignee").
In consideration of the sum of Ten Dollars ($10) and other good and
valuable consideration paid by Assignee to Assignor, the receipt and sufficiency
of which are hereby acknowledged by Assignor, Assignor does hereby assign,
transfer, convey and deliver to Assignee, its successors and assigns, free and
clear of any liens or encumbrances created by, through or under Assignor, all
items of tangible personal property, if any, owned by Assignor and situated upon
and used exclusively in connection with the land described on the attached
Exhibit A (the "Land") and the improvements located thereon (the
"Improvements"), including without limitation the items described on the
attached Exhibit B, but specifically excluding any and all personal property
owned by tenants or otherwise considered the property of tenants under any
leases affecting the Land or Improvements (the "Personal Property").
This Xxxx of Sale is made subject, subordinate and inferior to the
easements, covenants and other matters and exceptions set forth on Exhibit C,
attached hereto and made a part hereof for all purposes.
ASSIGNEE ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED
HEREIN OR IN THAT CERTAIN AGREEMENT OF PURCHASE AND SALE DATED _______________,
199__, BY AND BETWEEN ASSIGNOR AND ASSIGNEE (THE "AGREEMENT"), ASSIGNOR HAS NOT
MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES,
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE NATURE, QUALITY OR
CONDITIONS OF THE PERSONAL PROPERTY, (B) THE INCOME TO BE DERIVED FROM THE
PERSONAL PROPERTY, (C) THE SUITABILITY OF THE PERSONAL PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH ASSIGNEE MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR
BY THE PERSONAL PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PERSONAL PROPERTY, OR (F) ANY OTHER MATTER WITH RESPECT TO THE PERSONAL
PROPERTY. ASSIGNEE FURTHER ACKNOWLEDGES AND AGREES THAT, HAVING BEEN GIVEN THE
OPPORTUNITY TO INSPECT THE PERSONAL PROPERTY, ASSIGNEE IS RELYING SOLELY ON ITS
OWN INVESTIGATION OF THE PERSONAL PROPERTY AND NOT ON ANY INFORMATION PROVIDED
OR TO BE PROVIDED BY ASSIGNOR, EXCEPT AS SPECIFICALLY PROVIDED HEREIN OR IN THE
AGREEMENT. ASSIGNEE FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION
PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PERSONAL PROPERTY WAS OBTAINED
FROM A VARIETY OF SOURCES AND THAT ASSIGNOR HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION. ASSIGNEE FURTHER ACKNOWLEDGES
AND AGREES THAT THE SALE OF THE PERSONAL PROPERTY AS PROVIDED FOR HEREIN IS MADE
ON AN "AS IS, WHERE IS" CONDITION AND BASIS "WITH ALL FAULTS," EXCEPT AS
SPECIFICALLY PROVIDED IN THE AGREEMENT.
D-1
53
The obligations of Assignor are intended to be binding only on the
property of Assignor and shall not be personally binding upon, nor shall any
resort be had to, the private properties of any of its trustees, officers,
beneficiaries, directors, members, or shareholders, or of its investment
manager, the general partners, officers, directors, members, or shareholders
thereof, or any employees or agents of Assignor or its investment manager. The
obligations of Assignee are intended to be binding only on the property of
Assignee and shall not be personally binding upon, nor shall any resort be had
to, the private properties of any of its trustees, officers, beneficiaries,
directors, members, or shareholders, or any employees or agents of Assignee.
IN WITNESS WHEREOF, Assignor and Assignee have caused this Xxxx of Sale
to be executed on the date and year first above written.
ASSIGNOR: ______________________________________
a ____________________________________
By: _________________________________
Its Investment Manager
By: _____________________________
Its:_____________________________
ASSIGNEE: ______________________________________
a ____________________________________
By: _________________________________
Its: _________________________________
D-2
54
EXHIBIT E
---------
ASSIGNMENT OF LEASES, SERVICE CONTRACTS
AND WARRANTIES
-------------------------------
This Assignment of Lease, Service Contracts and Warranties (this
"Assignment") is made and entered into _______________, 199__, by and between
_____________________________ ("Assignor"), and
_____________________________________________ ("Assignee").
For good and valuable consideration paid by Assignee to Assignor, the
receipt and sufficiency of which are hereby acknowledged by Assignor, Assignor
does hereby assign, transfer, set over and deliver unto Assignee all of
Assignor's right, title, and interest in (i) those certain leases and all
guaranties thereof (collectively, the "Leases") listed on Exhibit A, attached
hereto and made a part hereof for all purposes except for Seller's right to
collect delinquent rent and other delinquent sums owing under such Leases for
the period prior to the date hereof, (ii) those certain service contracts,
equipment leases, tenant improvement agreements and leasing agreements (the
"Contracts") listed on Exhibit B, if any, attached hereto and made a part hereof
for all purposes, (iii) those certain warranties held by Assignor (the
"Warranties") listed on Exhibit C, attached hereto and made a part hereof for
all purposes, and (iv) any intangible personal property now or hereafter used in
connection with the operation, maintenance, management, or occupancy of the Real
Property, including, without limitation, trade names and trademarks associated
with the Real Property (as defined in the Agreement) (provided Seller makes
absolutely no representation that it has any rights whatsoever with respect to
trade names or trademarks).
This Assignment is made subject, subordinate and inferior to the
easements, covenants and other matters and exceptions set forth on Exhibit D,
attached hereto and made a part hereof for all purposes.
ASSIGNEE ACKNOWLEDGES AND AGREES, BY ITS ACCEPTANCE HEREOF, THAT, EXCEPT
AS EXPRESSLY PROVIDED HEREIN OR IN THAT CERTAIN AGREEMENT OF PURCHASE AND SALE,
DATED AS OF _______________, 199__, BY AND BETWEEN ASSIGNOR AND ASSIGNEE (THE
"AGREEMENT"), THE LEASES, THE CONTRACTS AND THE WARRANTIES ARE CONVEYED "AS IS,
WHERE IS" AND IN THEIR PRESENT CONDITION WITH ALL FAULTS, AND THAT ASSIGNOR HAS
NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT
OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO THE NATURE, QUALITY OR
CONDITION OF THE LEASES, THE CONTRACTS OR THE WARRANTIES, THE INCOME TO BE
DERIVED THEREFROM, OR THE ENFORCEABILITY, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OF THE LEASES, THE CONTRACTS OR THE WARRANTIES.
Except as otherwise expressly provided herein or in the Agreement, by
accepting this Assignment and by its execution hereof, Assignee assumes the
payment and performance of, and agrees to pay, perform and discharge, all the
debts, duties and obligations to be paid, performed
E-1
55
or discharged from and after the Closing Date (as defined in the Agreement), by
(a) the "landlord" or the "lessor" under the terms, covenants and conditions of
the Leases, including, without limitation, brokerage commissions and compliance
with the terms of the Leases relating to tenant improvements and security
deposits, and (b) the owner under the Contracts and/or the Warranties.
Subject to terms and conditions of Section 9.19 of the Agreement,
Assignor agrees to indemnify Assignee and hold harmless and defend Assignee from
and against any and all claims, damages, liabilities, losses, costs and expenses
(including, without limitation, reasonable attorneys fees) resulting from any
failure by Assignor to have paid, performed or discharged any debts, duties or
obligations which Assignor was obligated to have paid, performed or discharged
prior to the Closing Date and accruing for the period prior to the Closing Date,
(a) by the landlord or lessor under the terms, covenants and conditions of the
Leases or (b) the owner under the Contracts and/or the Warranties, excluding,
with respect to clauses (a) and (b), any such debts, duties or obligations
arising out of or in any way related to the physical condition of the Property,
including, without limitation, the environmental condition thereof (as defined
in the Agreement) and any repair or remediation of the Property, but including
any such obligations arising out of damages suffered by and payable to a tenant
as a result of Assignor's breach prior to the Closing Date of a covenant of
landlord pursuant to the provisions of the Lease relating to the physical
condition of the Property, including without limitation, the environmental
condition thereof. Assignee agrees to indemnify, hold harmless and defend
Assignor from and against any and all claims, losses, liabilities, damages,
costs and expenses (including, without limitation, reasonable attorneys' fees)
resulting by reason of the failure of Assignee to pay, perform or discharge any
of the debts, duties or obligations assumed or agreed to by Assignee hereunder.
The obligations of Assignor are intended to be binding only on the
property of Assignor and shall not be personally binding upon, nor shall any
resort be had to, the private properties of any of its trustees, officers,
beneficiaries, directors, members, or shareholders, or of its investment
manager, the general partners, officers, directors, members, or shareholders
thereof, or any employees or agents of Assignor or its investment manager. The
obligations of Assignee are intended to be binding only on the property of
Assignee and shall not be personally binding upon, nor shall any resort be had
to, the private properties of any of its trustees, officers, beneficiaries,
directors, members, or shareholders, or any employees or agents of Assignee.
All of the covenants, terms and conditions set forth herein shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
E-2
56
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to
be executed on the day and year first above written.
ASSIGNOR: ______________________________________
a ____________________________________
By: _________________________________
Its Investment Manager
By: _____________________________
Its:_____________________________
ASSIGNEE: ______________________________________
a ____________________________________
By: _________________________________
Its: _________________________________
X-0
00
XXXXXXX X
---------
XXXXXXXX CERTIFICATE
-------------------------------
Tenant: __________________________________________
Date: ____________________________________, 199_
Address: __________________________________________
___________________________________________________
___________________________________________________
Lease Date: ______________________________________
Commencement Date: ________________________________
Square Footage: __________________________________
Expiration Date: _________________________________
Term in Years: ___________________________________
Current Monthly Payments: $ ______________________
Base Rental: $ ___________________________________
Operating Expenses: $ ____________________________
Rent & OE Pmts are Due: ___________________________
Tax Pmts are Due: _________________________________
Taxes: $ _________________________________________
Security Deposit: _________________________________
OPTIONS
Check appropriate box below
| | Extension Option
| | Expansion Option
| | Termination Option
| | Purchase Option and provide details in Paragraph 7 below
| | None
| | Check here if you have rental escalations and provide details in
Paragraph 4 below.
Tenants Proportionate Share of Taxes and Operating Expenses ____%
================================================================================
THE UNDERSIGNED, AS TENANT UNDER THE LEASE OF THE ABOVE-REFERENCED PREMISES
("PREMISES") EXECUTED BY ____________________________ ("LANDLORD"), AS LANDLORD,
AND TENANT ON THE ABOVE-REFERENCED LEASE DATE, DOES HEREBY STATE, DECLARE,
REPRESENT AND WARRANT TO PACIFIC GULF PROPERTIES INC. ("BUYER") AND ITS
ASSIGNEES AS FOLLOWS:
1. Accuracy. That the information contained in this Tenant's Estoppel
Certificate is true and correct as of the date above written.
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58
2. Lease. that the copy of the Lease attached hereto as Schedule 1 is a
true and correct copy of the Lease which is in full force and effect and which
has not been amended, supplemented or changed by letter agreement or otherwise,
except as follows (if none, indicate so by writing "NONE" below):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
3. Completion of Premises/No Disputes. Tenant has accepted possession of
the premises, and all conditions to be satisfied by Landlord under the Lease
have been completed pursuant to the terms of the Lease, including, but not
limited to, completion of construction of the Premises (and all other
improvements required under the Lease) in accordance with applicable plans and
specifications and within the time periods set forth in the Lease; there are no
unreimbursed expenses (except the annual operating expense and tax expense
adjustment) including, but not limited to, capital expenses reimbursements; and
Tenant has no complaints or disputes with Landlord regarding the overall
operation, maintenance or condition of the Premises or the property within which
the Premises is located (the "Property"), or otherwise.
4. Rental Escalation. Base Rental is subject to the following escalation
adjustments (if none, indicate so by writing "NONE" below):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
5. No Defaults/Claims. Neither Tenant nor, to Tenant's knowledge,
Landlord under the Lease is in default under any terms of the Lease nor has any
event occurred which with the passage of time (after notice, if any, required by
the Lease) would become an event of default under the Lease. Tenant has no
claims, counterclaims, defenses or setoffs against Landlord arising from the
Lease, the Premises or the Property, nor is Tenant entitled to any concession,
rebate, allowance of free rent for any period after this certification.
6. No Advance Payments. No rent has been paid more than one (1) month in
advance by Tenant except for the current month's rent, and no security (other
than a security deposit in the amount of $___________) has been deposited with
Landlord.
7. No Options/Purchase Rights. Tenant has not right of first refusal to
purchase the Property or any interest therein and no right to cancel or
terminate the Lease except as follows (if none, indicate so by writing "NONE"
below):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
8. No Modification of Lease. Unless you are notified by your landlord to
the contrary, from the date of this Estoppel Certificate through November 30,
1998, no modification or amendment to the Lease may be made except upon the
written consent thereto executed by Buyer, which consent may be unreasonably
withheld if not otherwise provided in the Lease.
F-2
59
9. Parking. The number of parking spaces allotted to Tenant under the
terms of the Lease, for the use of its employees, agents, invitees and licensees
is ____________; of these spaces, _______ are reserved for Tenant's exclusive
use.
10. No Sublease/Assignment. Tenant has not entered into any sublease,
assignment or any other agreement transferring any of its interest in the Lease
or the Premises, except as follows:
________________________________________________________________________________
11. No Notice. Tenant has not received written notice of any assignment,
hypothecation, mortgage, or pledge of Landlord's interest in the Lease or the
rents or other amounts payable thereunder, except those listed below:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
12. Hazardous Materials. No hazardous or toxic substance (including
without limitation PCBs, petroleum, petroleum products and fractions thereof)
has been used, treated, stored or disposed of on the Premises or property in
violation of environmental laws by Tenant or, to Tenant's knowledge, any other
party. To the best of Tenant's knowledge, no underground storage tanks exist or
have existed on or under the Property. Tenant does not have any permits or
identification numbers issued by any environmental or governmental agency with
respect to its operations on the Premises, except those listed below:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
13. Reliance. Tenant recognizes and acknowledges it is making these
representations to Buyer with the intent that Buyer and any assigns of Buyer
will fully rely on Tenant's representations.
14. Binding. The provisions hereof shall be binding upon and inure to
the benefit of the successors, assigns, personal representatives and heirs of
Tenant and Buyer.
EXECUTED BY TENANT, IF TENANT IS A SOLE PROPRIETOR OR A GENERAL PARTNERSHIP, OR
BY AN OFFICER OF TENANT, IF TENANT IS A CORPORATION, ON THE DATE FIRST WRITTEN
ABOVE.
By: _________________________________
a________________________________
BY: _____________________________
NAME: __________________________
TITLE: __________________________
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