PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
BY AND BETWEEN
RAINBOW PROMENADE PARTNERS, L.L.C.,
AN ARIZONA LIMITED LIABILITY COMPANY
AS SELLER,
AND
PAN PACIFIC RETAIL PROPERTIES, INC.,
A MARYLAND CORPORATION,
AS BUYER.
DATED FOR REFERENCE PURPOSES AS OF
AUGUST 18, 1997
PROPERTY LOCATED AT:
THE INTERSECTION OF RAINBOW BOULEVARD
AND LAKE XXXX BOULEVARD
CITY OF LAS VEGAS
STATE OF NEVADA
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
This PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (this "AGREEMENT")
is dated for reference purposes only as of AUGUST 18, 1997, and is made to be
effective as of the Effective Date (as hereafter defined), by and between
RAINBOW PROMENADE PARTNERS, L.L.C., an Arizona limited liability company
("SELLER"), and PAN PACIFIC RETAIL PROPERTIES, INC., a Maryland corporation
("BUYER").
R E C I T A L S
A. Seller is the owner of the Property (as hereafter defined), which
consists of a shopping center project containing approximately 228,273 square
feet of improvements, located at the intersection of Rainbow Boulevard and Lake
Xxxx Boulevard in Las Vegas, Nevada, as more particularly described in EXHIBIT
A.
B. Buyer desires to purchase the Property from Seller, and Seller desires
to sell the Property to Buyer, on the terms and conditions set forth herein.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer hereby agree as
follows:
ARTICLE I
EFFECTIVE DATE
This Agreement shall be effective on the day (the "EFFECTIVE DATE") when a
fully executed copy of this Agreement (or a fully executed copy in counterparts)
is deposited with Escrow Holder (as hereafter defined). Escrow Holder is hereby
instructed to immediately notify each party to this Agreement of the Effective
Date.
ARTICLE II
DEFINITIONS
The following terms and references shall have the meanings indicated below
(such meanings to be equally applicable to both the singular and plural forms of
the terms defined and to verbs of any tense):
1.
(a) ADDITIONAL RENTS" means amounts tenants may be obligated to pay
as additional rent, including certain percentage rent, certain escalations in
base rent, and certain pass-throughs of operating and similar expenses.
(b) "ALTA" means American Land Title Association.
(c) "BALANCE" shall have the meaning set forth in SECTION 4.3.
(d) "XXXX OF SALE" means a xxxx of sale as defined in ARTICLE III(c).
(e) "BUSINESS DAY" means any day other than a Saturday, Sunday or a
Holiday.
(f) "CLOSING" means the consummation of the transactions contemplated
by this Agreement.
(g) "CLOSING DATE" means the date the Deed is recorded in the
Official Records of Xxxxx County, Nevada.
(h) "CLTA POLICY" means a standard coverage owner's policy of title
insurance.
(i) "CONTRACTS" shall have the meaning set forth in ARTICLE III(d).
(j) "CONTRACT ASSIGNMENT" shall have the meaning set forth in ARTICLE
III(d).
(k) "DEED" shall have the meaning set forth in ARTICLE III(a).
(l) "DEPOSIT" shall have the meaning set forth in SECTION 4.2(a).
(m) "DIMINUTION THRESHOLD" shall have the meaning set forth in
SECTION 13.1(a)(i).
(n) "DOCUMENTS" means the transfer documents attached as Exhibits to
this Agreement.
(o) "EFFECTIVE DATE" shall have the meaning set forth in ARTICLE I.
(p) "ESCROW HOLDER" means the Title Company (as hereafter defined)
where escrow shall be established, whose address for this transaction shall be:
First American Title Insurance Company
________________________________
________________________________
Telephone: ______________________
2.
(q) "ESCROW PERIOD" means the period from and after the Effective
Date through the Closing Date or any earlier termination of this Agreement.
(r) "FF&E" means furniture, fixtures, equipment, machinery,
appliances, fittings, and other removable articles of personal property of every
kind and nature that are owned by Seller and used exclusively in the operation
of the Property, including, without limitation, (i) furnishings, furniture, and
equipment, (ii) art work and other decorative items, (iii) built-in appliances,
and (iv) office furniture and equipment.
(s) "GENERAL INTANGIBLES" means the Offsite Rights, the Permits, the
Repair Warranties, and other intangible personal property rights of whatever
nature (other than the rights evidenced by the Contracts) owned by Seller and
used exclusively in the operation and maintenance of the Property; it being
understood that Buyer is not acquiring any right, title or interest in and to
any intangible property not directly related to the Property or the operations
thereon, including, without limitation, any marks or names other than "Rainbow
Promenade Partners" and "Xxxxxxxx".
(t) "HOLIDAY" means any day on which banking institutions in the
State of Nevada are authorized or obligated by law or executive order to close.
(u) "IMPROVEMENTS" shall have the meaning set forth in ARTICLE
III(b).
(v) "INFORMATION" means all documents, reports, studies, and other
information or materials relating to the Property (including, without
limitation, the Records) delivered or disclosed to Buyer by Seller or its
agents.
(w) "INSPECTION PERIOD" means the period from and after the Effective
Date and ending at 4:00 p.m., Pacific Time, on September 2, 1997, unless
extended by Buyer pursuant to the provisions of Section 7.1(b) hereof.
(x) "INVENTORY" means the stock of supplies and other consumables of
every kind and nature that are owned by Seller and used exclusively in the
operation and maintenance of the Property in the ordinary course of business.
(y) "LAND" shall have the meaning set forth in ARTICLE III(a).
(z) "LEASE" means any lease, license, or other agreement for the
occupancy, possession, or use of any space within the Property (including,
without limitation, any rooms or other accommodations for guests or other
transient occupants and any storage space, containers, or other facilities),
including, without limitation, those leases described on EXHIBIT H attached
hereto.
(aa) "LEASE ASSIGNMENT" shall have the meaning set forth in ARTICLE
III(e).
(ab) "OFFSITE RIGHTS" means any lease, license, or other agreement
(other than a recorded easement) providing for the use of another's real
property in conjunction with the operation of the Property (as, by way of
illustration and not limitation, use for vehicular parking and/or access).
3.
(ac) "OWNER'S TITLE POLICY" means a CLTA Policy, in the amount of the
Purchase Price.
(ad) "PERMIT" means any permit, certificate, license, or other form of
authorization or approval issued by a governmental agency or authority and
legally required for the proper operation and use of the Property (including,
without limitation, any certificates of occupancy with respect to the
Improvements, elevator permits, conditional use permits, and zoning variances)
to the extent held and assignable by Seller or otherwise transferable with the
Property.
(ae) "PERMITTED EXCEPTIONS" shall have the meaning set forth in
SECTION 6.2.
(af) "PERSONAL PROPERTY" shall have the meaning set forth in ARTICLE
III(c).
(ag) "PLANS AND SPECIFICATIONS" shall have the meaning set forth in
SECTION 5.3(b).
(ah) "PROPERTY" shall have the meaning set forth in ARTICLE III.
(ai) "PRORATIONS" shall have the meaning set forth in SECTION 9.7(a).
(aj) "PTR" means a current preliminary title report concerning the
Real Property issued by the Title Company.
(ak) "PURCHASE PRICE" shall have the meaning set forth in SECTION 4.1.
(al) "REAL PROPERTY" shall have the meaning set forth in ARTICLE
III(a).
(am) "RECORDS" means all books, records, pertinent correspondence, and
other files relating to the Property that have been received or generated and
maintained in the course of operating the Property that are in Seller's
possession or control.
(an) "REPAIR WARRANTIES" means any written guaranties, warranties, or
other obligations of any contractor, manufacturer, or vendor for the repair or
maintenance of any of the Improvements or FF&E, to the extent assignable by
Seller.
(ao) "REVENUES" shall have the meaning set forth in SECTION 9.7(a).
(ap) "SELLER'S NON-FOREIGN AFFIDAVIT" shall have the meaning set forth
in SECTION 9.3(b).
(aq) "SERVICE CONTRACT" means any contract or other arrangement,
written or oral, for the continuing provision of services relating to the
improvement, maintenance, repair, protection, or operation of the Property.
(ar) "SURVEY" shall have the meaning set forth in SECTION 7.1(b).
4.
(as) "TENANT" means the tenant and occupant of, and another holder of
a possessory right in, all or any portion of the Property pursuant to a Lease.
(at) "TENANT ESTOPPEL CERTIFICATES" means estoppel certificates to be
executed and delivered as provided by Section 7.6, which estoppel certificates
shall be in the form required by, or otherwise satisfy the estoppel certificate
requirements of, the applicable Lease.
(au) "TENANT NOTICES" means notices to the Tenants as defined in
SECTION 9.5(d).
(av) "TITLE COMPANY" means First American Title Insurance Company.
ARTICLE III
PROPERTY SUBJECT TO AGREEMENT
Seller hereby agrees to sell to Buyer, and Buyer hereby agrees to purchase
from Seller, subject to the terms and conditions set forth herein, all of
Seller's right, title, and interest in the following (collectively, the
"PROPERTY"):
(a) LAND - that certain land described in EXHIBIT A, and all
appurtenant rights, privileges, and easements thereto owned by Seller
(collectively, the "LAND"). The Land and the Improvements (collectively, the
"REAL PROPERTY") shall be conveyed from Seller to Buyer pursuant to a Grant,
Bargain and Sale Deed (the "DEED") substantially in the form of EXHIBIT B,
subject to the Permitted Exceptions and matters set forth on the Survey (defined
in Section 7.1(b) below).
(b) IMPROVEMENTS - all buildings, structures, fixtures, and other
improvements located on the Land (collectively, the "IMPROVEMENTS"), it being
understood that Improvements shall include buildings, structures, fixtures and
other improvements located on any portion of the Land that is ground leased to
third parties only to the extent of Seller's interest in same pursuant to such
ground leases.
(c) PERSONAL PROPERTY - all personal property, if any, owned by Seller
and used exclusively by Seller in the operation, maintenance, and management of
the Real Property as of the Closing Date, including, without limitation, the
FF&E, the Inventory, the Records, and the General Intangibles (collectively, the
"PERSONAL PROPERTY"). The Personal Property shall be conveyed from Seller to
Buyer pursuant to a Xxxx of Sale (the "XXXX OF SALE") substantially in the form
of EXHIBIT C.
(d) CONTRACTS - all contracts and agreements in effect on the Closing
Date, if any, relating to the Property, including, without limitation, the
Service Contracts (collectively, the "CONTRACTS"). Seller's interest in the
Contracts shall be conveyed to Buyer pursuant to an Assignment and Assumption of
Contracts, Permits and Other Rights (the "CONTRACT ASSIGNMENT") substantially in
the form of EXHIBIT D.
5.
(e) LEASES - Seller's interest in all Leases in effect on the Closing
Date. Seller's interest in the Leases shall be conveyed to Buyer pursuant to an
Absolute Assignment and Assumption of Leases (the "Lease Assignment")
substantially in the form of EXHIBIT E.
ARTICLE IV
PURCHASE PRICE, PAYMENT OF
PURCHASE PRICE AND LIQUIDATED DAMAGES
4.1 PURCHASE PRICE. Subject to the terms and conditions of this
Agreement, Buyer agrees to pay, and Seller agrees to accept, as consideration
for conveyance of the Property from Seller to Buyer, the sum of THIRTY-ONE
MILLION THREE HUNDRED THOUSAND AND NO/100THS DOLLARS ($31,300,000) (the
"PURCHASE PRICE").
4.2 DEPOSIT.
(a) Upon the full execution of this Agreement by Buyer and Seller,
Buyer shall tender to Escrow Holder an xxxxxxx money deposit in the amount of
Two Hundred Fifty Thousand and No/100ths Dollars ($250,000.00) (the "DEPOSIT").
The Deposit shall be tendered by certified check or cashier's check made payable
to Escrow Holder or by wire transfer of current federal funds received and
credited to an account of Escrow Holder.
(b) In the event Buyer has not terminated this Agreement on or before
August 21, 1997, One Hundred Thousand and No/100ths Dollars ($100,000.00) of the
Deposit shall be non-refundable to Buyer (the NON-REFUNDABLE DEPOSIT"), except
as otherwise provided in this subparagraph (b). The balance of the Deposit is
referred to herein as the "REFUNDABLE DEPOSIT." Upon Buyer's termination of
this Agreement under Section 9.12(a), 7.1(c), 7.6 or 13 hereof, Escrow Agent is
hereby instructed, without further instruction from either Buyer or Seller, to
immediately return the entire Deposit to Buyer (both the Non-Refundable Deposit
and the Refundable Deposit). Upon termination of this Agreement for any reason
other than as set forth in the preceding sentence, Escrow Agent is hereby
instructed, without further instruction from either Buyer or Seller, to return
the Refundable Deposit to Buyer, and to pay the Non-Refundable Deposit to
Seller, (ii) the costs of the Title Company and Escrow Holder shall be borne
equally by Buyer and Seller, (iii) all documents deposited in Escrow by Buyer or
Seller shall be returned to the depositing party, (iv) each party shall bear its
own costs incurred hereunder, and (v) except as provided in SECTIONS 5.3, 5.5,
15.2 and 15.10 hereof, the parties shall have no further rights and obligations
hereunder, other than those rights and obligations that, by their terms, survive
the termination of this Agreement.
(c) Provided that Buyer does not terminate this Agreement pursuant to
Article 7, Buyer shall tender to the Escrow Holder on or before the expiration
of the Inspection Period an additional xxxxxxx money deposit in the amount of
Two Hundred Fifty Thousand and No/100ths Dollars ($250,000.00), which shall
become a part of the Refundable Deposit from and after the date of tender. Upon
the satisfaction, or waiver by Buyer of all of Buyer's conditions to closing as
set forth in Article 7, the Refundable Deposit shall become non-refundable to
Buyer, except upon a failure of Seller to consummate the transactions
contemplated by this Agreement in accordance with
6.
the terms and provisions hereof, or the failure, unless waived in writing to
Buyer, of any other condition provided for in this Agreement for the benefit of
Buyer.
4.3 PAYMENT OF PURCHASE PRICE. The Purchase Price less the amount of the
Deposit, subject to adjustments as provided in SECTIONS 9.7 and 9.8 hereof (the
"BALANCE"), shall be placed into Escrow by wire transfer of cash or other
immediately available funds or in other good funds acceptable to the Title
Company by 4:00 p.m., Pacific time, on the last Business Day prior to the
Closing Date.
4.4 INVESTMENT OF DEPOSIT. Escrow Holder shall place the Deposit in an
interest-bearing account with a bank or savings association, the deposits of
which are federally insured (up to the amount of One Hundred Thousand Dollars
($100,000)), as directed in writing by Buyer, with notice to Seller. All
references in this Agreement to the Deposit, the Non-Refundable Deposit and the
Refundable Deposit shall include the interest thereon.
4.5 DEPOSIT AS LIQUIDATED DAMAGES. IF THE SALE OF THE PROPERTY AS
CONTEMPLATED HEREUNDER IS NOT CONSUMMATED BECAUSE OF A DEFAULT UNDER THIS
AGREEMENT ON THE PART OF BUYER, ESCROW HOLDER, WITHOUT ANY FURTHER INSTRUCTION
FROM EITHER SELLER OR BUYER, SHALL PAY TO SELLER THE DEPOSIT AND SELLER SHALL
RETAIN THE DEPOSIT AND ALL INTEREST EARNED THEREON AS LIQUIDATED DAMAGES. THE
PARTIES ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A DEFAULT BY
BUYER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY
PLACING THEIR SIGNATURES BELOW, THE PARTIES EXPRESSLY AGREE AND ACKNOWLEDGE THAT
THE DEPOSIT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE
ESTIMATE OF SELLER'S DAMAGES. THE PARTIES FURTHER ACKNOWLEDGE THAT SELLER'S
RETENTION OF THE DEPOSIT AND ALL INTEREST EARNED THEREON HAS BEEN AGREED UPON AS
SELLER'S EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT OF A DEFAULT ON THE PART OF
BUYER, OTHER THAN THE ADDITIONAL AND SEPARATE OBLIGATIONS OF BUYER UNDER
SECTIONS 5.3, 5.5, 15.2, AND 15.10 HEREOF, WHICH OBLIGATIONS SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT. IN ADDITION, BUYER SHALL PAY ALL TITLE AND
ESCROW CHARGES (INCLUDING, WITHOUT LIMITATION, CANCELLATION FEES) IN THE EVENT
OF A DEFAULT BY BUYER.
"Seller" "Buyer"
RAINBOW PROMENADE PARTNERS, L.L.C., PAN PACIFIC RETAIL PROPERTIES, INC.,
AN ARIZONA LIMITED LIABILITY COMPANY A MARYLAND CORPORATION
BY: BY:
------------------------------------ ---------------------------------
XXXXXX X. XXXX, PRESIDENT
7.
ITS: AND CHIEF EXECUTIVE OFFICER
------------------------------------
ARTICLE V
INSPECTION
5.1 DUE DILIGENCE REVIEW. Buyer, at its sole cost and expense, shall have
the right to a Due Diligence Review in accordance with the following terms and
conditions. A "DUE DILIGENCE REVIEW" means (a) an inspection, examination and
evaluation of the Information, and (b) the conduct of physical tests,
inspections and other investigations on the Property and all portions thereof
leased by Tenants ("INSPECTION STUDIES"), all in order that Buyer may determine,
in its sole and absolute judgment and discretion, whether the Property is
acceptable to Buyer.
5.2 RIGHT TO TERMINATE. Notwithstanding anything to the contrary in this
Agreement, Buyer may terminate this Agreement by giving notice of termination to
Seller on or before the termination of the Inspection Period, which termination
shall be subject to the provisions of Section 4.2(b) above. If Buyer does not
give the notice of termination, Buyer shall be deemed to have approved the Due
Diligence Review and waived its right to terminate this Agreement under this
Section 5.2, and this Agreement shall continue in full force and effect,
subject, however, to Buyer's other termination rights hereunder. Seller
acknowledges that Buyer may, but is not obligated to, expend time, money, and
other resources in connection with the Due Diligence Review of the Property, and
that, notwithstanding the fact that this Agreement may terminate pursuant to
this Section 5.2 and other applicable provisions of this Agreement, such time,
money, and other resources that may be expended constitute adequate
consideration for Seller's execution of and entry into this Agreement.
5.3 ACCESS & INQUIRIES.
(a) Buyer and its representatives, agents and contractors shall, upon
reasonable (but in no event less than twenty-four hours) notice, have reasonable
access to the Property, including all areas leased to Tenants, for the purpose
of causing a survey of the Land and Improvements to be performed by a licensed
surveyor, and conducting architectural, engineering, geotechnical, and
environmental inspections and tests (including intrusive inspection and
sampling), feasibility studies, and any other inspections, studies, or tests
reasonably required by Buyer. Buyer shall keep the Property free and clear of
any liens as a result of any entry on the Property pursuant to this Section
5.3(a).
(b) During the pendency of this Agreement, Seller shall, upon Buyer's
reasonable advance (but in no event less than twenty-four hours) request, make
available to Buyer, and Buyer and its representatives, agents and contractors
shall have a continuing right of reasonable access to and the right to examine
and make copies of, all books and records; construction plans; pertinent
correspondence; documents; contracts; agreements; Leases, as well as resident
ledger cards or Lease files with histories; and other materials; in each case
relating to the Property in Seller's possession
8.
or control, including, without limitation, the right to conduct a "walk-through"
of the Property prior to the Closing upon appropriate notice to Tenants and
subject to the rights of all Tenants under their Leases. In any event, by 4:00
p.m., Pacific time, on or before the 5th Business Day after the Effective Date,
Seller will deliver to Buyer, or allow Buyer reasonable access to, at the
Property, at Seller's place of business, or at such other location as Seller may
reasonably indicate, during reasonable times agreed upon in advance by Buyer and
Seller, copies of the following, expressly subject to such items being in the
possession of or reasonably available to Seller or its manager for the Property:
(i) a current rent roll and copies of all Leases disclosed
thereon, together with all amendments thereto and the most current financial
statement in Seller's possession for each tenant;
(ii) copies of all Contracts;
(iii) a schedule of all Personal Property;
(iv) copies of the most recent property tax bills for the
Property;
(v) operating statements, copies of sales reports and CAM
details beginning January, 1997;
(vi) plans and specifications (as-builts, if available) for
construction of the Improvements (the "PLANS AND SPECIFICATIONS");
(vii) copies of certificate(s) of occupancy, and any governmental
licenses and permits regarding the Property;
(viii) security incident reports;
(ix) a schedule of filed litigation (of which Seller is aware and
to which it is a party) regarding or affecting, directly or indirectly, the
Property; and
(x) an aged receivables report current as of the Effective Date;
(xi) copies of environmental reports, studies and assessments
within Seller's possession or control covering the Property;
(xii) copies of all CC&R's affecting the Property;
(xiii) copies of all soil reports and analyses within Seller's
possession or control pertaining to the soils, seismological, geological and
drainable conditions of the Property; and
9.
(xiv) copies of construction and equipment warranties within
Seller's possession.
(c) In the course of its Due Diligence Review, Buyer may make
inquiries to third parties (excluding Seller's lenders) including, without
limitation, Tenants, contractors, property managers, parties to the Information
and Contracts, and municipal, local, and other government officials and
representatives, and Seller consents to such inquiries.
5.4 NEW AGREEMENTS. During the period from the Effective Date until the
Closing Date, and as a condition to Buyer's obligations to purchase the
Property, Seller shall comply with the following:
(a) Without first obtaining Buyer's written consent, which consent
will not be unreasonably withheld or delayed, Seller shall not (i) amend or
terminate any lease, tenancy, license or other right of occupancy or use for any
portion of the Property or allow any assignment or sublet thereunder (except to
the extent required by any Lease), (ii) consent to the assignment of any Leases
or subleasing of any of the Property (except to the extent required by any
Lease), or (iii) enter into any new Lease of the Property or any portion thereof
(except as set forth on EXHIBIT "J"). If Seller does consent to any sublease or
assignment as described in items (i) and (ii) next preceding because Seller is
required to give such consent pursuant to the applicable Lease, then
concurrently with delivery of such consent to the Tenant, Seller shall deliver a
copy thereof, together with a copy of the assignment or sublet to which consent
is given, to Buyer.
(b) Seller shall not, without the prior written consent of Buyer in
each instance (such consent not to be unreasonably delayed or withheld), enter
into any commitment, contract, option or other agreement of any kind with
respect to the repair, maintenance or operation of the Property (excluding
emergency situations, as reasonably determined by Seller), unless such
contracts, etc. (i) by their terms expire prior to Closing, or (ii) involve
amounts less than $5,000.00 and will be performed and paid for by Seller at or
before the Closing.
5.5 CONDUCT OF INSPECTIONS.
(a) Any entry by Buyer onto the Property shall be subject to, and
conducted in accordance with, all applicable laws, statutes, rules and
regulations and the terms of any Leases so as to avoid any material interference
with the operations and occupancy of the Property and to avoid any material
disturbance of any of the Tenants or the possessory rights of any of the
Tenants. Buyer shall promptly restore the Property to its previous condition
before any such inspections, studies, or tests were performed.
(b) So long as no construction warranties will be voided or adversely
affected thereby, Buyer or its agents may undertake borings or other
disturbances of the soil with Seller's prior written approval (not to be
unreasonably withheld), provided that the soil borings and other disturbances
shall be sealed and closed using materials and techniques that conform with all
applicable laws, statutes, rules and regulations and industry and governmental
standards, and the soil shall be recompacted to the condition immediately before
any such borings were undertaken.
10.
(c) Notwithstanding any general liability or other insurance that may
be maintained by Buyer, Buyer hereby agrees to indemnify, defend and hold
harmless Seller and its members and its and their members, partners,
shareholders, directors, officers, employees, and agents and all Tenants from
and against any claims, losses or damages (including attorneys' fees and costs)
arising from or in connection with the due diligence and inspection activities
conducted on the Property by Buyer and/or its agents, including, without
limitation, any damages to the Property or any property of any Tenant arising
from or relating to any inspections, studies or tests performed by Buyer or its
agents. The foregoing indemnification obligation of Buyer shall survive any
termination of this Agreement or the delivery of the Deed and the transfer of
title to the Property. If this Agreement is terminated for any reason, Buyer
shall (i) deliver to Seller the results and copies of any and all surveys,
reports, tests or studies made by or for Buyer with respect to the Property
(upon Seller's payment of Buyer's costs therefor if Seller's default is the
cause of such termination), and (ii) return to Seller all items relating to the
Property which Seller has delivered or caused to be delivered to Buyer.
ARTICLE VI
TITLE TO PROPERTY
6.1 TITLE. At the Closing, Seller shall convey to Buyer title to the Real
Property by execution and delivery of the Deed.
6.2 TITLE INSURANCE. Buyer's obligation to purchase the Property shall be
subject to the irrevocable commitment of the Title Company to issue the Owner's
Title Policy, upon payment of its normal premium on the Closing Date, showing
title as subject to no exceptions other than the following (collectively, the
"PERMITTED EXCEPTIONS"):
(a) The lien for real estate taxes and assessments not yet
delinquent;
(b) Interests of Tenants pursuant to the Leases;
(c) The regular printed exceptions contained in said policy; and
(d) Such other exceptions as may be approved in writing by Buyer
pursuant to SECTION 7.1 hereof.
In addition, and provided Buyer satisfies any requirements of the Title
Company therefor prior to the Closing Date, the Owner's Title Policy shall be
issued together with such endorsements thereto as Buyer may request; PROVIDED,
HOWEVER, that if any such endorsements are requested by Seller to cure an
exception to title to which Buyer has objected, then the cost of such
endorsement shall be paid by Seller. During the Inspection Period, it shall be
Buyer's responsibility to determine the availability of extended coverage,
lender's insurance and any endorsements, and thereafter, Buyer's ability to
obtain any of the same shall not be a condition hereof.
11.
6.3 PERSONAL PROPERTY AND CONTRACTS. At the Closing, Seller shall
transfer to Buyer title to the Personal Property and Seller's interest in the
Contracts by execution and delivery of the Xxxx of Sale and the Contract
Assignment. Buyer shall assume the performance of all of Seller's obligations
under the Contracts arising after the Closing Date, but only as to those
Contracts not disapproved in writing by Buyer on or before the end of the
Inspection Period.
ARTICLE VII
BUYER'S ADDITIONAL CONDITIONS PRECEDENT TO CLOSING
Buyer's obligation to purchase the Property shall be conditioned upon the
fulfillment of each of the following conditions precedent:
7.1 APPROVAL OF TITLE.
(a) Buyer shall have approved title and Survey matters within the
time period and in the manner provided below.
(b) Seller has caused to be delivered to Buyer commitment for title
insurance of First American Title Company of Nevada no. LV-815003 RD dated as of
August 5, 1997 ("PTR") and copies of all documents referred to in the PTR
affecting title to the Property. Seller shall use commercially reasonable
efforts to procure and cause to be delivered to Buyer by 4:00 p.m., Pacific
time, on or before August 19, 1997 ("SURVEY DELIVERY DATE") a current or updated
ALTA survey of the Real Property dated no earlier than three (3) months prior to
the Effective Date (the "SURVEY"). In the event the Survey is not delivered to
Buyer by the date and time set forth in the preceding sentence, the Title
Disapproval Date (defined below) shall be extended to two (2) Business Days
after delivery of the Survey to Buyer. By 4:00 p.m., Pacific time, on or before
the August 21, 1997, Buyer shall notify Seller and Escrow Holder in writing (the
"TITLE/SURVEY OBJECTION"), of any exceptions to title shown in the PTR, which
will not be accepted by Buyer and those matters disclosed by the Survey, if any,
which will not be accepted by Buyer (collectively, the "DISAPPROVED TITLE
MATTERS"), it being understood that all other matters and exceptions to title
shown in the PTR and conditions disclosed by the Survey shall be deemed approved
by Buyer. If Buyer fails to notify Seller and Escrow Holder within the required
time period of any Disapproved Title Matters, Buyer shall be deemed to have
approved the condition to the Real Property as to such title and Survey matters.
(c) Upon receipt of a Title/Survey Objection, Seller shall have the
right, but not the obligation, to attempt to cure the Disapproved Title Matters
(either by causing any such matter to be removed by the Closing or by obtaining,
at Seller's expense, an endorsement or other curative effect acceptable to Buyer
in Buyer's sole and absolute discretion), in which case, Seller may extend the
Closing Date for such period as shall be required to effect such cure, but not
beyond October 1, 1997. Seller shall, within three (3) Business Days after
receiving a Title/Survey Objection (the "CURE NOTICE DATE"), notify Buyer in
writing of those Disapproved Title Matters which Seller will attempt to cure at
or prior to Closing ("CURE NOTICE"), it being understood that Seller may use the
proceeds of the Purchase Price to do so. Seller's agreement to attempt to
correct any Disapproved
12.
Title Matters shall not be deemed an agreement by Seller to cure such matter(s),
nor shall Seller's failure to cure such matter(s) be deemed a default or breach
by Seller of this Agreement; PROVIDED, HOWEVER, that in the event Seller fails
to so cure the items set forth in the Cure Notice on or before the Closing Date,
Buyer shall be entitled to a refund of the Non-Refundable Deposit and the
provisions of Section 4.2(b) shall govern the remaining obligations of the
parties. Seller shall be deemed to have elected not to cure any items not
contained in the Cure Notice and, if no Cure Notice is timely provided by
Seller, any Disapproved Title Matters. Buyer shall have until 4:00 p.m.,
Pacific time, on the 3rd Business Day following receipt of a Cure Notice (or, if
no Cure Notice is given, within three (3) Business Days after Seller notifies
Buyer in writing that Seller will not cure any Disapproved Title Matters) to
notify Seller and Escrow Holder that (i) Buyer revokes its disapproval of such
exceptions(s) and will proceed with the purchase without any reduction in the
Purchase Price and take title to the Property subject to such exception(s), or
(ii) Buyer terminates this Agreement. Buyer's failure to timely provide such a
notice shall conclusively be deemed Buyer's election to terminate this
Agreement. Any termination under this Section 7.1 shall be subject to the
provisions of Section 4.2(b) above.
(d) The foregoing procedure shall also be applicable to any new
matters which are disclosed in any updates, supplements or amendments to the PTR
or Survey, except that Buyer shall have ten (10) days from its receipt thereof
to provide its Title/Survey Objection with respect thereto.
7.3 COMPLIANCE BY SELLER. Seller shall have complied in all material
respects with each and every covenant, undertaking and agreement to be kept or
performed by Seller as provided in this Agreement; and each representation and
warranty made in this Agreement by Seller shall remain true and accurate in all
material respects both at the time made and on the Closing Date.
7.4 NO MATERIAL ADVERSE CHANGE IN PHYSICAL CONDITION. As of the Closing
Date, there shall have been no material adverse change in the condition of the
Property or any material portion thereof, excepting any event(s) of destruction,
damage, or condemnation described in SECTION 13.1 or 13.2.
7.5 NO INSOLVENCY. Neither Seller nor any of its affiliates (i) shall be
in receivership or dissolution, (ii) shall have made an assignment for the
benefit of creditors or admitted in writing its inability to pay its debts as
they mature, or (iii) shall have been adjudicated a bankrupt or filed a petition
in voluntary bankruptcy or a petition or answer seeking reorganization or an
arrangement with creditors under the federal bankruptcy law or any other similar
law or statute of the United States or any jurisdiction and no such petition
shall have been filed against Seller.
7.6 TENANT ESTOPPELS. Buyer shall have received from Seller, no later
than seven (7) days prior to the expiration of the Inspection Period, a Tenant
Estoppel Certificate in the form attached hereto as EXHIBIT "I" hereto for (a)
each of the following tenants: (A) Linens 'n Things, (B) Xxxxxx & Xxxxx,
(C) Cost Plus, (D) Office Max, (E) Petco and (F) United Artists (herein "Major
Tenants"), and (b) at least fifty percent (50%) of the remaining Tenants whose
lease term extends beyond the Closing Date, and (c) estoppel certificates from
Seller in such form and content as reasonably required by Buyer ("Seller's
Estoppel Certificate") for all other Tenants, it being
13.
understood that Seller shall use commercially reasonable efforts to obtain
Tenant Estoppel Certificates for all such remaining Tenants. If Seller fails to
obtain Tenant Estoppel Certificates for all of the Major Tenants, then Buyer may
elect any of the following: (i) to waive the remaining Tenant Estoppel
Certificates, in which case Seller shall provide to Buyer, no later than
three (3) business days prior to the expiration of the Inspection Period,
Seller's Estoppel Certificates for the spaces occupied by the Major Tenants who
have not given Tenant Estoppel Certificates which are satisfactory to Buyer, or
(ii) extend the Closing Date, but not beyond October 1, 1997, or (iii) to
terminate this Agreement. In the event Buyer elected (ii) next hereinabove and
has not received Tenant Estoppel Certificates from all of the Major Tenants on
or before the extended Closing Date, then Buyer may elect either (i) or (iii)
next hereinabove. If Buyer fails to provide written notice to Seller of Buyer's
objection to any of the estoppel certificates required by this Section 7.6 on or
before the expiration of the Inspection Period, Buyer shall be deemed to have
approved such estoppel certificates.
7.7 WAIVER. At any time or times on or before the Closing, at Buyer's
election, Buyer may waive any of the foregoing conditions by written notice to
Seller. Other than Buyer's closing the transaction contemplated by this
Agreement which shall waive all such unfulfilled conditions, and except as
otherwise provided in this Agreement, no waiver shall be effective unless made
in writing specific as to the conditions or matters so waived. No such waiver
shall be inferred or implied by any act or conduct of Buyer.
7.8 TERMINATION. If any of the foregoing conditions are neither fulfilled
nor waived as provided above, Buyer, at its election by written notice to
Seller, may terminate this Agreement, which termination shall be subject to the
provisions of Section 4.2(b) above; PROVIDED, HOWEVER, that Buyer may not
terminate this Agreement under this Section 7.8 unless Seller fails to cause any
non-fulfilled condition(s) to be satisfied within three (3) days after written
notice thereof from Buyer. If any non-fulfilled conditions also constitute a
breach by Seller of its obligations under this Agreement, Buyer shall have the
right to proceed under Section 9.12(a) below.
ARTICLE VIII
SELLER'S CONDITIONS PRECEDENT TO CLOSING
Seller's obligation to sell the Property shall be conditioned upon the
fulfillment of each of the following conditions precedent:
8.1 COMPLIANCE BY BUYER. Buyer shall have complied in all material
respects with each and every covenant, undertaking and agreement to be kept or
performed by Buyer as provided in this Agreement; and each representation and
warranty made in this Agreement by Buyer shall remain true and accurate in all
material respects both at the time made and on the Closing Date.
8.2 ORGANIZATIONAL AND AUTHORIZATION DOCUMENTS. Buyer shall have
delivered to Escrow Holder and to Seller certified copies of Buyer's articles of
incorporation, bylaws, and all amendments or modifications thereto, corporate
resolutions and incumbency certificates and a
14.
certificate of good standing issued within twenty (20) calendar days prior to
the Closing Date and certified as being correct by the appropriate official of
Buyer's jurisdiction of incorporation.
8.3 WAIVER. At any time or times on or before the Closing, at Seller's
election, Seller may waive any of the foregoing conditions by written notice to
Buyer. Other than Seller's closing the transaction contemplated by this
Agreement which shall waive all such unfulfilled conditions, and except as
otherwise provided in this Agreement, no waiver shall be effective unless made
in writing specific as to the conditions or matters so waived. No such waiver
shall be inferred or implied by any act or conduct of Seller.
8.4 TERMINATION. If any of the foregoing conditions are neither fulfilled
nor waived by Seller as provided above, Seller shall have the option to
terminate this Agreement by delivering to Buyer and Escrow Holder written notice
of such termination, which termination shall be subject to the provisions of
Section 4.2(b) above; PROVIDED, HOWEVER, that Seller may not terminate this
Agreement under this Section 8.3 unless Buyer fails to cause any non-fulfilled
condition(s) to be satisfied within three (3) days after written notice thereof
from Seller. If any non-fulfilled condition(s) also constitute a breach by
Buyer of its obligations under this Agreement, Seller shall have the right to
proceed under Section 9.12(b) below.
ARTICLE IX
ESCROW AND CLOSING
9.1 DEPOSIT WITH ESCROW HOLDER AND ESCROW INSTRUCTIONS. Escrow herein
(the "ESCROW") shall be established with Escrow Holder, at the address listed in
Article II(r) above. Upon execution of this Agreement, the parties shall
deposit an executed copy of this Agreement with Escrow Holder. This Agreement
shall serve as the instructions to Escrow Holder to consummate the purchase and
sale contemplated hereby. Seller and Buyer agree to execute such additional and
supplementary escrow instructions as may be appropriate to enable Escrow Holder
to comply with the terms of this Agreement. If there is any conflict between
the provisions of this Agreement and any additional or supplementary escrow
instructions, however, the terms of this Agreement shall control.
9.2 CLOSING.
Except as may be provided otherwise herein, the Closing shall occur by
4:00 p.m., Pacific time, on or September 8, 1997, unless the parties hereto
agree in writing to an earlier or later date and/or time.
9.3 DELIVERIES BY SELLER. At least one (1) Business Day prior to the
Closing Date, Seller shall deliver or cause to be delivered to Escrow Holder the
following:
(a) the Deed, duly executed and acknowledged by Seller and in
recordable form; and
15.
(b) Seller's Non-Foreign Affidavit, in the form of EXHIBIT F attached
hereto, duly executed and acknowledged by Seller; and
(c) any other cash, documents, or instruments called for hereunder to
be paid, executed, or delivered by Seller that have not previously been
delivered by Seller to Escrow Holder; and
(d) such articles of incorporation, agreements or certificates of
partnership, resolutions, authorizations, bylaws, certifications or other
corporate, partnership or trust documents or agreements or other reasonable
proof of authority relating to Seller as Buyer or Escrow Holder shall reasonably
require in connection with this transaction.
9.4 DELIVERIES BY BUYER. At least one (1) Business Day prior to the
Closing Date, Buyer shall deliver or cause to be delivered to Escrow Holder the
following:
(a) such articles of incorporation, agreements or certificates of
partnership, resolutions, authorizations, bylaws, certifications or other
corporate, partnership or trust documents or agreements or other reasonable
proof of authority relating to Buyer as Seller or Escrow Holder shall reasonably
require in connection with this transaction; and
(b) cash or other immediately available funds sufficient to pay the
Balance, Buyer's portion of the closing costs, and any other amounts payable by
Buyer in order to permit Escrow Holder to close the Escrow; and
(c) any other cash, documents or instruments called for hereunder to
be paid, executed or delivered by Buyer or that are required for the Closing
hereunder that have not been previously delivered by Buyer to Escrow Holder.
9.5 ADDITIONAL DELIVERIES BY BUYER AND SELLER. At least one (1) Business
Day prior to the Closing Date, Seller also shall deliver or cause to be
delivered to Escrow Holder, and Buyer also shall deliver or cause to be
delivered to Escrow Holder, the following documents:
(a) two (2) originals of the Xxxx of Sale, duly executed and
acknowledged by Seller and Buyer;
(b) two (2) originals of the Contract Assignment, duly executed and
acknowledged by Seller and Buyer;
(c) the Lease Assignment, duly executed and acknowledged by Seller
and Buyer and in recordable form;
(d) notices to the Tenants (the "TENANT NOTICES") substantially in
the form of EXHIBIT G, duly executed by Seller;
16.
(e) a Declaration of Value to be completed and executed by Escrow
Holder and filed with the office of the County Recorder of Xxxxx County, Nevada;
and
(f) a pre-closing statement prepared by Escrow Holder and approved by
Buyer and approved by Seller.
9.6 OTHER INSTRUMENTS. Seller and Buyer each shall deposit any other
documents or instruments that may be reasonably required by the other party
and/or Escrow Holder, or that are otherwise required to close the Escrow and
consummate the purchase and sale of the Property in accordance with the terms
hereof.
9.7 PRORATIONS AND APPORTIONMENTS.
(a) All revenues from the Property and all expenses of the Property
shall be prorated and apportioned as of 11:59 p.m., Nevada time, on the day
before the Closing Date (the "PRORATIONS"). Taxes and assessments shall be
prorated as of the Closing Date, based on a 365-day year. Seller shall be
charged and credited for such Prorations up to the Closing Date and Buyer shall
be charged and credited (or, at Seller's option, paid by check for unused
security or other deposits) for all of the same on and after the Closing Date.
Prior to the Closing, Buyer and Seller shall review and approve the Prorations.
If the actual amounts to be prorated are not then known, or if any additional
expenses are incurred or income received after the date the Prorations are made,
the Prorations shall be made on the basis of the best evidence then available.
When actual figures are later received, a cash settlement will be made between
Seller and Buyer which shall be no later than March 1, 1998. All utility bills
shall be so prorated when the last xxxx incurred by Seller is received. No
Prorations shall be made for rents, license payments, receivables or accounts
("REVENUES") delinquent as of the Closing Date, and no credit shall be given to
Seller for any Revenues delinquent as of the Closing Date. As used in the
immediately preceding sentence, the term "delinquent" shall mean, with respect
to any Revenue, that the Revenue in question accrued at any time prior to the
then-current calendar month. Nevertheless, if Buyer collects any Revenues that
were delinquent on or before the Closing, such Revenues shall be attributed
first to the current Revenues and then to the portion that was delinquent on or
before the Closing and Buyer shall promptly remit to Seller the portion of such
Revenues collected, if any, attributable to the period of time prior to the
Closing Date. Buyer shall use commercially reasonable efforts to collect any
such delinquent Revenues, with the reasonable costs of such efforts to be
deducted from the amounts due Seller. As used in the next preceding sentence
"commercially reasonable efforts" shall require only that Buyer give written
notice to the applicable Tenant, setting forth in reasonable detail the nature
and extent of the deficiency and requiring its cure in accordance with the
applicable terms and provisions of that Tenant's Lease.
(b) Tenants may be obligated to pay Additional Rents. With respect
to any Additional Rents that are based on estimates and that are subject to
adjustment and/or reconciliation after the Closing Date, Seller and Buyer shall
re-prorate such Additional Rents (including any portions thereof that may be
required to be refunded to Tenants) at the time that such estimates are actually
adjusted and/or reconciled. Any amounts that may be due Seller or Buyer as a
result of such
17.
re-prorations shall be paid by the applicable party upon such re-proration, and
the parties shall cooperate in connection therewith.
(c) Seller shall be responsible for the payment of any leasing
commissions earned prior to the Effective Date, and Buyer shall be responsible
for the payment of any leasing commissions earned from and after the Effective
Date, regardless of when any such leasing commissions become due, provided that
such commissions have been disclosed to and approved by Buyer prior to
expiration of the Inspection Period. Each party to this Agreement shall
indemnify the other party against and hold the other party harmless (using
counsel reasonably satisfactory to such other party) from and against any and
all damages, liabilities, costs, expenses and losses (including, but not limited
to attorneys' fees and costs) arising out of any action for the collection of
leasing commissions that are such party's responsibility pursuant to this
subsection.
(d) The provisions of this Section shall survive the Closing.
9.8 COSTS AND EXPENSES. Seller shall pay for (i) the Survey, (ii) the
premium for the Owner's Title Policy in the amount of the Purchase Price, (iii)
the cost of any city and/or county transfer taxes applicable to the transfer of
the Property to Buyer (presently computed at $2.50 per each $1,000.00 of
Purchase Price), (iv) all recording charges for the Deed and the Lease
Assignment and (v) the cost, if any, to record any instruments correcting title.
If Buyer elects to obtain extended coverage, a lender's policy, or any
endorsements, Buyer shall be responsible for all additional premiums and
requirements related thereto (excluding endorsements obtained to cure title
objections as provided for in Section 6.2, which shall be Seller's
responsibility). Buyer shall also pay any special sales, gross receipts or
transaction taxes imposed on Buyer in connection with the purchase and sale of
the Property. Costs and charges of the Escrow shall be borne equally by Seller
and Buyer. All other taxes, costs, and charges for the sale of the Property
shall be paid by Seller and/or Buyer, as the case may be, in accordance with the
usual customs and practices in Xxxxx County, Nevada.
9.9 INSURANCE; UTILITIES. Buyer acknowledges that Seller will cause its
policies of casualty and liability insurance to be terminated with respect to
the Property as of the Closing Date. Buyer shall be responsible for obtaining
its own insurance as of the Closing Date and thereafter. Any utility deposits
made by Seller shall be refunded to Seller. Buyer shall arrange for any
required replacements therefor, and shall be responsible for obtaining its own
utilities as of the Closing Date and thereafter.
9.10 CLOSE OF ESCROW. Provided that (i) Escrow Holder has received the
documents and funds described in SECTIONS 9.3, 9.4, and 9.5 hereof; (ii) Escrow
Holder has not received prior written notice from either party to the effect
that an agreement of either party made hereunder has not been performed or to
the effect that any condition set forth herein has not been satisfied or waived;
(iii) Buyer has not elected to terminate its rights and obligations hereunder
pursuant to ARTICLE VII; and (iv) the Title Company has issued or is
unconditionally prepared and committed to issue the Owner's Title Policy to
Buyer, Escrow Holder is authorized and instructed on the Closing Date to:
18.
(a) cause the Deed and the Lease Assignment to be recorded, in that
order, in the Official Records of Xxxxx County, State of Nevada;
(b) deliver the cash portion of the Purchase Price to Seller, less
Seller's share of closing costs and Prorations (except to the extent paid to
Buyer by check in accordance with SECTION 9.7 hereof), in the manner specified
by Seller in separate instructions to Escrow Holder;
(c) deliver to Buyer an original of each of the Xxxx of Sale and the
Contract Assignment, and (1) as-recorded conformed copy of each of the Deed and
the Lease Assignment, and deliver to Seller an original of each of the Xxxx and
Sale and the Contract Assignment, and (1) as-recorded conformed copy of each of
the Deed and the Lease Assignment;
(d) deliver Seller's Non-Foreign Affidavit to Buyer; and
(e) deliver all of the executed Tenant Notices to the Tenants.
9.11 NOTIFICATION; CLOSING STATEMENTS. If Escrow Holder cannot comply with
the instructions herein (or as may be provided later), Escrow Holder is not
authorized to cause the recording of any of the Documents. If Escrow Holder is
unable to cause the recording, Escrow Holder shall notify the parties without
delay. Immediately after the Closing, Escrow Holder shall deliver to Buyer and
Seller, respectively, at their addresses listed in SECTION 15.1 hereof, a true,
correct and complete copy of the Seller's and Buyer's Closing Statements, in
forms customarily prepared by Escrow Holder, as well as all other instruments
and documents to be delivered to Buyer and Seller.
9.12 DEFAULT AND REMEDIES.
(a) If prior to or at the Closing, Seller shall have failed to
perform in any material respects any of the covenants and/or agreements
contained herein which are to be performed by Seller, or if any warranty or
representation made by Seller herein is not true and correct in all material
respects, Buyer may, after providing Seller with written notice thereof and the
same remaining uncured for at least five (5) days thereafter, seek specific
performance of this Agreement or, if the remedy of specific performance is not
available, may bring suit for damages against Seller[; PROVIDED, HOWEVER, THAT
IN NO EVENT SHALL BUYER BE ENTITLED TO RECOVER IN EXCESS OF $500,000.00 IN ANY
SUCH SUIT. OPEN ISSUE.] Any such suit for specific performance or damages must
be filed within one (1) year following Seller's breach or shall be deemed waived
for all purposes. Any breach or default by Seller after the Closing shall be
subject to the same notice and cure provisions and shall be governed by the
provisions of Section 10.3 below.
(b) If prior to or at the Closing, Buyer shall have failed to perform
in any material respect any of the covenants and/or agreements contained herein
which are to be performed by Buyer or if any warranty or representation made by
Buyer herein is not true and correct in all material respects, then Seller shall
be entitled, after providing Seller with written notice thereof and the same
remaining uncured for at least five (5) days thereafter, to exercise the
remedies set forth in Section 4.5, which shall be Seller's sole and exclusive
remedies in such event.
19.
ARTICLE X
REPRESENTATIONS AND WARRANTIES
10.1 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and warrants
to Seller as follows:
(a) Buyer is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware, with full right, power,
and authority to take title to the Property, and to enter into and otherwise
perform and comply with the terms of this Agreement;
(b) this Agreement and all documents executed by Buyer that are to be
delivered to Seller at the Closing are, or at the time of Closing will be, duly
authorized, executed and delivered by Buyer;
(c) this Agreement and all documents executed by Buyer that are to be
delivered to Seller at the Closing are, or at the Closing will be, legal, valid
and binding obligations of Buyer, and do not, and at the time of Closing will
not, violate any provisions of any agreement or judicial order to which Buyer is
a party or to which Buyer is subject;
(d) Buyer has not relied on any appraisal that may have been made by
or for Seller as evidence or as an indication of the value of the Property or as
a basis for determining the value of the Property;
(e) Buyer has not relied on any projection of anticipated revenues
for the property that may have been made by or for Seller either as evidence or
an indication of the value of the Property or as a basis for determining the
value of the Property;
(f) except as set forth in SECTION 10.2, no representations of any
kind (whether oral or written, express or implied) have been made by Seller or
its members or its and their members, partners, shareholders, directors,
officers, employees or agents to Buyer, and except as provided otherwise in
Section 10.2, Buyer is investing in the Property solely in reliance on Buyer's
own investigations and evaluation thereof; and
(g) Buyer shall use diligent efforts to hold as confidential all
information and materials concerning Seller, the Property and the transaction
contemplated hereby; Buyer shall not, prior to Closing, release any such
information or materials to third parties without Buyer's prior written consent,
except (i) to the extent required by law, rule or regulation applicable to Buyer
(ii) as reasonably necessary to comply with the terms of this Agreement, [OR
(iii) AS TO SUCH INFORMATION AS IS DISCLOSED TO BUYER FROM A THIRD PARTY SOURCE
WITHOUT BUYER'S ACTUAL KNOWLEDGE THAT SUCH INFORMING PARTY IS UNDER ANY DUTY TO
SELLER NOT TO DISCLOSE SAME].
10.2 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Buyer as follows:
20.
(a) Seller is a limited liability company, duly organized, validly
existing, and in good standing under the laws of the State of Arizona, with full
right, power, and authority to convey to Buyer all of Seller's right, title and
interest in and to the Property, and to enter into and otherwise perform and
comply with the terms of this Agreement;
(b) this Agreement and all documents executed by Seller that are to
be delivered to Buyer at the Closing are, or at the time of Closing will be,
duly authorized, executed and delivered by Seller; and
(c) this Agreement and all documents executed by Seller that are to
be delivered to Buyer at Closing are, or at the time of Closing will be, legal,
valid and binding obligations of Seller, and do not, and at the time of Closing
will not, violate any provisions of any agreement or judicial order to which
Seller is a party or to which Seller or the Property is subject.
(d) Other than the Property, there are no material items, tangible or
intangible, real or personal, owned by Seller or any affiliate of Seller which
(i) are now being, or have heretofore been, used exclusively in conjunction with
the Property or any portion thereof, and (ii) are reasonably necessary for the
present use thereof, other than items that have been replaced by Seller by an
article of equal suitability and value.
(e) To Seller's knowledge, all of the Property, and the existing uses
of the Property, are in compliance with all applicable laws, ordinances, rules,
regulations, and requirements of all governmental authorities having
jurisdiction thereof, including, without limitation, those pertaining to zoning,
land use, subdivision, building, safety, fire and health.
(f) Seller has not been served with a summons or other applicable
written service of notice advising Seller of any action, suit, proceeding or
investigation pending, nor to Seller's knowledge, is there any action, suit,
proceeding or investigation pending or threatened, before any agency, court, or
other governmental authority which relates to Seller or the ownership,
maintenance, or operation of the Property.
(g) Seller has not been served with written notice of, nor to
Seller's knowledge is there, any condemnation or eminent domain proceeding
affecting the Property or any portion thereof currently pending or threatened.
(h) Seller has received no written notice of any, and to Seller's
knowledge there is no, failure of the Seller to comply with any applicable
governmental requirements in respect of the use, occupation and construction of
the Property, including but not limited to environmental, zoning, platting and
other land use requirements which have not been heretofore corrected to the
satisfaction of the appropriate governmental authority, and Seller has received
no written notice of any, and to Seller's knowledge there are no, violations or
investigations relating to any such governmental requirement.
(i) Seller has received no written notice of any default or breach by
the Seller under any covenants, conditions, restrictions, rights-of-way, or
easements which may affect the
21.
Seller in respect to the Property or may affect the Property or any portion
thereof and, to Seller's knowledge, no such default or breach now exists.
(j) To Seller's knowledge, no general or special assessments have
been levied, nor are any such assessments threatened, against all or any part of
the Property other than as will be disclosed in the PTR, if any.
(k) Subject to the information contained in the estoppel certificates
to be provided under Section 7.6, [AND EXCEPT AS SET FORTH ON EXHIBIT _____,] to
Seller's knowledge (i) there has been no default or any claim of default, and no
event has occurred which with notice or lapse of time or both would constitute a
default, under any Lease, and (ii) no Tenant has asserted or has any defense,
set off, or claim with regard to his tenancy pursuant to the lease, any law or
otherwise.
(l) To Seller's knowledge, all water, sewer, gas, electric, telephone
and drainage facilities and all other utilities required by law or by the normal
use and operation of the Property are and at the time of Closing will be
installed to the property lines of the Real Property, are and at the time of
Closing will be connected and operating pursuant to valid permits, and are and
at the time of Closing will be adequate to service the Property and to permit
full compliance with all requirements of law and normal usage of the Property by
Seller and its licensees and invitees. To Seller's knowledge, all public
utilities required for the operation of the Property either enter the Property
through adjoining public streets, or if they pass through adjoining private land
do so in accordance with valid public easements or private easements which will
inure to the benefit of Buyer at Closing and thereafter.
(m) To Seller's knowledge, the heating, ventilation, air
conditioning, mechanical, electrical and other systems and equipment forming a
part of or used in connection with the Property are operative and in good
working condition and in compliance with all applicable laws, ordinances,
regulations and requirements.
(n) Seller is not a foreign person as defined in Section 1445(f)(3)
of the Internal Revenue Code of 1986, as amended.
(o) To Seller's knowledge, no asbestos, PCBs or urea formaldehyde
were used in the construction of the improvements on the Property.
(p) To Seller's knowledge, the Property complies with all applicable
requirements of the Equal Opportunity for Individuals Act (ADA), 42 U.S.C. 12101
and the regulations promulgated and set forth at 28 CFR 36.401 ET SEQ.
(q) To Seller's knowledge, the survey, mechanical and structural
plans and specifications, soils reports, certificates of occupancy, warranties,
operating statements, income and expense reports and all other books and records
relating to or affecting the Property, and all other contracts or documents
delivered to Buyer pursuant to this Agreement or in connection with the
execution hereof are and at the time of Closing will be (i) true and correct
copies, (ii) in full force and effect, and (iii) contain no material
inaccuracies, omissions or misstatements of fact, and all such
22.
documents relating to or affecting the Property have been or will be delivered
to Buyer pursuant to this Agreement.
(r) The copies of the Leases delivered to Buyer are true and correct
copies of all such Leases and, to Seller's knowledge, are in full force and
effect; and Seller is not a party to, nor does Seller have knowledge of, any
other agreements, written or oral, with respect to the tenancies. There are no
unpaid amounts due and owing by Seller under any such Lease, except for amounts
for which Buyer is to receive full credit through proration at Closing. No
Tenant under any of the Leases has prepaid Seller any rent or other charges for
more than the current month. No Tenant under any of the Leases has any right or
option to purchase the Property or any portion thereof or interest therein from
Seller, and Seller is not a party to, nor does Seller have knowledge of, any
outstanding agreements of sale with respect to the Property or any portion
thereof or any interest therein. Except as provided in the Leases, no Tenant
has the right to (i) renew or extend any of the Leases or has any options or
rights of first refusal with respect to leasing of other space, or (ii) free
rent, rebate, allowance, concession, security or other deposit.
(s) The copies of the Contracts and all Information previously
delivered to Buyer are true and correct copies of all such Contracts and
Information and, to Seller's knowledge, are in full force and effect. There are
no unpaid amounts due and owing by Seller under any such Contract, except for
amounts for which Buyer is to receive full credit through proration at Closing.
There are no other service or maintenance contracts relating to the Property to
which Seller is a party or of which Seller has knowledge.
(t) Except as disclosed in writing to Buyer, there are no
commissions, finder's fees or other compensation owing or which may become owing
to any broker or any other person or entity by Seller, or to Seller's knowledge
by any other party, with respect to any Lease or occupancy agreement including,
without limitation, any such compensation with respect to any future renewals,
extensions or expansions thereof.
(u) Seller is not party to, or otherwise bound by, any collective
bargaining agreement or multi-employer pension fund covering employees who
service the Property.
(v) To Seller's knowledge, there is no current labor dispute with any
maintenance or other personnel or employees of Seller or any contracts with
respect to the Property which could materially and adversely affect the use,
operation or value of the Property.
(w) To Seller's knowledge, Seller has obtained all licenses, permits,
approvals, easements and rights of way required from all governmental
authorities having jurisdiction over the Property or from private parties for
the normal use and operation of the Property and to ensure free and unimpeded
vehicular and pedestrian ingress to and egress from the Property as required to
permit the normal intended usage of the Property by the tenants thereof, their
invitees and customers. Seller has materially complied with all such licenses
and permits and has not received any notice that any such licenses or permits
will not be renewed upon expiration, or of any material conditions which will be
imposed in order to receive any such renewal.
23.
(x) Except as disclosed to Buyer, to Seller's knowledge there are no
facts which would prevent Buyer from using and operating the Property after
Closing in all material respects in the manner in which the Property has been
used, leased and operated prior to the date hereof.
(y) Seller has not committed nor obligated itself in any manner
whatsoever to sell the Property to any party other than Buyer. Seller has not
hypothecated or assigned any rents or income from the Property in any manner,
other than pursuant to any existing mortgage financing secured by the Property
as of the Effective Date.
(z) Seller shall use diligent efforts to hold as confidential all
information concerning Buyer or the transaction contemplated hereby disclosed to
Seller in connection with said transaction; and Seller shall not, prior to
Closing, release any such information to third parties without Buyer's prior
written consent, except (i) to the extent required by law, rule or regulation
applicable to Seller, (ii) as reasonably necessary to comply with the terms of
this Agreement or [(iii) AS TO SUCH INFORMATION AS IS DISCLOSED TO BUYER FROM A
THIRD PARTY SOURCE WITHOUT SELLER'S ACTUAL KNOWLEDGE THAT SUCH INFORMING PARTY
IS UNDER ANY DUTY TO BUYER NOT TO DISCLOSE SAME].
For purposes of this Agreement, the term "to Seller's knowledge" and words
of similar import shall mean the actual knowledge of Xxx Xxxxxxxxx, Xxxx X.
Xxxxxx, Xxxx Xxxxxxxx and/or Xxxx Xxxxxx without investigation (or requirement
of investigation), and without regard to any doctrine of imputed or constructive
knowledge.
Except as otherwise expressly set forth in this Agreement: (A) Seller makes
no guarantees, warranties or representations, express or implied, with respect
to (i) the Property, (ii) the condition of title, (iii) suitability for any
intended purpose, or habitability, (iv) size, location, physical condition,
encroachments, access, availability of utilities, zoning, value, future value,
income potential, productivity, rights to, adequacy of or quality of the water
supply or water rights, or (v) any other matter, and (B) by consummating this
transaction, Buyer agrees to accept the Property in its present condition, "AS
IS," with all faults and without any representation or warranty whatsoever as to
its condition or fitness for any particular purpose. No person acting on behalf
of Seller is authorized to make, and by execution hereof, Buyer acknowledges and
agrees that no such person has made, any representation, warranty, guarantee or
promise, whether oral or written, except as set forth herein, and no such
agreement, statement, representation or promise made by any such person which is
not contained in this Agreement shall be valid or binding against Seller.
No examination or investigation of the Property by or on behalf of Buyer
prior to the Closing shall in any way modify, affect, or diminish Seller's
obligation under the representations, warranties, covenants, and agreements
contained in this Agreement, except to the extent Buyer has actual knowledge of
any matter. For purposes of this Agreement, the term "Buyer has actual
knowledge" shall mean the actual knowledge of Xxxxxx Xxxx, Xxxx Xxxxxxxx and/or
Xxxxx Xxxxxx without investigation (or requirement of investigation), and
without regard to any doctrine of imputed or constructive knowledge.
10.3 CONTINUATION AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties by the respective parties contained in this
Article 10 are intended to
24.
and shall remain true and correct as of the time of the Closing, shall be deemed
to be material, and shall survive the execution and delivery of this Agreement,
the delivery of the Deed and transfer of title to the Property for a period of
one (1) year following the Closing Date. Subject to the remaining provisions of
this Agreement, Seller or Buyer, as applicable, shall indemnify the other and
its successors and assigns against and shall defend and hold the other and its
successors and assigns, harmless from any and all costs, expenses and actual
damages, including reasonable attorneys' fees, which the other party and its
successors or assigns may incur because of any breach of any of the indemnifying
party's representations or warranties herein contained, but only to the extent
of such costs, expenses and damages in excess of Twenty-Five Thousand Dollars
($25,000.00) in the aggregate for all breaches. Any suit to enforce such
representations or warranties must be filed within one (1) year following
Closing or shall be deemed waived for all purposes.
ARTICLE XI
POSSESSION
Possession of the Property shall be delivered to Buyer immediately
following the Closing.
ARTICLE XII
OPERATION OF THE PROPERTY
During the Escrow Period, Seller shall not accept any payment of rent
(except as a security deposit) or other charges from any tenant of the Property
applicable to a period exceeding one (1) month in advance, nor apply any
security deposit to rent due from any tenant of the Property without in each
case obtaining Buyer's prior written consent thereto (which consent shall not be
unreasonably withheld or delayed). In addition to the foregoing, Seller shall
use commercially reasonable efforts to: (i) cause the Property to be operated,
maintained, managed and serviced in a professional manner and in accordance with
past practices, maintaining present services; (ii) keep the Property and every
portion thereof in reasonably good working order and repair; (iii) maintain a
sufficient inventory of supplies, materials, equipment and other personal
property for the proper management, maintenance, operation and servicing of the
Property. Except in the case of an emergency (as reasonably determined by
Seller) or as required by law or any lender of Seller with a mortgage/deed of
trust lien against the Property, Seller shall not, except with Buyer's prior
written consent (which consent shall not be unreasonably withheld or delayed),
approve, consent to, or otherwise permit any material change in the operations
of the Property during the Escrow Period, including, without limitation:
(a) any material alterations to the Improvements except (i) as may be
necessary in order to perform ordinary, scheduled maintenance, or (ii) as
required by any Lease;
(b) cancellation of or material reduction in the amount or scope of
coverage under any insurance currently maintained with respect to the Property;
(c) cancellation or surrender of any existing Permit; and
25.
(d) any other material variation from Seller's ordinary course of
business in connection with the Property.
ARTICLE XIII
LOSS BY FIRE OR OTHER CASUALTY; CONDEMNATION
13.1 DAMAGE OR DESTRUCTION.
(a) Before the Closing, risk of loss with regard to the Property
shall be borne by Seller. If, before the Closing, the Improvements or the
Personal Property are destroyed or materially damaged, Buyer's rights and
obligations with respect to the Property shall be as follows:
(i) if the destruction or damage involves a diminution in value
equal to or less than $250,000.00 (the "DIMINUTION THRESHOLD"), Buyer shall be
obligated to proceed to close the transaction (subject to satisfaction of the
other provisions hereof) and, if, but only if, Escrow actually closes and the
destruction or damage has not been repaired, Buyer shall receive a credit
against the Purchase Price equal to the lesser of (A) the cost to repair the
damage or destruction and (B) the amount of the deductible under Seller's
casualty insurance policy; or
(ii) if the destruction or damage involves a diminution in value
of more than the Diminution Threshold, Buyer shall, within fifteen (15) calendar
days after Buyer's receipt of written notice from Seller advising of such
destruction or damage, provide written notice to Seller electing either (A) to
terminate this Agreement (in which event the Non-Refundable Deposit shall be
returned to Buyer and the remaining provisions of Section 4.2(b) shall apply),
or (B) to proceed with the Closing and, if Buyer elects to proceed with Closing
and the destruction or damage has not been repaired, Buyer shall receive a
credit against the Purchase Price equal to the lesser of (x) the cost to repair
the damage or destruction and (y) the amount of the deductible under Seller's
casualty insurance policy. Buyer's failure to timely provide notice of its
election shall be deemed to be an election to proceed with the Closing.
(b) If Buyer and Seller cannot agree as to the diminution in value,
then such diminution in value shall be determined by subtracting from the
Purchase Price the fair market value of the Property after the damage, as
determined by Xxxxxxxx & Associates or, if Xxxxxxxx & Associates is unable to
undertake such appraisal, Xxxx Xxxxxxx, M.A.I. of KB Appraisers. The expense of
the appraiser shall be borne equally by Buyer and Seller.
(c) If Buyer is obligated or elects to proceed to close the
transaction under either subsection (a)(i) or (a)(ii) above, all casualty
insurance proceeds from Seller's casualty insurance policy shall be assigned by
Seller to Buyer at the Closing and forwarded to Buyer immediately upon receipt
thereof by Seller.
13.2 CONDEMNATION.
26.
(a) If, before the Closing, all of the Property shall be taken by
condemnation or eminent domain, this Agreement shall become null and void and of
no further force or effect and shall be deemed terminated subject to the
provisions of Section 4.2(b) above, except that the Non-Refundable Deposit shall
be returned to Buyer.
(b) If, before the Closing, (i) less than all of the Property shall
be taken by condemnation or eminent domain, (ii) there is any taking of land
lying in the bed of any street, road, highway or avenue, open or proposed, in
front of or adjoining all or any part of the Land, or (iii) there is any change
of grade of such street, road, highway or avenue, provided such taking or
change of grade involves a diminution in value of more than the Diminution
Threshold, then Buyer shall, within fifteen (15) calendar days after Buyer's
receipt of written notice from Seller advising of such condemnation, provide
written notice to Seller electing either (A) to terminate this Agreement (which
termination shall be subject to the provisions of Section 4.2(b) above except
that the Non-Refundable Deposit shall be returned to Buyer), or (B) to proceed
with the Closing. Buyer's failure to timely provide notice of its election
shall be deemed to be an election to proceed with the Closing.
(c) If Buyer and Seller cannot agree as to the diminution in value,
then such diminution in value shall be determined by subtracting from the
Purchase Price the fair market value of the Property after the taking, as
determined by Xxxxxxxx & Associates or, if Xxxxxxxx & Associates is unable to
undertake such appraisal, Xxxx Xxxxxxx, M.A.I. of KB Appraisers. The expense of
the appraiser shall be borne equally by Buyer and Seller.
(d) If this Agreement is not terminated in accordance with the
foregoing, or if such taking involves a diminution in value equal to or less
than the Diminution Threshold, Buyer shall accept title to the Property subject
to such taking. In such event, Seller shall pay to Buyer any awards collected
in connection with such taking and shall assign to Buyer all of Seller's rights
to collect any awards which thereafter may be payable as a result of, or to
recover against others for, such taking; provided, however, that to the extent
such awards proceeds are required to be paid or assigned to any lender of Seller
with a mortgage/deed of trust lien against the Property, Buyer shall receive a
credit against the Purchase Price equal to such paid and/or assigned amounts.
ARTICLE XIV
ENVIRONMENTAL RESPONSIBILITIES AND LIABILITIES
14.1 As used herein, the term "HAZARDOUS MATERIAL" means any hazardous or
toxic substance, material or waste which is regulated by any local government
authority, the State of Nevada or the United States Government.
14.2 Seller represents and warrants to Buyer that, during any period of
time that Seller held title to or otherwise controlled the Property, no
Hazardous Material has been brought upon, kept, or used in or about the Property
by Seller nor, to Seller's knowledge, by any tenant of the Property or any of
their respective agents, employees, contractors or invitees, except for
Hazardous Materials which are or were necessary or convenient to the operation
of the businesses being operated on the Property and which at all times have
been used, kept and stored in a manner that complies with all
27.
laws regulating any such Hazardous Material so brought upon or used or kept in
or about the Property. Seller shall indemnify, protect, defend and hold Buyer,
and its assigns and transferees, and each of their respective representatives,
employees, trustees, officers, directors and agents (collectively, the
"INDEMNIFIED PARTIES") harmless from any and all claims, judgments, damages,
penalties, fines, costs, expenses, liabilities or losses (including, without
limitation, sums paid in settlement of claims, attorneys' fees, consultant fees
and expert fees) which Buyer or any other Indemnified Party may incur or suffer
as a result of the inaccuracy of the foregoing representation and warranty, but
only to the extent of such claims, judgments, damages, penalties, fines, costs,
expenses, liabilities or losses in excess of Twenty-Five Thousand Dollars
($25,000.00) in the aggregate for all inaccuracies. The foregoing obligation of
Seller to indemnify, protect, defend and hold Buyer and the other Indemnified
Parties harmless includes, without limitation, costs incurred in connection with
any investigation of site conditions or any cleanup, remedial, removal,
restoration or other response work required by any federal, state, or local
governmental agency or political subdivision which Buyer or any other
Indemnified Party may incur or suffer as a result of the inaccuracy of the
foregoing representation and warranty.
14.3 The foregoing representations, warranties and indemnities shall
survive the execution and delivery of this Agreement, the delivery of the Deed
and transfer of title to the Property for a period of one (1) year following the
Closing Date. Any suit to enforce such representations, warranties or
indemnities must be filed within one (1) year following Closing or shall be
deemed waived for all purposes.
ARTICLE XV
MISCELLANEOUS
15.1 NOTICES. Any communication, notice or demand of any kind whatsoever
that either party may be required or may desire to give to or serve upon the
other shall be in writing, addressed to the parties at the addresses set forth
below, and delivered by personal service, by Federal Express or other reputable
overnight delivery service, or by facsimile transmission:
If to Seller: ______________________________
______________________________
______________________________
Telephone No.: (___)___-____
Facsimile No.: (___)___-____
With a copy to: ______________________________
______________________________
______________________________
Telephone No.: (___)___-____
Facsimile No.: (___)___-____
28.
If to Buyer: Pan Pacific Retail Properties, Inc.
0000-X Xxxxx Xxxxxxx Xxxxx
Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx,
President and Chief
Executive Officer
Telephone No.: (000)000-0000
Facsimile No.: (000)000-0000
With a copy to: Hale, Lane, Peek, Xxxxxxxx, Xxxxxx,
Xxxxxxxx and Pearl
000 Xxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx., Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Any such notice shall be deemed delivered as follows: (a) if
personally delivered, the date of delivery to the address of the person to
receive such notice; (b) if sent by Federal Express or other reputable overnight
courier service, the date of delivery to the address of the person to receive
such notice; or (c) if sent by facsimile transmission, on the Business Day
transmitted to the person to receive such notice if sent by 5:00 p.m., Nevada
time, on such Business Day, and the next Business Day if sent after 5:00 p.m.,
Nevada time, or on a day other than a Business Day. Any notice sent by
facsimile transmission must be confirmed by personally delivering or by sending
by Federal Express or other reputable overnight delivery service a copy of the
notice sent by facsimile transmission. Any party may change its address for
notice by written notice given to the other at least five (5) calendar days
before the effective date of such change in the manner provided in this SECTION
15.1.
15.2 BROKERS AND FINDERS. Buyer and Seller each represents to the other
that it has not dealt with any broker or agent in connection with the proposed
purchase and sale of the Property. In the event of a claim for broker's fees,
finder's fees, commissions or other similar compensation in connection herewith:
(i) Buyer, if such claim is based upon any agreement alleged to have been made
by Buyer, shall indemnify, defend (using counsel reasonably satisfactory to
Seller) and hold Seller harmless from and against any and all damages,
liabilities, costs, expenses and losses (including, without limitation,
attorneys' fees and costs) that Seller sustains or incurs by reason of such
claim; and (ii) Seller, if such claim is based upon any agreement alleged to
have been made by Seller, shall indemnify, defend (using counsel reasonably
satisfactory to Buyer) and hold Buyer harmless from and against any and all
damages, liabilities, costs, expenses and losses (including, without limitation,
attorneys' fees and costs) that Buyer sustains or incurs by reason of such
claim. The provisions of this subsection shall survive the termination of this
Agreement or the Closing.
29.
15.3 SUCCESSORS AND ASSIGNS. Seller may assign its rights and obligations
hereunder. Buyer's interest under this Agreement may be assigned to an
affiliate of Buyer provided Buyer guarantees in writing to Seller the full
performance by such affiliate of Buyer's obligations hereunder. All other
assignments of Buyer's interest shall be subject to the prior written consent of
Seller, which consent shall not be withheld unreasonably. This Agreement shall
be binding upon, and inure to the benefit of, the parties hereto and their
respective heirs, administrators and permitted successors and assigns.
15.4 AMENDMENTS. This Agreement may be amended or modified only by a
written instrument executed by both parties.
15.5 INTERPRETATION. Words used in the singular shall include the plural,
and vice-versa, and any gender shall be deemed to include the other. The
captions and headings of the Articles and Sections of this Agreement are for
convenience of reference only, and shall not be deemed to define or limit the
provisions hereof. Further, each party hereby acknowledges that such party and
its counsel, after negotiation and consultation, have reviewed and revised this
Agreement. As such, the terms of this Agreement shall be fairly construed and
the usual rule of construction, to the effect that any ambiguities herein should
be resolved against the drafting party, shall not be employed in the
interpretation of this Agreement or any amendments, modifications or exhibits
hereto or thereto.
15.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada.
15.7 MERGER OF PRIOR AGREEMENTS. This Agreement constitutes the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous oral or written representations,
warranties, statements, documents, understandings and agreements with respect
thereto.
15.8 ATTORNEYS' FEES AND COSTS. If either Buyer or Seller brings any suit
or other proceeding with respect to the subject mater or the enforcement of this
Agreement, the prevailing party (as determined by the court, agency or other
authority before which such suit or proceeding is commenced), in addition to
such other relief as may be awarded, shall be entitled to recover reasonable
attorneys' fees, expenses and costs of investigation actually incurred. The
foregoing includes, without limitation, attorneys' fees, expenses and costs of
investigation incurred in appellate proceedings, costs incurred in establishing
the right to indemnification, or in any action or participation in, or in
connection with, any case or proceeding under Chapter 7, 11 or 13 of the
Bankruptcy Code, 11 United States Code Section 101 ET SEQ., or any successor
statutes.
15.9 TIME OF ESSENCE. Time is of the essence of this Agreement.
15.10 CONFIDENTIALITY. Buyer and Seller agree that, to the extent
reasonably practical, they shall keep the contents of this Agreement and the
contents of any environmental report prepared by or for Buyer in connection with
this Agreement confidential and that no publicity or press release to the
general public or otherwise with respect to this transaction shall be made by
either party without the prior written consent of the other party (which consent
may be given or denied in the
30.
other party's sole and absolute discretion). The confidentiality provisions of
this SECTION 15.10 shall survive the Closing.
15.11 NO WAIVER. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other provision, whether
or not similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party make the waiver.
15.12 FURTHER ACTS. Each party, at the request of the other, shall
execute, acknowledge (if appropriate) and deliver whatever additional documents,
and do such other additional acts, as may be reasonably required in order to
accomplish the intent and purposes of this Agreement.
15.13 EXHIBITS. EXHIBITS A through I, inclusive, are attached hereto
and incorporated herein by reference.
15.14 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original, but all
of which, when taken together, shall constitute one and the same instrument,
with the same effect as if all of the parties to this Agreement had executed the
same counterpart. Any signature page of any counterpart of this Agreement may
be detached and reattached to any other counterpart of this Agreement.
15.15 NO INTENT TO BENEFIT THIRD PARTIES. Seller and Buyer do not
intend by any provision of this Agreement to confer any right, remedy or benefit
upon any third party, and no third party shall be entitled to enforce, or
otherwise shall acquire any right, remedy or benefit by reason of, any provision
of this Agreement.
15.16 PERFORMANCE DUE ON DAY OTHER THAN BUSINESS DAY. If the time
period for the performance of any act called for under this Agreement expires on
a Saturday, Sunday or Holiday, the act in question may be performed on the next
succeeding Business Day.
15.17 AUDIT RESPONSIBILITIES. From time to time, both before and after
Closing, Buyer may be engaged in financing and other transactions which will
require that both Buyer and the operation of the Property be audited as to then
current and past operations of the Property, including periods of time during
which Seller owned the Property. As a material inducement for Buyer to enter
into this Agreement, Seller agrees that upon written request of Buyer, Seller
shall render its timely and cooperative efforts to any such auditors in
delivering such responses to inquiries and information as is within the
knowledge or records of Seller with respect to the operations of the Property or
which is within the control or reasonable ability of Seller to obtain,
including, without limitation, operating statements and other financial
information relevant to the Property and its operations. In addition to the
foregoing, Seller shall sign and deliver to any such auditor, such auditor's
standard representation letter with respect to the foregoing matters, revised by
Seller only to the extent necessary to make same true and correct as to the
matters represented therein by Seller.
31.
Buyer shall pay all reasonable out-of-pocket costs and expenses incurred by
Seller in complying with the requirements of this Section 15.17. The terms and
provisions of this Section 15.17 shall survive the Closing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the dates written below.
"SELLER"
RAINBOW PROMENADE PARTNERS, L.L.C.,
an Arizona limited liability company
By:
-------------------------------------
Its:
-------------------------------------
"BUYER"
PAN PACIFIC RETAIL PROPERTIES, INC.,
a Maryland corporation
By:
--------------------------------------
Xxxxxx X. Xxxx
Its: President and Chief Executive Officer
32.
EXHIBIT A
LEGAL DESCRIPTION
[To Be Attached]
EXHIBIT B
FORM OF DEED
[See Following Pages]
WHEN RECORDED, MAIL TO:
Hale, Lane, Peek, Xxxxxxxx, Xxxxxx,
Xxxxxxxx and Pearl
000 Xxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxx, Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Xx., Esq.
GRANT, BARGAIN AND SALE DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
_______________________________________________________, does hereby GRANT,
BARGAIN and SELL to PAN PACIFIC RETAIL PROPERTIES, INC., A MARYLAND CORPORATION
(whose address is: ________________________________________), the real property
situate in the County of Xxxxx, State of Nevada, described in EXHIBIT A attached
hereto and incorporated herein by this reference (the "Property");
TOGETHER with the tenements, hereditaments and appurtenances, including
easements and water rights, if any, thereto belonging or appertaining, and any
reversions, remainders, rents, issues or profits thereof.
[SUBJECT, HOWEVER, TO THE FOLLOWING:
1. MATTERS DISCLOSED ON THAT CERTAIN ALTA SURVEY OF THE PROPERTY DATED AS
OF _________________, 1997 PREPARED BY ____________________________;
2. [PERMITTED EXCEPTIONS TO BE INSERTED.]]
Assessor's Parcel No. ___________________.
DATED: this _____ day of _______________, 1997.
-----------------------------------
-----------------------------------
By:
--------------------------------
Its:
--------------------------
1
STATE OF ________ )
)ss.
COUNTY OF ________ )
This instrument was acknowledged before me on _______________, 1997, by
___________________________________, as ______________________ of _____________
____________________________________________________________, a________________
_____________________________________________________.
-------------------------------------
Notary Public
My Commission Expires:
--------------
2
EXHIBIT C
FORM OF XXXX OF SALE
[See Following Pages]
XXXX OF SALE
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, ____________________________________________________
("TRANSFEROR"), hereby sells, bargains, transfers, assigns, grants, delivers and
conveys to PAN PACIFIC RETAIL PROPERTIES, INC., a Maryland corporation
("TRANSFEREE"), all of the personal property owned by Transferor and located on,
or used exclusively by in connection with, the real property located in the
County of Xxxxx, State of Nevada, described in EXHIBIT A attached hereto and
incorporated herein by this reference, including, without limitation, those
items described on EXHIBIT B attached hereto and incorporated herein by this
reference (collectively, the "PERSONAL PROPERTY");
TO HAVE AND TO HOLD the Personal Property, together with, all and singular,
the rights and appurtenances thereto belonging to Transferee, its successors and
assigns.
In addition to any representations and warranties set forth in the Purchase
and Sale Agreement dated August ___, 1997 between Transferor and Transferee,
which representations are incorporated herein by reference, Transferor hereby
represents and warrants that the Personal Property is free and clear of all
liens, charges and other encumbrances, except personal property taxes not due or
payable. Except as otherwise set forth in the preceding sentence, the Personal
Property is transferred to the Transferee without representation or warranty.
Transferor hereby covenants that it will, at any time and from time to
time, following a written request therefor, execute and deliver to Transferee
and its successors and assigns, any additional or confirmatory instruments and
take such further acts as Transferee may reasonably request to evidence fully
the conveyance contained herein.
DATED: this _____ day of _______________, 1997.
-----------------------------------
-----------------------------------
By:
--------------------------------
Its:
--------------------------
"Assignor"
EXHIBIT D
FORM OF CONTRACT ASSIGNMENT
[See Following Pages]
ASSIGNMENT AND ASSUMPTION OF CONTRACTS,
PERMITS AND OTHER RIGHTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS, PERMITS AND OTHER RIGHTS (this
"ASSIGNMENT") is made as of this _____ day of _______________, 19__, by
__________________________________________________ ("ASSIGNOR"), and PAN PACIFIC
RETAIL PROPERTIES, INC., a Maryland corporation ("ASSIGNEE").
RECITALS:
A. Assignor is a party to and presently has certain rights under those
contracts more particularly described in SCHEDULE 1 attached hereto and
incorporated herein by this reference (collectively, the "SCHEDULE 1
CONTRACTS"); and
B. Pursuant to that certain Purchase and Sale Agreement and Escrow
Instructions, dated as of August __, 1997 (the "AGREEMENT"), by and between
Assignor and Assignee, Assignee has agreed to purchase from Assignor all of
Assignor's right, title and interest in and to the real property located in the
County of Xxxxx, State of Nevada, described in EXHIBIT A attached hereto and
incorporated herein by this reference (the "REAL PROPERTY"), together with all
of Assignor's right, title, and interest in and to the Agreements.
NOW, THEREFORE, in order to carry out the terms of the Agreement, and in
consideration of the mutual covenants and agreements herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. ASSIGNMENT. Assignor hereby assigns, transfers and conveys to
Assignee, subject to the provisions of the Schedule 1 Contracts, all of
Assignor's right, title, and interest (if any) in and to the Schedule 1
Contracts, all plans, drawings and specifications for the improvements located
upon the Real Property, and all intangible property used exclusively in
connection with the Real Property or the improvements thereon to the extent
assignable by Assignor, including, without limitation, all tradenames (except
the names "Rainbow Promenade Partners" and "Xxxxxxxx"), approvals, variances,
entitlements, contract rights, guarantees, licenses, permits, approvals and
warranties. The Schedule 1 Contracts and the other property and rights assigned
in this SECTION 1 are hereinafter collectively referred to as the "CONTRACTS".
2. ASSUMPTION. Assignee hereby accepts such assignment of the Contracts
and, in addition, (i) assumes and agrees to be bound by all of the terms of the
Contracts, and (ii) agrees to keep, perform, fulfill, and observe all of the
terms, covenants, obligations, agreements and conditions required to be kept,
performed, fulfilled, and observed by Assignor under, or with respect to, the
Contracts from and after the execution and delivery of this Assignment by
Assignor and Assignee.
1
3. INDEMNIFICATION OF ASSIGNOR. Assignee hereby agrees to indemnify,
defend, and hold Assignor harmless from and against any and all liability, loss,
cost, damage and expense (including, without limitation, reasonable attorneys'
fees and costs) directly or indirectly arising out of or based upon the failure
of Assignee to keep, perform, fulfill, and observe all of the terms, covenants,
obligations, agreements, and conditions required to be kept, performed,
fulfilled, or observed by Assignee under, or with respect to, the Contracts from
and after the execution and delivery of this Assignment by Assignor and
Assignee.
4. INDEMNIFICATION OF ASSIGNEE. Assignor hereby agrees to indemnify,
defend, and hold Assignee harmless from and against any and all liability, loss,
cost, damage and expense (including, without limitation, reasonable attorneys'
fees and costs) directly or indirectly arising out of or based upon the failure
of Assignor to keep, perform, fulfill, and observe all of the terms covenants,
obligations, agreements, and conditions required to be kept, performed,
fulfilled, or observed by Assignor under, or with respect to, the Contracts
prior to the execution and delivery of this Assignment by Assignor and Assignee.
5. CONTRACT PAYMENTS. All amounts payable by Assignor or to Assignor
under or pursuant to the Contracts shall be prorated as between Assignor and
Assignee pursuant to, and in accordance with, the terms of the Agreement.
6. FURTHER ASSURANCES. Assignor hereby covenants that it will, at any
time and from time to time following a written request therefor, execute and
deliver to Assignee and its successors and assigns, any additional or
confirmatory instruments and take such further acts as Assignee may reasonably
request to evidence fully the assignment contained herein.
7. APPOINTMENT. Assignor hereby irrevocably appoints Assignee and its
successors and assigns, as the true and lawful attorney and agent of Assignor,
in Assignor's name and stead, to enforce the provisions of the Contracts.
8. COUNTERPARTS. This Assignment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute one and the same instrument.
9. GOVERNING LAW. This Assignment shall be construed in accordance with
and governed by the laws of the State of Nevada.
10. BINDING EFFECT. This Assignment shall inure to the benefit of and
shall be binding upon the parties hereto and their respective successors and
assigns.
11. WARRANTIES. Except for the representations and warranties set forth
in the Purchase and Sale Agreement and Escrow Instructions dated August ___,
1997 between Assignor and Assignee, which representations and warranties are
incorporated herein by reference and as expressly set forth herein, Assignor
makes no representations or warranties with respect to the Contracts.
2
----------------------------------------
----------------------------------------
By:
-----------------------------------
Its:
------------------------------
"Assignor"
PAN PACIFIC RETAIL PROPERTIES, INC.,
a Maryland corporation
By:
----------------------------------
Name:
-----------------------------------
Title:
---------------------------------
By:
-----------------------------------
Name:
-----------------------------------
Title:
---------------------------------
"Assignee"
3
EXHIBIT E
FORM OF LEASE ASSIGNMENT
[See Following Pages]
RECORDING REQUESTED BY,
WHEN RECORDED MAIL TO:
Hale, Lane, Peek, Xxxxxxxx, Xxxxxx,
Xxxxxxxx and Pearl
000 Xxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxx, Xxxxxx 00000
ATTN: Xxxxxxx X. Xxxxx, Xx., Esq.
-------------------------------------------------
-------------------------------------------------
ASSIGNMENT AND ASSUMPTION OF LEASES
This ASSIGNMENT AND ASSUMPTION OF LEASES (this "ASSIGNMENT") is made as of
this _____ day of _______________, 19__, by __________________________________
___________________________________________ ("ASSIGNOR"), and PAN PACIFIC
RETAIL PROPERTIES, INC., a Maryland corporation ("ASSIGNEE").
RECITALS:
A. Assignor is presently the owner and holder of all of the lessor's
interest in the leases and tenancies described in SCHEDULE 1 attached hereto and
incorporated herein by this reference (collectively, the "LEASES"), which Leases
affect the real property located in the County of Xxxxx, State of Nevada, more
particularly described in EXHIBIT A attached hereto and incorporated herein by
this reference the ("PROPERTY"); and
B. Pursuant to that certain Purchase and Sale Agreement and Escrow
Instructions, dated as of _____________, 19__ (the "AGREEMENT"), by and between
Assignor and Assignee, Assignee has agreed to purchase from Assignor all of
Assignor's right, title, estate and interest in and to the Property and all of
Assignor's right, title, estate and interest as lessor in, to and under the
Leases.
NOW, THEREFORE, in order to carry out the terms of the Agreement, and in
consideration of the mutual covenants and agreements herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged. Assignor and Assignee hereby agree as follows:
1. ASSIGNMENT. Assignor hereby grants, transfers, conveys and assigns to
Assignee all of Assignor's right, title, estate and interest in, to and under
the Leases, together with (i) any and all right, title, estate and interest of
Assignor as lessor or landlord under the Leases, whether now owned or hereafter
acquired, in and to the real property which is the subject thereof and any
improvements and fixtures located thereon, (ii) any rights, privileges,
easements, rights of way,
1
or appurtenances appertaining thereto (including, without limitation, any and
all rents, issues, profits, royalties, license revenues, concession revenues,
income and other benefits derived from such real property hereafter accruing,
and any and all claims, causes of action, rights to proceeds or awards related
to such real property hereafter accruing), (iii) all right, title, estate and
interest of Assignor in and to security deposits and prepaid rents, if any, as
have been paid to Assignor pursuant to such Leases and have not, prior to the
date hereof, been applied or repaid by Assignor, and (iv) all right, title,
estate and interest of Assignor in and to subleases, if any, relating to such
real property.
2. ASSUMPTION. Assignee hereby accepts such assignment of Assignor's
right, title, estate and interest in, to and under the Leases, and, in addition,
(i) assumes and agrees to be bound by all of the terms of the Leases, and (ii)
agrees to keep, perform, fulfill, and observe all of the terms, covenants,
obligations, agreements, and conditions required to be kept, performed,
fulfilled, and observed by the lessor under the Leases from and after the
execution and delivery of this Assignment by Assignor and Assignee.
3. INDEMNIFICATION OF ASSIGNOR. Assignee hereby agrees to indemnify,
defend, and hold Assignor harmless from and against any and all liability, loss,
cost, damage and expense (including, without limitation, reasonable attorneys'
fees and costs) directly or indirectly arising out of or based upon Assignee's
failure to keep, perform, fulfill and observe any of the terms, covenants,
obligations, agreements, and conditions required to be kept, performed,
fulfilled, and observed by the lessor under the Leases from and after the
execution and delivery of this Assignment by Assignor and Assignee.
4. INDEMNIFICATION OF ASSIGNEE. Assignor hereby agrees to indemnify,
defend, and hold Assignee harmless from and against any and all liability, loss,
cost, damage and expense (including, without limitation, reasonable attorneys'
fees and costs) directly or indirectly arising out of or based upon Assignor's
failure to keep, perform, fulfill, and observe any of the terms covenants,
obligations, agreements, and conditions required to be kept, performed,
fulfilled, and observed by the lessor under the Leases prior to the execution
and delivery of this Assignment by Assignor and Assignee.
5. RENTALS. All rents payable under or pursuant to the Leases shall be
prorated as between Assignor and Assignee pursuant to, and in accordance with,
the terms of the Agreement.
6. FURTHER ASSURANCES. Assignor hereby covenants that it will, at any
time and from time to time following a written request therefor, execute and
deliver to Assignee and its successors and assigns, any additional or
confirmatory instruments and take such further acts (including, without
limitation, sending notices of this Assignment to the tenants under the Leases)
as Assignee may reasonably request to evidence fully the assignment contained
herein.
7. APPOINTMENT. Assignor hereby irrevocably appoints Assignee and its
successors and assigns, as the true and lawful attorney and agent of Assignor,
in Assignor's name and stead, to enforce the provisions of the Leases.
2
8 BINDING EFFECT. This Assignment shall inure to the benefit of and
shall be binding upon the parties hereto and their respective successors and
assigns.
9. NO REPRESENTATIONS OR WARRANTIES. Except for the representations and
warranties set forth in the Purchase and Sale Agreement and Escrow Instructions
dated August ___, 1997 between Assignor and Assignee, which representations and
warranties are incorporated herein by reference in the Seller's Estoppel
Certificates, and as expressly set forth herein, Assignor makes no
representations or warranties with respect to the Leases.
10. GOVERNING LAW. This Assignment shall be construed in accordance with
and governed by the laws of the State of Nevada.
11. COUNTERPARTS. This Assignment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute one and the same instrument.
----------------------------------------
----------------------------------------
By:
------------------------------------
Its:
------------------------------
"Assignor"
PAN PACIFIC RETAIL PROPERTIES, INC.,
a Maryland corporation
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
"Assignee"
3
STATE OF ________ )
)ss.
COUNTY OF _________ )
This instrument was acknowledged before me on _______________, 1997, by
___________________________________, as ______________________ of ____________
____________________________ , a ___________________________________.
------------------------------------
Notary Public
My Commission Expires:
--------------
STATE OF _________ )
)ss.
COUNTY OF _________ )
This instrument was acknowledged before me on _______________, 1997, by
___________________________________, as ______________________ of PAN PACIFIC
RETAIL PROPERTIES, INC., a Maryland corporation.
------------------------------------
Notary Public
My Commission Expires:
--------------
4
EXHIBIT F
FORM OF SELLER'S NON-FOREIGN AFFIDAVIT
[See Following Pages]
NON-FOREIGN AFFIDAVIT
Section 1445 of the Internal Revenue Code of 1986, as amended (the "IRC"),
provides that a transferee of a U.S. real property interest must withhold tax if
the transferor is a foreign person, To inform the transferee that withholding of
tax is not required upon the disposition of a U.S. real property interest by
______________________________________________________________ ("TRANSFEROR"),
the undersigned hereby certifies the following on behalf of Transferor:
1. Transferor is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
IRC and the regulations promulgated thereunder);
2. Transferor's U.S. taxpayer I.D. number is _________________; and
3. Transferor's office address is _______________________________________
______________________________________________________________.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service and that any false statement contained herein could be
punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined the foregoing
certification and, to the best of my knowledge and belief, it is true, correct,
and complete, and I further declare that I have authority to sign this document
on behalf of the Transferor.
"TRANSFEROR"
----------------------------------------
----------------------------------------
By:
-------------------------------------
Its:
-------------------------------
STATE OF ________ )
)ss.
COUNTY OF _________ )
This instrument was acknowledged before me on _______________, 1997, by
___________________________________, as ______________________ of ____________
________________________________, a _______________________________________.
------------------------------------
Notary Public
My Commission Expires:
--------------
EXHIBIT G
FORM OF TENANT NOTICES
[See Following Pages.]
_______________, 1997
VIA CERTIFIED MAIL --
RETURN RECEIPT REQUESTED
-------------------------------
-------------------------------
-------------------------------
-------------------------------
Re: Lease Dated _______________, 19__
Dear _______________:
This is to notify you
that___________________________________________________ ("_________") has sold
its interest in the property commonly known as the
________________________________ and located at ___________________________
_________________________________________ ______, and has assigned its interest
as landlord under your lease to the new owner, PAN PACIFIC RETAIL PROPERTIES,
INC., a Maryland corporation, has also transferred to the new owner the security
deposit held by ________ under the lease in the amount of $__________ [if none,
so state].
Please direct all future rental and other payments and communications under
your lease to:
----------------------------------------------
----------------------------------------------
----------------------------------------------
"_____________"
-------------------------------------
EXHIBIT H
TENANT ROSTER
[See Following Pages.]
EXHIBIT I
FORM OF TENANT ESTOPPEL CERTIFICATE
[See Following Pages]
TENANT ESTOPPEL CERTIFICATE
(TENANT NAME)
TO: PAN PACIFIC RETAIL PROPERTIES, INC., a Maryland corporation
THIS IS TO CERTIFY THAT:
1. The undersigned is the tenant under that certain Lease dated
_______________, 19__ "Lease") by and between _________________________________
________________ as lessor ("Landlord") and ___________________________________
as tenant ("Tenant"), covering certain premises commonly known and designated
as Space _____, ___________________________________________________("Premises").
2. The Lease has not been modified, changed, altered, assigned,
supplemented or amended in any, respect except as indicated below (if none,
state "none"). The Lease is valid and in full force and effect on the date
hereof. The Lease, as modified by the amendments or assignments listed below,
if any, represents the entire agreement between Landlord and Tenant with respect
to the Premises.
------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------
3. Tenant is not entitled to, and has made no agreement with Landlord, or
its agents or employees, concerning free rent, partial rent, rebate of rent
payments, credit or offset or reduction in rent, or any other type of rental
concession including, without limitation, lease, support payments or lease
buy-outs, except as indicated below, (if none, state "none").
------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------
4. The Lease term began on _______________, 19__ and the termination date
of the present term of the Lease, excluding unexercised renewals, is
_______________, 19__.
5. Tenant has paid rent for the Premises for the period up to and
including ____________, 19__. No such rent (not including security deposits)
has been paid more than one (1) month in advance of its due date, except as
indicated below, (if none, state "none"). The Tenant's security deposit is
_______________.
------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------
6. No event has occurred and no condition exists which, with the giving
of notice or the lapse of time or both, will constitute a default by Tenant or,
to Tenant's best knowledge, by Landlord, under the Lease. To the best knowledge
of Tenant, Tenant has no existing defenses or offsets against the enforcement of
the lease by Landlord.
1
7. All required contributions by Landlord to Tenant on account of
Tenant's tenant improvements have been completed in accordance with the terms of
the Lease, except as indicated below (if none, state "none").
8. Except as set forth in the Lease, Tenant has no outstanding options,
rights of first refusal or rights of first offer to purchase the Premises or any
part thereof or all or any part of the real property of which the Premises are a
part.
9. No action, whether voluntary or otherwise, are pending against Tenant
under the bankruptcy laws of the United States or any state thereof.
10. Tenant has not sublet the Premises to any sublessee and has not
assigned any, of its rights under the Lease, except as indicated below (if none,
state "none"). No one except Tenant and its employees occupies the Premises.
------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------
11. The address for notice to be sent to Tenant is as set forth in the
Lease. (If not, indicate correct address below.)
------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------
12. The Premises have not been used by Tenant and Tenant does not plan to
use the Premises for any activities which, directly or indirectly, involve the
use, generation, treatment storage, transportation or disposal of any petroleum
product or any toxic or hazardous chemical material, substance, pollutant or
waste in violation of any applicable law.
13. Tenant has not received any written notice from any government
authority of violation of any federal, state, county or local statutes, laws,
rules or regulations of area governmental authorities relating to environmental,
health or safety matters and, to Tenant's actual knowledge, there are no writs,
injunctions, decrees, orders or judgments outstanding lawsuits, claims,
proceedings or investigations pending or threatened, relating to Tenant's use,
maintenance or operation of the Premises.
2
14. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of Tenant.
Dated: _______________, 1997.
[NAME OF TENANT]
By:
-----------------------------
Its:
-----------------------
3
EXHIBIT J
APPROVED NEW LEASES
1. Chico's IV, LLC, a California limited liability company
4
