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EXHIBIT 10.4
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
(Xxxxxxx Industrial Park Disposition)
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS
("Agreement") is made and entered into as of this 10 day of December, 1997
("Execution Date"), by and between PMRA III, a group trust ("Seller") and
PACIFIC GULF PROPERTIES INC., a Maryland corporation ("Buyer"), with respect to
the following.
RECITALS
A. WHEREAS, Seller owns certain improved real property, which is
commonly known as Xxxxxxx Industrial Parks I and II, located at 251, 261 and 000
Xxxxxxxxxxx Xxxxxx, 3950 Development Drive and 0000 Xxxxxxxx Xxxxx in the city
of Sacramento ("City"), county of Sacramento ("County"), state of California
("State"), which is more particularly described on Exhibit "A" attached hereto
(the "Land"), together with (i) the building and all other improvements located
on the Land (the "Improvements") (ii) all rights, easements, and appurtenances
pertaining to the Real Property, including any right, title and interest of
Seller in and to adjacent streets, roads, alleys and rights of way; (iii) all
the personal property owned by Seller, if any, located upon or in the Real
Property and the Improvements and used exclusively in connection with the
operation thereof ("Personal Property"); (iv) all of Seller's right, title and
interest in and to any rental agreements with occupants, tenants and leases of
the Improvements and/or the Real Property, including, but not limited to, all
refundable and nonrefundable security, rental and cleaning deposits, and prepaid
rent held by Seller (hereinafter collectively referred to as "Tenant Leases";
all tenants under such Tenant Leases are hereinafter collectively referred to as
"Tenants"); and (v) such other rights, interests, and properties as may be
specified in this Agreement to be sold, transferred, assigned, or conveyed by
Seller to Buyer.
B. WHEREAS, the Real Property, together with the Improvements, Personal
Property, Tenant Leases and other rights, interests, easement, appurtenances,
and properties described in this Agreement, are hereinafter collectively called
the "Property."
C. WHEREAS, Seller desires to sell the Property to Buyer, and Buyer
desires to purchase the Property from Seller, upon the terms and conditions set
forth in this Agreement.
AGREEMENT
NOW, THEREFORE, incorporating the foregoing recitals, and in
consideration of the mutual covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller and Buyer agree that the terms and conditions of
this Agreement and the instructions to Chicago Title
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Insurance Company ("Escrow Holder"), with regard to the escrow ("Escrow")
created pursuant hereto are as follows.
1. Purchase and Sale. Seller hereby agrees to sell the Property to
Buyer, and Buyer hereby agrees to purchase the Property from Seller, upon the
terms and conditions set forth in this Agreement.
2. Purchase Price. The purchase price ("Purchase Price") for the
Property shall be Four Million Seven Hundred Thousand Dollars ($4,700,000.00),
which shall be paid in accordance with the terms of Paragraph 3 below.
3. Payment of Purchase Price. The Purchase Price for the Property shall
be paid by Buyer as set forth below in this Paragraph 3.
3.1 Deposit. Within one (1) day after the "Opening of Escrow" (as
defined below in Paragraph 4.1), Buyer shall deposit, or cause to be
deposited, with Escrow Holder the sum of One Hundred Thousand and
No/100 Dollars ($100,000.00) in immediately available funds (the
"Initial Deposit"). Until 5:00 p.m. Pacific Standard time on December
17, 1997 ("Contingency Date"), the Initial Deposit shall remain
immediately refundable to Buyer upon demand if the transaction
contemplated by this Agreement is not consummated for any reason
whatsoever. If this Agreement has not previously terminated, then
within one (1) business day after the Contingency Date, Buyer shall
deposit, or cause to be deposited, with Escrow Holder the additional
sum of One Hundred Thousand and No/100 Dollars ($100,000.00)
("Additional Deposit") (together with any interest which accrues
thereon, the Initial Deposit and the Additional Deposit are
hereinafter collectively referred to as the "Deposit"). Escrow Holder
shall immediately invest the Deposit in a federally-insured,
interest-bearing account and all interest accruing thereon shall be
credited to Buyer. From and after the Contingency Date, the Deposit
shall not be refundable unless the transaction contemplated by this
Agreement is not consummated solely as the result of Seller's default
or the failure of a condition precedent to the Close of Escrow for the
benefit of Buyer. Upon the "Close of Escrow" (as defined below in
Paragraph 4.2), the Deposit shall be credited toward payment of the
Purchase Price.
3.2 Cash Balance. Not later than 11:00 a.m. Pacific Standard time
on the Closing Date, Buyer shall deposit or cause to be deposited,
with Escrow Holder, in immediately available funds, the balance of the
Purchase Price, plus or minus Buyer's share of closing costs and
charges set forth in Paragraph 10 below and Buyer's share of
prorations set forth on the Proration and Expense Schedule (as defined
below in paragraph 11) payable pursuant to this Agreement.
4. Escrow.
4.1 Opening of Escrow. For the purposes of this Agreement, the
Escrow shall be deemed opened ("Opening of Escrow") on the date Escrow
Holder receives an original of this Agreement fully executed by Buyer
and Seller, which shall
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occur no later than December 10, 1997, or such later date as the parties
may agree in writing, or this Agreement shall automatically and
irrevocably terminate. Escrow Holder shall promptly notify Buyer and
Seller in writing of the Opening of Escrow. Buyer and Seller agree to
execute, deliver and be bound by any reasonable or customary
supplemental escrow instructions or other instruments reasonably
required by Escrow Holder to consummate the transaction contemplated by
this Agreement; provided, however, that no such instruments shall be
inconsistent or in conflict with, amend or supersede any portion of this
Agreement. If there is any conflict or inconsistency between the terms
of such instruments and the terms of this Agreement, then the terms of
this Agreement shall control.
4.2 Close of Escrow. For purposes of this Agreement, the "Close
of Escrow" shall be the date that the Deed (as defined below in
Paragraph 9.1.1) is recorded in the Official Records of the County
(the "Official Records"). Unless changed in writing by Buyer and
Seller, the Close of Escrow shall occur on or before December 23, 1997
(the "Closing Date").
4.3 Delivery and Possession. At the Close of Escrow, Seller shall
deliver to Buyer (a) possession of the Property, subject to all
title-matters of record or apparent, including, without limitation,
all Approved Title Conditions (as defined below in Paragraph 5), and
(b) all keys to the Improvements in Seller's possession or control
(which Seller may cause to occur through its property manager).
5. Condition of Title. As a condition precedent to the Close of Escrow
for Buyer's benefit, title to the Property shall be conveyed to Buyer by
Seller by the Deed subject only to the following approved conditions of title
(collectively, the "Approved Title Conditions").
5.1 Taxes. A lien to secure payment of real estate taxes not
delinquent shall constitute an Approved Title Condition.
5.2 Approved Matters. Matters affecting the Property created by
or with the written consent of Buyer shall constitute Approved Title
Conditions.
5.3 Additional Matters. Exceptions which are disclosed by the
Report (as defined below in Paragraph 7.1) and which are approved or
deemed approved by Buyer in accordance with the terms of Paragraph 7.1
shall constitute Approved Title Conditions.
5.4 Monetary Encumbrances. Notwithstanding anything to the
contrary contained herein and notwithstanding any approval or consent
given by Buyer hereunder, Seller shall use good faith efforts to cause
all mortgages, deeds of trust and other monetary encumbrances caused
by Seller, including, without limitation, all mechanics' liens, but
excluding non-delinquent real property taxes, to be released and
reconveyed from the Property on or prior to the Closing Date.
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6. Buyer's Title Policy. Provided that Buyer has timely obtained and
delivered to Title Company (as defined below in Section 7.1) an ALTA survey of
the Land ("Survey"), at Buyer's sole expense, in form and substance satisfactory
to Title Company and in time for Title Company to confirm, by the Contingency
Date, its willingness to issue an ALTA Owner's Policy of Title Insurance (Form
B, rev. 10/17/70, with Endorsement Form 1 coverage) in the amount of the
Purchase Price showing title to the Real Property vested in Buyer subject only
to the Approved Title Conditions and with CLTA endorsement nos. 100 (modified
for an owner), 101.4, 103.7, 116, 116.1 and 116.7, then as a condition
precedent to Buyer's obligations under this Agreement, Title Company shall
issue the Title Policy in such form upon the Close of Escrow. If Buyer fails to
timely deliver the Survey to Title Company, then Title Company's willingness to
issue an ALTA Owner's Policy of Title Insurance, but with a general survey
exception, shall constitute satisfaction of this condition precedent to Buyer's
obligations under this Agreement with respect to matters of title to the Real
Property (as applicable, the "Title Policy"). To facilitate the process of
procuring the Survey, Seller shall deliver to Buyer the most recent ALTA survey
of the Property in Seller's possession within two (2) business days after the
Opening of Escrow.
7. Conditions Precedent to the Close of Escrow for the Benefit of Buyer.
The Close of Escrow and Buyer's obligation to consummate the transaction
contemplated by this Agreement are subject to the timely satisfaction or written
waiver of the following conditions precedent for Buyer's benefit by the dates
designated below. Unless otherwise specified below, Buyer's failure to timely
deliver written notice of its disapproval of the matter(s) set forth below in
this Paragraph 7 shall be deemed to constitute Buyer's irrevocable approval
thereof
7.1 Title. Buyer shall have approved the legal description of the
Land and any matters of title disclosed by the following documents
(collectively, the "Title Documents") prepared and delivered to Buyer by
Chicago Title Insurance Company, National Business Unit (Xx. Xxxx Xxxxxx)
(the "Title Company"): (A) a standard preliminary title report issued by
the Title Company with respect to the Property (the "Report"); and (B)
copies of all recorded documents referred to in the Report. Buyer shall
have until 5:00 p.m. Pacific Standard time on the Contingency Date, to
deliver to Seller written notice ("Buyer's Title Notice") of Buyer's
disapproval or conditional approval of any matters shown in or disclosed by
the Title Documents or the survey, if Buyer obtains a survey of the
Property in a timely manner. Buyer's failure to timely deliver Buyer's
Title Notice shall be deemed to constitute Buyer's disapproval of all
matters of title. Upon the Closing Date, the Title Company shall be
prepared to issue to Buyer the Buyer's Title Policy in the form and
substance required by the provisions of Paragraph 6, subject only to the
Approved Title Conditions.
7.2 Physical Inspections and Studies. Buyer shall have the right to
approve or disapprove, in Buyer's sole discretion, the results of Buyer's
inspections, investigations, tests and studies, including, without
limitation, investigations with regard to zoning, building codes and other
governmental regulations, architectural inspections, engineering tests, and
soils, seismic and geologic reports with respect to the Property,
inspections of all or any portion of the Improvements (including, without
limitation,
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structural, mechanical and electrical systems, roofs, pavement, landscaping
and public utilities), and any other physical inspections and/or
investigations as Buyer may elect to make or obtain (collectively, the
"Tests") by delivering written notice thereof to Seller and Escrow Holder
by the Contingency Date. Buyer's failure to timely approve in writing the
results of the Tests shall be deemed to constitute Buyer's disapproval
thereof
7.3 Seller's Deliveries. At least one (1) business day prior to the
Closing Date, Seller shall have delivered to Escrow Holder the documents
described in Paragraph 9.1.
7.4 Representations and Warranties. All representations and warranties
of Seller contained in this Agreement shall be true and correct as of the
date made and as of the Close of Escrow with the same effect as if those
representations and warranties were made at and as of the Close of Escrow.
7.5 Covenants. By the Closing Date, Seller shall not be in default in
the performance of any covenant or agreement to be performed by Seller
under this Agreement.
7.6 Tenant Estoppels. As a condition precedent to Buyer's obligation
to close this transaction, Seller shall obtain and deliver to Buyer, by
December 16, 1997, Tenant Estoppel Certificates in the form attached hereto
as Exhibit "G" executed by all Tenants of the Property as of the Execution
Date, which Buyer shall have the right to disapprove only if a Tenant
Estoppel Certificate discloses (A) a material default of the landlord or
Tenant under the applicable Tenant Lease, or (B) a material discrepancy
with the corresponding Tenant Lease. Seller shall have the right, but not
the obligation, to satisfy the foregoing requirement for Tenant's
occupying, in the aggregate, up to, but not more than, 30% of the leased
area of the Improvements, by executing Tenant Estoppel Certificates,
modified as follows ("Landlord Estoppel Certificate"): (X) qualified to
Seller's actual knowledge (as defined in this Agreement), and (Y) to
survive only until the expiration of the representations and warranties in
this Agreement or the earlier receipt by Buyer of a Tenant Estoppel
Certificate for the corresponding Tenant Lease to the extent that such
Tenant Estoppel Certificate does not materially deviate from the matters
set forth in the corresponding Landlord Estoppel Certificate.
Notwithstanding anything to the contrary contained herein, the failure of
the condition precedent set forth in this Paragraph 7.6 shall not be deemed
to constitute a default by Seller under this Agreement.
7.7 New Matters. If, after the Contingency Date, there shall come to
exist or if Seller or Buyer shall then learn, discover or become aware of
the disposal or discharge after the end of the Due Diligence Period on the
Property of any hazardous or toxic materials or wastes (as such terms are
defined under federal, State or local law) or of any new, changed, or
additional item, matter, fact or circumstance affecting title to the
Property or rendering a representation and/or warranty by Seller hereunder
untrue (collectively, "New Matter"), then the party who has learned,
discovered, or become aware of such New Matter shall promptly give written
notice to the other of same. Buyer shall have two (2) business days after
(a) receipt of notice from Seller, or (b) delivery of Buyer's notice to
Seller, of a New Matter within which to disapprove such New
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Matter by delivering written notice to Seller. Buyer's failure to timely
disapprove any New Matter shall be deemed to constitute Buyer's approval
thereof. If Buyer disapproves or is deemed to disapprove a New Matter in
accordance with this Section 7.7, then within two (2) business days
thereafter, Seller shall have the right to either (i) accept Buyer's
disapproval by delivering written notice thereof to Buyer (or failing to
provide timely written notice of item (ii) below), whereupon this Agreement
shall terminate, the Deposit shall be promptly refunded by Escrow Holder to
Buyer and neither party shall have any further rights or obligations
hereunder, except to the extent that such matters expressly survive the
termination of this Agreement, or (ii) notify Buyer that it has elected to
extend the Close of Escrow for a period of up to thirty (30) days within
which Seller may pursue cure of the New Matter by delivering written notice
thereof to Buyer. If Seller exercises its right to delay the Close of
Escrow and does not cure the New Matter by the delayed Closing Date, then a
condition precedent to Buyer's obligations under this Agreement shall be
deemed to have failed, Seller shall not be deemed to have defaulted under
this Agreement, and this Agreement shall terminate as described above in
subsection (i).
8. Conditions Precedent to the Close of Escrow for the Benefit of Seller.
The Close of Escrow and Seller's obligations with respect to the transaction
contemplated by this Agreement are subject to the timely satisfaction or
written waiver of the following conditions precedent for Seller's benefit by the
dates designated below.
8.1 Buyer's Deliveries. At least one (1) business day prior to the
Closing Date, Buyer shall have delivered to Escrow Holder the documents
described in Paragraph 9.2.
8.2 Representations and Warranties. All representations and warranties
of Buyer contained in this Agreement shall be true and correct as of the
date made and as of the Close of Escrow with the same effect as if those
representations and warranties were made at and as of the Close of Escrow.
8.3 Covenants. By the Closing Date, Buyer shall not be in default in
the performance of any covenant or agreement to be performed by Buyer under
this Agreement.
9. Deliveries to Escrow Holder.
9.1 Deliveries by Seller. At least one (1) business day prior to the
Close of Escrow, Seller shall deposit or cause to be deposited with Escrow
Holder the following documents and instruments.
9.1.1 Deed. Seller shall deliver to Escrow Holder a grant deed in
the form attached hereto as Exhibit "B", duly executed by Seller and
acknowledged ("Deed").
9.1.2 FIRPTA. Seller shall deliver to Escrow Holder an executed
Transferor's Certification of Non-Foreign Status and an executed
California Real Estate Withholding Exemption (Form 590), in the forms
attached hereto,
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respectively, as Exhibits "C-1" and "C-2", duly executed by
Seller (collectively, "FIRPTA Certificates").
9.1.3 Lease Assignmment. Seller shall deliver to
Escrow Holder four (4) original counterparts of the Assignment
and Assumption of Leases in the form attached hereto as Exhibit
"D" ("Lease Assignment"), duly executed by Seller.
9.1.4 General Assigrunent. Seller shall deliver to
Escrow Holder four (4) original counterparts of the General
Assignment and Xxxx of Sale in the form attached hereto as
Exhibit "E" ("General Assignment"), duly executed by Seller.
9.1.5 Notices to Tenants. Seller shall deliver to
Escrow Holder notices to the Tenants of the Property in the form
attached hereto as Exhibit "F" ("Tenant Notices"), executed by
Seller.
9.2 Deliveries by Buyer. Unless otherwise provided, at
least one (1) business day prior to the Close of Escrow, Buyer shall
deposit or cause to be deposited with Escrow Holder the following.
9.2.1 Funds. Prior to the Close of Escrow, Buyer
shall deliver to Escrow Holder funds which are to be applied
toward payment of the Purchase Price in the amounts and at the
times designated above in Paragraph 3 (as adjusted by the
Proration and Expense Schedule).
9.2.2 Lease Assignment. Buyer shall deliver to
Escrow Holder four (4) original counterparts of the Lease
Assignment duly executed by Buyer.
9.2.3 General Assignment. Buyer shall deliver to
Escrow Holder four (4) original counterparts of the General
Assignment duly executed by Buyer.
10. Costs and Expenses. If the transaction contemplated by this
Agreement is consummated, then Seller shall bear the following costs and
expenses: (A) one-half (1/2) of Escrow Holder's fees, (B) County and City
documentary transfer taxes, (C) the premium for the Title Policy attributable to
the CLTA coverage only, and (D) Seller's share of prorations. If the transaction
contemplated by this Agreement is consummated, then Buyer shall bear the
following costs and expenses: (i) the cost of the Title Policy in excess of the
CLTA premium, including the cost of all endorsements, any premium attributable
to ALTA coverage, if any, and the cost of any survey, (ii) document recording
fees relating to documents conveying title or property interests to Buyer, (iii)
one-half (1/2) of Escrow Holder's fee, and (iv) Buyer's share of prorations.
Buyer and Seller shall pay, respectively, the Escrow Holder's customary charges
to buyers and sellers for document drafting, recording and miscellaneous
charges. If, as a result of no fault of Buyer or Seller, Escrow fails to close,
Buyer and Seller shall share equally all of Escrow Holder's fees and charges;
however, if the transaction fails to close as the result of the default of
either party, then such defaulting party shall bear all Escrow Holder's fees and
expenses. Subject to the provisions
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of Paragraph 19 below, each party shall bear the cost of its own attorneys and
consultants. All other costs and expenses shall be allocated between Buyer and
Seller in accordance with the customary practice of the City and County.
11. Prorations. All revenues and expenses relating to the
Property, including without limitation, real property taxes and assessments.
utility charges, insurance premiums and the like, shall be prorated on a cash
basis as of the Close of Escrow. If the parties are unable to obtain final meter
readings from all applicable meters as of the Close of Escrow, such expenses
shall be reasonably estimated as of the Close of Escrow on the basis of the
prior operating history of the Property. Notwithstanding anything to the
contrary contained herein, rentals or other amounts due by the Tenants pursuant
to the terms of the Tenant Leases which are delinquent as of the Closing Date
shall be prorated between Buyer and Seller as of the Closing Date but only upon
receipt by Buyer. Buyer shall use commercially reasonable efforts to collect any
delinquent rentals, including sending invoices to Tenants for delinquent rent
disclosed to Buyer by Seller, on a monthly basis for six (6) months following
the Closing Date. However, Buyer shall not be obligated to commence any legal
action or incur any cost or expense (other than the delivery of such notices) to
collect any delinquent rent. Seller shall be permitted to pursue collection of
any rent arrearages applicable to the period prior to the Closing Date, provided
that Buyer shall not incur any, and Seller shall indemnify Buyer against all
cost, expense or liability in connection therewith, and provided further that
Seller shall not commence any legal or equitable proceedings in the nature of an
unlawful detainer, eviction or other proceeding, which would have the effect of
interfering with any tenant's quiet enjoyment of its leased premises or result
in a lien or encumbrance on such leased premises. Delinquent rentals and other
amounts collected by Buyer, net of the actual, documented, third-party costs of
collection incurred by Buyer, shall be applied first to amounts currently due
and then to amounts most recently overdue. In addition, operating cost
pass-throughs, percentage rentals, additional rentals, other retroactive rental
escalations, sums, charges payable by Tenants ("Additional Rentals"), shall be
prorated on a cash basis as of the Close of Escrow. If, at the Close of Escrow,
it is determined that Seller has collected Additional Rentals in excess of
amounts actually owed by Tenants, Buyer shall be credited for such excess.
Payments of Additional Rentals collected by Buyer and due Seller shall be made
to Seller promptly following receipt and shall be accompanied by a report
showing how same was calculated and such supporting documentation as Seller
reasonably requests. In addition, Buyer shall be credited and Seller shall be
debited with (or, if a deposit is not a cash deposit then Seller shall transfer
such instrument to Buyer) an amount equal to the Tenant deposits listed on the
Rent Roll (as defined below in Paragraph 13.1.11) (together with any interest
accrued for the benefit of any tenant pursuant to its Lease) and any prepaid
rent actually received by Seller. In addition, Seller shall be responsible for
obtaining a refund of all refundable deposits, retentions, holdbacks being held
by any governmental entity, any utility company, or other third party under
contract and Buyer shall be responsible for initiating any utility service with
respect to the Property, and posting deposits or other funds required in
connection therewith or in connection with any other contract. Not less than one
(1) business day prior to the Close of Escrow, Seller shall deliver to Buyer a
tentative schedule of expenses and prorations ("Proration and Expense Schedule")
for Buyer's approval, which approval shall not be unreasonably withheld. If any
prorations, apportionments or computations made under this Paragraph 11 shall
require final adjustment, then the parties shall make the appropriate
adjustments promptly when accurate information becomes
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available and either party hereto shall be entitled to an adjustment to correct
the same. Any corrected adjustment or proration shall be paid promptly in cash
to the party entitled thereto. Notwithstanding any other provision of this
Agreement to the contrary, the parties hereto hereby agree that if any new
Tenant Leases are executed after the Execution Date pursuant to the provisions
of Paragraph 23 of this Agreement, then Buyer shall bear all leasing commission
costs, tenant improvement costs, free rent or other landlord concession expenses
under such Tenant Lease without contribution from Seller regardless of when such
expenses arise.
12. Disbursements and Other Actions by Escrow Holder. Upon the
Close of Escrow, Escrow Holder shall promptly undertake all of the following in
the manner and order set forth.
12.1 Disburse Funds. Escrow Holder shall credit all
matters addressed in Paragraphs 3 and 10 and prorate all matters
addressed in Paragraph 11 based upon the Proration and Expense Schedule
and disburse the balance of the Purchase Price to Seller promptly upon
the Close of Escrow and remaining funds, if any, to Buyer.
12.2 Recording. Escrow Holder shall cause the Deed, and
any other documents which the parties hereto may mutually direct, to be
recorded in the Official Records and obtain conformed copies thereof for
distribution to Buyer and Seller.
12.3 Documents to Seller. Escrow Holder shall disburse to
Seller two (2) original Lease Assignments and General Assignment and
conformed copies of the Deed.
12.4 Documents to Buyer. Escrow Holder shall deliver to
Buyer the original FIRPTA Certificates, the original Tenant Notices and
two (2) originals of the Lease Assignment and the General Assignment and
each other document (or copies thereof) deposited into Escrow by Seller
pursuant hereto and a conformed copy of the Deed.
12.5 Title Company. Escrow Holder shall direct the Title
Company to issue the Title Policy to Buyer.
13. Representations and Warranties.
13.1 Seller's Representations and Warranties. In
consideration of Buyer entering into this Agreement and as an inducement
to Buyer to purchase the Property, Seller makes the following
representations and warranties, each of which is material and is being
relied upon by Buyer (and the truth and accuracy of which shall
constitute a condition precedent to Buyer's obligations hereunder,
subject to the provisions of Paragraph 7.7 and the provisions set forth
below in Paragraph 13.1 and 14.2).
13.1.1 Power. Seller has the legal power, right
and authority to enter into this Agreement and the instruments
referenced herein, and to consummate the transaction contemplated
hereby.
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13.1.2 Requisite Action. AU requisite action (corporate,
trust, partnership or otherwise) has been taken by Seller in connection
with entering into this Agreement, the instruments referenced herein,
and the consummation of the transaction contemplated hereby. No consent
of any partner, shareholder, trustee, trustor, beneficiary, creditor,
investor, judicial or administrative body, governmental authority or
other party is required for Seller to consummate the transaction
contemplated by this Agreement.
13.1.3 Individual Authority. The individuals executing
this Agreement and the instruments referenced herein on behalf of Seller
and the partners of Seller, if any, have the legal power, right, and
actual authority to bind Seller to the terms and conditions hereof and
thereof.
13.1.4 No Conflict. Neither the execution and delivery of
this Agreement and the documents and instruments referenced herein, nor
the incurrence of the obligations set forth herein, nor the consummation
of the transaction contemplated herein, nor compliance with the terms of
this Agreement and the documents and instruments referenced herein
conflict with or result in the material breach of any terms, conditions
or provisions of, or constitute a default under, any bond, note, or
other evidence of indebtedness or any contract, indenture, mortgage,
deed of trust, loan, partnership agreement, lease or other agreement or
instrument to which Seller is a party or affecting the Property.
13.1.5 Litigation. Except as otherwise disclosed in
writing by Seller to Buyer, or as may be disclosed in the due diligence
documents made available to Buyer pursuant to this Agreement ("Due
Diligence Documents"), Seller has not received written notice of any
pending legal proceedings or administrative actions of any kind or
character adversely affecting the Property or Seller's interest therein.
13.1.6 Government Notices. Except as set forth in the Due
Diligence Documents or otherwise disclosed in writing by Seller, Seller
has received no written notice from any City, County, State or any
government authority of any order or directive requiring any work of
repair, maintenance or improvement to be performed on the Property which
has not been performed.
13.1.7 Hazardous Materials. Except as set forth in the Due
Diligence Documents, or as otherwise disclosed in writing by Seller to
Buyer, Seller has received no written notice that the Property is in
violation of any federal, state or local laws, ordinances and
regulations applicable to the Property with respect to hazardous or
toxic substances or industrial hygiene (collectively, "Environmental
Laws"), which violation has not been corrected.
13.1.8 Insolvency. To Seller's actual knowledge, there are
no actions or proceedings pending to liquidate or reorganize under any
bankruptcy or insolvency law or to appoint a receiver for Seller, and,
except as set forth in the
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Due Diligence Documents, or as otherwise disclosed in writing by
Seller to Buyer, Seller has received no written notice of any
bankruptcy of any Tenant.
13.1.9 Violations. Except as set forth in the Due
Diligence Documents, or as otherwise described in writing by
Seller to Buyer, Seller has not received any written notice that
the Property, or its current use and operation, is in violation
of any laws, rules, permits or regulations applicable thereto.
13.1.10 No Notice. Except as set forth in the
Due Diligence Documents, or as otherwise described in writing by
Seller to Buyer, Seller has not received any written notice of
any condemnation, environmental, zoning or other land use
proceedings instituted or to be instituted against the Property,
nor has Seller received written notice of any special assessment
proceedings affecting the Property (other than as set forth in
the Report).
13.1.11. Rent Roll. To Seller's actual knowledge,
the rent roll attached hereto as Exhibit "H" ("Rent Roll") is
accurate.
13.1.12 Notices of Default. To Seller's actual
knowledge, other than as noted on the Rent Roll or as disclosed
in the Due Diligence Documents, and other than rent which is less
than thirty (30) days overdue, Seller has not given any uncured
written notice of default to any Tenant.
13.1.13 Arm's Length. Seller has negotiated and
determined the terms of the transaction contemplated hereunder at
arm's length as such terms would be negotiated and determined by
Seller with unrelated parties.
For purposes of this Section 13.1, "to Seller's actual knowledge"
and all such similar phrases shall mean the actual, present knowledge of Xxxxxxx
Xxxxxxx, without any duty of investigation or inquiry in connection with this
transaction beyond exercising his ordinary duties as Seller's asset manager of
the Property. Additionally, as used in this Agreement, the phrase "Seller has
not received any written notice" shall mean that Xxxxxxx Xxxxxxx does not have
actual knowledge of receiving the subject written notice. Seller hereby
represents that Xxxxxxx Xxxxxxx is the employee of Seller's investment manager,
PMRealty Advisors, Inc. ("PM"), who is primarily responsible for the management
of the Property and is charged with primary responsibility of the operation and
maintenance of the Property and, as such, is the individual employed by PM most
likely to have acquired knowledge about the Property. The representations and
warranties of Seller set forth in this Section 13.1 shall not merge with the
Deed and shall survive the Closing Date for a period of nine (9) months after
the Closing Date, and shall thereupon expire except with respect to claims for
which Buyer, on or before the expiration of such nine (9)- month period, had
commenced legal action for such "Representation Matter" as defined below;
provided, however, that in the case of fraud or willful misrepresentation only,
such representations and warranties shall survive the Closing Date independent
of this limitation. Notwithstanding the foregoing, if, prior to the Closing
Date, Buyer or Seller should learn, discover or become aware of any existing or
new item, fact or circumstance which renders a representation or warranty of
Seller set forth herein incorrect or untrue in any material respect
(collectively, the "Representation
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Matter"), then the party who has learned, discovered or become aware of such
Representation Matter shall promptly give written notice thereof to the other
party and Seller's representations and warranties shall be automatically limited
to account for the Representation Matter. If, prior to the Closing Date, Buyer
discovers or is notified of a Representation Matter, then Buyer shall have the
right to terminate this Agreement and obtain a refund of the Deposit by
providing written notice thereof to Seller no later than ten (10) business days
after Buyer learns or is notified of such Representation Matter. Upon such
termination, neither party hereunder shall have any further obligations or
liabilities under this Agreement except as specifically set forth herein. If
Buyer proceeds to the Closing after discovering or being notified of a
Representation Matter, then Seller's representations and warranties shall be
automatically limited to account for the Representation Matter, Buyer shall be
deemed to have waived Buyer's right to pursue any remedy for breach of the
representation or warranty made untrue on account of such Representation Matter.
13.2 Buyer's Representations and Warranties. In
consideration of Seller entering into this Agreement and as an
inducement to Seller to sell the Property, Buyer makes the following
representations and warranties, each of which is material and is being
relied upon by Seller (and the truth and accuracy of which shall
constitute a condition precedent to Seller's obligations hereunder).
13.2.1 Power. Buyer has the legal power, right and
authority to enter into this Agreement and the instruments
referenced herein, and to consummate the transaction contemplated
hereby.
13.2.2 Requisite Action. All requisite action
(corporate, trust, partnership or otherwise) has been taken by
Buyer in connection with entering into this Agreement and the
instruments referenced herein; and, by the Close of Escrow all
such necessary action will have been taken to authorize the
consummation of the transaction contemplated hereby. By the Close
of Escrow no additional consent of any partner, shareholder,
trustee, trustor, beneficiary, creditor, investor, judicial or
administrative body, governmental authority or other party shall
be required for Buyer to consummate the transaction contemplated
by this Agreement.
13.2.3 Individual Authority. The individuals
executing this Agreement and the instruments referenced herein on
behalf of Buyer have the legal power, right, and actual authority
to bind Buyer to the terms and conditions hereof and thereof.
13.2.4 No Conflict. Neither the execution and
delivery of this Agreement and the documents and instruments
referenced herein, nor the incurrence of the obligations set
forth herein, nor the consummation of the transaction
contemplated herein, nor compliance with the terms of this
Agreement and the documents and instruments referenced herein
conflict with or result in the material breach of any terms,
conditions or provisions of, or constitute a default under, any
bond, note, or other evidence of indebtedness or any contract,
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indenture, mortgage, deed of trust, loan, partnership agreement, lease
or other agreement or instrument to which Buyer is a party.
13.2.5 ERISA. Buyer represents and warrants to Seller, to
comply with (A) the Employee Retirement Income Security Act of 1974, as
amended and (B) state statutes regulating investments of and fiduciary
obligations with respect to governmental plans, that: (i) neither Buyer
nor any of its affiliates has, or during the immediately preceding year
has exercised, the authority to: (A) appoint or terminate Seller as an
investment manager of the employee benefit plans that have been
identified by Seller to Buyer and Buyer's counsel as having an interest
in the Separate Account on whose behalf the purchase is being made, and
whose funds are being used to effectuate the transaction contemplated in
this Agreement; or (B) negotiate the terms of any management agreement
with Seller on behalf of any such plan; and (ii) Buyer has negotiated
and determined the terms of the transaction contemplated hereunder at
arm's length as such terms would be negotiated and determined by Buyer
with unrelated parties.
13.3 As-Is. As a material inducement to the execution and
delivery of this Agreement by Seller and the performance by Seller of its duties
and obligations hereunder, Buyer does hereby acknowledge, represent, warrant and
agree, to and with the Seller that except as expressly provided in Paragraph
13.1, and for the duration set forth in Paragraph 13.1 (i) Buyer is purchasing
the Property in an "AS-IS" condition as of the date of the Close of Escrow with
respect to any facts, circumstances, conditions and defects; ii) Seller has no
obligation to repair or correct any such facts, circumstances, conditions or
defects or compensate Buyer for same; (iii) by the Close of Escrow, Buyer shall
have undertaken all such physical inspections and examinations of the Property
as Buyer deems necessary or appropriate under the circumstances, and that based
upon same, Buyer is and will be relying strictly and solely upon such
inspections and examinations and the advice and counsel of its agents and
officers, and Buyer is and will be fully satisfied that the purchase price is
fair and adequate consideration for the Property, (iv) Seller is not making and
has not made any warranty or representation with respect to all or any part of
the Property (including, but not limited to, any matters contained in documents
made available or delivered to Buyer in connection with this Agreement,
including, without limitation, the Report) as an inducement to Buyer to enter
into this Escrow and thereafter to purchase the Property or for any other
purpose; and (v) by reason of all of the foregoing, Buyer shall assume the full
risk of any loss or damage occasioned by any fact, circumstance, condition or
defect pertaining to the physical and financial condition of the Property,
including without limitation the presence of any asbestos containing material,
hazardous toxic or radioactive waste, substance or materials in, on, under or
about the Property, and Buyer hereby expressly and unconditionally waives and
releases Seller and all of its parents, subsidiaries, affiliates and
partnerships, and its and their respective officers, directors, shareholders,
partners, agents and employees, and their respective successors, heirs and
assigns and each of them (individually and collectively, the "Released Parties")
from any and all rights and claims against Seller and/or the Released Parties
with respect to the condition of the Property, including without limitation any
rights of Buyer under the State or Federal Comprehensive Environmental Response,
Compensation and Liability
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Act, as amended from time to time, or similar laws. Buyer acknowledges and
agrees that the foregoing waiver and release includes all rights and claims of
Buyer against Seller pertaining to the condition of the Property, whether
heretofore or now existing or hereafter arising, or which could, might, or may
be claimed to exist, of whatever kind or nature, whether known or unknown,
suspected or unsuspected, liquidated or unliquidated, each as though fully set
forth herein at length, which in any way arise out of, or are connected with, or
relate to, the condition of the Property.
14. Due Diligence.
14.1 Right of Entry. Provided that Buyer is not in default of its
obligations under this Agreement, from and after the Opening of Escrow through
the earlier of the termination of this Agreement or the Contingency Date, Buyer,
its agents, consultants, contractors and subcontractors shall have the right to
enter upon the Property to conduct or make any and all inspections and tests as
may be necessary or desirable, subject to the rights of any tenants or occupants
of the Property and the limitations set forth below in this Paragraph 14. The
scope of any environmental analysis which requires physical sampling of all or
any part of the Property in excess of a Phase I environmental assessment shall
be subject to: (A) the prior approval of Seller, which Seller may withhold or
condition in its sole discretion, (B) Seller's receipt of written evidence that
Buyer has procured the insurance required pursuant to this Paragraph 14, and (C)
the requirement that Buyer dispose of all such test samples in accordance with
applicable law and at no cost or liability to Seller. Nothing herein shall
authorize any subsurface testing or drilling on the Property by Buyer or its
environmental consultant unless specifically approved by Seller, which Seller
may condition or deny in its sole discretion. Buyer shall obtain or cause its
consultants to obtain, at Buyer's sole cost and expense, prior to commencement
of any investigative activities on the Property, a policy of commercial general
liability insurance covering any and all liability of Buyer and Seller with
respect to or arising out of any investigative activities. Such policy of
insurance shall be kept and maintained in force during the term of this
Agreement and so long thereafter as necessary to cover any claims of damages
suffered by persons or property resulting from any acts or omissions of Buyer,
Buyer's employees, agents, contractors, suppliers, consultants or other related
parties. Such policy of insurance shall have liability limits of not less than
One Million Dollars ($1,000,000.00) combined single limit per occurrence for
bodily injury, personal injury and property damage liability, and shall name
Seller as an additional insured.
If this Agreement terminates, then Buyer shall deliver a copy of
all tests, reports, analysis and the like, excluding financial analysis,
obtained and/or prepared pursuant to the provisions of this Paragraph 14. Buyer
shall keep the results of all such inspections, studies, investigations,
analysis, reports and the like confidential except as required by law. Buyer
hereby indemnifies and holds the Property, Seller and Seller's officers,
directors, shareholders, participants, affiliates, employers, representatives,
invitees, agents and contractors free and harmless from and against any and all
claims, costs, losses, damages or expenses arising out of or resulting from such
entry by Buyer, its agents, consultants, contractors and subcontractors. Buyer
shall keep the Property free and clear of any mechanics' liens or materialmen's
liens related to Buyer's right of
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inspection and the activities contemplated in this Paragraph 14. The
Buyer's indemnification obligations set forth in this Paragraph 14 shall
survive the Close of Escrow and shall not be merged with the Deed, and
shall survive the termination of this Agreement and Escrow prior to the
Close of Escrow, and shall not be limited by any provision of this
Agreement.
14.2 Inquiries. From and after the Execution Date until
the Contingency Date and provided that Buyer is not in default of this
Agreement, Buyer shall have the right to make reasonable inquiries to
the Seller's property manager in writing (with a copy concurrently
delivered to Seller) in person or by telephone. In the event of any
in-person conversation between Buyer and Seller's property manager
related to issues concerning the Property, Buyer shall give Seller
reasonable advance telephonic notice of, and Seller shall have the right
to participate in, such conversation. Notwithstanding any other
provision of this Agreement to the contrary, any information or
disclosures made by Seller's property manager and delivered to Buyer
pursuant to the provisions of this Paragraph 14.2 shall, to the extent
that such disclosures indicate that Seller's representations and
warranties are inaccurate in any respect, be deemed a "Representation
Matter" pursuant to the last paragraph of Section 13.1. Except as set
forth in the foregoing sentence, in no event shall a verbal or written
statement by Seller's property manager be deemed a representation or
warranty by Seller.
15. Waiver and Release. Except as set forth in Seller's
representations and warranties contained in Paragraph 13.1 of this Agreement
(and only for the duration thereof), Buyer is relying solely upon Buyer's own
knowledge of the Property based on its investigation of the Property and its own
inspection of the Property in determining the Property's physical condition.
Buyer and anyone claiming by, through or under Buyer hereby waives its right to
recover from and fully and irrevocably releases Seller, its employees, officers,
directors, property manager, brokers (including, without limitation, Broker),
affiliates, parent, subsidiaries, successors and assigns ("Released Parties")
from any and all claims that it may now have or hereafter acquire against any of
the Released Parties for any claims, costs, loss, liability, damage, expenses,
demand, action or cause of action arising from or related to any matters
relating to the Property, including, without limitation, construction defects,
construction errors, construction omissions or other physical conditions of the
Property, latent or otherwise, including environmental matters, affecting the
Property, or any portion thereof. Notwithstanding the foregoing, this release
shall not apply to any claims which Buyer may now or hereafter have on account
of: (i) fraud or willful misrepresentation, or (ii) any claim arising out of a
breach or default by Seller under this Agreement which is brought in a timely
manner. This release includes claims of which Buyer is presently unaware or
which Buyer does not presently suspect to exist which, if known by Buyer, would
materially affect Buyer's release to Seller. Buyer specifically waives the
provision of California Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR EXPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN TO HIM MUST HAVE MATERIALLY
AFFECTED THE SETTLEMENT WITH THE DEBTOR."
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In this connection and to the extent permitted by law, Buyer hereby
agrees, represents and warrants, which representation and warranty shall survive
the Close of Escrow and not be merged with the Deed, that Buyer realizes and
acknowledges that factual matters now unknown to it may have given or may
hereafter give rise to causes of action, claims, demands, debts, controversies,
damages, costs, losses and expenses which are presently unknown, unanticipated
and unsuspected, and Buyer further agrees, represents and warrants, which
representation and warranty shall survive the Close of Escrow and not be merged
with the Deed, that the waivers and releases herein have been negotiated and
agreed upon in light of that realization and that Buyer nevertheless hereby
intends to release, discharge and acquit Seller from any such unknown causes of
action, claims, demands, debts, controversies, damages, costs, losses and
expenses which might in any way be included as a material portion of the
consideration given to Seller by Buyer in exchange for Seller's performance
hereunder.
Seller has given Buyer material concessions regarding this
transaction in exchange for Buyer agreeing to the provisions of this Paragraph
15. Seller and Buyer have each initialed this Paragraph 15 to further indicate
their awareness and acceptance of each and every provision hereof.
[SIG]
------------------------- ---------------------------
SELLER'S INITIALS BUYER'S INITIALS
16. Enforcement and Legal Fees.
16.1 BUYER'S DEFAULT. BUYER AND SELLER AGREE THAT IT WOULD BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY
SUFFER IN THE EVENT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE PURCHASE
OF THE PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A
REASONABLE PRESENT ESTIMATE OF THE NET DETRIMENT THAT SELLER WOULD SUFFER IN THE
EVENT OF BUYER'S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE
DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES FOR THE BREACH OF
THIS AGREEMENT BY BUYER. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT
INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE
SECTION 3275 OR 3369 BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER
PURSUANT TO CALIFORNIA CIVIL CODE SECTION 1671, 1676 AND 1677. SELLER HEREBY
WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. UPON DEFAULT SOLELY
BY BUYER, THIS AGREEMENT SHALL BE TERMINATED AND NEITHER PARTY SHALL HAVE ANY
FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT FOR THE RIGHT
OF SELLER TO COLLECT SUCH LIQUIDATED DAMAGES FROM BUYER AND ESCROW HOLDER. THE
FOREGOING SHALL NOT LIMIT SELLER'S REMEDIES WITH RESPECT TO THE INDEMNITY
PROVIDED BY BUYER PURSUANT TO THE PROVISIONS OF PARAGRAPHS 14 AND 18 OF THIS
AGREEMENT.
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SELLER'S INITIALS BUYER'S INITIALS
[SIG]
------------------------ -----------------------
16.2 SELLER'S DEFAULT. IF SELLER DEFAULTS UNDER THIS
AGREEMENT AND FAILS TO COMPLETE THE PURCHASE AS PROVIDED
HEREIN, THEN BUYER SHALL BE ENTITLED, AS ITS SOLE AND EXCLUSIVE
REMEDY, WHETHER AT LAW OR IN EQUITY, TO TERMINATE THIS
AGREEMENT AND RECOVER FROM SELLER ONLY THE AMOUNT OF BUYER'S ACTUAL
OUT-OF-POCKET EXPENSES INCURRED AND SUMS PAID IN CONNECTION WITH THE
TRANSACTION CONTEMPLATED HEREIN, INCLUDING, WITHOUT LIMITATION, ALL OF
THE SUMS ACTUALLY PAID BY BUYER PURSUANT TO PARAGRAPH 3 HEREOF AND
BUYER'S REASONABLE ATTORNEYS' FEES; PROVIDED, HOWEVER, THAT IN LIEU OF
TERMINATING THE AGREEMENT AND RECOVERING SUCH EXPENSES AND SUMS, BUYER
SHALL BE ENTITLED TO PURSUE SPECIFIC PERFORMANCE OF THIS AGREEMENT
WITHOUT DAMAGES. FROM AND AFTER THE CLOSING DATE, THIS SECTION 16.2
SHALL NOT LIMIT ANY RIGHT OR REMEDY BUYER MAY HAVE ON ACCOUNT OF ANY
BREACH OR DEFAULT UNDER ANY REPRESENTATION OR WARRANTY CONTAINED IN
SECTION 13.1 OF THIS AGREEMENT.
SELLER'S INITIALS BUYER'S INITIALS
[SIG]
------------------------ -----------------------
17. Notices. All notices or other communications required or
permitted hereunder shall be in writing, and shall be personally delivered, sent
by overnight mail (Federal Express or the like) or sent by registered or
certified mail, postage prepaid, return receipt requested, telegraphed,
delivered or sent by telex, telecopy, facsimile, fax or cable and shall be
effective upon receipt at the appropriate address.
To Buyer: Pacific Gulf Properties Inc.
0000 Xxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax No.: (000) 000-0000
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With a copy to: Xxx, Castle & Xxxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxx, Esq.
Phone: (000) 000-0000
Fax No.: (000) 000-0000
To Seller: c/o PMRealty Advisors, Inc.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Phone No. (000) 000-0000
Fax No. (000) 000-0000
With a copy to: Allen, Matkins, Xxxx, Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Phone No. (000) 000-0000
Fax No. (000) 000-0000
To Escrow Holder: Chicago Title Insurance Company
0000 "X" Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Phone No. (000) 000-0000
Fax No. (000) 000-0000
Escrow No. -___________________
Notice of change of address shall be given by written notice in the manner
detailed in this Paragraph 17. Rejection or other refusal to accept or the
inability to deliver because of changed address of which no notice was given
shall be deemed to constitute receipt of the notice, demand, request or
communication sent.
18. Brokers. Upon the Close of Escrow, Seller shall pay a real
estate brokerage commission to CB Commercial ("Broker") with respect to this
transaction in accordance with Seller's separate agreement. Each party hereto
agrees to indemnify and hold harmless the other party from and against any and
all losses, lien, claims, judgments, liabilities, costs, expenses or damages
(including reasonable attorneys' fees and court costs) of any kind of character
arising out of or resulting from any agreement, arrangement or understanding
alleged to have been made by such party or on its behalf with any broker or
finder in connection with this Agreement or transaction contemplated hereby. The
foregoing indemnity shall survive the Closing or the earlier termination of this
Agreement and shall not be limited by any provision of this Agreement.
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19. Legal Fees. If either Buyer or Seller brings any action or
suit against the other for any matter relating to or arising out of this
Agreement, then the prevailing party in such action or dispute, whether by final
judgment or out of court settlement, shall be entitled to recover from the other
party all costs and expenses of suit, including actual attorneys' fees. Any
judgment or order entered in any final judgment shall contain a specific
provision providing for the recovery of all costs and expenses of suit,
including actual attorneys' fees incurred in enforcing, perfecting and executing
such judgment. For the purposes of this paragraph, such costs shall include,
without limitation, in-house or outside attorneys' fees, costs and expenses
incurred in the following: (A) postjudgment motions; (B) contempt proceeding;
(C) garnishment, levy, and debtor and third party examination; (D) discovery;
and (E) bankruptcy litigation.
20. Assignment. Buyer may not assign, transfer or convey its rights
or obligations under this Agreement at any time without the prior written
consent of Seller, which Seller may withhold in its sole discretion.
21. Miscellaneous.
21.1 Survival. The covenants, representations and
warranties of both Buyer and Seller set forth in this Agreement shall
survive the recordation of the Deed and the Close of Escrow.
21.2 Required Actions of Buyer and Seller. Buyer and
Seller agree to execute such instruments and documents and to diligently
undertake such actions as may be required in order to consummate the
purchase and sale herein contemplated and shall use their best efforts
to accomplish the Close of Escrow in accordance with the provisions
hereof.
21.3 Computation of Time Periods. If the date upon which
the Contingency Date occurs, the Closing Date occurs or any other date
or time period provided for in this Agreement is or ends on a Saturday,
Sunday or federal, state or legal holiday, then such date shall
automatically be delayed until the next day which is not a Saturday,
Sunday or federal, state or legal holiday.
21.4 Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, but
all of which, together, shall constitute but one and the same
instrument.
21.5 Captions. Any captions to, or headings of, the
paragraphs or subparagraphs of this Agreement are solely for the
convenience of the parties hereto, are not a part of this Agreement, and
shall not be used for the interpretation or determination of the
validity of this Agreement or any provision hereof.
21.6 No Obligations to Third Parties. Except as otherwise
expressly provided herein, the execution and delivery of this Agreement
shall not be deemed to confer any rights upon, nor obligate any of the
parties hereto, to any person or entity other than the parties hereto.
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21.7 Exhibits and Schedules. The exhibits and schedules
attached hereto are hereby incorporated herein by this reference for all
purposes.
21.8 Amendment to this Agreement. The terms of this
Agreement may not be modified or amended except by an instrument in
writing executed by each of the parties hereto.
21.9 Waiver. The waiver or failure to enforce any
provision of this Agreement shall not operate as a waiver of any future
breach of any such provision or any other provision hereof.
21.10 Applicable Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of California,
except for any choice-of-law principles which provide for the
application of the law's of another jurisdiction.
21.11 Fees and Other Expenses. Except as otherwise
expressly provided herein, each of the parties hereto shall pay its own
fees and expenses in connection with this Agreement.
21.12 Entire Agreement. This Agreement (including all
Exhibits attached hereto) supersedes any prior agreements, negotiations
and communications, oral or written, including without limitation
Seller's offer letter dated November 6, 1997, and contains the entire
agreement between, and the final expression of, Buyer and Seller with
respect to the subject matter hereof. No subsequent agreement,
representation, or promise made by either party hereto, or by or to an
employee, officer, agent or representative of either party hereto shall
be of any effect unless it is in writing and executed by the party to be
bound thereby.
21.13 Successors and Assigns. Subject to the restrictions
set forth in Paragraph 20 hereof, this Agreement shall be binding upon
and shall inure to the benefit of the permitted successors and assigns
of the parties hereto.
21.14 Construction. The parties hereto hereby acknowledge
and agree that (A) each party hereto is of equal bargaining strength,
(B) each such party has actively participated in the drafting,
preparation and negotiation of this Agreement, (C) each such party has
consulted with such party's own, independent counsel, and such other
professional advisors as such party has deemed appropriate, relating to
any and all matters contemplated under this Agreement, (D) each such
party and such party's counsel and advisors have reviewed this
Agreement, (E) each such party has agreed to enter into this Agreement
following such review and the rendering of such advice, and (F) any rule
of construction to the effect that ambiguities are to be resolved
against the drafting parties shall not apply in the interpretation of
this Agreement, or any portions hereof, or any amendments hereto.
21.15 Limitation of Liability of Trustees, Shareholders
and Officers of Seller. BUYER AGREES THAT IT SHALL NOT LOOK TO THE
ASSETS OF
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SELLER'S TRUSTEES OR ITS INVESTMENT MANAGER FOR THE ENFORCEMENT OF ANY
CLAIM AGAINST SELLER.
21.16 Termination. Notwithstanding anything in this
Agreement to the contrary, to induce Buyer to enter into this Agreement
and to expend the time and resources necessary to evaluate the Property
and possibly forego other opportunities while doing so, Seller hereby
grants to Buyer the rights to terminate this Agreement specifically
provided in this Agreement. Such expenditures of time and resources and
possible loss of opportunity by Buyer constitute adequate consideration
for Seller remaining bound by this Agreement notwithstanding such
termination rights in Buyer.
22. Risk of Loss. In the event any of the Property is damaged or
destroyed prior to the Closing Date, and such damage or destruction would cost
less than One Hundred Thousand Dollars ($100,000) to repair or restore, then
this Agreement shall remain in full force and effect and Buyer shall acquire the
Property upon the terms and conditions set forth herein. In such event, if the
damage or loss is insured, then Buyer shall receive a credit against the
Purchase Price equal to such deductible amount under Seller's applicable
insurance policy, and Seller shall assign to Buyer all of Seller's right, title
and interest in and to all proceeds of insurance on account of such damage or
destruction. In the event any of the Property is damaged or destroyed prior to
the Closing, and such damage or destruction would cost One Hundred Thousand
Dollars ($100,000), or more, to repair or restore, then Buyer shall have the
right to terminate this Agreement by delivering written notice to Seller with a
copy to the Escrow Holder within five (5) business days after Buyer acquires
knowledge of such damage (the Closing shall be extended as necessary to afford
Buyer such five (5) business day period). If Buyer timely delivers its
termination notice, then Buyer shall be entitled to the return of the Deposit,
less one-half (1/2) of the escrow and title cancellation fees, if any, whereupon
Buyer and Seller shall each be released from all obligations hereunder, except
as set forth in Paragraphs 14 and 18 above. If this Agreement is not so
terminated, and if the damage or loss is insured, then Seller shall assign to
Buyer all of Seller's right, title and interest in and to all proceeds of
insurance, if any, on account of such damage or destruction, and Buyer shall
receive a credit toward payment of the Purchase Price in the amount of the
deductible under any applicable insurance policy.
23. Seller's Covenants During Contract Period. Between Seller's
execution of this Agreement and the Close of Escrow, or earlier termination of
this Agreement as permitted hereunder, Seller shall (i) maintain the Property in
good order, condition and repair, reasonable wear and tear excepted; (ii) not
make any material physical changes to the Improvements except as required by
law, insurance carriers or applicable Leases; (iii) continue to manage and lease
the Property in the manner its been operated and continue to provide all
services previously provided in connection with the Property, (iv) not enter
into any contracts or agreements affecting the Property unless such contracts
can be completed or terminated prior to the Closing or Buyer, in its sole
discretion, agrees to assume such contract or agreement as of the Closing Date,
in which case such contracts shall be included within the term "Service
Contracts"; (v) use due diligence to keep in full force all Licenses and
Permits; (vi) not remove any Personal Property from the Property (unless the
Personal Property so removed is simultaneously replaced with Personal Property
of similar quality and utility); (vii) notify Buyer of any proposed new Tenant
Leases; and (viii) maintain or cause to be maintained, at Seller's sole cost and
expense, all insurance coverages
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applicable to the Property in the amount and form maintained by Seller prior to
the Execution Date. From and after the Execution Date and until the Closing Date
or earlier termination of this Agreement, Seller shall not execute any new
Leases, and shall not modify, extend, or otherwise change the terms of the
Leases without the prior written consent of the Buyer, which consent prior to
the Contingency Date shall not be unreasonably withheld and shall be deemed
given if not denied, with the reasons therefor, in a written notice delivered to
Seller within two (2) business days after a request therefor; after the
Contingency Date Buyer may withhold its consent in its sole discretion. Seller
shall terminate all Service Contracts upon the Closing Date unless Buyer
provides written notice thereof to the contrary to Seller before the Contingency
Date.
24. REIT. Buyer hereby represents and warrants to Seller, which
representation and warranty shall survive the Close of Escrow, that Buyer is
qualified as a real estate investment trust under the provisions of the Internal
Revenue Code of 1986, as amended, and that, by reason thereof, maintaining such
status and avoiding any activity that might cause a penalty tax to be applied as
a result thereof is of material concern to Buyer. Accordingly, Seller agrees to
make any modifications or amendments to this Agreement specifically requested by
Buyer in writing delivered to Seller before the Contingency Date that may be
necessary for Buyer to maintain its status as a real estate investment trust or
in order for it to avoid a penalty tax; provided; provided, however, that Seller
shall have no obligation to make any such modification or amendment that would
alter or affect, in Seller's sole judgment, Buyer's or Seller's rights, duties,
or obligations under this Agreement, and Seller's failure to do so shall result
in the termination of this Agreement.
25. Reporting Requirements. Escrow Holder shall comply with all
applicable federal, state and local reporting and withholding requirements
relating to the close of the transactions contemplated herein. Without limiting
the generality of the foregoing, to the extent the transactions contemplated by
this Agreement involve a real estate transaction within the purview of Section
6045 of the Internal Revenue Code of 1986, as amended (the "Internal Revenue
Code"), Escrow Holder shall have sole responsibility for complying with the
requirements of Section 6045 of the Internal Revenue Code (and any similar
requirements imposed by State or local law), which in part requires Escrow
Holder to report real estate transactions closing after December 31, 1986 by,
among other things, preparing and causing to be filed Internal Revenue Service
Form 1099-B and any applicable additional statements in connection therewith.
Escrow Holder shall hold Buyer, Seller and their counsel free and harmless from
and against any and all liability, claims, demands, damages and costs, including
reasonable attorneys' fees and other litigation expenses, arising or resulting
from the failure or refusal of Escrow Holder to comply with such reporting
requirements.
-22-
23
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first written above.
"Buyer" PACIFIC GULF PROPERTIES INC.,
a Maryland corporation
By: [SIG]
---------------------------------
Its: Vice President
----------------------------
By: [SIG]
---------------------------------
Its: Senior Vice President
----------------------------
"Seller" PMRA III, a group trust
By: PMRealty Advisors, Inc.,
its investment manager
By:
---------------------------------
Its:
----------------------------
By:
---------------------------------
Its:
----------------------------
-23-
24
Acceptance by Escrow Holder:
Chicago Title Insurance Company hereby acknowledges that it has
received a fully executed original or original executed counterparts of the
foregoing Agreement of Purchase and Sale and Joint Escrow Instructions and
agrees to act as Escrow Holder thereunder and to be bound by and strictly
perform the terms thereof as such terms apply to Escrow Holder.
Dated: , 1997 Chicago Title Insurance Company
By:
---------------------------------
Its Authorized Agent
-24-
25
EXHIBIT "A"
-----------
LEGAL DESCRIPTION
-----------------
LOTS 7 THROUGH 9 INCLUSIVE, AS SHOWN ON THE "PLAT OF XXXXXXX-TECH BUSINESS
PARK", RECORDED IN BOOK 000 XX XXXX, XXX XX. 00, XXXXXXX XX XXXXXXXXXX XXXXXX,
XXXXXXXXXX.
LOTS 28 THROUGH 32, AS SHOWN ON THE PLAT OF XXXXXXX-TECH BUSINESS PARK, FILED IN
BOOK 000 XX XXXX, XXX XX. 00, XXXXXXXX XXXXXXX XX XXXXXXXXXX XXXXXX, DESCRIBED
AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 27; THENCE, FROM SAID POINT OF
BEGINNING, ALONG THE LINE COMMON TO LOTS 27 AND 28, AND ALONG THE LINE COMMON TO
XXXX 00 XXX 00, XXXXX 00*00'00" XXXX 514.03 FEET TO THE SOUTHWEST CORNER OF SAID
LOT 33, THENCE, ALONG THE SOUTHERLY LINE OF SAID LOTS 32 AND 3 1, ALONG THE
WESTERLY LINE OF SAID XXXX 00, 00 XXX 00, XXX XXXXX THE NORTHERLY LINE OF SAID
LOTS 29 AND 28, THE FOLLOWING SIX (6) COURSES: (1) ALONG THE ARC OF A CURVE TO
THE RIGHT, CONCAVE NORTHERLY, HAVING A RADIUS OF 2971.00 FEET, SUBTENDED BY A
CHORD BEARING SOUTH 88*44'25" WEST 188.33 FEET; (2) NORTH 89*26'37" WEST 95.91
FEET; (3) ALONG THE ARC OF A TANGENT CURVE TO THE RIGHT, CONCAVE NORTHEASTERLY,
HAVING A RADIUS OF 25.00 FEET, SUBTENDED BY A CHORD BEARING NORTH 44*26'37" WEST
35.36 FEET, (4) NORTH 00*33'23" EAST 470.00 FEET; (5) ALONG THE ARC OF A TANGENT
CURVE TO THE RIGHT, CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 25.00 FEET,
SUBTENDED BY A CHORD BEARING NORTH 45*33'23" EAST 35.36 FEET; AND (6) SOUTH
89*26'37" EAST 284.14 FEET TO THE POINT OF BEGINNING, AND BEING THE SAME AS "LOT
A" IN THAT CERTAIN CERTIFICATE OF COMPLIANCE, RECORDED IN BOOK 84-05-04, AT PAGE
1199, OFFICIAL RECORDS.
LOTS 24 THROUGH 27, TOGETHER WITH LOT 33, AS SHOWN ON THE PLAT OF XXXXXXX-TECH
BUSINESS PARK, FILED IN BOOK 000 XX XXXX, XXX XX. 00, XXXXXXXX XXXXXXX XX
XXXXXXXXXX XXXXXX, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 27; THENCE, FROM SAID POINT OF
BEGINNING, ALONG THE NORTHERLY LINE OF SAID LOTS 27 AND 26, AND ALONG THE
EASTERLY LINE OF SAID XXXX 00, 00 XXX 00, XXX XXXXX THE SOUTHERLY LINE OF SAID
LOTS 24 AND 33, THE FOLLOWING SIX (6) COURSES: (1) SOUTH 89*26'37" EAST 285.86
FEET; (2) ALONG THE ARC OF A TANGENT CURVE TO THE RIGHT, CONCAVE SOUTHWESTERLY,
HAVING A RADIUS OF 25.00 FEET, SUBTENDED BY A CHORD BEARING SOUTH 44*26'37" EAST
35.36 FEET; (3) SOUTH 00*33'23" WEST 443.61 FEET; (4) ALONG THE ARC OF A
TANGENT CURVE TO THE RIGHT, CONCAVE NORTHWESTERLY, HAVING A RADIUS OF 25.00
FEET, SUBTENDED BY A CHORD BEARING SOUTH 44*32'35" WEST 34.72 FEET TO A POINT
-----------------
* = degree (degrees)
EXHIBIT "A"
-----------
-1-
26
OF REVERSE CURVATURE; (5) ALONG THE ARC OF A TANGENT CURVE TO THE LEFT, CONCAVE
SOUTHERLY, HAVING A RADIUS OF 3029.00 FEET, SUBTENDED BY A CHORD BEARING SOUTH
86*45'34" WEST 187.16 FEET TO A POINT OF REVERSE CURVATURE, AND (6) ALONG THE
ARC OF A TANGENT CURVE TO THE RIGHT, CONCAVE NORTHERLY, HAVING A RADIUS OF
2971.00 FEET, SUBTENDED BY A CHORD BEARING SOUTH 85*57'28" WEST 100.32 FEET TO
THE SOUTHWEST CORNER OF SAID LOT 33; THENCE, ALONG THE LINE COMMON TO SAID XXXX
00 XXX 00, XXX XXXXX XXX XXXX XXXXXX TO SAID XXXX 00 XXX 00, XXXXX 00*00'00"
XXXX 514.03 FEET TO THE POINT OF BEGINNING, AND BEING THE SAME AS "LOT B" IN
THAT CERTAIN CERTIFICATE OF COMPLIANCE, RECORDED IN BOOK 84-05-04, PAGE 1199,
OFFICIAL RECORDS.
-----------------
* = degree (degrees)
EXHIBIT "A"
-----------
-2-
27
EXHIBIT "B"
-----------
RECORDING REQUESTED BY:
--------------------------------
WHEN RECORDED MAIL
TO AND MAIL TAX STATEMENTS TO:
Pacific Gulf Properties Inc.
0000 Xxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
--------------------------------------------------------------------------------
(Above Space for Recorder's Use Only)
GRANT DEED
----------
The undersigned grantor declares:
Documentary Transfer Tax not shown pursuant
to Section 11932 of the Revenue and
Taxation Code, as amended
County of Sacramento
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
___________________ , a Delaware corporation, hereby GRANTS to PACIFIC GULF
PROPERTIES INC., a Maryland corporation, that certain real property in the
County of Sacramento, State of California, which is more particularly described
on Schedule "1" ("Property") which is attached hereto, subject to all matters of
record.
EXHIBIT "B"
-----------
-1-
28
IN WITNESS WHEREOF, the Grantor has caused this Grant Deed to be
executed as of the day of , 1997.
PMRA III, a group trust
By: PMRealty Advisors, Inc.,
its investment manager
By:
---------------------------------
Its:
----------------------------
By:
---------------------------------
Its:
----------------------------
EXHIBIT "B"
-----------
-2-
29
STATE OF ____________________)
)ss.
COUNTY OF ___________________)
On ___________________________ before me, ________________________, a
Notary Public in and for said state, personally appeared ______________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument, the person, or the entity upon behalf
of which the person acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------------
Notary Public in and for said State
STATE OF ____________________)
)ss.
COUNTY OF ___________________)
On ___________________________ before me, ________________________, a
Notary Public in and for said state, personally appeared ______________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument, the person, or the entity upon behalf
of which the person acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------------
Notary Public in and for said State
EXHIBIT "B"
-3-
30
SCHEDULE "1"
------------
LEGAL DESCRIPTION OF PROPERTY
-----------------------------
[TO BE SUPPLIED]
----------------
SCHEDULE "1" TO EXHIBIT "B"
-1-
31
EXHIBIT "C-1"
-------------
TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
------------------------------------------------
To inform PACIFIC GULF PROPERTIES INC., a Maryland corporation (the
"Transferee") that withholding of tax under Section 1445 of the Internal Revenue
Code of 1986, as amended ("Code") will not be required upon the transfer by PMRA
III, a group trust,("Transferor") of certain interests in real property to the
Transferee, the undersigned hereby certifies the following on behalf of the
Transferor:
1. The Transferor is not a foreign corporation, foreign partnership,
foreign trust, foreign estate or foreign person (as those terms are defined in
the Code and the Income Tax Regulations promulgated thereunder); and
2. The Transferor's U.S. employer or tax (social security)
identification number is _______________________.
The Transferor understands that this Certification may be disclosed to
the Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this
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" PMRA III, a group trust
By: PMRealty Advisors, Inc.,
its investment manager
By:
-------------------------------
Its:
---------------------------
By:
-------------------------------
Its:
---------------------------
Dated: _______________, 1997
EXHIBIT "C-1"
32
96-6 1-707
YEAR WITHHOLDING EXEMPTION CERTIFICATE FOR CALIFORNIA FORM
----- REAL ESTATE SALES ---------------
19___ (For use by sellers of California real estate) 590-RE
---------------------------------------------------------------------------------------------------------
File this form with your withholding agent or buyer Withholding agent's name
---------------------------------------------------------------------------------------------------------
Seller's name
---------------------------------------------------------------------------------------------------------
Seller's address (number and street) Seller's daytime telephone number
( )
---------------------------------------------------------------------------------------------------------
City State Zip code
---------------------------------------------------------------------------------------------------------
Read the following carefully and check the box that applies to the seller:
[ ] CERTIFICATE OF RESIDENCY - INDIVIDUALS:
I am a resident of California and I reside at the address shown above.
See Side 2 for the definition of a resident.
[ ] CERTIFICATE OF PRINCIPAL RESIDENCE - INDIVIDUALS:
The California real property located at _____________________________
qualifies as my principal residence within the meaning of the Internal
Revenue Code Section 1034. See Side 2 for the definition of a principal
residence.
[ ] CORPORATIONS:
The above-named corporation has a permanent place of business in
California at the address shown above or is qualified to do business in
California. See Side 2 for the definition of permanent place of
business.
[ ] PARTNERSHIPS:
The above-named entity is a partnership and the recorded title to the
property is in the name of the partnership. The partnership will file a
California return to report the sale and will withhold on foreign and
domestic nonresident partners when required.
[ ] LIMITED LIABILITY COMPANIES (LLCs):
The above-named entity is an LLC and the recorded title to the property
is in the name of the LLC. The LLC will file a California return to
report the sale and will withhold on foreign and domestic nonresident
partners when required.
[ ] TAX-EXEMPT ENTITIES AND NONPROFIT ORGANIZATIONS:
The above-named entity is exempt from tax under California or federal
law.
[ ] IRREVOCABLE TRUSTS:
At least one trustee of the above-named irrevocable trust is a
California resident. The trust will file a California fiduciary return
reporting the sale and will withhold on foreign and domestic nonresident
beneficiaries when required.
[ ] CERTIFICATE OF RESIDENCY OF DECEASED PERSON - ESTATES:
I am the executor of the above-named person's estate. The decedent was a
California resident at the time of death. The estate will file a
California fiduciary return reporting the sale and will withhold on
foreign and domestic nonresident beneficiaries when required.
[ ] BANK:
The above-named entity is a bank or a bank acting as a fiduciary for a
trust.
--------------------------------------------------------------------------------
CERTIFICATE: Please complete and sign below.
Under penalties of perjury, I hereby certify that the information provided
herein is, to the best of my knowledge, true and correct. If conditions change,
I will promptly inform the withholding agent.
Sellers name and title (type or print) _________________________________________
Seller's social security number, California corporation number,
FEIN or California Secretary of State file number ______________________________
(NOTE: Failure to provide your identification number will render this
certificate void.)
Seller's signature _______________________________________ Date ________________
For Privacy Act Notice, see Form FTB 1131 (individuals only).
--------------------------------------------------------------------------------
Form 590-RE C2 (REV. 1996) Side 1
EXHIBIT "C-2"
33
EXHIBIT "D"
-----------
ASSIGNMENT AND ASSUMPTION OF LEASES
-----------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF LEASES ("Assignment") is made
this ______ day of ______________ 1997, by and between PMRA III, a group trust
("Assignor") and PACIFIC GULF PROPERTIES INC., a Maryland corporation
("Assignee").
WITNESSETH
----------
Assignor and Assignee entered into that certain Agreement of
Purchase and Sale and Joint Escrow Instructions, dated as of ________________
("Agreement"), respecting the sale of certain "Property" (as defined in the
Agreement). Unless otherwise indicated herein, all capitalized terms in this
Assignment shall have the meaning ascribed to them in the Agreement.
Assignor, as Lessor, and those certain tenants listed in Exhibit
"A" attached hereto (collectively, the "Tenants") have entered into leases
listed in Exhibit "A" attached hereto (collectively, the "Leases") covering
certain premises located on the Property.
Under the Agreement, Assignor is obligated to assign to Assignee
any and all of its right, title and interest in and to all Leases and Tenants'
deposits held by Assignor under the Leases (collectively, "Tenant Deposits").
AGREEMENT
---------
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows.
Assignor hereby assigns, sells, transfers, sets over and
delivers unto Assignee all of Assignor's estate, right, title and interest in
and to the Leases and Tenant Deposits and Assignee hereby accepts such
assignment. Assignor represents and warrants to Assignee, which shall survive
the Closing Date for nine (9) months and any claim therefor must be asserted by
Assignee by delivering specific written notice thereof to Assignor within such
period, (a) that Assignor is the owner of the lessor's interest in the Leases,
(b) that the lessor's interest in the Leases and the Tenant Deposits are
assigned and transferred to Assignee free of all liens, encumbrances and third
party interests or claims intentionally caused or created by Assignor, and (c)
that Assignor has the lawful right and authority to assign and transfer the
lessor's interest in the Leases and the Tenant Deposits to Assignee.
Assignor hereby covenants that Assignor will, at any time and
from time to time upon written request therefor, execute and deliver to
Assignee, Assignee's successors, nominees or assigns, such documents as Assignee
or they may reasonably request in order to fully assign and transfer to and
vest in Assignee or Assignee's successors, nominees and assigns, and protect
EXHIBIT "D"
-1-
34
Assignee's or their right, title and interest in and to the Leases and the
Tenant Deposits and the rights of Assignor intended to be transferred and
assigned hereby, or to enable Assignee, Assignee's successors, nominees and
assigns to realize upon or to otherwise enjoy such rights in and to the Leases
and the Tenant Deposits. Assignee hereby assumes the performance of all of the
terms, covenants and conditions imposed upon Assignor as landlord under the
Leases from and after the Closing Date.
Assignee hereby agrees to indemnify, defend and hold harmless
Assignor, Assignor's agents and Assignor's and their successors and assigns from
and against any and all claims, losses, liabilities and expenses, including
reasonable attorneys' fees, suffered or incurred by Assignor by reason of (i)
any breach by Assignee, of any of Assignee's obligations under the Leases or
with respect to the Tenant Deposits from and after the Closing Date, or (ii) any
leasing commissions or tenant improvements with respect to the Leases for which
Assignee is responsible pursuant to the Agreement. Notwithstanding anything
herein contained to the contrary, Assignee's liability under the foregoing
indemnity shall be limited to matters arising or accruing after the Close of
Escrow.
Assignor hereby agrees to indemnify, defend and hold harmless
Assignee, Assignees, agents and Assignee's, Assignee's and their successors and
assigns from and against any and all claims, losses, liabilities and expenses,
including reasonable attorneys' fees, suffered or incurred by Assignee by reason
of (i) any breach by Assignor, of any Assignor's obligations under the Leases or
with respect to the Tenant Deposits prior to the Closing Date, or (ii) any
leasing commissions or tenant improvements with respect to the Leases for which
Assignor is responsible pursuant to the Agreement. Notwithstanding anything
herein contained to the contrary, the liability of Assignor under the foregoing
indemnity shall be limited to matters occurring or accruing before the Close of
Escrow.
In the event of the bringing of any action or suit by a party
hereto against another party hereunder by reason of any breach of any of the
covenants, conditions, agreements or provisions on the part of the other party
arising out of this Assignment, then in that event the prevailing party shall be
entitled to have and recover of and from the other party all costs and expenses
of the action or suit, including actual attorneys' fees and costs.
This Assignment may be executed simultaneously in counterparts,
each of which shall be deemed an original, but all of which, together, shall
constitute one and the same instrument.
This Assignment shall be binding upon and inure to the benefit of
the successors, assignees, personal representatives, heirs and legatees of all
the respective parties hereto.
EXHIBIT "D"
-2-
35
This Assignment shall be governed by, interpreted under, and
construed and enforceable in accordance with, the laws of the state of
California.
"ASSIGNEE" "ASSIGNOR"
PMRA III, a group trust
PACIFIC GULF PROPERTIES INC.,
a Maryland corporation By: PMRealty Advisors, Inc.,
its investment manager
By: By:
------------------------------- -------------------------------
Its: Its:
--------------------------- --------------------------
By: By:
------------------------------- -------------------------------
Its: Its:
--------------------------- --------------------------
EXHIBIT "D"
-3-
36
EXHIBIT "A"
-----------
LIST OF LEASES AND DEPOSITS
---------------------------
EXHIBIT "A" TO EXHIBIT "D"
37
EXHIBIT "E"
-----------
GENERAL ASSIGNMENT AND XXXX OF SALE
-----------------------------------
THIS GENERAL ASSIGNMENT AND XXXX OF SALE ("Assignment") is made
this ______ day of _______ , 19 , by and between PMRA III, a group trust
("Assignor"), and PACIFIC GULF PROPERTIES INC., a Maryland corporation
("Assignee"), with respect to the following matters.
WITNESSETH:
-----------
WHEREAS, Assignor and Assignee entered into that certain
Agreement of Purchase and Sale and Escrow Instructions dated as of _____________
("Agreement"), respecting the sale of certain "Property" (as described and
defined in the Agreement). Unless otherwise indicated herein, all capitalized
terms in this Assignment shall have the meanings ascribed to them in the
Agreement.
WHEREAS, under the Agreement, Assignor is obligated to assign any
and all of its right, title and interest and delegate any and all of its
obligations and responsibilities in each of the following to Assignee:
(a) any and all service contracts as are listed on Schedule
1 attached hereto, warranties, guarantees, together with all
supplements, amendments and modifications thereto, relating to the
Property ("Contract(s)");
(b) any and all (i) licenses, permits and entitlements
necessary for the construction, rehabilitation and operation of the
Property in accordance with its current use; (ii) right, title and
interest of Assignor in and to the use of any and all trade names and
logos used by Assignor in the operation and identification of the
improvements located on the Property; and (iii) development rights and
other intangible rights, titles, interests, privileges and appurtenances
owned by Assignor and in any way related to or housed in connection with
the Property and its operation (collectively "License(s)"); and
(c) all fixtures, fittings, furniture, furnishings,
appliances, apparatus, equipment, machinery, building materials, and
other items of tangible personal property owned by Assignor and affixed
or attached to the Property (all of such properties and assets being
collectively called the "Assigned Properties").
AGREEMENT
---------
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows.
EXHIBIT "E"
38
Assignor hereby assigns, sells, transfers, sets over and delivers
unto Assignee all of Assignor's estate, right, title and interest in and to the
Contracts, Licenses and Assigned Properties and Assignee hereby accepts such
assignment. Assignor represents and warrants to Assignee, which shall survive
the Closing Date for nine (9) months and any claim therefor must be asserted by
Assignee by delivering specific written notice thereof to Assignor within such
period, (a) that Assignor is the owner of the owner's interest in the Contracts,
(b) that the owner's interest in the Contract has not been previously conveyed
or encumbered, and (c) subject to the terms of the applicable Contracts,
Assignor has the lawful right and authority to assign and transfer the owner's
interest in the Contracts to Assignee.
Assignor hereby covenants that Assignor will, at any time and
from time to time, upon written request therefor, execute and deliver to
Assignee, Assignee's successors, nominees and assigns, such documents as
Assignee, Assignee's successors, nominees and assigns may reasonably request in
order to fully assign and transfer to and vest in Assignee, or Assignee's
successors, nominees and assigns, and to protect Assignee's or their right,
title and interest in and to the Parking Agreement, Contracts, Licenses and
Assigned Properties. By accepting this Assignment, Assignee hereby assumes the
performance of all of the terms, covenants and conditions imposed upon Assignor
in connection with the Contracts, Licenses and/or Assigned Properties from and
after the Closing Date.
Assignor hereby agrees to indemnify, defend and hold harmless
Assignee, Assignee's agents and Assignee's and Assignee's and their successors
and assigns from and against any and all obligations, causes of actions, claims,
losses, liabilities and expenses, including reasonable attorneys' fees, suffered
or incurred by Assignee by reason of any breach by Assignor of any of its
obligations under the Contracts or Licenses prior to the Closing Date.
Notwithstanding anything herein contained to the contrary, Assignor's liability
under the foregoing indemnity shall be limited to matters arising or accruing
before the Close of Escrow.
Assignee hereby agrees to indemnify, defend and hold harmless
Assignor, Assignor's agents and Assignor's and their successors and assigns from
and against any and all obligations, causes of actions, claims, losses,
liabilities and expenses, including reasonable attorneys' fees, suffered or
incurred by Assignor by reason of any breach by Assignee of any of its
obligations under the Contracts or Licenses from and after the Closing Date.
Notwithstanding anything herein contained to the contrary, Assignee's liability
under the foregoing indemnity shall be limited to matters arising or accruing
after the Close of Escrow. Assignee hereby agrees that it shall not use the
Licenses for any project other than the Property.
In the event of the bringing of any action or suit by a party
hereto against another party hereunder by reason of any breach of any of the
covenants, conditions, agreements or provisions on the part of the other party
arising out of this Assignment, then in that event the prevailing party shall be
entitled to have and recover of and from the other party all costs and expenses
of the action or suit, including reasonable attorneys' fees.
This Assignment shall be binding upon and inure to the benefit of
the successors, assignees, personal representatives, heirs and legatees of all
the respective parties hereto.
EXHIBIT "E"
-2-
39
This Assignment shall be governed by, interpreted under, and
construed and enforceable in accordance with, the laws of the state of
California.
This Assignment may be executed in counterparts, each of which
shall be deemed an original, but all of which, together, shall constitute one
and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed and
delivered this Assignment as of the day and year first above written.
"ASSIGNOR" "ASSIGNEE"
PMRA III, a group trust PACIFIC GULF PROPERTIES INC.,
a Maryland corporation
By: PMRealty Advisors, Inc.,
its investment manager
By: By:
------------------------------- -------------------------------
Its: Its:
-------------------------- --------------------------
By: By:
------------------------------- -------------------------------
Its: Its:
-------------------------- --------------------------
EXHIBIT E
-3-
40
EXHIBIT "F"
-----------
FORM OF NOTICE TO TENANTS
-------------------------
To:
------------------
------------------
------------------
------------------
RE: Notice of Lease Assignment
--------------------------
Please be advised that the property commonly known as the _________
("Property") has been sold today and the ownership has been transferred to
Pacific Gulf Properties Inc.
You are hereby notified that, from and after the date hereof, and
until further notice, all future payments under your lease should be made
payable to "Pacific Gulf Properties Inc." and mailed to: _____________________
Also, in connection with this sale, your security deposit in the
amount of $ ____________ has been transferred to Pacific Gulf Properties. The
return of any such security deposit will be conditioned upon and subject to the
terms and conditions of the lease and the legal requirements of the State of
California.
Henceforth, all questions or other matters regarding your lease or
security deposit should be directed to _____________________, the property
manager, at (___) ________________.
Thank you for your cooperation.
Very truly yours,
EXHIBIT "F"
41
EXHIBIT "G"
-----------
ESTOPPEL CERTIFICATE
--------------------
The undersigned, the tenant ("Tenant") under a certain lease
agreement, a complete, true and correct copy of which is attached hereto as
Exhibit "A" ("Lease"), does hereby certify to ___________ [Buyer] as purchaser
of the property affected by the Lease from PMRA III, ("Landlord") as follows:
1. The Lease is presently in full force and affect and unmodified
except as may be evidenced by written instrument attached hereto as part of
Exhibit "A". The Lease constitutes the only agreement between the Landlord and
Tenant with respect to the premises.
2. The lease term commenced on _______________, 199_ and full
rental is now accruing thereunder. The Lease term shall end on ______________,
199_. The Tenant has the following options to extend the term: None.
3. The Tenant has accepted possession of the leased premises
under the Lease and is paying _____ per month as rental under the Lease and
monthly installments have been paid through _______________, 19__. Tenant's
proportionate share is set forth in the Lease.
4. No rent under said lease has been paid more than thirty (30)
days in advance of its due date. Landlord is not in default in the performance
of the terms and provisions of the Lease, the Tenant has not assigned,
transferred, or hypothecated its interest under the Lease.
5. The Tenant, as of the date hereof, has no claim, charge,
defense or offset under the Lease against Landlord or against rents or other
charges due or to become due thereunder. As of the date hereof, Tenant has not
asserted any such offset or credit. To the best of Tenant's knowledge, there are
no defaults under the Lease.
6. Tenant has not made any payment to Landlord as a security
deposit or rental deposit except any payment expressly provided for in the Lease
as follows: $ ____________________.
7. All of Landlord's obligations under the Lease which have
accrued prior to the date hereof have been performed.
8. The individual executing this Certificate has the authority to
do so on behalf of Tenant and to bind Tenant to the terms hereof.
9. Pursuant to the Lease, Tenant is entitled to the use of
______ unreserved parking spaces.
Tenant makes this Certificate with the understanding that
Landlord is contemplating selling the premises, and the purchaser of the
premises will do so in material reliance on this Certificate.
42
DATED: __________________ ,1997 By:
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Name:
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Title:
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43
EXHIBIT "A"
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EXHIBIT "A" TO EXHIBIT "G"
