SALE OF
XXXX XXXXX RETAIL STORE
CLACKAMAS DISTRIBUTION CENTER
SALE AGREEMENT
BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation,
AS SELLER
AND
XXXX XXXXX, INC.,
a Delaware corporation,
AS PURCHASER
As of February 3, 1997
TABLE OF CONTENTS
Page
ARTICLE I PURCHASE AND SALE...................................................1
Section 1.1 Agreement of Purchase and Sale..............................1
Section 1.2 Property Defined............................................2
Section 1.3 Purchase Price..............................................2
Section 1.4 Payment of Purchase Price...................................2
ARTICLE II TITLE..............................................................2
Section 2.1 Title.......................................................2
Section 2.2 Conveyance of Title.........................................2
ARTICLE III REVIEW OF PROPERTY................................................3
Section 3.1 Physical and Documentary Inspection.........................3
Section 3.2 Environmental Reports.......................................3
ARTICLE IV CLOSING............................................................3
Section 4.1 Time and Place..............................................3
Section 4.2 Seller's Obligations at Closing.............................3
Section 4.3 Purchaser's Obligations at Closing..........................5
Section 4.4 Credits and Prorations......................................5
Section 4.5 Transaction Taxes and Closing Costs.........................6
Section 4.6 Conditions Precedent to Obligation of Purchaser.............7
Section 4.7 Conditions Precedent to Obligation of Seller................8
ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS...........................9
Section 5.1 Representations and Warranties of Seller....................9
Section 5.2 Knowledge Defined..........................................10
Section 5.3 Survival of Seller's Representations and Warranties........10
Section 5.4 Representations and Warranties of Purchaser................11
Section 5.5 Survival of Purchaser's Representations and Warranties.....11
ARTICLE VI [INTENTIONALLY OMITTED]...........................................12
ARTICLE VII [INTENTIONALLY OMITTED]..........................................12
ARTICLE VIII COMMISSIONS.....................................................12
Section 8.1 Brokerage Commissions......................................12
i
Page
ARTICLE IX DISCLAIMERS AND WAIVERS...........................................12
Section 9.1 No Reliance on Documents...................................12
Section 9.2 AS-IS SALE; DISCLAIMERS....................................12
Section 9.3 Survival of Disclaimers....................................14
ARTICLE X MISCELLANEOUS......................................................14
Section 10.1 Confidentiality............................................14
Section 10.2 Public Disclosure..........................................14
Section 10.3 Assignment.................................................15
Section 10.4 Notices....................................................15
Section 10.5 Modifications..............................................16
Section 10.6 Entire Agreement...........................................16
Section 10.7 Further Assurances.........................................16
Section 10.8 Counterparts...............................................16
Section 10.9 Facsimile Signatures.......................................16
Section 10.10 Severability...............................................16
Section 10.11 Applicable Law.............................................16
Section 10.12 No Third-Party Beneficiary.................................16
Section 10.13 Captions...................................................17
Section 10.14 Construction...............................................17
Section 10.15 Recordation................................................17
Section 10.16 Seller Approval............................................17
Section 10.17 Concurrent Closing of Related Transactions.................17
Section 10.18 Oregon Statutory Disclaimer................................17
A [A-1] DESCRIPTION OF LAND
B [INTENTIONALLY OMITTED]
C LIST OF OPERATING AGREEMENTS
D LIST OF ENVIRONMENTAL REPORTS
E [INTENTIONALLY OMITTED]
F [INTENTIONALLY OMITTED]
G [G-1] FORM OF DEED
H FORM OF XXXX OF SALE
I [I-1] FORM OF ASSIGNMENT OF LEASES
J FORM OF ASSIGNMENT OF CONTRACTS
K FORM OF LEASE TERMINATION
L FORM OF FIRPTA CERTIFICATE
M [INTENTIONALLY OMITTED]
N LIST OF BROKERAGE AGREEMENTS
ii
Page
O LIST OF SPECIFIED LITIGATION AND PENDING ACTIONS
P LIST OF VIOLATION NOTICES
Q RENT ROLL
R [INTENTIONALLY OMITTED]
S [INTENTIONALLY OMITTED]
iii
SALE AGREEMENT
THIS SALE AGREEMENT (this "Agreement") is made as of February 3, 1997 (the
"Effective Date"), by and between METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation ("Seller"), and XXXX XXXXX, INC., a Delaware corporation
("Purchaser").
W I T N E S S E T H:
ARTICLE I
PURCHASE AND SALE
Section 1.1 Agreement of Purchase and Sale. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey to Purchaser,
and Purchaser agrees to purchase from Seller, the following:
(a) all, and not less than all, of those certain tracts or parcels of land
more particularly described in Exhibit A attached hereto and made a part hereof,
together with all rights and appurtenances pertaining to such property,
including any right, title and interest of Seller in and to adjacent streets,
alleys or rights-of-way (the property described in clause (a) of this Section
1.1 being herein referred to collectively as the "Land");
(b) the buildings, structures, fixtures and other improvements affixed to
or located on the Land, excluding fixtures owned by tenants (the property
described in clause (b) of this Section 1.1 being herein referred to
collectively as the "Improvements");
(c) any and all of Seller's right, title and interest in and to all
tangible personal property located upon the Land or within the Improvements,
including, without limitation, any and all appliances, furniture, carpeting,
draperies and curtains, tools and supplies, and other items of personal property
owned by Seller (excluding cash and any software), located on and used
exclusively in connection with the operation of the Land and the Improvements
(the property described in clause (c) of this Section 1.1 being herein referred
to collectively as the "Personal Property");
(d) any and all of Seller's right, title and interest in and to the leases,
including the Lease Agreement[s] (as hereinafter defined) covering all or any
portion of the Real Property, to the extent they are in effect on the date of
the Closing (as such term is defined in Section 4.1 hereof) (the property
described in clause (d) of this Section 1.1 being herein referred to
collectively as the "Leases"), together with all rents and other sums due
thereunder (the "Rents")
and any and all security deposits in Seller's possession in connection therewith
(the "Security Deposits"); and
(e) any and all of Seller's right, title and interest in and to (i) all
assignable contracts and agreements (collectively, the "Operating Agreements")
listed and described on Exhibit C attached hereto and made a part hereof,
relating to the upkeep, repair, maintenance or operation of the Land,
Improvements or Personal Property, and (ii) all assignable existing warranties
and guaranties (express or implied) issued to Seller in connection with the
Improvements or the Personal Property, and (iii) all assignable existing
permits, licenses, approvals and authorizations issued by any governmental
authority in connection with the Property (the property described in clause (e)
of this Section 1.1 being sometimes herein referred to collectively as the
"Intangibles").
Section 1.2 Property Defined. The Land and the Improvements are hereinafter
sometimes referred to collectively as the "Real Property." The Land, the
Improvements, the Personal Property, the Leases and the Intangibles are
hereinafter sometimes referred to collectively as the "Property." Each parcel
thereof separately identified on Exhibit A is hereinafter referred to separately
as a "Parcel"; more than one Parcel are referred to as "Parcels."
Section 1.3 Purchase Price. Seller is to sell and Purchaser is to purchase
the Property for the amount of SIXTY-THREE MILLION DOLLARS ($63,000,000) (the
"Purchase Price").
Section 1.4 Payment of Purchase Price. The Purchase Price, as increased or
decreased by prorations and adjustments as herein provided, shall be payable in
full at Closing in cash by wire transfer of immediately available funds to a
bank account designated by Seller in writing to Purchaser prior to the Closing.
ARTICLE II
TITLE
Section 2.1 Title. Purchaser has reviewed, approved and accepted the state
of title of the Property.
Section 2.2 Conveyance of Title. At Closing, Seller shall convey and
transfer to Purchaser fee simple title to the Land and Improvements, by
execution and delivery of the Deed [Deeds] (as defined in Section 4.2(a)
hereof). Evidence of delivery of such title shall be the issuance by First
American Title Insurance Company (the "Title Company"), or another national
title company, of CLTA (or state specific equivalent) of ALTA Extended Owner's
Policy of Title Insurance (the "Title Policies"; each such shall be known herein
as a "Title Policy") covering each Parcel of the Real Property, in the aggregate
amount of the Purchase Price, subject only to the exceptions set forth in
Exhibit B attached to the Deed ("Permitted Exceptions").
2
ARTICLE III
REVIEW OF PROPERTY
Section 3.1 Physical and Documentary Inspection. Purchaser has inspected,
approved and accepted the physical aspects of the Property, including the
environmental condition thereof. Purchaser has examined, approved and accepted
documents and files relating to Seller's leasing, maintenance and operation of
the Property.
Section 3.2 Environmental Reports. PURCHASER ACKNOWLEDGES THAT (1)
PURCHASER HAS RECEIVED COPIES OF THE ENVIRONMENTAL REPORTS LISTED ON EXHIBIT D
ATTACHED HERETO, (2) IF SELLER DELIVERS ANY ADDITIONAL ENVIRONMENTAL REPORTS TO
PURCHASER, PURCHASER WILL ACKNOWLEDGE IN WRITING THAT IT HAS RECEIVED SUCH
REPORTS PROMPTLY UPON RECEIPT THEREOF, AND (3) ANY ENVIRONMENTAL REPORTS
DELIVERED OR TO BE DELIVERED BY SELLER OR ITS AGENTS OR CONSULTANTS TO PURCHASER
ARE BEING MADE AVAILABLE SOLELY AS AN ACCOMMODATION TO PURCHASER AND MAY NOT BE
RELIED UPON BY PURCHASER IN CONNECTION WITH THE PURCHASE OF THE PROPERTY.
PURCHASER AGREES THAT SELLER SHALL HAVE NO LIABILITY OR OBLIGATION WHATSOEVER
FOR ANY INACCURACY IN OR OMISSION FROM ANY ENVIRONMENTAL REPORT. PURCHASER HAS
CONDUCTED, OR WILL CONDUCT PRIOR TO THE EXPIRATION OF THE INSPECTION PERIOD, ITS
OWN INVESTIGATION OF THE ENVIRONMENTAL CONDITION OF THE PROPERTY TO THE EXTENT
PURCHASER DEEMS SUCH AN INVESTIGATION TO BE NECESSARY OR APPROPRIATE.
ARTICLE IV
CLOSING
Section 4.1 Time and Place. The consummation of the transaction
contemplated hereby (the "Closing") shall be held at the offices of Seller on
February 3, 1997. At the Closing, Seller and Purchaser shall perform the
obligations set forth in, respectively, Section 4.2 and Section 4.3 hereof, the
performance of which obligations shall be concurrent conditions; provided that
the Deed shall not be recorded until Seller receives confirmation that Seller
has received the full amount of the Purchase Price, adjusted by prorations as
set forth herein. At Seller's option, the Closing shall be consummated through
an escrow administered by First American Title Insurance of Oregon ("Escrow
Agent"). In such event, the Purchase Price and all documents shall be deposited
with the Escrow Agent as escrowee.
3
Section 4.2 Seller's Obligations at Closing. At Closing, Seller shall:
(a) deliver to Purchaser a duly executed special warranty deed (the "Deed")
in the form attached hereto as Exhibit G, conveying the Land and Improvements,
subject only to the Permitted Exceptions; the warranty of title in the Deed will
be only as to claims made by, through or under Seller and not otherwise;
(b) deliver to Purchaser a duly executed xxxx of sale (the "Xxxx of Sale")
conveying the Personal Property without warranty of title or use and without
warranty, express or implied, as to merchantability and fitness for any purpose
and in the form attached hereto as Exhibit H;
(c) assign to Purchaser, and Purchaser shall assume, the landlord/lessor
interest in and to the Leases, Rents and Security Deposits, and any and all
obligations to pay leasing commissions and finder's fees with respect to the
Leases and amendments, renewals and expansions thereof, to the extent provided
in Section 4.4(b)(v) hereof, by duly executed assignment and assumption
agreements (the "Assignment of Leases") in the form attached hereto as Exhibit
I;
(d) to the extent assignable, assign to Purchaser, and Purchaser shall
assume, Seller's interest in the Operating Agreements and the other Intangibles
by duly executed assignment and assumption agreement (the "Assignment of
Contracts") in the form attached hereto as Exhibit J pursuant to which (i)
Seller shall indemnify Purchaser and hold Purchaser harmless from and against
any and all claims pertaining thereto arising prior to Closing and (ii)
Purchaser shall indemnify Seller and hold Seller harmless from and against any
and all claims pertaining thereto arising from and after the Closing;
(e) join with Purchaser to execute a lease termination agreement (the
"Lease Termination") in the form attached hereto as Exhibit K, terminating that
certain "Lease Agreement" dated October 22, 1986, by and between Xxxx Xxxxx Real
Estate Properties, Ltd., as landlord, and Purchaser, as tenant, as such lease
has been amended and assigned ("Lease Agreement");
(f) deliver to Purchaser a certificate in the form attached hereto as
Exhibit L duly executed by Seller stating that Seller is not a "foreign person"
as defined in the Federal Foreign Investment in Real Property Tax Act of 1980
and any similar form required by applicable state law;
(g) deliver to Purchaser the Leases and the Operating Agreements, together
with such leasing and property files and records located at the Property or the
property manager's office which are material in connection with the continued
operation, leasing and maintenance of the Property, but excluding any
Confidential Documents. For a period of three (3) years after the Closing,
Purchaser shall allow Seller and its agents and representatives access without
charge to all files, records and documents delivered to Purchaser at the
Closing, upon reasonable advance
4
notice and at all reasonable times, to examine and make copies of any and all
such files, records and documents, which right shall survive the Closing;
(h) deliver to Purchaser possession and occupancy of the Property, subject
to the Permitted Exceptions;
(i) execute a closing statement acceptable to Seller;
(j) deliver such additional documents as shall be reasonably required to
consummate the transaction contemplated by this Agreement; and
(k) a legal opinion from Seller's in-house counsel with respect to the
authorization of this transaction.
Section 4.3 Purchaser's Obligations at Closing. At Closing, Purchaser
shall:
(a) pay to Seller the full amount of the Purchase Price, as increased or
decreased by prorations and adjustments as herein provided, in immediately
available wire transferred funds pursuant to Section 1.4 hereof;
(b) join Seller in execution of the Assignment of Leases, Assignment of
Contracts and Lease Termination;
(c) deliver to Seller such evidence as the Title Company may reasonably
require as to the authority of the person or persons executing documents on
behalf of Purchaser;
(d) deliver such affidavits as may be customarily and reasonably required
by the Title Company, in a form reasonably acceptable to Purchaser;
(e) execute a closing statement acceptable to Purchaser; and
(f) deliver such additional documents as shall be reasonably required to
consummate the transaction contemplated by this Agreement.
Section 4.4 Credits and Prorations.
(a) Subject to the rights and obligations of the parties under the Lease
Agreement, all income and expenses of the Property between Seller and Purchaser
shall be apportioned as of 12:01 a.m., on the day of Closing, as if Purchaser
were vested with title to the Property during the entire day upon which Closing
occurs. Such prorated items shall include without limitation the following:
5
(i) all rents under the Lease Agreement, if any (to the extent any
rent under the Lease Agreement has accrued but is unpaid at Closing, Seller
shall receive a credit from Purchaser for such amount);
(ii) taxes and assessments (including personal property taxes on the
Personal Property) levied against the Property;
(iii) utility charges for which Seller is liable, if any, such charges
to be apportioned at Closing on the basis of the most recent meter reading
occurring prior to Closing (dated not more than fifteen (15) days prior to
Closing) or, if unmetered, on the basis of a current xxxx for each such utility;
(iv) all amounts payable under Operating Agreements, pursuant to the
terms of this Agreement; and
(v) any other operating expenses or other items pertaining to the
Property which are customarily prorated between a purchaser and a seller in the
county in which the Property is located.
(b) Notwithstanding anything contained in Section 4.4(a) hereof, at
Closing, (A) Seller shall, at Seller's option, either deliver to Purchaser any
Security Deposits actually held by Seller pursuant to the Leases or credit to
the account of Purchaser the amount of such Security Deposits (to the extent
such Security Deposits have not been applied against delinquent Rents or
otherwise as provided in the Leases), and (B) Purchaser shall credit to the
account of Seller all refundable cash or other deposits posted with utility
companies serving the Property, but only to the extent paid by Seller.
(c) At Closing, Seller will assign to Purchaser pursuant to the Assignment
of Contracts, without warranty or recourse, all pending real property tax
appeals relating to tax years in which Purchaser, as tenant under the Lease
Agreements, paid all real property taxes with respect to the Property.
(d) Except as otherwise provided herein, any revenue or expense amount
which cannot be ascertained with certainty as of Closing shall be prorated on
the basis of the parties' reasonable estimates of such amount, and shall be the
subject of a final proration ninety (90) days after Closing, or as soon
thereafter as the precise amounts can be ascertained. Purchaser shall promptly
notify Seller when it becomes aware that any such estimated amount has been
ascertained. Once all revenue and expense amounts have been ascertained,
Purchaser shall prepare, and certify as correct, a final proration statement
which shall be subject to Seller's approval. Upon Seller's acceptance and
approval of any final proration statement submitted by Purchaser, such statement
shall be conclusively deemed to be accurate and final.
6
(e) Subject to the final sentence of Section 4.4(d) hereof, the provisions
of this Section 4.4 shall survive Closing.
Section 4.5 Transaction Taxes and Closing Costs.
(a) Seller and Purchaser shall execute such returns, questionnaires and
other documents as shall be required with regard to all applicable real property
transaction taxes imposed by applicable federal, state or local law or
ordinance;
(b) Seller shall pay the fees of any counsel representing Seller in
connection with this transaction and Seller's state and federal income tax
incurred by the sale of the Property. Except as provided herein, Seller shall be
responsible for no other costs.
(c) Purchaser shall pay the fees of any counsel representing Purchaser in
connection with this transaction. Purchaser shall also pay the following costs
and expenses:
(i) all escrow fees which may be charged by the Title Company or
escrow agent;
(ii) the fee for the title examination and the title commitment and
the premium for the Owner's Policies of Title Insurance to be issued to
Purchaser by the Title Company at Closing, and all endorsements thereto;
(iii) the cost of any surveys;
(iv) the fees for recording the Deed[s];
(v) any transfer tax, sales tax, documentary stamp tax or similar tax
which becomes payable by reason of the transfer of the Property (including,
without limitation, any taxes relating to a merger, if any, of the Leases with
the fee ownership of the Real Property occurring as a result of this
transaction);
(vi) the fees for Seller's Broker and Purchaser's Broker;
(vii) in the event the Distribution Center Loan is satisfied, any
costs charged by the lender relating to the satisfaction of Distribution Center
Loan (such as prepayment fees) other than payment of the outstanding principal
balance of the Distribution Center Loan;
(viii) any other costs occasioned by this transaction (other than
Seller's federal and state income tax incurred by the sale of the Property and
fees of any counsel representing Seller in connection with this transaction);
7
(d) The Personal Property is included in this sale without charge, except
that Purchaser shall pay to Seller the amount of any and all sales or similar
taxes payable in connection with the transfer of the Personal Property and
Purchaser shall execute and deliver any tax returns required of it in connection
therewith; and
(e) The provisions of this Section 4.5 shall survive the Closing.
Section 4.6 Conditions Precedent to Obligation of Purchaser. The obligation
of Purchaser to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to
be delivered to Purchaser pursuant to the terms of this Agreement, including but
not limited to, those provided for in Section 4.2 hereof;
(b) All of the representations and warranties of Seller contained in this
Agreement shall be true and correct in all material respects as of the date of
Closing (with appropriate modifications permitted under this Agreement);
(c) Seller shall have performed and observed, in all material respects, all
covenants and agreements of this Agreement to be performed and observed by
Seller as of the date of Closing; and
(d) Seller shall have accepted the evidence with respect to the Act (as
hereinafter defined) that Purchaser is required to produce pursuant to Section
4.7(e).
Section 4.7 Conditions Precedent to Obligation of Seller. The obligation of
Seller to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived by Seller in its sole discretion:
(a) Seller shall have received the Purchase Price as adjusted as provided
herein, pursuant to and payable in the manner provided for in this Agreement;
(b) Purchaser shall have delivered to Seller all of the items required to
be delivered to Seller pursuant to the terms of this Agreement, including but
not limited to, those provided for in Section 4.3 hereof;
(c) All of the representations and warranties of Purchaser contained in
this Agreement shall be true and correct in all material respects as of the date
of Closing (with appropriate modifications permitted under this Agreement);
8
(d) Purchaser shall have performed and observed, in all material respects,
all covenants and agreements of this Agreement to be performed and observed by
Purchaser as of the date of Closing; and
(e) Purchaser's providing to Seller (i) evidence reasonably satisfactory to
Seller that the notification and reporting requirements of the Xxxx-Xxxxx Xxxxxx
Antitrust Improvement Act of 1976, as amended (15 U.S.C. ss. 18a) (the "Act") do
not apply to the transaction contemplated hereby, or (ii) in the event the
notification and reporting requirements of the Act shall be applicable to the
contemplated transaction, evidence reasonably satisfactory to Seller that all
applicable notification and reporting requirements of the Act have been timely
and completely fulfilled. Purchaser acknowledges that in the event the
contemplated transaction is not approved by the Federal Trade Commission, Seller
shall be under no obligation to close the transaction contemplated. Seller and
Purchaser agree to cooperate in effecting compliance with the Act to the extent
required under applicable law.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 5.1 Representations and Warranties of Seller. Seller hereby makes
the following representations and warranties to Purchaser as of the Effective
Date, which representations and warranties shall be deemed to have been made
again as of the Closing, subject to Section 4.2(f) hereof:
(a) Organization and Authority. Seller has been duly organized and is
validly existing under the laws of the State of New York. Seller has the full
right and authority to enter into this Agreement and to transfer all of the
Property and to consummate or cause to be consummated the transaction
contemplated by this Agreement. The person signing this Agreement on behalf of
Seller is authorized to do so.
(b) Pending Actions. Except as indicated on Exhibit O, to Seller's
knowledge, Seller has not received written notice of any action, suit,
arbitration, unsatisfied order or judgment, government investigation or
proceeding pending against Seller or the Property which, if adversely
determined, could individually or in the aggregate materially interfere with the
consummation of the transaction contemplated by this Agreement.
(c) Operating Agreements. To Seller's knowledge, the Operating Agreements
listed on Exhibit C are all of the agreements concerning the operation and
maintenance of the Property entered into by Seller and affecting the Property,
except those operating agreements that are not assignable and are to be
terminated by Seller within thirty (30) days after the Closing, and except any
agreement with Seller's property manager, which shall be terminated by Seller.
9
(d) Lease Brokerage. To Seller's knowledge, there are no agreements with
brokers providing for the payment from and after the Closing by Seller or
Seller's successor-in-interest of leasing commissions or fees for procuring
tenants with respect to the Property or related to this transaction, except as
disclosed in Exhibit N hereto;
(e) Condemnation. To Seller's knowledge, Seller has received no written
notice of any condemnation proceedings relating to the Property.
(f) Litigation. To Seller's knowledge, except as set forth on Exhibit O
attached hereto, Seller has not received written notice of any litigation which
has been filed against Seller that arises out of the ownership of the Property
and would materially affect the Property or use thereof, or Seller's ability to
perform hereunder;
(g) Violations. To Seller's knowledge, except as set forth on Exhibit P
attached hereto, Seller has not received written notice of any uncured violation
of any federal, state or local law relating to the use or operation of the
Property which would materially adversely affect the Property or use thereof;
and
(h) Leases. To Seller's knowledge, Seller has not entered into any leases
currently affecting the Real Property other than as shown on Exhibit Q.
Section 5.2 Knowledge Defined. References to the "knowledge" of Seller
shall refer only to the current actual knowledge of the Designated Employees (as
hereinafter defined) of Seller, and shall not be construed, by imputation or
otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to
any property manager, or to any other officer, agent, manager, representative or
employee of Seller or any affiliate thereof or to impose upon such Designated
Employees any duty to investigate the matter to which such actual knowledge, or
the absence thereof, pertains. As used herein, the term "Designated Employees"
shall refer to the following person(s): Xxx Hills, Senior Investment Analyst.
Section 5.3 Survival of Seller's Representations and Warranties. The
representations and warranties of Seller set forth in Section 5.1 hereof shall
survive Closing for a period of one (1) year. No claim for a breach of any
representation or warranty of Seller shall be actionable or payable if the
breach in question results from or is based on a condition, state of facts or
other matter which was known to Purchaser prior to Closing. Seller shall have no
liability to Purchaser for a breach of any representation or warranty (a) unless
the valid claims for all such breaches with respect to this Property and the
Columbia Falls (MT), Kalispell (MT), Fourth Plain (WA), Tacoma Lakewood (WA),
Juneau (AK) and Roseburg (OR) properties which are to be conveyed from Seller to
Purchaser contemporaneously with the Property pursuant to purchase and sale
agreements of even date, collectively aggregate more than Five Hundred Thousand
Dollars ($500,000), in which event the full amount of such valid claims shall be
actionable, up to the Cap (as defined in this Section), and (b) unless written
notice containing a description of the specific
10
nature of such breach shall have been given by Purchaser to Seller prior to the
expiration of said one (1) year period and an action shall have been commenced
by Purchaser against Seller within one (1) year and ninety (90) days of Closing.
Purchaser agrees to first seek recovery under any insurance policies, service
contracts and Leases prior to seeking recovery from Seller, and Seller shall not
be liable to Purchaser if Purchaser's claim is satisfied from such insurance
policies, service contracts or Leases. As used herein, the term "Cap" shall mean
the total aggregate amount of One Million Dollars ($1,000,000) with respect to
any and all claims relating to this Property and to Columbia Falls (MT),
Kalispell (MT), Fourth Plain (WA), Tacoma Lakewood (WA), Juneau (AK) and
Roseburg (OR) properties] which are to be conveyed from Seller to Purchaser
contemporaneously with the Property pursuant to purchase and sale agreements of
even date. This Section 5.3 shall have no application to any claims of Purchaser
with respect to warranties of title conveyed by the Deed.
Section 5.4 Representations and Warranties of Purchaser. Purchaser hereby
makes the following representations and warranties to Seller as of the Closing,
subject to Section 4.3(c) hereof:
(a) Organization and Authority. Purchaser has been duly organized and is
validly existing under the laws of Oregon. Purchaser has the full right and
authority to enter into this Agreement and to consummate or cause to be
consummated the transaction contemplated by this Agreement. The person signing
this Agreement on behalf of Purchaser is authorized to do so;
(b) Pending Actions. To Purchaser's knowledge, there is no action, suit,
arbitration, unsatisfied order or judgment, government investigation or
proceeding pending against Purchaser or the Property which, if adversely
determined, could individually or in the aggregate materially interfere with the
consummation of the transaction contemplated by this Agreement.
(c) ERISA. As of the Closing, (1) Purchaser will not be an employee benefit
plan as defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), which is subject to Title I of ERISA, nor a plan
as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended (each of the foregoing hereinafter referred to collectively as "Plan"),
and (2) the assets of the Purchaser will not constitute "plan assets" of one or
more such Plans within the meaning of Department of Labor ("DOL") Regulation
Section 2510.3-101.
As of the Closing, if Purchaser is a "governmental plan" as defined in
Section 3(32) of ERISA, the closing of the sale of the Property will not
constitute or result in a violation of state or local statutes regulating
investments of and fiduciary obligations with respect to governmental plans.
As of the Closing, Purchaser will be acting on its own behalf and not on
account of or for the benefit of any Plan.
11
Purchaser has no present intent to transfer the Property to any entity,
person or Plan which will cause a violation of ERISA.
Purchaser shall not assign its interest under this contract of sale to any
entity, person, or Plan which will cause a violation of ERISA.
Section 5.5 Survival of Purchaser's Representations and Warranties. The
representations and warranties of Purchaser set forth in Section 5.5 hereof
shall survive Closing for a period of one (1) year. Purchaser shall have no
liability to Seller for a breach of any representation or warranty unless
written notice containing a description of the specific nature of such breach
shall have been given by Seller to Purchaser prior to the expiration of said one
(1) year period and an action shall have been commenced by Seller against
Purchaser within one (1) year and ninety (90) days of Closing.
ARTICLE VI
[INTENTIONALLY OMITTED]
ARTICLE VII
[INTENTIONALLY OMITTED]
ARTICLE VIII
COMMISSIONS
Section 8.1 Brokerage Commissions. With respect to the transaction
contemplated by this Agreement, Seller represents that its sole broker is None
("Seller's Broker"), and Purchaser represents that its sole broker is None
("Purchaser's Broker"). Each party hereto agrees that if any person or entity,
other than the Seller's Broker or the Purchaser's Broker, makes a claim for
brokerage commissions or finder's fees related to the sale of the Property by
Seller to Purchaser, and such claim is made by, through or on account of any
acts or alleged acts of said party or its representatives, said party will
protect, indemnify, defend and hold the other party free and harmless from and
against any and all loss, liability, cost, damage and expense (including
reasonable attorneys' fees) in connection therewith. The provisions of this
paragraph shall survive Closing or any termination of this Agreement.
12
ARTICLE IX
DISCLAIMERS AND WAIVERS
Section 9.1 No Reliance on Documents. Except as expressly stated herein,
Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information delivered by or conversations
with Seller or its brokers or agents to Purchaser in connection with the
Property and the conveyance contemplated hereby. Purchaser acknowledges and
agrees that all materials, data and information delivered by Seller to Purchaser
and conversations with Seller or its brokers or agents in connection with the
transaction contemplated hereby are provided to Purchaser as a convenience only
and that any reliance on or use of such materials, data or information by
Purchaser shall be at the sole risk of Purchaser, except as otherwise expressly
stated herein. Neither Seller, nor any affiliate of Seller, nor the person or
entity which prepared any report or reports delivered by Seller to Purchaser
shall have any liability to Purchaser for any inaccuracy in or omission from any
such reports.
Section 9.2 AS-IS SALE; DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT
ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO,
ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND
CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS,
WITH ALL FAULTS," EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS
AGREEMENT. PURCHASER ACKNOWLEDGES THAT (I) IT OR AN ENTITY AFFILIATED WITH
PURCHASER OWNED THE PROPERTY PRIOR TO SELLER, (II) PURCHASER HAS CONTINUOUSLY
OCCUPIED AND OPERATED THE PROPERTY ON A DAY-TO-DAY BASIS SINCE THE CLOSING OF
PURCHASER'S EARLIER SALE OF THE PROPERTY TO SELLER PURSUANT TO A SALE-LEASEBACK
TRANSACTION AND IS VERY FAMILIAR WITH THE PROPERTY. PURCHASER HAS NOT RELIED AND
WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR
IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION
PERTAINING TO THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT
LIMITATION, OFFERING PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR
FURNISHED BY SELLER, THE MANAGERS OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR
AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN,
DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN
13
THIS AGREEMENT. PURCHASER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND
TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD "AS-IS."
PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR WILL
CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT
LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS PURCHASER
DEEMS NECESSARY OR DESIRABLE TO SATISFY ITSELF AS TO THE CONDITION OF THE
PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH
RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY,
AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON
BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN
SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET
FORTH IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, UPON CLOSING,
PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED
TO, CONSTRUCTION DEFECTS, SOIL CONDITIONS AND ANY OTHER ADVERSE PHYSICAL AND/OR
ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S
INVESTIGATIONS, AND PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED,
RELINQUISHED AND RELEASED SELLER (AND SELLER'S OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, CAUSES OF ACTION (INCLUDING WITHOUT LIMITATION CAUSES OF ACTION IN
TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE
ATTORNEYS' FEES) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH
PURCHASER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER (AND SELLER'S OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR
ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS,
VIOLATIONS OF ANY APPLICABLE LAWS AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS,
CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY, EXCEPT AS MAY BE EXPRESSLY
PROVIDED TO THE CONTRARY IN THE REPRESENTATIONS OF SELLER CONTAINED HEREIN.
Section 9.3 Survival of Disclaimers. The provisions of this Article IX
shall survive Closing or any termination of this Agreement.
14
ARTICLE X
MISCELLANEOUS
Section 10.1 Confidentiality. Seller, Purchaser and their respective
representatives shall hold in strictest confidence all data and information
obtained with respect to the other or the other's business, whether obtained
before or after the execution and delivery of this Agreement, and shall not
disclose the same to third parties; provided, however, that it is understood and
agreed that each may disclose such data and information to its employees,
lenders, consultants, accountants and attorneys provided that such persons agree
in writing to treat such data and information confidentially. In the event this
Agreement is terminated, each shall promptly return to the other any statements,
documents, schedules, exhibits or other written information obtained from the
other in connection with this Agreement or the transaction contemplated herein.
In the event of a breach or threatened breach by Purchaser, Seller or their
respective representatives of this Section 10.1, the other shall be entitled to
an injunction restraining Purchaser, seller or their respective representatives
from disclosing, in whole or in part, such confidential information. Nothing
herein shall be construed as prohibiting the parties from pursuing any other
available remedy at law or in equity for such breach or threatened breach. The
provisions of this Section 10.1 shall survive Closing or any termination of this
Agreement.
Section 10.2 Public Disclosure. Prior to and after the Closing, any release
to the public of information with respect to the sale contemplated herein or any
matters set forth in this Agreement will be made only in the form approved by
Purchaser and Seller. The provisions of this Section 10.2 shall survive the
Closing or any termination of this Agreement.
Section 10.3 Assignment. Subject to the provisions of this Section 10.3,
the terms and provisions of this Agreement are to apply to and bind the
permitted successors and assigns of the parties hereto. Purchaser may not assign
its rights under this Agreement except to First Security Bank, National
Association, not individually, but solely as Owner Trustee under FM Trust 1997-1
pursuant to the terms of the First Amendment to and Assignment and Assumption of
Sale Agreement attached hereto as Exhibit S. Notwithstanding the foregoing,
under no circumstances shall Purchaser have the right to assign this Agreement
to any person or entity owned or controlled by an employee benefit plan if
Seller's sale of the Property to such person or entity would, in the reasonable
opinion of Seller's ERISA advisor, create or otherwise cause a "prohibited
transaction" under ERISA. Any transfer, directly or indirectly, of any stock,
partnership interest or other ownership interest in Purchaser shall constitute
an assignment of this Agreement. The provisions of this Section 10.3 shall
survive the Closing or any termination of this Agreement.
Section 10.4 Notices. Any notice pursuant to this Agreement shall be given
in writing by (a) personal delivery, (b) reputable overnight delivery service
with proof of delivery, (c) United States Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below,
15
or to such other address or to the attention of such other person as the
addressee shall have designated by written notice sent in accordance herewith,
and shall be deemed to have been given upon receipt or refusal to accept
delivery, or, in the case of facsimile transmission, as of the date of the
facsimile transmission provided that an original of such facsimile is also sent
to the intended addressee by means described in clauses (a), (b) or (c) above.
Unless changed in accordance with the preceding sentence, the addresses for
notices given pursuant to this Agreement shall be as follows:
If to Seller: Metropolitan Life Insurance Company
Real Estate Investments
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Assistant Vice President
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
If to Purchaser: Xxxx Xxxxx, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Sr. V.P./CFD
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
with a copy to: Xxxx Xxxxx, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Attorney/CLD
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
Section 10.5 Modifications. This Agreement cannot be changed orally, and no
executory agreement shall be effective to waive, change, modify or discharge it
in whole or in part unless such executory agreement is in writing and is signed
by the parties against whom enforcement of any waiver, change, modification or
discharge is sought.
Section 10.6 Entire Agreement. This Agreement, including the exhibits and
schedules hereto, contains the entire agreement between the parties hereto
pertaining to the subject matter hereof and fully supersedes all prior written
or oral agreements and understandings between the parties pertaining to such
subject matter, other than any confidentiality agreement executed by Purchaser
in connection with the Property.
16
Section 10.7 Further Assurances. Each party agrees that it will execute and
deliver such other documents and take such other action, whether prior or
subsequent to Closing, as may be reasonably requested by the other party to
consummate the transaction contemplated by this Agreement. The provisions of
this Section 10.7 shall survive Closing.
Section 10.8 Counterparts. This Agreement may be executed in counterparts,
all such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
Section 10.9 Facsimile Signatures. In order to expedite the transaction
contemplated herein, telecopied signatures may be used in place of original
signatures on this Agreement. Seller and Purchaser intend to be bound by the
signatures on the telecopied document, are aware that the other party will rely
on the telecopied signatures, and hereby waive any defenses to the enforcement
of the terms of this Agreement based on the form of signature.
Section 10.10 Severability. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable,
the remainder of this Agreement shall nonetheless remain in full force and
effect; provided that the invalidity or unenforceability of such provision does
not materially adversely affect the benefits accruing to any party hereunder.
Section 10.11 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Oregon. Purchaser and
Seller agree that the provisions of this Section 10.11 shall survive the Closing
or any termination of this Agreement.
Section 10.12 No Third-Party Beneficiary. The provisions of this Agreement
and of the documents to be executed and delivered at Closing are and will be for
the benefit of Seller and Purchaser only and are not for the benefit of any
third party, and accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered at
Closing.
Section 10.13 Captions. The section headings appearing in this Agreement
are for convenience of reference only and are not intended, to any extent and
for any purpose, to limit or define the text of any section or any subsection
hereof.
Section 10.14 Construction. The parties acknowledge that the parties and
their counsel have reviewed and revised this Agreement and that the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Agreement
or any exhibits or amendments hereto.
Section 10.15 Recordation. This Agreement may not be recorded by any party
hereto without the prior written consent of the other party hereto. The
provisions of this Section 10.15 shall survive the Closing or any termination of
this Agreement.
17
Section 10.16 Seller Approval. [Shall be omitted prior to Closing]
Section 10.17 Concurrent Closing of Related Transactions. The parties
hereto hereby agree that the Closing is expressly contingent upon the concurrent
closing of (i) those certain lease amendments of even date by and between Seller
and Purchaser concerning certain modifications to certain leases, (ii) the
execution of that certain purchase and sale agreement of six (6) parcels by and
between Seller and Purchaser, and (iii) those certain purchase and sale
agreements of even date by and between Seller and Purchaser with respect to a
sale of six (6) shopping centers and that no one of the transactions shall be
consummated without all such transactions being concurrently consummated.
Section 10.18 Oregon Statutory Disclaimer. THE PROPERTY DESCRIBED IN THIS
INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES.
THE PROPERTY IS SUBJECT TO LAND USE LAWS AND REGULATIONS, WHICH, IN FARM OR
FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING A RESIDENCE AND WHICH
LIMIT LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930 IN
ALL ZONES. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE
TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING
DEPARTMENT TO VERIFY APPROVED USES AND EXISTENCE OF FIRE PROTECTION FOR
STRUCTURES.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the Effective Date.
SELLER:
METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------
Title: Asst. Vice President
--------------------------------
PURCHASER:
XXXX XXXXX, INC.,
a Delaware corporation
By: XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------------
Title: V-P Treasurer
--------------------------------
18
EXHIBIT A
(CL-DC Clackamas Distribution Center, Oregon)
Real Property Description
A tract of land located in the South one-half of Section 10, Township 2 South,
Range 2 East, of the Willamette Meridian, in the County of Clackamas and State
of Oregon, more particularly described as follows:
Commencing at the Southeast corner of said Section 10; thence North along the
East line of said Section 10, a distance of 512.43 feet; thence North
89(degree)43'10" West a distance of 28.88 feet to a point which is 30.00 feet
Westerly of, when measured at right angles to, the center line of a road known
as SE 122nd Avenue, said point also being the true point of beginning of the
tract herein to be described; thence continuing North 89(degree)43'10" West, a
distance of 3575.08 feet to a point in the West line of that certain tract of
land conveyed to Southern Pacific Company by Bargain and Sale Deed recorded
April 4, 1962 in Volume 601, page 302, Deed Records; thence North
0(degree)05'10" East along the West line of said Southern Pacific Company tract,
a distance of 759.89 feet to the most Southerly Northwest corner thereof; thence
North 89(degree)40'00" East, along the North line of said Southern Pacific
Company tract, a distance of 115.00 feet; thence North 01(degree)05'10" East,
along the West line of said Southern Pacific Company tract, a distance of 157.00
feet to the most Northerly Northwest corner thereof; thence North
89(degree)40'00" East, along the North line of said Southern Pacific Company
tract, a distance of 192.80 feet (Volume 601, page 302 calls 182 feet) to the
Northeast corner thereof said corner also being in the West line of that certain
tract of land conveyed to Southern Pacific Company by Bargain and Sale Deed
recorded April 4,1962 in Volume 601, page 296, Deed Records: thence North
0(degree)29'10" West, along the West line of last said Southern Pacific Company
tract, a distance of 220.00 feet to a point in the Southerly line of Clackamas
Xxxxxxx (Xxxxx Xxxxxxx Xx. 000) said point being 60 feet Southerly of, when
measured at right angles to, the center line of said Clackamas Highway (1900
relocation as noted in Warranty Deed Fee No. 82 6071); thence North
89(degree)40'00" East, along the South line of said Clackamas Highway, a
distance of 3022.10 feet to a point in the East line of that certain tract of
land conveyed to Southern Pacific Company by Bargain and Sale Deed recorded
April 4, 1962 in Volume 601, page 288, Deed Records; thence South along said
East line and the Southerly extension thereof, a distance of 780.38 feet to a
point in the North line of that certain tract of land conveyed to Southern
Pacific Company by Bargain and Sale Deed recorded April 4, 1962 in Volume 601,
page 290, Deed Records; thence East along the North line of last said Southern
Pacific Company tract, a distance of 245.68 feet to a point in the West line of
SE 122nd Avenue, said point being 30 feet Westerly of, when measured at right
angles to, the center line of said XX 000xx Xxxxxx; thence South along the West
line of said SE 122nd Avenue, a distance of 393.37 feet to the point of
beginning.
EXCEPTING THEREFROM that portion of said property lying below a depth of 500
feet measured vertically from the contour of the surface thereof.
