EXHIBIT 10.9
REAL ESTATE PURCHASE AGREEMENT
BETWEEN
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY,
A WISCONSIN CORPORATION, SELLER
AND
▇▇▇▇▇▇ INDUSTRIES, BUYER
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REAL ESTATE PURCHASE AGREEMENT
Table of Contents
Article 1. Agreement.
Article 2. Recital.
Article 3. Basic Terms.
Article 4. The Transaction.
4.1. Purchase and Sale.
4.2. Escrow.
4.3. Purchase Price.
4.3.1. Initial ▇▇▇▇▇▇▇ Money.
4.3.2. Additional ▇▇▇▇▇▇▇ Money.
4.3.3. Retention and Disbursement of ▇▇▇▇▇▇▇ Money.
4.3.4. Cash at Closing.
Article 5. Title.
5.1. Title Insurance Commitment.
5.2. Subsequent Matters Affecting Title.
5.3. Survey.
Article 6. Condition of the Property.
6.1. Inspection of Property.
6.2. Certain Environmental Matters.
6.2.1. Buyer's Environmental Investigation.
6.2.2. Seller's Environmental Reports.
6.3. Termination/Approval.
6.3.1. Buyer's Approval/Right to Terminate.
6.3.2. Seller's Right to Termination.
6.4. Entry Onto Property.
6.5. Estoppel Certificates.
6.6. Representations and Warranties of Seller.
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6.7. No Other Representations and Warranties by Seller.
6.8. Survival of Representations and Warranties of Seller.
6.9. Seller Indemnity.
6.10. Representations and Warranties of Buyer.
6.11. Buyer Indemnity.
6.12. Management of the Property.
6.13. Leasing.
Article 7. Closing.
7.1. Buyer's Obligations.
7.2. Seller's Obligations.
7.3. Deposits in Escrow.
7.3.1. Seller's Deposits.
7.3.2. Buyer's Deposits.
7.3.3. Joint Deposits.
7.3.4. Other Documents.
7.4. Costs.
7.5. Title Insurance.
7.6. Prorations.
7.7. Insurance.
7.8. Close of Escrow.
7.9. Deliveries to Buyer.
7.10. Recorded Instruments.
7.11. Possession.
Article 8. Casualty.
Article 9. Condemnation.
Article 10. Notices.
Article 11. Successors and Assigns.
Article 12. Brokers.
Article 13. Covenant Not to Record.
Article 14. Default.
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14.1. Default By Buyer.
14.2. Default By Seller.
Article 15. Non-Default Termination.
Article 16. Miscellaneous.
16.1. Survival of Representations, Covenants, and
Obligations.
16.2. Attorneys' Fees.
16.3. Publicity.
16.4. Captions.
16.5. Waiver.
16.6. Time.
16.7. Controlling Law.
16.8. Severability.
16.9. Construction.
16.10. Finance Committee Approval.
16.11. Execution.
16.12. Amendments.
16.13. Entire Agreement.
16.14. Exhibits.
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SRE 331269
REAL ESTATE PURCHASE AGREEMENT
1. Agreement.
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This Real Estate Purchase Agreement ("Agreement") is made and entered into
as of the Date of Agreement between The Northwestern Mutual Life Insurance
Company ("NML" or "Seller") and ▇▇▇▇▇▇ Industries ("Industries" or "Buyer").
2. Recitals.
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A. "▇▇▇▇▇▇" (as defined below) was the owner, free and clear of all liens
and claims except the Mortgage (as defined in the "Settlement Agreement"
referenced below), of a leasehold interest created by the "Ground Lease"
(described below) in and to the Property described below. As used herein,
"▇▇▇▇▇▇" refers to ▇▇▇▇▇▇ Long Beach Associates, a California limited
partnership in which ▇▇▇▇▇▇ Industries (the Buyer hereunder) was the general
partner. The "Ground Lease" means that certain Lease Agreement made the 24th day
of January 1989 by and between ▇▇▇▇▇▇ Long Beach Associates, as "Developer",
and the City of Long Beach, as "Landlord"; a Short Form of which Ground Lease
was recorded in Los Angeles County, California, on January 31, 1989 as Document
No. 89 159802.
B. As owner, ▇▇▇▇▇▇ developed and leased the "Improvements" on the "Land"
(both as defined below).
C. Pursuant to a Settlement Agreement made as of the 21st day of July,
1993, by and between ▇▇▇▇▇▇ and Seller (the "Settlement Agreement"), the Ground
Lease and the lessee's interest under the Ground Lease in the Improvements were
conveyed by ▇▇▇▇▇▇ to Seller by an Assignment of Developer's Interest as Lessee
in Ground Lease dated July 21, 1993 which was recorded in Los Angeles County,
California, on July 23rd 1993 as Document No.931422619.
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D. NML, as "Owner", and ▇▇▇▇▇▇, as "Operator", entered into a Management
and Operating Agreement (the "Management Agreement") pursuant to which ▇▇▇▇▇▇
has managed the Property for NML.
E. NML, as "Landlord", and De Vry, Inc., as "Tenant", entered into an
Office Building Lease for the Property dated July 29, 1994 for reference
purposes (the "De Vry Lease").
▇. ▇▇▇▇▇▇ and Industries, as "Licensor", and De Vry, Inc., as "Licensee",
entered into a Parking License Agreement (the "License Agreement") dated July
29, 1994 for reference purposes, pursuant to which the Licensor granted to De
Vry a license to use a portion of certain property owned by ▇▇▇▇▇▇ (as described
in the License Agreement) as off-site parking for the Property. ▇▇▇▇▇▇, De Vry,
Inc. and the City of Long Beach entered into a Non-Disturbance Agreement from
the Master Lessor dated August 8, 1994 with regard to the License Agreement.
G. Buyer desires to purchase from Seller and Seller desires to sell to
Buyer all of Seller's interest in the Property.
NOW, THEREFORE, it is agreed as follows:
3. Basic Terms.
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As used herein, the following Basic Terms are hereby defined to mean:
Approval Date. September 20, 1996.
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Broker. Eastdil Broker Services, Inc.
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Broker's Commission. $552,187.50
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Buyer's Address for Notices. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
---------------------------- El ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Closing Date. October 25, 1996
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Date of Agreement. September 2, 1996
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Initial ▇▇▇▇▇▇▇ Money. $25,000.00
----------------------
Additional ▇▇▇▇▇▇▇ Money. $100,000
-------------------------
Escrowholder. Chicago Title Insurance Company
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Estoppel Tenants. Olympus America, Inc.
----------------- ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation
Federal Express
▇▇▇▇▇▇ Worldwide
Urban Science Application
Leviton Manufacturing Company
▇▇▇▇▇▇▇ Company
De Vry, Inc.
Involved Seller Employee(s) ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Materiality Limit $1,000,000
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(re: Casualty and Condemnation)
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Property. The Seller's interest in certain real property
--------- commonly known as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ I located at 3880 and ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
within the County of Los Angeles and State of
California, which real property is more
particularly described on Exhibit "A-1"
attached hereto and incorporated herein by this
reference (the "Land"), together with the
following: (a) all buildings, improvements and
structures located on the Land (hereinafter
collectively referred to as the
"Improvements"); (b) the Seller's interest in
all personal property owned by the Seller and
used in the operation of the Land or
Improvements to the extent any exist, including
all fixtures and appliances, furniture and
furnishings,
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equipment and supplies, signage and lighting
systems (hereinafter collectively referred to
as the "Personal Property" as described on
Exhibit G hereto); (c) all of Seller's interest
in and to all leases for space in the Property;
and (d) such other rights, interests and
properties as may be specified in this
Agreement to be sold, transferred, assigned or
conveyed by Seller to Buyer. (The Seller's
interest in the Land, Improvements, Personal
Property, together with the other rights and
interests described above, are hereinafter
collectively referred to herein as the
"Property".)
Purchase Price. $23,250,000.00
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Seller's Address for Notices. The Northwestern Mutual Life Insurance Company
----------------------------- AT&T Building
Suite 2100
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
with copy to: The Northwestern Mutual Life
Insurance Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tenant Lease or Leases. Each lease listed on Exhibit B-1 hereto, and
----------------------- those leases entered into by Seller after the
Date of Agreement.
Title Insurer. Chicago Title Insurance Company
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4. The Transaction.
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4.1 Purchase and Sale. Subject to the provisions hereof, Seller shall,
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on or before the Closing Date, convey the Property to Buyer by an
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Assignment (the "Assignment") in substantially the form as Exhibit A attached
hereto, subject to those matters permitted therein.
4.2 Escrow. In order to effect the conveyance contemplated by this
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Agreement, the parties hereto agree to open escrow at Escrowholder. Escrowholder
shall serve in the capacity of escrowholder hereunder if, and only if, Seller
has received an insured closing letter from Title Insurer, satisfactory to
Seller, insuring Seller against any loss or damage that Seller may incur as a
result of Escrowholder's failure to comply with Seller's closing instructions;
otherwise, Title Insurer shall serve as Escrowholder. A copy of this Agreement
shall be furnished to the Escrowholder upon full execution hereof.
4.3 Purchase Price. Subject to the provisions hereof, Buyer agrees to
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pay the Purchase Price for the Property to Seller as follows:
4.3.1 Initial ▇▇▇▇▇▇▇ Money. At the time of execution of this Agreement by
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Buyer and Seller, Buyer shall deposit with Escrowholder the Initial ▇▇▇▇▇▇▇
Money and Buyer shall cause Escrowholder to notify Seller, no later than two (2)
business days after Escrowholder's receipt thereof, that Escrowholder has
received the Initial ▇▇▇▇▇▇▇ Money in cash and is holding same in accordance
with the terms hereof. Failure of Buyer to timely deposit the Initial ▇▇▇▇▇▇▇
Money with Escrowholder shall constitute a material default by Buyer hereunder.
4.3.2 Additional ▇▇▇▇▇▇▇ Money, At the expiration of the Inspection
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Period (as defined in Section hereof entitled "Inspection of Property"), if
Buyer has not terminated this Agreement, Buyer shall deposit with Escrowholder
the Additional ▇▇▇▇▇▇▇ Money and Buyer shall cause Escrowholder to notify
Seller, no later than two (2) business days after Escrowholder's receipt
thereof, that Escrowholder has received the Additional ▇▇▇▇▇▇▇ Money in cash and
is holding same in accordance with the terms hereof. Failure of Buyer to timely
deposit the Additional ▇▇▇▇▇▇▇ Money with Escrowholder shall constitute a
material default by Buyer hereunder (the Initial ▇▇▇▇▇▇▇ Money and the
Additional ▇▇▇▇▇▇▇ Money hereinafter collectively referred to as the "▇▇▇▇▇▇▇
Money").
4.3.3 Retention and Disbursement of ▇▇▇▇▇▇▇ Money. In accordance with the
-------------------------------------------
terms of this Agreement, the ▇▇▇▇▇▇▇ Money shall be either (i) applied against
the Purchase Price, (ii) refunded to Buyer, or (iii) retained by Seller as
otherwise provided herein. The ▇▇▇▇▇▇▇ Money shall be held in an interest
bearing account at a bank in the name of Escrowholder.
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The Escrowholder shall not disburse any of the ▇▇▇▇▇▇▇ Money except: (i) by
application of same against the Purchase Price at Closing (as defined in the
Section hereof entitled "Closing"), (ii) in accordance with written instructions
executed by both Buyer and Seller, or (iii) in accordance with the following
procedure:
If Buyer or Seller, by notice to the Escrowholder, makes demand upon the
Escrowholder for the ▇▇▇▇▇▇▇ Money (the "Demanding Party"), the Escrowholder
shall, at the expense of the Demanding Party, give notice of such demand (the
"Notice of Demand") to the other party (the "Other party"). If the Escrowholder
does not receive notice from the Other Party contesting such disbursement of the
▇▇▇▇▇▇▇ Money within five (5) business days from the date on which the Notice of
Demand was given, the Escrowholder shall disburse the ▇▇▇▇▇▇▇ Money to the
Demanding Party. In the event that the Escrowholder does receive notice from the
Other Party contesting such disbursement of the ▇▇▇▇▇▇▇ Money within five (5)
business days from the date on which the Notice of Demand was given, the
Escrowholder shall thereafter disburse the ▇▇▇▇▇▇▇ Money only in accordance with
written instructions executed by both Buyer and Seller, or if no such
instructions are received by Escrowholder, then in accordance with a final, non-
appealable court order.
4.3.4 Cash at Closing. Buyer shall pay to Seller the Purchase Price in
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cash at the Closing, plus or minus the amount of any prorations required by this
Agreement, and the amount of ▇▇▇▇▇▇▇ Money then held by Escrowholder, plus any
interest thereon, shall be applied against the Purchase Price. Seller and Buyer
agree that no portion of the Purchase Price shall be allocated to the Personal
Property.
5. Title.
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5.1 Title Insurance Commitment. Seller shall, as soon as reasonably
--------------------------
possible after the Date of Agreement, obtain a title insurance commitment from
Title Insurer with respect to the Property, together with legible copies of the
exceptions set forth in such commitment, with the cost thereof to be paid in
accordance with the Section hereof entitled "Costs". Buyer shall have ten (10)
business days after its receipt of the Commitment to examine same and to notify
Seller in writing of its objections to title due to (i) the existence of any
items which would adversely affect the then current use of the Property or
(ii) constitute liens upon the Property in favor of Seller relating to Seller's
former interest therein as leasehold mortgagee (all items so objected to being
hereinafter referred to as the "Objectionable Items"),
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provided, however, that Buyer may not object to any matter affecting title to
the Property as of the date of the Settlement Agreement (except only for the
Mortgage or other liens in favor of Seller relating to Seller's former interest
therein as leasehold mortgagee), all of which shall conclusively be deemed to be
"Permitted Exceptions". All other matters affecting title to the Property as of
the date of the Commitment, except those specifically and timely objected to by
Buyer in accordance with this Section shall be deemed approved by Buyer and
shall also be deemed to be "Permitted Exceptions". If Buyer timely notifies
Seller of any Objectionable Items, Seller may, but shall not be obligated to,
cure or remove same. If Seller does cure or remove all such Objectionable Items,
Buyer shall be obligated to proceed with Closing. Such Objectionable Items shall
be deemed removed or cured if Buyer obtains, at Closing, an ALTA extended
coverage Owner's Policy of Title Insurance (1970 form) in the amount of the
Purchase Price in favor of Buyer as the grantee of Seller's interest in the
Property with such Objectionable Items having been removed as exceptions or
insured over by Title Insurer. Seller shall notify Buyer, within ten (10)
business days after Seller's receipt of Buyer's notice of Objectionable Items,
as to which Objectionable Items Seller is willing to remove or cure ("Seller's
Election"); and if no such notice is given within such time period, Seller shall
be deemed to have elected not to cure any of the Objectionable Items. If Seller
is unwilling or unable to cure some or all of the Objectionable Items, Buyer
shall, as its sole and exclusive remedy in such event, make an election in
writing ("Buyer's Election"), within five (5) business days after receipt by
Buyer of Seller's Election (or the expiration of the time period for Seller to
make Seller's Election if Seller fails to send notice of Seller's Election)
either:
(a) To accept title to the Property subject to the Objectionable Items
which Seller is unwilling or unable to cure (all such items being
thereafter included in "Permitted Exceptions"), in which event the
obligations of the parties hereunder shall not be affected by reason of
such matters, the sale contemplated hereunder shall be consummated without
reduction of the Purchase Price, and Buyer shall have no further right to
terminate this Agreement pursuant to this Section; or,
(b) To terminate this Agreement in accordance with the Section hereof
entitled "Non-Default Termination".
If Seller has not received Buyer's Election within such five (5) business day
period, Buyer shall be deemed conclusively to have elected to accept title to
the Property subject to the Objectionable Items which Seller is unwilling or
unable to cure (all such items being thereafter included in "Permitted
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Exceptions"), without reduction of the Purchase Price in accordance with
Subsection (a) above.
Seller shall use good faith efforts to obtain the consent of the City of Long
Beach to the Assignment, in the form set forth on Exhibit "A" hereto, but if for
any reason whatsoever Seller does not obtain such consent of the City of Long
Beach on or before the Closing, this Agreement shall terminate in accordance
with the Section hereof entitled "Non-Default Termination".
Anything to the contrary herein notwithstanding, under no circumstances shall
Seller be obligated to give the Title Insurer any certificate, affidavit or
other undertaking of any sort which might result in potential liability to
Seller in excess of the liability being undertaken by Seller in delivering the
Assignment to Buyer in accordance with the terms of this Agreement.
5.2 Subsequent Matters Affecting Title. If, for any reason whatsoever,
----------------------------------
the title insurance policy which would otherwise be delivered to Buyer at
Closing reflects, as exceptions, any items other than Permitted Exceptions or
such Objectionable Items which Buyer has previously elected to accept in
accordance with the Section hereof entitled "Title Insurance Commitment", which
would materially, adversely affect the then current use of the Property, such
items shall, if and only if Buyer shall give written notice thereof to Seller no
later than the date of Closing, be deemed "Objectionable Items," and, if Buyer
shall so give notice to Seller, then:
(a) The Closing shall, at Seller's option, be postponed to the first
business day which is at least thirty (30) days after the date previously
set for Closing; and
(b) The rights and obligations of Buyer and Seller with regard to such
Objectionable Items shall be as set forth in the Section hereof entitled
"Title Insurance Commitment".
5.3 Survey. Buyer has the option, provided that Buyer does so promptly
------
after the Date of Agreement, at Buyer's sole cost and expense, to obtain a
survey of the Property, and upon completion shall provide certified original
surveys to Seller and Title Insurer, and cause the Title Insurer to issue a
supplement to the title insurance commitment setting forth those items which
such survey and any inspection reveal and which would be listed as exceptions in
an ALTA policy of title insurance covering the Property ("ALTA Supplement"). If
as a result of reviewing the survey and the ALTA Supplement, the Buyer or Title
Insurer determines there are additional
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exceptions to title other than Permitted Exceptions which, in Buyer's sole
judgment, would materially adversely affect Buyer's intended use of the
Property, such items shall, if and only if Buyer shall give written notice
thereof to Seller no later than ten (10) business days after Buyer's receipt of
the survey, be deemed "Objectionable Items," and, if Buyer shall so give notice
to Seller, then the rights and obligations of Buyer and Seller with regard to
such Objectionable Items shall be as set forth in the Section hereof entitled
"Title Insurance Commitment".
6. Condition of the Property.
--------------------------
6.1 Inspection of Property. Subject to the provisions of the Sections
-----------------------
hereof entitled "Entry onto Property", "Buyer Indemnity" and "Seller's
Environmental Reports", from the Date of Agreement until the Approval Date (the
"Inspection Period"), Buyer shall have the right to conduct, at its own expense,
an inspection of the Property to do the following:
(a) at its election and cost, determine zoning and financial aspects of the
Property, enter upon the Property for purposes of examining its terrain,
access thereto and physical condition, conducting environmental and other
studies, doing engineering work, conducting site analyses and making any
test or inspection Buyer may deem necessary related to the Property. During
the Inspection Period Seller will provide Buyer and its representatives
with reasonable access to the Property subject to the provisions of the
Section hereof entitled "Entry Onto Property". Buyer's inspection rights
shall be subject to the rights of the Tenant(s), including without
limitation, rights of quiet enjoyment, and Buyer agrees that it will not
unreasonably interfere with any Tenant(s) or contractors on the Property.
Except to the extent that Buyer would be in violation of any law, Buyer
agrees to hold in strict confidence any information obtained during the
Inspection Period and the documents and information disclosed to Buyer
pursuant hereto and pursuant to this Agreement, provided, however that
Buyer may share such information with the consultants, legal counsel,
lender's representatives and other similar parties it retains in connection
with the purchase of the Property provided that Buyer takes all reasonable
steps to ensure that they hold such information in strict confidence. Buyer
agrees to provide Seller with copies of any reports generated in connection
with the Property ("Inspection Reports"). Failure to so hold such
information obtained during the Inspection Period in strict confidence, or
to promptly provide Seller
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with copies of any Inspection Reports, shall constitute a material default
hereunder on the part of Buyer.
(b) As an affiliate of the Operator of the Property (pursuant to the
Management Agreement), Buyer has access to the following to the extent
Seller has in its possession relating to the Property: (i) copies of the
income and expense operating statements for the Property for the most
recent two (2) calendar years and the partial current year, (ii) Tenant
Leases, along with a standard form lease, if any, (iii) the real property
tax assessment and tax bills with respect to the Property for the past
year, (iv) utility bills which have been the obligation of Seller for the
preceding twelve (12) months, (v) all available warranties and guarantees,
(vi) available licenses and permits, if any; (vii) all vendor service
contracts which Seller is proposing to assign, including any and all
amendments thereto, as described in Exhibit J hereto, (viii) available
soils reports, if any, (ix) maintenance reports, (x) invoices and (xi) any
correspondence with Tenant(s).
6.2 Certain Environmental Matters.
------------------------------
6.2.1 Buyer's Environmental Investigation. Buyer, at its option, may
------------------------------------
conduct, at Buyer's cost, such independent investigation and inspection of the
Property as Buyer shall deem reasonably necessary to ascertain the environmental
condition of the Property. Buyer shall immediately deliver to Seller any reports
or other results of Buyer's environmental investigation of the Property
("Buyer's Environmental Report(s)"). Seller shall permit Buyer to undertake
testing on the Property to assess its environmental condition provided that,
prior to undertaking any such testing, Buyer and Seller shall enter into an
agreement which sets forth Buyer's and Seller's rights and obligations with
respect to such testing, in a form as set forth in Exhibit K attached hereto and
incorporated herein to be completed with specifics of such testing as deemed
reasonably acceptable to Seller. Buyer agrees not to disturb any asbestos which
may be on the Property, and if this transaction is not consummated for any
reason, to immediately repair any damage to the Property directly or indirectly
caused by any acts of Buyer or Buyer's agents in connection with Buyer's
Environmental Report(s). BUYER HAS BEEN EXPRESSLY ADVISED BY SELLER TO CONDUCT
AN INDEPENDENT INVESTIGATION AND INSPECTION OF THE PROPERTY (subject to the
provisions hereof), UTILIZING EXPERTS AS BUYER DEEMS NECESSARY. This Section
shall survive Closing or termination of this Agreement.
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6.2.2 Seller's Environmental Reports. Buyer may examine the
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environmental reports in Seller's possession ("Existing Environmental
Report(s)") which have been prepared on the Property as described on Exhibit "C"
hereto, copies of which are being furnished to Buyer contemporaneously with the
full execution of this Agreement. In addition, Seller may, but shall not be
required to conduct further environmental testing of the Property by a firm
selected by Seller, the cost of which shall be paid by Seller of Future
Environmental Report") (Existing Environmental Report(s) and any Future
Environmental Report(s) are hereinafter collectively referred to as "Seller's
Environmental Reports"). Seller Shall provide Buyer with a copy of any final
Future Environmental Report as soon as possible after the Date of Agreement.
Anything to the contrary herein notwithstanding, Seller shall have no
responsibility or liability with respect to the results or any inaccuracies of
any Seller's Environmental Report(s), and makes no representations or warranties
whatsoever regarding (i) the completeness of Seller's Environmental Report(s),
(ii) the truth or accuracy of Seller's Environmental Report(s) or (iii) the
existence or nonexistence of any hazardous or toxic wastes or materials in, on
or about the Property. Further, Seller is not assigning Seller's Environmental
Report(s) to Buyer or granting Buyer any rights with respect to the
environmental firms used by Seller.
6.3 Termination/ Approval.
----------------------
6.3.1 Buyer's Approval Notice/Right to Terminate.
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(a) On or before the expiration of the Approval Date, Buyer shall deliver
to Seller and Escrowholder a written notice of "Approval Notice") to the
effect that Buyer has approved the condition of the Property and chooses to
proceed under the terms of the Agreement. At the time of Buyer's delivery
of the Approval Notice, Buyer shall deposit with Escrowholder the
Additional ▇▇▇▇▇▇▇ Money, was required in accordance with the Section
hereof entitled "Additional ▇▇▇▇▇▇▇ Money". Buyer shall also specify in the
Approval Notice those contracts which Buyer elects to have assigned to it,
and the failure of Buyer to so specify shall be deemed to be an election by
Buyer to have all contracts assigned to it and assume all contracts (except
Seller's contract with the management company for the Property). If Buyer
fails to timely send an Approval Notice, Buyer will be conclusively deemed
to have terminated the Agreement, in which event this Agreement shall
terminate in accordance with the Section hereof entitled "Non-Default
Termination".
15
(b) In addition to Buyer's rights under Subsection (a) above, in the event
Seller shall deliver to Buyer Seller's Environmental Report at any time
after the date which is ten (10) business days before the Approval Date,
and if Buyer is not satisfied with Seller's Environmental Report based
solely on matters not previously disclosed or known to Buyer, Buyer shall
have the right to terminate this Agreement, in accordance with the Section
hereof entitled "Non-Default Termination", by giving Seller notice of such
termination on or before the date which business days after Buyer's receipt
of Seller's Environmental Report ("Buyer's Review Date"). If Buyer receives
any of Seller's Environmental Reports less than ten (10) business days
before the Closing, then the Closing shall be postponed to one (1) business
day after Buyer's Review Date, or such other date to which Buyer and Seller
may mutually agree upon. If Seller shall not timely receive a notice of
termination from Buyer, Buyer shall be conclusively deemed to have approved
the results of Seller's Environmental Report and Buyer shall have no
further right to terminate this Agreement with respect to matters set forth
in this Section.
6.3.2 Seller's Right to Terminate. If Seller is not satisfied with Buyer's
----------------------------
Environmental Report or with any Future Environmental Report, Seller shall have
the right to terminate this Agreement, in accordance with the Section hereof
entitled "Non-Default Termination", by giving Buyer notice of termination on or
before the date which is ten (10) business days after Seller's receipt of
Buyer's Environmental Report or of any Future Environmental Report (the
"Seller's Review Date"). If Seller receives Buyer's Environmental Report, or any
Future Environmental Report less than ten (10) business days before Closing,
then Closing shall, at Seller's option, be postponed one (1) business day after
Seller's Review Date, or such other date to which Buyer and Seller may mutually
agree upon. If Buyer shall not timely receive notice of termination from Seller,
Seller shall be conclusively deemed to have reviewed the results of Buyer's
Environmental Report and any Future Environmental Report, and Seller shall have
no further right to terminate this Agreement with respect to matters set forth
in this Section.
6.4 Entry onto Property. Buyer and its agents shall observe all
-------------------
appropriate safety precautions in conducting Buyer's inspection of the Property.
Buyer shall indemnify, defend and hold Seller harmless from and against any
losses, damages, expenses, liabilities, claims, demands and causes of action
(together with any legal fees and other expense incurred by Seller in connection
therewith), resulting directly or indirectly from, or in connection with, any
inspection of or other entry upon the Property (including
16
any investigation of the Property necessary for completion of Buyer's
Environmental Report and any entry onto the Property with the authorization of
Seller) by Buyer, or its agents, employees, contractors or other
representatives, including, without limitation, any losses, damages, expenses,
liabilities, claims, demands and causes of action resulting, or alleged to be
resulting, from injury or death of persons, or damage to the Property or any
other property, or mechanic's or materialmen's liens placed against the Property
in connection with Buyer's inspection thereof. This Section shall survive
Closing or termination of this Agreement.
6.5. Estoppel Certificates. On or before the Closing Date, with respect
----------------------
to each Estoppel Tenant then in the Property, Seller shall use its best efforts
to furnish to Buyer, an estoppel certificate completed by the Tenant, on
Tenant's form reasonably acceptable to Buyer and Seller. Without affecting
Buyer's or Seller's rights or obligations pursuant to this Agreement, Buyer and
Seller agree to negotiate in good faith with each other and with any Estoppel
Tenant to resolve any claim disclosed in an estoppel certificate against
Seller, as landlord, which Buyer reasonably deems will materially and adversely
affect Buyer's interest in the Property after the Closing Date. If Seller is not
reasonably able to obtain an estoppel certificate from any Estoppel Tenant on or
before the Closing Date, the same shall not be a default by Seller and Buyer
shall nonetheless be obligated to close the purchase of the Property. In light
of the fact that Buyer is intimately familiar with the operation and leasing of
the Property as a result of its role as manager thereof, Buyer shall be deemed
to have full knowledge of all matters relating to all leases affecting the
Property.
6.6 Representations and Warranties of Seller. Subject to the limitations
-----------------------------------------
set forth in the Sections hereof entitled "No Other Representations and
Warranties by Seller" and "Seller Indemnity", Seller hereby represents and
warrants that, except as set forth in Exhibit "D" hereto, to the best of
Seller's actual knowledge as of the Date of Agreement:
(a) Seller has received no notice, not subsequently cured, from any
governmental entity citing the Seller for any material violation of any
building or zoning laws which are applicable to the present use and
occupancy of the Property.
(b) Seller has not been served in any litigation, arbitration or other
judicial, administrative or other similar proceedings involving, related
to, or arising out of the Property which is currently pending, and which
17
would have a material impact on Buyer's ownership or operation of the
Property.
(c) Subject to the provisions of the Section hereof entitled "Finance
Committee Approval", Seller, and the individuals signing this Agreement on
behalf of Seller, have the full legal power, authority and right to execute
and deliver, and to perform their legal obligations under this Agreement,
and Seller's performance hereunder and the transactions contemplated
hereby, have been duly authorized by all requisite action on the part of
Seller and no remaining corporate action is required to make this Agreement
binding on Seller.
(d) There are no service or maintenance contracts in effect regarding the
Property which will become obligations of Buyer following the Closing,
except those contracts, if any, which Seller has agreed to assign and Buyer
has agreed to assume.
(e) Seller has received no written notice from any governmental agency with
respect to any Hazardous Materials contamination on the Property, or with
respect to any investigation, administrative order, consent order or
agreement, litigation or settlement with respect to Hazardous Material or
Hazardous Material contamination that is in existence with respect to the
Property. As used herein, "Hazardous Material" means any hazardous, toxic
or dangerous waste, substance or material, as defined for purposes of the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, or any other federal, state or local law, ordinance, rule
or regulation, applicable to the Property, and establishing liability
standards or required action as to reporting, discharge, spillage, storage,
uncontrolled loss, seepage, filtration, disposal, removal, use or existence
of a hazardous, toxic or dangerous waste, substance or material.
Buyer hereby acknowledges that "Seller's actual knowledge", upon which all
of the representations and warranties set forth are based, means only the
current actual knowledge of the Involved Seller Employee(s), without conducting
any investigations whatsoever.
The sole and exclusive obligations of Seller with respect to the
representations and warranties set forth in this Section shall be as set forth
in the Section hereof entitled "Seller Indemnity".
18
6.7 No Other Representations and Warranties by Seller. Except as set
--------------------------------------------------
forth in the Section hereof entitled "Representations and Warranties of Seller",
and the warranty expressly set forth in the Assignment, Seller makes no other,
and specifically negates and disclaims any other representations, warranties,
promises, covenants, agreements or guarantees of any kind or character
whatsoever, whether express or implied, oral or written, past, present or
future, of, as to, concerning, with respect to or regarding title to the
Property, the physical condition of the Property and any Personal Property
listed in Exhibit "G-1" hereof, the compliance of the Property with applicable
government regulations, including, without limitation, the Americans with
Disabilities Act, or the past or future operating results of the Property.
6.8 Survival of Representations and Warranties of Seller. Except for the
-----------------------------------------------------
warranties set forth in the Assignment, which shall survive indefinitely, all
representations and warranties set forth in this Agreement or in any document to
be executed by Seller and delivered to Buyer at the Closing, shall survive for a
period of one year after the Closing Date only.
6.9 Seller Indemnity. Seller hereby gives Buyer the following
-----------------
indemnities, which, subject to the limitations set forth herein, shall be the
sole and exclusive obligations of Seller from and after Closing with respect to
the Property:
(a) As Buyer's sole and exclusive remedy with regard to the condition of
the Property, Seller shall indemnify Buyer against any actual, direct
damages (and reasonable attorneys' fees and other legal costs) which Buyer
can prove Buyer would not have incurred absent inaccuracy in the
representations and warranties of Seller set forth in the Section hereof
entitled "Representations and Warranties of Seller" as of the Closing,
provided, however, that such agreement by Seller to so indemnify, defend
and hold Buyer harmless:
(1) shall be inapplicable to any claims, suits, actions, damages,
costs, charges and expenses attributable to any state of facts of which
Buyer (or any affiliate of Buyer) has or should have knowledge on or
before the Closing (including, without limitation, any information Buyer
and its affiliates should have known as manager, developer and former
owner of the Property); and
(2) shall be null and void except to the extent that Seller has
received notice from Buyer within one year of Closing referring to this
19
Section and specifying the amount, nature and facts underlying any claim
being made by Buyer under this indemnity by Seller.
(b) As Buyer's sole and exclusive remedy with regard to the operation of
the Property, Seller shall indemnify Buyer against any actual, direct damages
resulting from the claims of third parties concerning the overt acts of Seller
in connection with Seller's operation of the Property prior to the date the
Closing occurs, but only if and to the extent that such claims relate to:
(1) matters which are in fact insured against by commercial liability
insurance; or
(2) intentional torts committed by Seller.
The provisions of this Section shall survive Closing, subject to limitations set
forth herein.
6.10 Representations and Warranties of Buyer. Buyer hereby represents and
----------------------------------------
warrants to Seller that:
(a) Buyer, has the full legal power, authority and right to execute and
deliver, and to perform its legal obligations under this Agreement, and
Buyer's performance hereunder and the transactions contemplated hereby have
been duly authorized by all requisite action on the part of Buyer and no
remaining action is required to make this Agreement binding on Buyer. The
individuals signing this Agreement on behalf of Buyer have authority to do
so. The provisions of this Section shall survive Closing.
(b) Having been given the opportunity to inspect the Property, Buyer is
relying, and will rely, solely on its own investigations of the title to,
and physical condition of, the Property and the operating history and
future potential of the Property as it deems appropriate and, to the
maximum extent permitted by law, Buyer acknowledges and agrees that the
Buyer is buying the Property on an "AS IS" and "WHERE IS" condition and
basis, with all faults. Buyer is not relying on any statement or
information made or given, directly or indirectly, orally or in writing,
express or implied, by the Seller or its agents as to the physical and
economic nature and/or condition of the Property but, rather, is and will
be relying on independent evaluations by its own
20
personnel or consultants to make a determination as to the physical
and economic nature, condition and prospects of the Property.
(c) Buyer has either: (i) delivered to Seller, at least thirty (30) days
prior to Closing, any and all environmental reports on or concerning the
Property that were prepared by Buyer or on Buyer's behalf; or (ii) has not
prepared, or has not caused to be prepared, any environmental reports on or
concerning the Property.
(d) The License Agreement is in full force and effect, and there is no
default thereunder by any party.
6.11 Buyer Indemnity. Buyer agrees that after the Closing Date, Buyer will
---------------
indemnify, defend and hold Seller harmless from and against any and all costs,
losses, liabilities, damages, lawsuits, claims and expenses, including, without
limitation, attorneys' fees and expenses incurred in defending against same,
incurred in connection with, arising out of, or resulting from all risks
incumbent in ownership of real property (including, without limitation, all
environmental risks), except as expressly set forth in the Section hereof
entitled "Seller Indemnity". Without limiting the foregoing, Buyer agrees that
after the Closing Date, Buyer hereby assumes, and Buyer will indemnify, defend
and hold Seller harmless from and against any and all costs, losses,
liabilities, damages, lawsuits, claims and expenses, including, without
limitation, attorneys' fees and expenses incurred in defending against same,
incurred in connection with, arising out of, or resulting, whenever accruing or
arising, from (I) the Ground Lease and/or the License Agreement, and (ii) any
"environmental" claims, problems, liabilities or other matters affecting the
Property.
The provisions of this Section shall survive Closing or other termination of
this Agreement.
6.12 Management of the Property. Until the Closing occurs, Seller shall
--------------------------
have the right to manage the Property in a manner deemed reasonable in Seller's
sole discretion; Seller intends, but shall not be legally bound (other than as
expressly set forth in the Management Agreement) to retain ▇▇▇▇▇▇ as Operator of
the Property until Closing. Buyer shall be unconditionally obligated to accept
the Property "as is", without reduction of the Purchase Price as the result of
any actual or alleged mismanagement of the Property prior to the Closing.
21
6.13 Leasing. Until the Closing occurs, Seller shall have the right to
-------
lease the Property in its sole discretion. Seller shall send a copy of the
proposed lease to Buyer for its approval, prior to execution (together with a
statement of the amount of the brokerage commission and the estimated amount of
the tenant improvements, if any, which will be due with respect to such lease),
which approval Buyer shall not unreasonably withhold or delay. If seller shall
not receive notice of objection from Buyer on or before 5 pm Central time five
(5) business days following Buyer's receipt of a proposed lease, Buyer shall be
conclusively deemed to have approved the proposed lease and the amount of the
brokerage commission set forth in Seller's notice (all leases set forth on
Exhibit "B-1" hereto, and all leases subsequently approved or deemed approved by
Buyer are referred to herein as "Approved Leases" and all commissions approved
or deemed approved by Buyer are referred to herein as "Approved Commissions";
and at Closing Exhibit "B-1" shall be amended to include all Approved Leases).
Because the benefits of new leases shall primarily accrue to the benefit of
Buyer, Buyer hereby agrees to reimburse Seller at Closing for all amounts
expended by Seller with respect to the Approved Leases for tenant improvements,
together with any Approved Commissions paid by Seller pursuant to the terms of
the Approved Leases from the Date of Agreement through the Closing Date
provided, however, that it is understood and agreed that Seller shall be solely
responsible for the cost of Approved Commissions and tenant improvements to
premises occupied by Urban Science Application under an Approved Lease. In
addition, except as otherwise set forth herein, Buyer hereby assumes all unpaid
obligations of the landlord that are required by the express written terms of
the Approved Leases (and all unpaid Approved Commissions due with respect to
such Approved Leases), including, without limitation, all unpaid obligations
required by the express written terms of the Approved Leases for tenant
improvements and other tenant concessions, Buyer agreeing to assume all tenant
improvement construction contracts for work required by the express written
terms of the Approved Leases which is in progress as of the Closing. This
provision shall survive the Closing.
7. Closing.
-------
As used herein, the term "Closing" shall refer to the later to occur of:
(i) the date on which the Escrowholder is authorized to record the Assignment
deposited in escrow by Seller; or (ii) the day on which Seller receives the
Purchase Price, adjusted in accordance with the provisions of the Section hereof
entitled "Prorations".
22
7.1. Buyer's Obligations. The obligations of Buyer with regard to Closing
-------------------
under this Agreement are, at its option, subject to the fulfillment of each and
all of the following conditions prior to or at the Closing:
(a) Seller shall have performed and complied with all the agreements and
conditions required in this Agreement to be performed and complied with by
Seller prior to Closing; and Escrowholder may deem all such items to have
been performed and complied with when Seller has deposited all items in
Escrow as required hereunder;
(b) The Title Insurer shall have given to Buyer written confirmation that
Title Insurer will issue its ALTA extended coverage Owner's Policy of Title
Insurance in the amount of the Purchase Price showing title vested in Buyer
subject only to the Permitted Exceptions and the usual exceptions found in
said policy; and
(c) The representations of Seller contained herein shall be true and
correct in all material respects as of the Closing Date.
(d) Seller having obtained the written consent of the City of Long
Beach, California to the grant, conveyance and assignment of
Seller's interest in the Ground Lease to Buyer.
7.2 Seller's Obligations. The obligations of Seller with regard to Closing
under this Agreement are, at Seller's option, subject to the fulfillment of each
and all of the following conditions prior to or at the Closing:
(a) Buyer performing and complying with all the agreements and conditions
required by this Agreement to be performed and complied with by Buyer prior
to Closing; and Escrowholder may deem all such items to have been performed
and complied with when Buyer has deposited with Escrowholder all items
required hereunder;
(b) The results of Buyer's Environmental Report and Future Environmental
Report, if any, shall be satisfactory to Seller in its sole discretion; and
(c) The representations of Buyer contained herein shall be true and correct
in all material respects on the Closing Date.
7.3 Deposits in Escrow. On or before the Closing Date:
------------------
23
7.3.1 Seller's Deposits. Seller shall deliver into escrow the following,
-----------------
executed by a duly authorized officer of Seller:
(a) The Assignment of Lessee's Interest in Ground Lease in the form as
--------------
Exhibit "A" attached hereto;
(b) "FIRPTA" Affidavit in the form as Exhibit "E" attached hereto;
------------------
(c) Certificate of Corporate Authorization in the form as Exhibit "F"
--------------------------------------
attached hereto;
(d) ▇▇▇▇ of Sale in the form as Exhibit "G" attached hereto;
------------
(e) Seller's closing instructions to the Escrowholder; and
-----------------------------
(f) Seller's Certificate of Reaffirmation of Representations and Warranties
-----------------------------------------------------------------------
in the form as Exhibit "H" attached hereto;
7.3.2 Buyer's Deposits. Buyer shall deliver into escrow the following,
----------------
executed by a duly authorized officer of Buyer:
(i) The Purchase Price, less the ▇▇▇▇▇▇▇ Money then held by Escrowholder,
------------------
plus costs to be paid by Buyer pursuant to the terms of this Agreement, and
plus or minus prorations and adjustments shown on the Closing Statement
executed by Buyer and Seller;
(ii) Buyer's closing instructions to the Escrowholder; and
----------------------------
(iii) Buyer's Certificate of Reaffirmation of Representations and
-----------------------------------------------------------
Warranties in the form as Exhibit "I" attached hereto.
----------
7.3.3 Joint Deposits. Buyer and Seller shall jointly deposit with
--------------
Escrowholder the following documents, each executed by persons or entities duly
authorized to execute same on behalf of Buyer and Seller:
(a) Closing Statement prepared by Escrowholder for approval by Buyer and
-----------------
Seller two (2) business days prior to the Closing Date and such Closing
Statements shall be deposited with Escrowholder after the same have been
executed by Buyer and Seller;
24
(b) Assignment and Assumption of Tenant Leases in the form of Exhibit "B"
------------------------------------------
attached hereto; and
(c) Assignment and Assumption of Contracts and Other Obligations in the
------------------------------------------------------------
form attached as Exhibit "J" hereto, pursuant to which Seller assigns and
Buyer assumes all of Seller's interest in maintenance and service
contracts, licenses, real estate tax refunds and equipment leases (except
insurance policies and the Management Agreement, which shall terminate at
Closing). ▇▇▇▇▇▇ shall join in the execution of the Assignment and
Assumption of Contracts and Other Obligations to evidence the termination
of the Management Agreement.
7.3.4 Other Documents. Buyer, Seller and Escrowholder shall deposit with
---------------
Escrowholder all other documents which are required to be deposited in Escrow by
the terms of this Agreement.
7.4 Costs. Seller and Buyer shall each pay one half of the cost of a
-----
standard ALTA extended coverage Owner's Title Insurance Policy, but Buyer shall
pay the cost of all endorsements to such owner's policy. Seller shall pay to the
Broker the Broker's Commission referred to in Section hereof entitled "Basic
Terms". If applicable, Broker shall pay to any co-broker the commission or fee
agreed to between Broker and co-broker. Buyer and Seller shall each pay one-half
of the Escrowholder's charge for the Escrow, if any. Buyer and Seller shall
share equally the cost of realty transfer or stamp taxes, and recording fees.
Buyer shall pay the cost of a survey, and all other costs and expenses of the
sale and Closing, except that the Buyer and Seller shall each pay its own legal
fees incurred in connection with the drafting and negotiating of this Agreement
and the Closing of the transaction contemplated herein.
7.5 Title Insurance. As a condition to Closing, Buyer shall receive the
----------------
written assurance of the Title Insurer that it will issue to Buyer an ALTA
extended coverage Owner's Title Insurance Policy, which policy shall contain all
endorsements agreed upon between Buyer and Title Insurer and shall insure title
to the Property in the amount of the Purchase Price and showing title vested in
Buyer subject only to the "Permitted Exceptions" (as defined in the Section
hereof entitled "Title").
7.6 Prorations. The following items shall be prorated between Buyer and
----------
Seller as of the Closing Date:
25
(a) Taxes and Assessments. General real estate taxes and assessments and
---------------------
other similar charges which are a lien on the Property, but not yet due and
payable as of the Closing Date. The prorations shall be based upon the most
recent tax ▇▇▇▇ and will be final. Any assessments levied against the
Property which are payable on an installment basis and which installments
are due, payable and outstanding on the Closing Date shall be paid by
Seller on the Closing Date, except that where general real estate taxes,
assessments, utilities and other expenses are paid by the Tenant under the
Lease, no proration will be made.
(b) Rentals. Other Income and Expenses. Rentals and other amounts and items
----------------------------------
of income relating to the Property, including prepaid rents and percentage
rentals. Buyer shall, at Closing, purchase accounts receivable relating to
the Property from Seller by a price equal to the following percentage of
such outstanding accounts receivable:
100% of the amount of accounts receivable less than 31 days
old;
95% of the amount of accounts receivable 31 to 60 days old;
90% of the amount of accounts receivable at least 61 to 90
days old; and
80% of the amount of accounts receivable over 90 days old.
(c) Expenses. All expenses of operating the Property which have been
--------
prepaid by Seller (except insurance pursuant to Section hereof entitled
"Insurance").
(d) Security Deposits. All security and other deposits of Tenant(s) not
-----------------
heretofore applied, together with accrued interest, if any, shall be
credited to Buyer at the Closing.
(e) Utilities. Seller shall receive credit for any assignable utility
---------
deposits, if any, which are assigned to Buyer at Buyer's request or with
Buyer's consent. To the extent possible, Seller shall cause all electric,
gas and water meters which are not payable by Tenants, to be read as of the
Closing Date, and Seller shall pay all charges for electricity and water
which have accrued to and including the day of Closing and Buyer shall pay
all such expenses accruing after the Closing Date.
26
(f) Leasing Reimbursements. Seller shall receive a credit from Buyer at
----------------------
Closing for certain leasing expenses, to the extent any exist, required by
the provisions of the Section hereof entitled "Leasing".
Buyer and Seller agree to estimate any amounts which cannot be determined
accurately as of the Closing Date. All of the foregoing prorations shall be
final as of the Closing Date. Prorations and adjustments shall be made by
credits to or against the Purchase Price. Expenses incurred in operating the
Property that Seller customarily pays and any other costs incurred in the
ordinary course of business or the management and operation of the Property
shall be prorated on an accrual basis. For purposes of calculating prorations,
Seller shall be deemed to be entitled to the income and responsible for the
expenses for the entire day upon which the Closing occurs. All apportionments
shall be made ill accordance with customary practice in the county in which the
Property is located, except as expressly provided herein; in the event of
dispute between Buyer and Seller, the advice of the Title Insurer shall be
determinative as to what is customary.
7.7 Insurance. The fire, hazard and other insurance policies relating to
---------
the Property shall be canceled by Seller as of the Closing Date and shall not,
under any circumstances, be assigned to Buyer. All unearned premiums for fire
and any additional hazard insurance premium or other insurance policy premiums
with respect to the Property shall be retained by Seller.
7.8 Close of Escrow. Subject to the provisions of the Section below
---------------
entitled "Wire Transfer", pursuant to the terms of this Agreement, as soon as
Buyer and Seller have deposited all items required with Escrowholder, and upon
satisfaction of the Sections hereof entitled "Buyer's Obligations" and "Seller's
Obligations", Escrowholder shall cause the Closing to occur in accordance with
the terms hereof by immediately:
(a) Wire Transfer. Wire transferring the Purchase Price (including the
-------------
▇▇▇▇▇▇▇ Money held by Escrowholder, but less the Broker's Commission, and
the amount of costs paid by Seller at Closing, and plus or minus the amount
of any prorations pursuant to the terms hereof, all as set forth on the
Closing Statement signed by Seller) to Seller directly as follows:
Firstar Bank Milwaukee, N.A.
Milwaukee, Wisconsin
ABA Number 0750 0002 2
27
for the account of
The Northwestern Mutual Life Insurance Company
Account No. 111000978
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
SRE 331269
Provided, however, that if, in the opinion of the Escrowholder, such wire
transfer cannot be accomplished so that the Seller will receive the wire
transfer on or before 11 am Central Time on the date otherwise set for
Closing, at the sole discretion of Seller, said Closing shall be delayed
one business day with appropriate adjustments to the prorations but without
releasing Buyer or Seller from their obligations hereunder.
(b) Recordation. Recording the Assignment;
-----------
(c) Delivery of Other Escrowed Documents.
------------------------------------
(I) Joint Delivery. Delivering to each of Buyer and Seller at least
one executed counterpart of each of the (i) Assignment and Assumption
of Leases, (ii) the Closing Statement;
(II) Buyer's Delivery. Delivering to Buyer the (i) ▇▇▇▇ of Sale,
(ii) FIRPTA affidavit, (iii) Certificate of Corporate Authorization,
and (iv) Seller's Certificate of Reaffirmation of Representations and
Warranties.
(Ill) Seller's Delivery. Delivering to Seller Buyer's Certificate of
Reaffirmation of Representations and Warranties.
(d) Broker's Commission. Delivering to Broker the Broker's Commission for
-------------------
services rendered to Seller, as reflected on the Closing Statement executed
by Seller and Buyer. In the event there is a co-broker, Broker shall be
responsible for delivering to any co-broker the commission agreed to
between Broker and co-broker and neither Buyer nor Seller shall have any
responsibility for payment of any commission or fee to any co-broker.
7.9 Deliveries to Buyer. As soon as reasonably possible after the Closing,
-------------------
Seller shall deliver the following to Buyer:
28
(a) Tenant Lease(s). The original of each Tenant Lease and any amendments
---------------
thereto (if available), or a copy of each Tenant Lease and any amendments
thereto in the possession of Seller, if not previously delivered to Buyer.
(b) Contracts. The originals of all Contracts in the possession of Seller
---------
that have been assigned to and assumed by Buyer.
(c) Keys. Any keys to any door or lock on the Property in the possession of
----
Seller.
(d) Licenses and Permits. All original licenses or permits or certified
--------------------
copies thereof issued by governmental authorities having jurisdiction over
the Property which Seller has in its possession and which are transferable.
(e) Tenant Notice(s). Copies of the Tenant Notice(s) distributed by Seller
----------------
via US. Mail or other delivery service selected by Seller to the Tenant(s)
of the Property, advising the Tenant(s) of the sale of the Property to
Buyer and directing the Tenant(s) to pay future rents to Buyer.
7.10 Recorded Instruments. As soon after the Closing as possible,
--------------------
Escrowholder shall deliver to Buyer the original recorded Assignment, and shall
deliver to Seller a copy of the recorded Assignment, with recordation
information noted thereon.
7.11 Possession. As of the Close Date, possession of the Property shall be
----------
delivered to Buyer subject to any right of possession under any items described
in the Assignment.
8. Casualty.
--------
In the event of any loss or damage by fire or other casualty to the
Property prior to the Closing which is not material, Closing shall be
consummated just as if such loss or damage had not occurred, and Seller shall
deliver to Buyer any and all proceeds paid to Seller by Seller's insurer with
respect to such casualty. At Closing, Seller shall give Buyer a credit on the
Purchase Price in the amount of any deductible. In the event of any material
loss or damage by fire or other casualty to the Property prior to the Closing,
at Buyer's sole option, either:
29
(a) This Agreement shall terminate in accordance with the Section hereof
entitled "Non Default Termination" if Buyer shall so notify Seller within
ten (10) business days of Buyer having actual knowledge of the casualty; or
(b) If Buyer shall not have timely notified Seller of its election to
terminate this Agreement in accordance with Subsection (a) above, Closing
shall be consummated just as if such loss or damage had not occurred,
without reduction in the Purchase Price, and Seller shall deliver to Buyer
any and all proceeds paid to Seller by Seller's insurer with respect to
such casualty. At Closing, Seller shall give Buyer a credit on the Purchase
Price in the amount of any deductible.
For purposes of the foregoing, a casualty shall be deemed to be material if the
estimated cost of restoration exceeds the Materiality Limit.
9. Condemnation.
------------
In the event of any condemnation or taking of all or a part of the Property
prior to the Closing which is not material, Closing shall be consummated just as
if such loss or damage had not occurred, and Seller shall assign to Buyer all of
Seller's interest in any condemnation actions and proceeds. In the event of any
material condemnation of all or a part of the Property prior to the Closing at
Buyer's sole option, either:
(a) This Agreement shall terminate in accordance with the Section hereof
entitled "Non Default Termination" if Buyer shall so notify Seller within
ten (10) business days of Buyer having actual knowledge of the
condemnation; or
(b) If Buyer shall not have timely notified Seller of its election to
terminate this Agreement in accordance with Subsection (a) above, Closing
shall be consummated just as if such loss or damage had not occurred,
without reduction in the Purchase Price, and Seller shall assign to Buyer
all of Seller's interest in any condemnation actions and proceeds.
For purposes of the foregoing, a condemnation or taking shall be deemed to be
material if the value of the Property taken, as determined by the condemning
authority, exceeds the Materiality Limit.
30
10. Notices. All notices which are required or permitted hereunder must be
-------
in writing and shall be deemed to have been given, delivered or made, as the
case may be, (i) when delivered by personal delivery; (ii) three (3) business
days after having been deposited in the United States mail, certified or
registered, return receipt requested, sufficient postage affixed and prepaid,
property addressed; or (iii) one (1) business day after having been deposited
with a nationally recognized overnight courier service (such as, by way of
example but not limitation, U.S. Express Mail, UPS, Federal Express or
Purolator), addressed to the party to whom notice is intended to be given at the
address set forth in the Basic Terms, or to such other address as either party
may from time to time designate by written notice given to the other party;
provided, however that no party may require notice be given to more than 3
addresses.
11. Successors and Assigns.
----------------------
This Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties hereto; provided, however, that
Buyer shall not transfer, sell, or assign all or any portion of Buyer's rights
under this Agreement, provided, however that Buyer may, with at least five (5)
business days prior notice, direct Seller to cause title to be vested in an
affiliate of Buyer.
12. Brokers.
-------
Buyer and Seller represent to each other that they have dealt with no
broker or other person except the Broker, in connection with the sale of the
Property in any manner which might give rise to any claim for commission. Seller
agrees to be responsible for payment of Broker's fees only and has not, nor
will, assume any liability with respect to any fee or commission payable to any
co-broker or any other party. No broker or person other than Broker is entitled
to receive any broker's commissions, finder's fees, or similar compensation from
Seller in connection with any aspect of the transaction contemplated herein. It
is agreed that if any claims for brokerage commissions or fees are ever made
against Seller or Buyer in connection with this transaction, all such claims
shall be handled and paid by the party whose actions or alleged commitments form
the basis of such claim. The party against whom the claim for such fees is made
shall indemnify and hold the other party harmless against and in respect of any
claim for brokerage or finder's fees or other like payment based in any way upon
agreements, arrangements, or understandings made or claimed to have been made by
Buyer or Seller with any third person.
31
13. Covenant not to Record.
----------------------
Buyer will not record this Agreement or any memorandum or other evidence
thereof. Any such recording shall constitute a material default hereunder on the
part of Buyer.
14. Default
-------
It is agreed by both Seller and Buyer that the remedies for default are
provided for in the following Sections and shall constitute the sole and
exclusive remedies of the aggrieved party in the event of default by the other
party. Without limiting the foregoing, in no event shall Seller have any
liability for damages whatsoever.
14.1 Default by Buyer. In the event of default by Buyer, Seller's sole and
----------------
exclusive remedy, except as set forth further in this Section, is to retain all
▇▇▇▇▇▇▇ Money (including all interest thereon) and all money paid on account of
the Purchase Price as liquidated damages, in which event this Agreement shall
become null and void and both parties shall thereupon be released of all further
liability hereunder. Such amount is agreed upon by and between Seller and Buyer
as liquidated damages acknowledging the difficulty and inconvenience of
ascertaining and measuring actual damages, and the uncertainty thereof; provided
that nothing herein contained shall limit the right of Seller to seek damages
from Buyer due to any slander of title by Buyer after the termination of this
agreement, or due to any other action taken by Buyer with respect to the
Property after the termination of this Agreement, no other damages, rights or
remedies shall in any case be collectible, enforceable or available to Seller
other than as defined in this Section.
14.2 Default by Seller. In the event of default by Seller, Buyer may elect
-----------------
either: (i) to terminate this Agreement and receive from Seller reimbursement of
the ▇▇▇▇▇▇▇ Money (including all interest thereon) and money paid on account of
the Purchase Price; or (ii) to proceed with an action for specific performance
of Seller's express obligations hereunder. Seller shall not be obligated to
return ▇▇▇▇▇▇▇ Money (including all interest thereon) to Buyer unless Buyer
gives Seller written notice terminating all of Buyer's interest in the Property
and this Agreement; provided, however, that failure of Buyer to give Seller such
notice shall not be construed to expand Buyer's rights or remedies in any
manner.
32
15. Non-Default Termination.
-----------------------
In the event of any termination of this Agreement (except only a
termination of this Agreement to which the Section hereof entitled "Default" is
applicable), the following provisions shall apply:
(a) All Obligations Terminate. Except for those obligations which
-------------------------
expressly survive termination of this Agreement, neither Buyer nor
Seller shall have any further obligations hereunder after termination
of this Agreement.
(b) Return of ▇▇▇▇▇▇▇ Money. The ▇▇▇▇▇▇▇ Money plus accrued interest
-----------------------
shall be returned to Buyer upon Seller's receipt of written notice
from Buyer terminating this Agreement, expressly acknowledging the
termination of all of Buyer's interest in the Property and this
Agreement; provided, however, that failure of Buyer to give Seller
such notice shall not be construed to expand Buyer's rights or
remedies in any manner.
16. Miscellaneous.
-------------
16.1 Survival of Representations, Covenants, and Obligations. Except as
-------------------------------------------------------
otherwise expressly provided herein, no representations, covenants, or
obligations contained herein made by Seller or Buyer shall survive Closing or
termination of this Agreement.
16.2 Attorneys' Fees. In the event of any litigation between the parties
----------------
hereto concerning the terms hereof, the losing party shall pay the reasonable
attorneys' fees and costs incurred by the prevailing party in connection with
such litigation, including appeals.
16.3 Publicity. Except to the extent that Buyer would be in violation of
---------
any law and except as set forth in Section 6.1(a) hereof, Buyer agrees that it
shall (i) treat this transaction strictly confidentially prior to Closing (ii)
make no public announcement of the transactions contemplated herein and (iii)
neither directly nor indirectly contact the Property's vendors or contractors
until after Closing occurs. Neither party will publicly advertise or announce
the facts of the sale of the Property, except by mutual written consent, until
after the Closing Date. In no event will either party advertise or announce the
terms of this Agreement, except by mutual written consent.
33
16.4 Captions. The Section headings or captions appearing in this
--------
Agreement are for convenience only, are not a part of this Agreement, and are
not to be considered in interpreting this Agreement.
16.5 Waiver. No waiver by any party of any breach hereunder shall be
------
deemed a waiver of any other or subsequent breach.
16.6 Time. Time is of the essence with regard to each provision of this
----
Agreement. If the final date of any period provided for herein for the
performance of an obligation or for the taking of any action falls on a
Saturday, Sunday or banking holiday, then the time of that period shall be
deemed extended to the next day which is not a Sunday, Saturday or banking
holiday.
16.7 Controlling Law. This Agreement shall be construed in accordance with
---------------
the laws of the state of California.
16.8 Severability. In the event that any one or more of the provisions of
------------
this Agreement shall be determined to be void or unenforceable by a court of
competent jurisdiction or by law, such determination will not render this
Agreement invalid or unenforceable, and the remaining provisions hereof shall
remain in full force and effect.
16.9 Construction. Buyer and Seller agree that each party and its counsel
------------
(if applicable) have reviewed, and if necessary, revised this Agreement, and
that the normal rule of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments, exhibits or schedules
hereto.
16.10 Finance Committee Approval. The obligations of Seller hereunder are
--------------------------
subject to Seller obtaining appropriate authorization from its Finance Committee
and all other necessary authority to perform its obligations under this
Agreement, to proceed to close the transaction contemplated hereby, and to
execute and deliver all documents to be executed by Seller and Buyer pursuant
hereto. In the event Seller has not obtained such approval on or before the
Approval Date, Either Buyer or Seller may terminate this Agreement in accordance
with the Section hereof entitled "Non-Default Termination".
16.11 Execution. This Agreement may be executed in any number of
---------
counterparts, each of which, when so executed and delivered, shall be
34
deemed an original, but such counterparts together shall constitute but one
agreement.
16.12 Amendments. This Agreement may be amended only by a written
----------
instrument executed by Buyer and Seller.
16.13 Entire Agreement. This written Agreement constitutes the entire and
----------------
complete agreement between the parties hereto and supersedes any prior oral or
written agreements between the parties with respect to the Property.
16.14 Exhibits. The following Exhibits are attached hereto and made a part
--------
hereof:
Exhibit A - Assignment of Lessee's Interest in Ground Lease
Exhibit B - Assignment and Assumption of Leases
Exhibit C - Existing Environmental Reports
Exhibit D - Exceptions to Representations and Warranties
Exhibit E - "FIRPTA Affidavit"
Exhibit F - Certificate of Authorization
Exhibit G - Quit Claim ▇▇▇▇ of Sale
Exhibit H - Seller's Certificate of Reaffirmation of Representations
Exhibit I - Buyer's Certificate of Reaffirmation of Representations
Exhibit J - Assignment and Assumption of Contracts and Other Obligations
Exhibit K - Access and Indemnification Agreement
35
IN WITNESS WHEREOF, this Agreement has been executed as of the Date of
Agreement, as herein defined in the Section entitled "Basic Terms."
SELLER: THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Vice President
-------------------------
Date: September 3, 1996
------------------------ [LAW DEPARTMENT
STAMP APPEARS
BUYER: ▇▇▇▇▇▇ INDUSTRIES HERE]
By: [SIGNATURE APPEARS HERE]
--------------------------
Its: -------------------------
Date: ------------------------
36
Exhibit A
ASSIGNMENT OF LESSEE'S INTEREST IN GROUND LEASE
THIS ASSIGNMENT OF LESSEE'S INTEREST IN GROUND LEASE is made as of this _____
day of __________, 1996 between THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY,
a Wisconsin corporation, ("Assignor") and ▇▇▇▇▇▇ INDUSTRIES, a
________________________________, ("Transferee").
Assignor, in consideration of the sum of Ten ($10.00) Dollars and other good and
valuable consideration from Transferee, the receipt whereof is hereby
acknowledged, hereby GRANTS, CONVEYS and ASSIGNS to Assignee the following
"Estate":
(a) the interest of the "Developer" in the "Ground Lease" (the
"Property"); and
(b) Assignor's interest in any improvements (the "Improvements") situated
on the Property; and
(c) assignor's interest in any and all other right, title, and interest of
Assignor in and to the Property.
"Ground Lease" means that certain Lease Agreement made the 24th day of
January 1989 by and between ▇▇▇▇▇▇ Long Beach Associates, as "Developer", and
the City of Long Beach, as Landlord; a Short Form of Ground Lease was recorded
in Los Angeles County, California, on January 31, 1989 as Document No. 89
159802.
"Developer" has the meaning defined for it in the Ground Lease.
Assignor hereby warrants to Assignee for itself and its successors and
assigns, that:
(a) as of the date hereof, Assignor has not conveyed the Estate, or any
right, title or interest therein, to any person other than Assignee;
and,
37
(b) the Estate is, as of the date hereof, free from encumbrances done,
made, or suffered by Assignor, or any person claiming under Assignor,
except only for the rights of the Lessor under the Ground Lease.
PROVIDED, HOWEVER, that Assignor shall have no liability whatsoever with respect
to:
1. Real Estate Taxes not yet due and payable;
2. General and Special Assessments payable after the date hereof;
3. Liens, claims, easements, covenants, restrictions, encumbrances and
other matters of record;
4. Zoning and other laws, ordinances and regulations;
5. Public Utility, Drainage and Highway easements, whether or not of
record;
6. Rights of parties in possession;
7. Encroachments and other matters which would be disclosed by an
accurate survey or an inspection of the above premises; and,
8. Consequences of any attack on the title conveyed hereunder under any
creditor's rights law, including state insolvency law and federal
bankruptcy law.
38
IN WITNESS WHEREOF, said The Northwestern Mutual Life Insurance Company,
has caused these presents to be executed by ______________________, Vice
President thereof, and attested by its Assistant Secretary pursuant to authority
duly conferred on such officers by its Board of Trustees.
THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By:
-------------------------
Vice President
Attest:
-------------------------
Assistant Secretary
On this _______ day of _____,1996, the City of Long Beach, as Landlord under the
Ground Lease, hereby acknowledges the GRANT, CONVEYANCE and ASSIGNMENT to ▇▇▇▇▇▇
Industries set forth herein and further agrees that it is a permitted sale,
transfer and assignment of the estate described herein.
THE CITY OF LONG BEACH
By:
-------------------------
39
STATE OF WISCONSIN )
) SS.
COUNTY OF MILWAUKEE )
On this______ day of____________, A.D., 19__, before me appeared
_________________________________________ and __________________________ Vice
President and Assistant Secretary, respectively, of The Northwestern Mutual Life
Insurance Company, who are personally to me known and known to me to be such
Vice President and Assistant Secretary and to be the same persons who, as such
officers, executed the foregoing instrument of writing in the name of said
corporation and duly and severally acknowledged the execution thereof as the
free act and deed of said corporation.
And then and there the said ________________ and __________________,being by me
first duly sworn, did say, each for himself, that the said ________________ is
Vice President and the said ________________ is Assistant Secretary of The
Northwestern Mutual Life Insurance Company, that the seal affixed to the
foregoing instrument is the corporate seal of said corporation and that said
instrument was signed and sealed in its behalf by authority of its Board of
Trustees.
_________________________________
Notary Public, State of Wisconsin
My Commission expires: ________
This instrument was prepared for THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY by _______________, Attorney, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
40
Exhibit A
Legal Description
PARCELS ▇ ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ THE CITY OF LONG BEACH, COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 208 PAGES 92 THROUGH
100 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, TOGETHER WITH IMPROVEMENTS LOCATED THEREON.
EXCEPT THEREFROM ALL OIL, GAS, AND OTHER HYDROCARBONS IN AND UNDER, OR WHICH MAY
BE PRODUCED OR SAVED FROM SAID LAND, TOGETHER WITH ALL RIGHTS OF EVERY KIND AND
DESCRIPTION WHATSOEVER TO DRILL FOR, DEVELOP, TAKE, REMOVE, AND SEVER THE SANE,
OR ANY PART THEREOF, FROM SAID LAND, WITHOUT, HOWEVER, THE RIGHT TO THE USE OF
THE SURFACE OF SAID LAND IN CONNECTION WITH THE DEVELOPMENT OR REMOVAL OF SAID
OIL, GAS OR OTHER HYDROCARBONS, ALL DRILLING AND BORING FOR SAID PURPOSES TO BE
DONE BENEATH THE SURFACE OF SAID LAND AT ANY LEVEL, 100 FEET, OR MORE, BELOW THE
SURFACE THEREOF, THE SURFACE OPENING OF THE WELL HOLE TO BE LOCATED ON LAND
OTHER THAN THE LAND ABOVE DESCRIBED, AS RESERVED IN THE DEED FROM ▇▇▇▇▇ LAND
COMPANY, A CORPORATION, RECORDED AUGUST 25, 1948 IN BOOK 28072 PAGE 204,
OFFICIAL RECORDS, AND RECORDED FEBRUARY 10, 1950 IN BOOK 32238 PAGE 67, OFFICIAL
RECORDS, AND RECORDED DECEMBER 28, 1950 IN BOOK 35178 PAGE 303, OFFICIAL
RECORDS, AND RECORDED DECEMBER 28, 1950 IN BOOK 35179 PAGE 310, OFFICIAL
RECORDS.
41
EXHIBIT B
Assignment and Assumption of Leases
BY THIS AGREEMENT, made this ______day of_________, 1996, The Northwestern
Mutual Life Insurance Company, a Wisconsin corporation, ("Assignor"), and ▇▇▇▇▇▇
Industries, a ______________ ("Assignee"), confirm and agree as follows:
I.
RECITALS
1.1 Assignor has agreed to sell its interest in the Property the real
property described on Schedule 2 (the "Property") to Assignee on or before
___________________________________ , 199__
1.2 Assignor desires to assign to Assignee and Assignee desires to acquire
the Assignor's interest under the leases described on Schedule I (the "Leases"),
effective upon the closing of the sale described in 1.1 above (the "Closing").
II.
AGREEMENT
2.1 In consideration of the sum of Ten Dollars ($10.00) paid by Assignee,
the receipt of which is hereby acknowledged, the Assignor hereby assigns to
Assignee, all of its interest in the Leases, subject to the terms, covenants,
provisions, and conditions set forth therein.
2.2 In order to induce Assignor to execute and deliver this instrument and
to assign the interest hereby conveyed, Assignee covenants with the Assignor as
follows:
a) To promptly pay or cause to be paid to the person or persons,
corporations, who from time to time may be entitled thereto, all taxes and
assessments, and all other amounts of any nature provided by the terms of
such Leases to be paid by the landlord;
b) To assume, keep, observe, and perform duly and punctually, all of the
terms, covenants, provisions, and conditions contained in such Leases on
the part of the landlord to be kept, observed, and performed
42
in the same manner and with the same effect as though Assignee were the
original and named landlord to such leases, and specifically Assignee
agrees to pay to the existing and future tenants all sums that have been or
may be collected as security deposits if such payments are required in
accordance with the terms of such leases;
c) To indemnify Assignor against any claims arising under such Leases
subsequent to the date of Closing.
IN WITNESS WHEREOF, Assignor and Assignee by their proper officers
thereunder duly authorized, have executed these presents as of the day and year
first hereinabove written.
Assignor: THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By:
-------------------------------
Its: Vice President
Attest:
---------------------------
Its: Assistant Secretary
Assignee: ▇▇▇▇▇▇ INDUSTRIES
By:
-------------------------------
Its:
------------------------------
Attest:
---------------------------
Its:
------------------------------
43
STATE OF WISCONSIN )
) ss.
COUNTY OF MILWAUKEE )
The foregoing instrument was acknowledged before me this_____day of
______________, 199__, __________________ and ___________ the Vice
President and Assistant Secretary respectively, of The Northwestern Mutual Life
Insurance Company, and acknowledged the execution of the foregoing instrument as
the act and deed of said corporation.
----------------------------------
Notary Public
My commission expires:
STATE OF )
) ss.
COUNTY OF)
The foregoing instrument was acknowledged before me this ______ day of
____________, 199__, _____________ and _____________ the Vice President and
Assistant Secretary respectively, of ______________________________________
and acknowledged the execution of the foregoing instrument as the act and deed
of said trust.
----------------------------------
Notary Public
My commission expires:
44
SCHEDULE 1
ASSIGNMENT OF LANDLORD'S INTEREST IN LEASES
List of Leases
Leases between The Northwestern Mutual Life Insurance Company, as assignee of
the interests of ▇▇▇▇▇▇ Long Beach Associates and
1. Olympus America, Inc.
2. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation
3. Federal Express
4. ▇▇▇▇▇▇ Worldwide
5. Urban Science Application
6. ▇▇▇▇▇▇▇ Company
Leases between The Northwestern Mutual Life Insurance Company and
1. Leviton Manufacturing Company
2. De Vry, Inc.
45
SCHEDULE 2
ASSIGNMENT AND ASSUMPTION OF LEASES
Legal Description
PARCELS ▇ ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ THE CITY OF LONG BEACH, COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 208 PAGES 92 THROUGH
100 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, TOGETHER WITH IMPROVEMENTS LOCATED THEREON.
EXCEPT THEREFROM ALL OIL, GAS, AND OTHER HYDROCARBONS IN AND UNDER, OR WHICH
MAY BE PRODUCED OR SAVED FROM SAID LAND, TOGETHER WITH ALL RIGHTS OF EVERY KIND
AND DESCRIPTION WHATSOEVER TO DRILL FOR, DEVELOP, TAKE, REMOVE, AND SEVER THE
SAME, OR ANY PART THEREOF, FROM SAID LAND, WITHOUT, HOWEVER, THE RIGHT TO THE
USE OF THE SURFACE OF SAID LAND IN CONNECTION WITH THE DEVELOPMENT OR REMOVAL OF
SAID OIL, GAS OR OTHER HYDROCARBONS, ALL DRILLING AND BORING FOR SAID PURPOSES
TO BE DONE BENEATH THE SURFACE OF SAID LAND AT ANY LEVEL, 100 FEET, OR MORE,
BELOW THE SURFACE THEREOF, THE SURFACE OPENING OF THE WELL HOLE TO BE LOCATED ON
LAND OTHER THAN THE LAND ABOVE DESCRIBED, AS RESERVED IN THE DEED FROM ▇▇▇▇▇
LAND COMPANY, A CORPORATION, RECORDED AUGUST 25, 1948 IN BOOK 28072 PAGE 204,
OFFICIAL RECORDS, AND RECORDED FEBRUARY 10, 1950 IN BOOK 32238 PAGE 67, OFFICIAL
RECORDS, AND RECORDED DECEMBER 28, 1950 IN BOOK 35178 PAGE 303, OFFICIAL
RECORDS, AND RECORDED DECEMBER 28, 1950 IN BOOK 35179 PAGE 310, OFFICIAL
RECORDS.
46
EXHIBIT C
Existing Environmental Reports
1. Environmental Assessment Report performed by Targhee, Incorporated, dated
May 19, 1988 and corollary documents under cover letter from Targhee,
Incorporated, dated July 14, 1988.
2. Environmental Site Assessment performed by CTL Environmental
Services for the Northwestern Mutual Life Insurance Company, dated
August 3, 1993.
3. Phase I Environmental Site Assessment performed by CTL Environmental
Services for The Northwestern Mutual Life Insurance Company, dated
June 3, 1993.
47
EXHIBIT D
Exceptions to Seller's Representations and Warranties
NONE
48
EXHIBIT E
"FIRPTA" Affidavit
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property must withhold tax if the transferor is a foreign person. To
inform the transferee that withholding of tax is not required upon the
disposition of a U.S. real property interest by The Northwestern Mutual Life
Insurance Company, the undersigned hereby certifies the following on behalf of
The Northwestern Mutual Life Insurance Company.
1. The Northwestern Mutual Life Insurance Company is a Wisconsin
corporation and is not a foreign corporation;
2. The Northwestern Mutual Life Insurance Company's U.S. employer
identification number is ▇▇-▇▇▇▇▇▇▇; and
3. The Northwestern Mutual Life Insurance Company's home office address
is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
The undersigned understands that this certification may be disclosed to the
Internal Revenue Service by 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 certificate
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 Northwestern Mutual Life Insurance Company.
THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY
Dated: By:
------------------ ------------------------------
Its:
-----------------------------
49
EXHIBIT F
CERTIFICATE OF CORPORATE AUTHORIZATION
I, ____________________, do hereby certify that I am an Assistant Secretary
of The Northwestern Mutual Life Insurance Company, a Wisconsin corporation (the
"Company"); and that the following are true and correct excerpts from the By-
Laws of the Company, now in full force and effect, relating to the powers of the
Finance Committee of the Company and the execution of instruments on behalf of
the Company:
"Section 2.6 Finance Committee. (a) COMPOSITION AND POWERS. The
----------------- ----------------------
finance committee shall consist of such number of trustees as the
board may determine, to be elected annually by the board, plus the
chairman of the board, if any, and the president, if a trustee. When
the board is not in session, the finance committee shall have and may
exercise all of the powers of the board in regard to the assets and
investments of the Company (except assets used in the operation of the
Company's principal office and agencies) including, without
limitation, the power directly or by delegation to do all such acts
and things as it may deem necessary and proper to (i) establish the
Company's financial and investment policy, (ii) invest, reinvest,
manage, select, sell and otherwise dispose of the Company's assets,
(iii) designate depositories for the Company's funds and authorize
persons to make deposits in and withdrawals from such depositories,
(iv) appoint one or more managers of the Company's regional loan and
real estate offices, (v) borrow money for the use and benefit of the
Company in such amount and on such terms as it shall determine, and
(vi) pledge the Company's assets as security for the payment of such
loan or other purposes."
******************
"Section 6.3 Other Instruments. The chairman of the board, the
-----------------
president, the vice presidents, and such other persons as the board,
the executive committee or the finance committee may designate shall
each have authority to execute and acknowledge on behalf of the
Company all instruments executed in the name of the Company; and the
chairman of the board, the president and the vice presidents shall
each have authority to execute powers of attorney authorizing other
50
persons to execute and acknowledge such instruments in specific
instances. The secretary and any associate or assistant secretary
shall each have authority to attest, countersign and acknowledge all
such instruments requiring attestation, countersignature or
acknowledgment. Insurance policies and annuity contracts issued by the
Company and endorsements thereto shall be executed in the manner
provided by the board or executive committee."
I further certify that the Finance Committee of the Company, by resolution
approved on _________, 1996, which resolution is now in full force and effect,
has authorized the sale of _______________________.
I further certify that _____________________ is a Vice President and
_______________ is an Assistant Secretary of the Company.
IN WITNESS WHEREOF, I have hereunto affixed my name as Assistant Secretary,
and caused the corporate seal of the Company to be hereto affixed this __ day of
________________, 19__.
____________________________________
Assistant Secretary of
The Northwestern Mutual Life
Insurance Company
51
STATE OF WISCONSIN )
) ss.
COUNTY OF MILWAUKEE )
On __________________, before me, __________________, personally
appeared _____________, Assistant Secretary of THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY. personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity (ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
_________________________________
Notary Public, State of Wisconsin
My commission expires: _______________________
52
EXHIBIT "A"
TO CERTIFICATE OF
CORPORATE AUTHORIZATION
PARCELS 1 AND 2 OF PARCEL MAP NO.16960, IN THE CITY OF LONG BEACH, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 208 PAGES 92 THROUGH 100
INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,
TOGETHER WITH IMPROVEMENTS LOCATED THEREON.
EXCEPT THEREFROM ALL OIL, GAS, AND OTHER HYDROCARBONS IN AND UNDER, OR WHICH
MAY BE PRODUCED OR SAVED FROM SAID LAND, TOGETHER WITH ALL RIGHTS OF EVERY KIND
AND DESCRIPTION WHATSOEVER TO DRILL FOR, DEVELOP, TAKE, REMOVE, AND SEVER THE
SAME, OR ANY PART THEREOF, FROM SAID LAND, WITHOUT, HOWEVER, THE RIGHT TO THE
USE OF THE SURFACE OF SAID LAND IN CONNECTION WITH THE DEVELOPMENT OR REMOVAL OF
SAID OIL, GAS OR OTHER HYDROCARBONS, ALL DRILLING AND BORING FOR SAID PURPOSES
TO BE DONE BENEATH THE SURFACE OF SAID LAND AT ANY LEVEL, 100 FEET, OR MORE,
BELOW THE SURFACE THEREOF, THE SURFACE OPENING OF THE WELL HOLE TO BE LOCATED ON
LAND OTHER THAN THE LAND ABOVE DESCRIBED, AS RESERVED IN THE DEED FROM ▇▇▇▇▇
LAND COMPANY, A CORPORATION, RECORDED AUGUST 25, 1948 IN BOOK 28072 PAGE 204,
OFFICIAL RECORDS, AND RECORDED FEBRUARY 10, 1950 IN BOOK 32238 PAGE 67,
OFFICIAL RECORDS, AND RECORDED DECEMBER 28, 1950 IN BOOK 35178 PAGE 303,
OFFICIAL RECORDS, AND RECORDED DECEMBER 28, 1950 IN BOOK 35179 PAGE 310,
OFFICIAL RECORDS.
53
EXHIBIT G
QUIT CLAIM ▇▇▇▇ OF SALE
Know all men by these presents, that THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY, a Wisconsin corporation, with its principal office located at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Seller"), in consideration of the
sum of Ten and no/100 Dollars ($10.00) and other good and valuable
consideration, to it in hand paid by ▇▇▇▇▇▇ INDUSTRIES ("Buyer") the receipt and
sufficiency of which is hereby acknowledged, quit claims to Buyer its interests
in the personal property described on Exhibit 2 attached hereto which is located
on, or is used or intended for use in connection with the land described on
Exhibit I attached hereto or the improvements located on such land.
SELLER MAKES NO WARRANTIES WHATSOEVER, INCLUDING WITHOUT LIMITATION,
WARRANTIES OF CONDITION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN WITNESS WHEREOF, Seller has executed this instrument as of
__________________________, 199__.
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
(CORPORATE SEAL)
By:
-----------------------------
Its Vice President
Attest:
-------------------------
Its Vice President
54
EXHIBIT I
TO
QUIT CLAIM ▇▇▇▇ OF SALE
Legal Description
PARCELS 1 AND 2 OF PARCEL MAP NO.16960, IN THE CITY OF LONG BEACH, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 208 PAGES 92 THROUGH 100
INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,
TOGETHER WITH IMPROVEMENTS LOCATED THEREON.
EXCEPT THEREFROM ALL OIL, GAS, AND OTHER HYDROCARBONS IN AND UNDER, OR WHICH MAY
BE PRODUCED OR SAVED FROM SAID LAND, TOGETHER WITH ALL RIGHTS OF EVERY KIND AND
DESCRIPTION WHATSOEVER To DRILL FOR, DEVELOP, TAKE, REMOVE, AND SEVER THE SAME,
OR ANY PART THEREOF, FROM SAID LAND, WITHOUT, HOWEVER, THE RIGHT TO THE USE OF
THE SURFACE OF SAID LAND IN CONNECTION WITH THE DEVELOPMENT OR REMOVAL OF SAID
OIL, GAS OR OTHER HYDROCARBONS, ALL DRILLING AND BORING FOR SAID PURPOSES TO BE
DONE BENEATH THE SURFACE OF SAID LAND AT ANY LEVEL, 100 FEET, OR MORE, BELOW THE
SURFACE THEREOF, THE SURFACE OPENING OF THE WELL HOLE TO BE LOCATED ON LAND
OTHER THAN THE LAND ABOVE DESCRIBED, AS RESERVED IN THE DEED FROM ▇▇▇▇▇ LAND
COMPANY, A CORPORATION, RECORDED AUGUST 25, 1948 IN BOOK 28072 PAGE 204,
OFFICIAL RECORDS, AND RECORDED FEBRUARY 10, 1950 IN BOOK 32238 PAGE 67, OFFICIAL
RECORDS, AND RECORDED DECEMBER 28, 1950 IN BOOK 35178 PAGE 303, OFFICIAL
RECORDS, AND RECORDED DECEMBER 28, 1950 IN BOOK 35179 PAGE 310, OFFICIAL
RECORDS.
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SRE 331269
PERSONAL PROPERTY
Exterior Furnishings
--------------------
Item Quantity
---- --------
Concrete Ash/Trash Urns 8
Concrete Planters 27
Metal Benches 7
"Mini" Concrete Ash Urns 1
Interior Furnishings
--------------------
Item Quantity
---- --------
Teak Benches 4
Teak Planters 22
Steelcase Partitions
--------------------
(see next page)
EXHIBIT "2"
Page 1
DESCRIPTION OF STEELCASE PARTITIONS
================================================================================
SIZE QTY./1/
================================================================================
65" Panels
--------------------------------------------------------------------------------
65"x20" 164ea
--------------------------------------------------------------------------------
65"x25" 116ea
--------------------------------------------------------------------------------
65"x30" 232ea
--------------------------------------------------------------------------------
65"x36" 711ea
--------------------------------------------------------------------------------
65"x42" 553ea
--------------------------------------------------------------------------------
65"x45" 191ea
--------------------------------------------------------------------------------
65"x60" 815ea
================================================================================
42" Low Panels
--------------------------------------------------------------------------------
42"x20" 30ea
--------------------------------------------------------------------------------
42"x25" 8ea
--------------------------------------------------------------------------------
42"x30" 252ea
--------------------------------------------------------------------------------
42"x36" 158ea
--------------------------------------------------------------------------------
42"x42" 52ea
--------------------------------------------------------------------------------
42"x45" 206ea
--------------------------------------------------------------------------------
42"x60" 155ea
================================================================================
75" Extra High Panels
--------------------------------------------------------------------------------
75"x20" 13ea
-------------------------------------------------------------------------------
75"x25" 3ea
--------------------------------------------------------------------------------
75"x30" 7ea
-------------------------------------------------------------------------------
75"x35" 5ea
-------------------------------------------------------------------------------
75"x36" 3ea
-------------------------------------------------------------------------------
75"x42" 7ea
-------------------------------------------------------------------------------
75"x45" 24ea
===============================================================================
/1/Seller does not warrant or represent the number of panels and Buyer shall
accept the same "as is," "where is" and irrespective of the actual number of
panels now existing.
EXHIBIT "2"
Page 2
EXHIBIT H
SELLER'S CERTIFICATE OF REAFFIRMATION OF REPRESENTATIONS
KNOW ALL MEN BY THESE PRESENTS that pursuant to Section 6.8 of the
Real Estate Purchase Agreement dated ___________________________, by and between
The Northwestern Mutual Life Insurance Company, as Seller, and ▇▇▇▇▇▇
Industries, as Buyer (the "Agreement"), Seller hereby certifies and confirms to
Buyer, that all of the representations and warranties of Seller contained in the
Agreement are true and correct in all material respects on and as of the date
hereof with the same effect as though such representations and warranties had
been made on and as of such date. As provided in Section 6.8 of the Agreement,
this certification and all of the representations and warranties made by Seller
in the Agreement shall automatically expire, terminate and be of no further
force and effect as of ____________________________.
IN WITNESS WHEREOF the undersigned has executed this Certificate
this _____ day of ______________, 1996.
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By:
-------------------------------
Name:
Its: Vice President
Attest:
---------------------------
Name:
Its: Assistant Secretary
57
EXHIBIT I
BUYERS CERTIFICATE OF REAFFIRMATION OF REPRESENTATIONS
KNOW ALL MEN BY THESE PRESENTS that pursuant to Section ___
of the Real Estate Purchase Agreement dated __________________, by and between
The Northwestern Mutual Life Insurance Company, as Seller, and ▇▇▇▇▇▇
Industries, as Buyer (the "Agreement"), Buyer hereby certifies and confirms to
Seller, that all of the representations and warranties of Buyer contained in the
Agreement are true and correct in all material respects on and as of the date
hereof with the same effect as though such representations and warranties had
been made on and as of such date.
IN WITNESS WHEREOF the undersigned has executed this Certificate
this ______ day of ____________, 1996.
----------------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
58
EXHIBIT J
Assignment and Assumption of Contracts and Other Obligations
BY THIS AGREEMENT, made this ___ day of _____________________, 1996
The Northwestern Mutual Life Insurance Company, a Wisconsin corporation,
("Assignor"), and ▇▇▇▇▇▇ Industries, a _____________ ("Assignee"), confirm
and agree as follows:
I.
RECITALS
1.1 Assignor has agreed to sell its interest in the "Property" to Assignee
on or before ___________, 1996. As used herein, the term "Property" means
certain property commonly known as 3880 and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇ (the "Property"), which is more particularly described on Exhibit "A"
hereto.
1.2 Assignor desires to assign to Assignee and Assignee desires to acquire
the Assignor's interest in all service and maintenance contracts, licenses, real
estate tax refunds and equipment leases affecting the Property, except for
insurance policies and that certain Management Agreement entered into between
Buyer, as Operator and Seller, as Owner on July 21, 1993, (the "Contracts")
effective upon the closing of the sale described in 1.1 above (the "Closing").
II.
AGREEMENT
2.1 In consideration of the sum of Ten Dollars ($10.00) paid by Assignee,
the receipt of which is hereby acknowledged, the Assignor hereby assigns to
Assignee, all of its right, title, and interest in and for Contracts, subject to
the terms, covenants, provisions, and conditions set forth therein.
2.2 In order to induce Assignor to execute and deliver this instrument and
to assign the interest hereby conveyed, Assignee covenants with the Assignor as
follows:
a) To promptly pay or cause to be paid to the person or persons,
corporations, who from time to time may be entitled thereto,
59
all amounts of any nature provided by the terms of such Contracts, to be
paid by the owner of the Property;
b) To assume, keep, observe, and perform duly and punctually, all of
the terms, covenants, provisions, and conditions contained in such
Contracts on the part of the landlord to be kept, observed, and performed
in the same manner and with the same effect as though Assignee were the
original and named party to such Contracts;
c) To indemnify Assignor against any claims arising under such
Contracts.
IN WITNESS WHEREOF, Assignor and Assignee by their proper officers
thereunder duly authorized, have executed these presents as of the day and year
first hereinabove written.
Assignor: THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By:
------------------------------------
Its: Vice President
Attest:
--------------------------------
Its: Assistant Secretary
Assignee: ▇▇▇▇▇▇ INDUSTRIES
By:
------------------------------------
Its:
-----------------------------------
Attest:
--------------------------------
Its:
-----------------------------------
60
EXHIBIT K
Access and Indemnification Agreement
This ACCESS AND INDEMNIFICATION AGREEMENT (the "Agreement") is entered into
as of the __ day of __________, 1996, by and between THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY, a Wisconsin corporation, ("NML"}, and ▇▇▇▇▇▇ INDUSTRIES,
INC., ("▇▇▇▇▇▇").
WHEREAS, NML is the owner of a leasehold interest in land described on
Exhibit A attached hereto, created by a ground lease between ▇▇▇▇▇▇ Long Beach
Associates and the City of Long Beach dated January 24, 1989;
WHEREAS, the Property contains one or more underground storage tanks and
was the former site of a gasoline station and aircraft painting operation;
WHEREAS, ▇▇▇▇▇▇ has retained ________________________ ("_____")to
perform various tests and/or inspections of the Property, including but not
limited to examining the terrain, physical and environmental conditions of the
Property and, ______________________________________; and
WHEREAS, NML, has agreed to allow such work on the Property under the terms
of this Agreement.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, NML and ▇▇▇▇▇▇ agree as follows:
1. NML hereby grants to ▇▇▇▇▇▇ a revocable license to permit _____ to
enter the Property and perform the following work on the Property in accordance
with this Agreement:
a.
----------------------------------
----------------------------------
b.
----------------------------------
61
------------------------------------
c.
------------------------------------
------------------------------------
d.
------------------------------------
------------------------------------
Any work in addition to the specific activities described above will require the
written consent of NML.
2. ▇▇▇▇▇▇ hereby agrees that neither it, nor its contractors or agents,
will enter onto the Property without two (2) days prior written notice to NML at
the following address:
The Northwestern Mutual Life Insurance Company
AT&T Building, Suite 2100
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
3. ▇▇▇▇▇▇ hereby agrees that its agents or contractors will observe all
appropriate safety precautions in conducting any inspections of the Property. At
the sole discretion of NML, ▇▇▇▇▇▇'▇ agents and contractors may be required to
observe safety precautions which exceed any limits as required by law.
4. ▇▇▇▇▇▇ hereby agrees that it shall provide NML with satisfactory
certificates of insurance evidencing that ▇▇▇▇▇▇'▇ agents or contractors have
insurance in full force and effect meeting the requirements set forth below.
Nothing herein contained shall in any way limit ▇▇▇▇▇▇'▇ liability under this
Agreement or otherwise.
Type Limits
---- ------
Worker's Compensation and $ Statutory
Employer's Liability
General Liability $1,000,000/occurrence
$1,000,000/aggregate
62
Automobile Liability $1,000,000/person
$1,000,000/occurrence
Professional Liability
$1,000,000/occurrence
$1,000,000/aggregate
Pollution Liability $1,000,000/occurrence
$1,000,000/aggregate
▇▇▇▇▇▇ will guarantee that its agents and contractors maintain the aforesaid
coverages throughout the term of this Agreement and for a minimum period of
three (3) years following the termination of this Agreement.
5. ▇▇▇▇▇▇ hereby agrees that the rights granted herein shall be subject
to the rights of any tenants occupying the Property, including without
limitation, rights of quiet enjoyment, and ▇▇▇▇▇▇ agrees that ▇▇▇▇▇▇, and its
agents and contractors, will not interfere with any tenants, contractors, or
invitees on the Property.
6. ▇▇▇▇▇▇ hereby agrees that ▇▇▇▇▇▇, and its agents and contractors, will
hold in strict confidence any information obtained regarding the Property, and
agrees to provide NML with copies of any reports generated in connection with
the rights granted herein provided that ▇▇▇▇▇▇ may disclose the information
permitted to be disclosed by 6.1(a) of the Real Estate Purchase Agreement
entered into by NML and ▇▇▇▇▇▇, as Seller and Buyer respectively on
________________, 1996.
7. ▇▇▇▇▇▇ hereby acknowledges and agrees that it is only authorized to
install and operate ___________ monitoring ▇▇▇▇▇ at the locations described in
Exhibit B attached hereto and incorporated herein, and that such installation
shall be completed with a flush mounted and locked design. ▇▇▇▇▇▇ further agrees
to properly abandon all ▇▇▇▇▇ and other disturbances and restore, to the
reasonable satisfaction of NML, the Property to its condition prior the conduct
of any Work by or on behalf of ▇▇▇▇▇▇
8. ▇▇▇▇▇▇ hereby agrees to indemnify, defend and hold NML and its
employees, tenants, invitees, contractors and agents (the "Indemnified Parties")
harmless from and against any losses, damages, expenses, liabilities, claims,
demands and causes of action (together with any legal fees and other expense
incurred by the Indemnified Parties in connection therewith), resulting directly
or indirectly from, or in connection with, (i)
63
contamination of the Property by ▇▇▇▇▇▇ or its agents or contractors, or
(ii) any entry on the Property (whether or not permitted by this Agreement)
by ▇▇▇▇▇▇ or its agents, contractors or other representatives, including,
without limitation, any losses, damages, expenses, liabilities, claims,
demands and causes of action resulting, or alleged to be resulting, from
injury or death of persons, or damage to the Property or any other property,
or mechanic's or materialmen's liens.
9. The rights granted ▇▇▇▇▇▇ hereunder shall terminate on July ___, 1996.
The indemnifications contained in section 8 hereof shall survive such
termination. Any extension of the aforesaid rights shall require written
approval of NML. Such approval will not be unreasonably withheld by NML.
10. No action or proceeding brought or instituted under this Agreement and
no recovery made as a result thereon shall be a bar or defense to any further
action or proceeding under this Agreement.
11. In the event that any lien is placed upon all or any portion of the
Property as a result of the work being performed hereunder, ▇▇▇▇▇▇ shall pay or
bond and discharge such lien within five (5) days after notice of such lien.
12. Neither NML's granting of nor ▇▇▇▇▇▇'▇ exercise of the rights given
hereunder shall be deemed to be a right to remediate or a remediation of an
environmental problem on the Property.
13. This Agreement and the provisions herein shall be interpreted,
construed, and enforced in accordance with the laws of the State of California.
14. Nothing in this agreement shall prevent NML from transferring this
agreement to any subsequent owner of the Property. Any subsequent owner of the
Property shall have all the same rights and privileges afforded NML in this
agreement.
64
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY
By:
----------------------------
Title:
-------------------------
▇▇▇▇▇▇ INDUSTRIES
By:
----------------------------
Title:
-------------------------
65
EXHIBIT A
LEGAL DESCRIPTION
PARCELS ▇ ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ THE CITY OF LONG BEACH, COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 208 PAGES 92 THROUGH
100 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, TOGETHER WITH IMPROVEMENTS LOCATED THEREON.
EXCEPT THEREFROM ALL OIL, GAS, AND OTHER HYDROCARBONS IN AND UNDER, OR WHICH MAY
BE PRODUCED OR SAVED FROM SAID LAND, TOGETHER WITH ALL RIGHTS OF EVERY KIND AND
DESCRIPTION WHATSOEVER TO DRILL FOR, DEVELOP, TAKE, REMOVE, AND SEVER THE SAME,
OR ANY PART THEREOF, FROM SAID LAND, WITHOUT, HOWEVER, THE RIGHT TO THE USE OF
THE SURFACE OF SAID LAND IN CONNECTION WITH THE DEVELOPMENT OR REMOVAL OF SAID
OIL, GAS OR OTHER HYDROCARBONS, ALL DRILLING AND BORING FOR SAID PURPOSES TO BE
DONE BENEATH THE SURFACE OF SAID LAND AT ANY LEVEL, 100 FEET, OR MORE, BELOW THE
SURFACE THEREOF, THE SURFACE OPENING OF THE WELL HOLE TO BE LOCATED ON LAND
OTHER THAN THE LAND ABOVE DESCRIBED, AS RESERVED IN THE DEED FROM ▇▇▇▇▇ LAND
COMPANY, A CORPORATION, RECORDED AUGUST 25, 1948 IN BOOK 28072 PAGE 204,
OFFICIAL RECORDS, AND RECORDED FEBRUARY 10, 1950 IN BOOK 32238 PAGE 67, OFFICIAL
RECORDS, AND RECORDED DECEMBER 28,1950 IN BOOK 35178 PAGE 303, OFFICIAL RECORDS,
AND RECORDED DECEMBER 28, 1950 IN BOOK 35179 PAGE 310, OFFICIAL RECORDS.
66
EXHIBIT B
LOCATION OF MONITORING ▇▇▇▇▇
46859/22
67