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EXHIBIT 99.2
PURCHASE AND SALE AND GROUND LEASE
ASSIGNMENT AND ASSUMPTION AGREEMENT
AND ESCROW INSTRUCTIONS
(Portland Fixture Portfolio)
By and Between
PORTLAND FIXTURE LIMITED PARTNERSHIP,
an Oregon limited partnership,
as Seller,
and
PAN PACIFIC RETAIL PROPERTIES, INC.,
a Maryland corporation,
as Buyer.
Dated for Reference Purposes As Of
September _____, 1998
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PURCHASE AND SALE AND GROUND LEASE
ASSIGNMENT AND ASSUMPTION AGREEMENT
AND ESCROW INSTRUCTIONS
(Portland Fixture Portfolio)
This PURCHASE AND SALE AND GROUND LEASE ASSIGNMENT AND ASSUMPTION
AGREEMENT AND ESCROW INSTRUCTIONS (this "AGREEMENT") is dated for reference
purposes only as of September _____, 1998, and is made to be effective as of the
Effective Date (as hereafter defined), by and between PORTLAND FIXTURE LIMITED
PARTNERSHIP, an Oregon limited partnership ("SELLER"), and PAN PACIFIC RETAIL
PROPERTIES, INC., a Maryland corporation ("BUYER").
R E C I T A L S :
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A. Seller is the owner and ground lessee of those certain real property
interests, together with shopping center improvements situate thereon, as more
particularly described in EXHIBIT A.
B. Buyer desires to purchase the Property (below defined) from Seller,
and Seller desires to convey and sell the Property to Buyer, on the terms and
conditions set forth herein.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and Buyer
hereby agree as follows:
ARTICLE I
EFFECTIVE DATE
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This Agreement shall be effective on the day (the "EFFECTIVE DATE") when
a fully executed copy of this Agreement (or a fully executed copy in
counterparts) is deposited with Escrow Holder (as hereafter defined). Escrow
Holder is hereby instructed to immediately notify each party to this Agreement
of the Effective Date.
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ARTICLE II
DEFINITIONS
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The following terms and references shall have the meanings indicated
below (such meanings to be equally applicable to both the singular and plural
forms of the terms defined and to verbs of any tense):
(a) "ADDITIONAL RENTS" means amounts tenants may be obligated to pay as
additional rent, including certain percentage rent, certain escalations in base
rent, and certain pass-throughs of operating and similar expenses.
(b) "BALANCE" shall have the meaning set forth in Section 4.2(b).
(c) "▇▇▇▇ OF SALE" means a ▇▇▇▇ of sale as defined in Article III(c).
(d) "BUSINESS DAY" means any day other than a Saturday, Sunday or a
Holiday.
(e) "CLOSING" means the consummation of the transactions contemplated by
this Agreement.
(f) "CLOSING DATE" means ______________, 1998, on which date the Deed
and the Ground Lease Assignments, as applicable, shall have been recorded in the
official records of each of the counties in which the Land (below defined) is
located.
(g) "CONTRACTS" shall have the meaning set forth in Article III(d).
(h) "CONTRACT ASSIGNMENT" shall have the meaning set forth in Article
III(d).
(i) "DEED" shall have the meaning set forth in Article III(a).
(j) "DEPOSIT" shall have the meaning set forth in Section 4.2(a).
(k) "DIMINUTION THRESHOLD" shall have the meaning set forth in Section
13.1(a)(i).
(l) "DOCUMENTS" means the transfer documents attached as Exhibits to
this Agreement.
(m) "DOWNREIT LLC" means the limited liability company identified and
described in Section 7.11.
(n) "EFFECTIVE DATE" shall have the meaning set forth in Article I.
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(o) "ENVIRONMENTAL LAWS" shall mean any and all presently existing
federal, state and local laws (whether under common law, statute, rule,
regulation or otherwise), requirements under permits issued with respect
thereto, and other requirements of any federal, state or local governmental
agency, court, board, bureau or other authority having jurisdiction with respect
to or relating to the environment, to any Hazardous Substance or to any activity
involving Hazardous Substances, and shall include, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C.
Section 9601, et seq.), the Federal Resource Conservation and Recovery Act (42
U.S.C. Section 6901, et seq.) and all amendments thereto in effect as of the
Closing Date.
(p) "ESCROW HOLDER" means the company where escrow shall be established,
whose address for this transaction shall be:
Transnation Title Insurance Company
▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President and
Senior Escrow Officer/Special Projects
Telephone No: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇)▇▇▇-▇▇▇▇
(q) "ESCROW PERIOD" means the period from and after the Effective Date
through the Closing Date or any earlier termination of this Agreement.
(r) "FF&E" means furniture, fixtures, equipment, machinery, appliances,
fittings, and other removable articles of personal property of every kind and
nature that are owned by Seller and used in the operation of the Property,
including, without limitation, (i) furnishings, furniture, and equipment, (ii)
art work and other decorative items, (iii) built-in appliances, and (iv) office
furniture and equipment.
(s) "GENERAL INTANGIBLES" means the Offsite Rights, the Permits, the
Repair Warranties, and other intangible personal property rights of whatever
nature (other than the rights evidenced by the Contracts) owned by Seller and
used in the operation and maintenance of the Property.
(t) "GROUND LEASE" means that certain Lease dated December 3, 1975,
entered into by and between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, as lessor, and Portland Fixture
Co., a corporation, and ▇▇▇▇▇▇▇ Development Co., a corporation, as lessee, which
Ground Lease covers the real property designated as Hermiston on EXHIBIT A, and
which is included in the Land (below defined).
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(u) "HAZARDOUS MATERIALS" shall mean and include any chemical, compound,
material, mixture, waste or substance that is now or hereafter defined or listed
in, or otherwise classified pursuant to, any Environmental Laws as a "hazardous
substance," "hazardous material," "hazardous waste," "extremely hazardous
waste," "infectious waste," "toxic substance," "toxic pollutant" or any other
formulation intended to define, list, or classify substances by reason of
deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, or toxicity including any petroleum, natural gas, natural gas
liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixture of
natural gas and such synthetic gas). "Hazardous Materials" shall include,
without limitation, any hazardous or toxic substance, material or waste or any
chemical, compound or mixture which is (i) asbestos, (ii) motor oil, gasoline,
petroleum or any petroleum by-product, (iii) designated as a "hazardous
substance" pursuant to Section 1317 of the Federal Water Pollution Control Act
(33 U.S.C. Section 1251 et seq.), (iv) defined as a "hazardous waste" pursuant
to Section 6903 of the Federal Resource Conservation and Recovery Act, (42
U.S.C. Section 6901 et seq., (v) defined as "hazardous substances" pursuant to
Section 9601 of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq.), or (vi) listed in the United
States Department of Transportation Table (49 CFR 172.101) or by the
Environmental Protection Agency as hazardous substances (40 CFR part 302); or in
any and all amendments thereto in effect as of the Closing Date; or such
chemicals, compounds, mixtures, substances, materials or wastes otherwise
regulated under any applicable local, state or federal Environmental Laws.
(v) "HOLIDAY" means any day on which banking institutions in the State
of Oregon are authorized or obligated by law or executive order to close.
(w) "IMPROVEMENTS" shall have the meaning set forth in Article III(b).
(x) "INFORMATION" means all documents, reports, studies, and other
information or materials (including, without limitation, the Records) delivered
or disclosed to Buyer by Seller or its agents.
(y) "INSPECTION PERIOD" means the period from and after the Effective
Date and ending at 5:00 p.m., Pacific Time, on the later of (i) September 28,
1998, or (ii) such later date as may be required under the provisions of Section
7.2(c).
(z) "INVENTORY" means the stock of supplies and other consumables of
every kind and nature that are owned by Seller and used exclusively in the
operation and maintenance of the Property in the ordinary course of business.
(aa) "LAND" shall have the meaning set forth in Article III(a).
(ab) "LEASE" means any lease, sublease, license, or other agreement for
the occupancy, possession, or use of any space within the Property (including,
without
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limitation, any rooms or other accommodations for guests or other transient
occupants and any storage space, containers, or other facilities), including,
without limitation, those leases described on EXHIBIT H attached hereto.
(ac) "LEASE ASSIGNMENT" shall have the meaning set forth in Article
III(e).
(ad) "OFFSITE RIGHTS" means any lease, license, or other agreement
(other than a recorded easement) providing for the use of another's real
property in conjunction with the operation of the Property (as, by way of
illustration and not limitation, use for vehicular parking and/or access).
(ae) "OWNER'S TITLE POLICY" means a standard owner's policy of title
insurance in the amount of the Purchase Price, with extended coverage if Buyer
so elects.
(af) "PERMIT" means any permit, certificate, license, or other form of
authorization or approval issued by a governmental agency or authority and
legally required for the proper operation and use of the Property (including,
without limitation, any certificates of occupancy with respect to the
Improvements, elevator permits, conditional use permits, and zoning variances)
to the extent held and assignable by Seller or otherwise transferable with the
Property.
(ag) "PERMITTED EXCEPTIONS" shall have the meaning set forth in Section
6.1.
(ah) "PERSONAL PROPERTY" shall have the meaning set forth in Article
III(c).
(ai) "PLANS AND SPECIFICATIONS" shall have the meaning set forth in
Section 7.2(a).
(aj) "PROPERTY" shall have the meaning set forth in Article III.
(ak) "PRORATIONS" shall have the meaning set forth in Section 9.7(a).
(al) "PTR" means a current preliminary title report concerning the Real
Property issued by the Title Company.
(am) "PURCHASE PRICE" shall have the meaning set forth in Section 4.1.
(an) "REAL PROPERTY" shall have the meaning set forth in Article III(a).
(ao) "RECORDS" means all books, records, correspondence, and other files
that have been received or generated and maintained in the course of operating
the Property that are in Seller's possession or control.
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(ap) "REPAIR WARRANTIES" means any written guaranties, warranties, or
other obligations of any contractor, manufacturer, or vendor for the repair or
maintenance of any of the Improvements or FF&E, to the extent assignable by
Seller.
(aq) "REVENUES" shall have the meaning set forth in Section 9.7(a).
(ar) "SELLER'S NON-FOREIGN AFFIDAVIT" shall have the meaning set forth
in Section 7.5.
(as) "SERVICE CONTRACT" means any contract or other arrangement, written
or oral, for the continuing provision of services relating to the improvement,
maintenance, repair, protection, or operation of the Property.
(at) "SHOPPING CENTER" means the Property attributable to each separate
shopping center identified in EXHIBIT A attached hereto.
(au) "TENANT" means the tenant and occupant of, and any other holder of
a possessory right in, all or any portion of the Property pursuant to a Lease.
(av) "TENANT ESTOPPEL CERTIFICATES" means estoppel certificates to be
executed and delivered by each Tenant to Buyer as provided by Section 7.6.
(aw) "TENANT NOTICES" means notices to the Tenants in the form of
EXHIBIT G.
(ax) "TITLE COMPANY" means Transnation Title Insurance Company.
ARTICLE III
PROPERTY SUBJECT TO AGREEMENT
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Seller hereby agrees to sell to Buyer, and Buyer hereby agrees to
purchase from Seller, subject to the terms and conditions set forth herein, all
of Seller's right, title, and interest in the following (collectively, the
"PROPERTY"):
(a) LAND - that certain land described in EXHIBIT A, and all appurtenant
rights, privileges, and easements thereto owned by Seller (collectively, the
"LAND"). The Land and the Improvements (collectively, the "REAL PROPERTY") shall
be conveyed from Seller to Buyer pursuant to a Statutory Bargain and Sale Deed
(the "DEED") as to Seller's fee interest in the Land, and an Absolute Assignment
and Assumption of Ground Lease (the "GROUND LEASE ASSIGNMENT") as to the Ground
Lease, as applicable, substantially in the form of EXHIBITS B AND B-1 attached
hereto.
(b) IMPROVEMENTS - all buildings, structures, fixtures, and other
improvements located on the Land (collectively, the "IMPROVEMENTS").
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(c) PERSONAL PROPERTY - all personal property, if any, owned by Seller
and used by Seller exclusively in the operation, maintenance, and management of
the Real Property as of the Closing Date, including, without limitation, the
FF&E, the Inventory, the Records, and the General Intangibles (collectively, the
"PERSONAL PROPERTY"). The Personal Property shall be conveyed from Seller to
Buyer pursuant to a ▇▇▇▇ of Sale (the "▇▇▇▇ OF SALE") substantially in the form
of EXHIBIT C.
(d) CONTRACTS - all contracts and agreements in effect on the Closing
Date, if any, including, without limitation, the Service Contracts
(collectively, the "CONTRACTS"). Seller's interest in the Contracts shall be
conveyed to Buyer pursuant to an Assignment and Assumption of Contracts, Permits
and Other Rights (the "CONTRACT ASSIGNMENT") substantially in the form of
EXHIBIT D.
(e) LEASES - Seller's interest in all Leases in effect on the Closing
Date. Seller's interest in the Leases shall be conveyed to Buyer pursuant to an
Absolute Assignment and Assumption of Leases (the "LEASE ASSIGNMENT")
substantially in the form of EXHIBIT E.
ARTICLE IV
PURCHASE PRICE, PAYMENT OF PURCHASE PRICE,
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EXCHANGE UNITS AND LIQUIDATED DAMAGES
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4.1 PURCHASE PRICE. Subject to the terms and conditions of this
Agreement, Buyer agrees to pay, and Seller agrees to accept, as consideration
for conveyance of the Property from Seller to Buyer, the sum of Twenty-seven
Million Ninety-two Thousand Three Hundred Fifty-six and No/100ths Dollars
($27,092,356.00) (the "PURCHASE PRICE").
4.2 DEPOSIT. Upon the full execution of this Agreement by Buyer and
Seller, Buyer shall tender to Escrow Holder an ▇▇▇▇▇▇▇ money deposit in the
amount of One Hundred Thousand and No/100ths Dollars ($100,000.00) (the
"DEPOSIT"). The Deposit shall be tendered by certified check or cashier's check
made payable to Escrow Holder or by wire transfer of current federal funds
received and credited to the account of Escrow Holder. Upon the satisfaction or
waiver by Buyer of all of Buyer's conditions precedent to closing as set forth
in Article 7, the Deposit shall become non-refundable to Buyer, except upon a
failure of Seller to consummate the transactions contemplated by this Agreement
in accordance with the terms and provisions hereof, or the failure, unless
waived in writing to Buyer, of any other condition provided for in this
Agreement for the benefit of Buyer, or the termination of this Agreement by
Buyer in accordance with the terms and provisions of Article XIII.
4.3 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid and
delivered by Buyer as follows:
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Purchaser shall be credited in the amount of (i) the Deposit,
(ii) Three Hundred Twenty-Two Thousand Two Hundred and No/100ths Dollars
($322,200.00) in connection with anticipated Improvements to the Hood River
Shopping Center, and (iii) Seventy-four Thousand Six Hundred Forty-four and
No/100ths Dollars ($74,644.00), such amount being attributable to Seller's share
of loan assumption fees agreed to be split between Buyer and Seller, whether
actually incurred or not. The resulting net amount of the Purchase Price
("BALANCE"), subject to adjustments as provided in Sections 9.7 and 9.8 hereof,
shall be deposited with Escrow Holder in immediately available funds at Closing.
4.4 INVESTMENT OF DEPOSIT. Escrow Holder shall place the Deposit in an
interest-bearing account with a bank or savings association, the deposits of
which are federally insured (up to the amount of One Hundred Thousand and
No/100ths Dollars ($100,000.00), as directed in writing by Buyer, with notice to
Seller. All references in this Agreement to the Deposit shall include the
interest thereon.
4.5 DEPOSIT AS LIQUIDATED DAMAGES. IF THE SALE OF THE PROPERTY AS
CONTEMPLATED HEREUNDER IS NOT CONSUMMATED BECAUSE OF A DEFAULT UNDER THIS
AGREEMENT ON THE PART OF BUYER, ESCROW HOLDER, WITHOUT ANY FURTHER INSTRUCTION
FROM EITHER SELLER OR BUYER, SHALL PAY TO SELLER THE DEPOSIT AND SELLER SHALL
RETAIN THE DEPOSIT AND ALL INTEREST EARNED THEREON AS LIQUIDATED DAMAGES. THE
PARTIES ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A DEFAULT BY
BUYER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY
PLACING THEIR SIGNATURES BELOW, THE PARTIES EXPRESSLY AGREE AND ACKNOWLEDGE THAT
THE DEPOSIT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE
ESTIMATE OF SELLER'S DAMAGES. THE PARTIES FURTHER ACKNOWLEDGE THAT SELLER'S
RETENTION OF THE DEPOSIT AND ALL INTEREST EARNED THEREON HAS BEEN AGREED UPON AS
SELLER'S EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT OF A DEFAULT ON THE PART OF
BUYER, OTHER THAN THE ADDITIONAL AND SEPARATE OBLIGATIONS OF BUYER UNDER
SECTIONS 5.3, 5.5, 15.2(b), AND 15.10 HEREOF, WHICH OBLIGATIONS SHALL SURVIVE
THE TERMINATION OF THIS AGREEMENT.
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IN ADDITION, BUYER SHALL PAY ALL TITLE AND ESCROW CANCELLATION CHARGES IN THE
EVENT OF A DEFAULT BY BUYER.
"Seller" "Buyer"
PORTLAND FIXTURE LIMITED PARTNERSHIP, PAN PACIFIC RETAIL PROPERTIES, INC.,
AN OREGON LIMITED PARTNERSHIP A MARYLAND CORPORATION
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By: By: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: Its: PRESIDENT & CHIEF EXECUTIVE
OFFICER
ARTICLE V
INSPECTION
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5.1 DUE DILIGENCE REVIEW. Buyer, at its sole cost and expense, shall
have the right to a Due Diligence Review in accordance with the following terms
and conditions. A "DUE DILIGENCE REVIEW" means (a) an inspection, examination
and evaluation of the Information, and (b) the conduct of physical tests,
inspections and other investigations on the Property and all portions thereof
leased by tenants ("INSPECTION STUDIES"), all in order that Buyer may determine,
in its sole and absolute judgment and discretion, whether the Property is
acceptable to Buyer.
5.2 RIGHT TO TERMINATE. Notwithstanding anything to the contrary in this
Agreement, Buyer may terminate this Agreement by giving notice of termination to
Seller on or before the termination of the Inspection Period. If Buyer duly
exercises that right, then Escrow Agent is hereby instructed to return the
Deposit to Buyer without further instruction from either Buyer or Seller. If
Buyer does not give the notice of termination, this Agreement shall continue in
full force and effect, subject, however, to Buyer's other termination rights
hereunder. Seller acknowledges that Buyer may, but is not obligated to, expend
time, money, and other resources in connection with the Due Diligence Review of
the Property, and that, notwithstanding the fact that this Agreement may
terminate pursuant to this Section 5.2 and other applicable provisions of this
Agreement, such time, money, and other resources that may be expended constitute
adequate consideration for Seller's execution of and entry into this Agreement.
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5.3 ACCESS & INQUIRIES.
(a) Buyer and its representatives, agents and contractors shall
have reasonable access to the Property, including all areas leased to Tenants,
for the purpose of causing a survey of the Land and Improvements to be performed
by a licensed surveyor, and conducting architectural, engineering, geotechnical,
and environmental inspections and tests (including intrusive inspection and
sampling), feasibility studies, and any other inspections, studies, or tests
reasonably required by Buyer; provided, however, that Buyer shall not undertake
any intrusive inspection or sampling without first obtaining the written consent
of Seller, which consent shall not be withheld unreasonably. Buyer shall keep
the Property free and clear of any liens as a result of any entry on the
Property pursuant to this Section 5.3(a).
(b) During the pendency of this Agreement, Seller shall make
available to Buyer, and Buyer and its representatives, agents and contractors
shall have a continuing right of reasonable access to and the right to examine
and make copies of, all books and records; construction plans; correspondence;
documents; contracts; agreements; Leases, as well as Lease files with histories;
and other materials relating to the Property in Seller's possession or control,
including, without limitation, the right to conduct a "walk-through" of the
Property prior to the Closing upon appropriate notice to Tenants and subject to
the rights of all Tenants under their Leases.
(c) In the course of its Due Diligence Review, Buyer may make
inquiries to third parties including, without limitation, Tenants, lenders,
contractors, property managers, parties to the Information and Contracts, and
municipal, local, and other government officials and representatives, and Seller
consents to such inquiries.
5.4 NEW AGREEMENTS. During the period from the Effective Date until the
Closing Date, and as a condition to Buyer's obligations to purchase the
Property, Seller shall comply with the following:
(a) During the period from the Effective Date until the Closing
Date, and as a condition to Buyer's obligations to purchase the Property, Seller
without the prior written consent of Buyer, such consent not to be unreasonably
withheld or delayed, shall not (i) amend or terminate any Lease, tenancy,
license or other right of occupancy or use for any portion of the Property or
any assignment or sublet thereunder, (ii) consent to the assignment of any
Leases or subleasing of any of the Property, or (iii) enter into any new Lease
of the Property or any portion thereof. In the event Seller elects to seek
Buyer's approval of any such matters, then Seller shall so notify Buyer, and if
Buyer fails to notify Seller, within ten (10) Business Days after Buyer's
receipt of such notice, of any objection Buyer has hereunder to any action
described therein, then Buyer shall be deemed to have consented to such action.
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(b) Seller shall not, without the prior written consent of Buyer
in each instance (such consent not to be unreasonably withheld), enter into any
commitment, contract, option or other agreement of any kind with respect to the
repair, maintenance or operation of the Property, unless such contracts, etc.
have terms that expire prior to Closing.
5.5 CONDUCT OF INSPECTIONS.
(a) Any entry by Buyer onto the Property shall be subject to, and
conducted in accordance with, all applicable laws, statutes, rules and
regulations and the terms of any Leases so as to avoid any material interference
with the operations and occupancy of the Property and to avoid any material
disturbance of any of the Tenants or the possessory rights of any of the
Tenants. Buyer shall promptly restore the Property to its previous condition
before any such inspections, studies, or tests were performed.
(b) Buyer or its agents may undertake borings or other
disturbances of the soil with Seller's prior written approval (not to be
unreasonably withheld), provided that the soil borings and other disturbances
shall be sealed and closed using materials and techniques that conform with all
applicable laws, statutes, rules and regulations and industry and governmental
standards, and the soil shall be recompacted to the condition immediately before
any such borings were undertaken.
(c) Notwithstanding any general liability or other insurance that
may be maintained by Buyer, Buyer hereby agrees to indemnify, defend and hold
harmless Seller and its partners and its and their partners, shareholders,
directors, officers, employees, and agents and all Tenants from and against any
claims, losses or damages (including attorneys' fees and costs) arising from or
in connection with the due diligence and inspection activities conducted on the
Property by Buyer and or its agents, including, without limitation, any damages
to the Property or any property of any Tenant arising from or relating to any
inspections, studies or tests performed by Buyer or its agents. The foregoing
indemnification obligation of Buyer shall survive any termination of this
Agreement or the delivery of the Deed and the Ground Lease Assignment, and the
transfer of title to the Property. If this Agreement is terminated, Buyer shall
deliver to Seller, upon Seller's payment of Buyer's costs therefor, the results
and copies of any and all surveys, reports, tests or studies made by or for
Buyer with respect to the Property.
ARTICLE VI
TITLE TO PROPERTY
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6.1 TITLE. At the Closing, Seller shall convey to Buyer title to the
Real Property by execution and delivery of the Deed and the Ground Lease
Assignment.
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The Owner's Title Policy shall show title as subject to no exceptions other than
the following (collectively, the "PERMITTED EXCEPTIONS"):
(a) The lien for real estate taxes and assessments not yet
delinquent;
(b) Interests of Tenants pursuant to the Leases; and
(c) Such other exceptions as may be approved in writing by Buyer
pursuant to Section 7.1 hereof.
6.2 TITLE INSURANCE. Buyer's obligation to purchase the Property shall
be subject to the irrevocable commitment of the Title Company to issue the
Owner's Title Policy upon payment of its normal premium on the Closing Date. In
addition, and provided Buyer satisfies any requirements of the Title Company
therefor prior to the Closing Date, the Owner's Title Policy shall be issued
together with such endorsements thereto as Buyer may request; provided, however,
that if any such endorsements are required to change an exception to title to
which Buyer has objected, and which Seller has agreed to cure, into a Permitted
Exception, then the cost of such endorsement shall be paid by Seller.
6.3 PERSONAL PROPERTY AND CONTRACTS. At the Closing, Seller shall
transfer to Buyer title to the Personal Property and Seller's interest in the
Contracts by execution and delivery of the ▇▇▇▇ of Sale and the Contract
Assignment. Buyer shall assume the performance of all of Seller's obligations
under the Contracts arising after the Closing Date, but only as to those
Contracts listed on Schedule I to the Contract Assignment.
ARTICLE VII
BUYER'S ADDITIONAL CONDITIONS PRECEDENT TO CLOSING
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Buyer's obligation to purchase the Property shall be conditioned upon
the fulfillment of each of the following conditions precedent:
7.1 APPROVAL OF TITLE.
(a) Buyer shall have reviewed and approved, within the time
period and in the manner provided below, the PTR, including copies of all
documents referred to in the PTR (other than encumbrances to be discharged by
Seller on or before Closing).
(b) Seller shall cause the PTR and all supporting materials,
including copies of all documents referred to in the PTR to be delivered to
Buyer by 4:00 p.m., Pacific time, on or before the third (3rd) Business Day
after the Effective Date (the "Title Delivery Date"). On or before the seventh
(7th) Business Day from and after delivery to Buyer of the PTR and all
supporting materials, Buyer shall notify Seller and
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Escrow Holder in writing which exceptions to title shown in the PTR, if any,
will not be accepted by Buyer (collectively, the "DISAPPROVED TITLE MATTERS");
all other matters and exceptions to title shown in the PTR shall be deemed
approved by Buyer. If Buyer fails to notify Seller and Escrow Holder within the
required time period of any Disapproved Title Matters, Buyer shall be deemed to
have disapproved the condition to the Real Property as to such title and survey
matters. If Buyer notifies Seller of any Disapproved Title Matters, Seller shall
have until 5:00 p.m., Pacific time, on the second (2nd) Business Day after
Seller's receipt of such notice to notify Buyer and Escrow Holder in writing
that:
(i) Seller shall use its reasonable efforts to either (A)
cause any Disapproved Title Matters to be removed by the Closing, or (B) obtain,
at Seller's expense, an endorsement or other curative effect acceptable to Buyer
in Buyer's sole and absolute discretion; or
(ii) Seller elects not to cause any such Disapproved Title
Matters to be removed.
(c) If Seller gives Buyer and Escrow Holder notice under
subsection (b)(ii) above, Buyer shall have until 5:00 p.m., Pacific time, on the
third (3rd) Business Day after Buyer's receipt of such notice to notify Seller
and Escrow Holder that (i) Buyer revokes its disapproval of such exceptions(s)
and will proceed with the purchase without any reduction in the Purchase Price
and take title to the Property subject to such exception(s), or (ii) Buyer will
terminate this Agreement, in which case the terms and provisions of Section 7.12
shall apply. The foregoing procedure shall also be applicable to any new matters
which are disclosed in any updates, supplements or amendment to the PTR or
Survey.
7.2 APPROVAL OF OTHER MATTERS.
(a) By 5:00 p.m., Pacific time, on or before the third (3rd)
Business Day after the Effective Date, Seller will deliver to Buyer, or allow
Buyer reasonable access to, at the Property, at Seller's place of business, or
at such other location as Seller may reasonably indicate, during reasonable
times agreed upon in advance by Buyer and Seller, the following, expressly
subject to such items being in the possession of or reasonably available to
Seller or its manager for the Property:
(i) a current rent roll and copies of all Leases disclosed
thereon, together with all amendments thereto;
(ii) copies of all Contracts;
(iii) a schedule of all Personal Property;
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(iv) copies of the most recent property tax bills for the
Property;
(v) operating statements for Seller's fiscal years 1995,
1996 and 1997 and for each calendar month thereafter;
(vi) plans and specifications (as-builts, if available)
for construction of the Improvements (the "PLANS AND SPECIFICATIONS");
(vii) copies of certificate(s) of occupancy, and any
governmental licenses and permits regarding the Property;
(viii) financial statements for the Tenants;
(ix) a schedule of filed litigation regarding or
affecting, directly or indirectly, the Property;
(x) an aged receivables report current as of the Effective
Date;
(xi) copies of environmental reports, studies and
assessments within Seller's possession or control covering the Property;
(xii) copies of all CC&R's affecting the Property;
(xiii) copies of all soil reports and analyses within
Seller's possession or control pertaining to the soils, seismological,
geological and drainable conditions of the Property;
(xiv) copies of construction and equipment warranties
within Seller's possession;
(xv) a copy of the Ground Leases and all amendments
thereto and modifications thereof;
(xvi) 1998 year-to-date operating statements for the
Property; and
(xvii) all other material, non-proprietary materials,
reports and information relevant to the Property.
(b) On or before the expiration of the Inspection Period, Buyer
shall notify Seller and Escrow Holder in writing if Buyer objects to any of the
matters referred to above or to Buyer's own inspection of the Property described
in Section 5.1 hereof.
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7.3 COMPLIANCE BY SELLER. Seller shall have complied with each and every
covenant, undertaking and agreement to be kept or performed by Seller as
provided in this Agreement; and each representation and warranty made in this
Agreement by Seller shall remain true and accurate in all material respects both
at the time made and on the Closing Date.
7.4 NO MATERIAL ADVERSE CHANGE IN PHYSICAL CONDITION. As of the Closing
Date, there shall have been no material adverse change in the condition of the
Property or any material portion thereof, excepting any event(s) of destruction,
damage, or condemnation described in Section 13.1 or 13.2.
7.5 NO INSOLVENCY. Neither Seller nor any of its affiliates (i) shall be
in receivership or dissolution, (ii) shall have made an assignment for the
benefit of creditors or admitted in writing its inability to pay its debts as
they mature, or (iii) shall be been adjudicated a bankrupt or filed a petition
in voluntary bankruptcy or a petition or answer seeking reorganization or an
arrangement with creditors under the Federal bankruptcy law or any other similar
law or statute of the United States or any jurisdiction and no such petition
shall have been filed against Buyer or any of its general partner(s), if any.
7.6 TENANT ESTOPPELS. Buyer shall have received a Tenant Estoppel
Certificate for all Tenants whose leasable square footage under their respective
Leases is greater than 5,000 square feet, and from seventy-five percent (75%) of
all remaining Tenants, which Estoppel Certificates shall be in substantially the
same form as EXHIBIT "H" attached hereto, or in such other form as is acceptable
to Buyer in the reasonable exercise of its discretion; and otherwise as to each
such Tenant Estoppel Certificate in such content as is acceptable to Buyer.
Seller shall use its best efforts to obtain such Tenant Estoppel Certificates on
or before September 25, 1998. Buyer shall have five (5) Business Days from
receipt of such Tenant Estoppel Certificates to advise Seller in writing of its
approval or disapproval of same, which approval will not be withheld
unreasonably. If necessary, at Buyer's election the Closing Date shall be
extended so as to allow such five (5) day inspection period. In the event Buyer
disapproves of any of such Tenant Estoppel Certificates, Buyer may terminate
this Agreement as provided in Section 7.12 below. In the event Seller is unable
through diligent efforts to obtain any of the Tenant Estoppel Certificates,
Buyer may, but will not be obligated to, accept in lieu thereof an estoppel
certificate from Seller (a "Seller's Estoppel") in such form and content as
required by Buyer in the reasonable exercise of its discretion.
7.7 WAIVER. At any time or times on or before the Closing, at Buyer's
election, Buyer may waive any of the foregoing conditions by written notice to
Seller. Other than Buyer's closing the transaction contemplated by this
Agreement which shall waive all such unfulfilled conditions, no waiver shall be
effective unless made in writing specific as to the conditions or matters so
waived. No such waiver shall be
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inferred or implied by any act or conduct of Buyer or reduce the rights or
remedies of Buyer arising from any breach of any undertaking, agreement,
covenant, warranty, or representation of Seller under this Agreement.
7.8 LEASE PAYMENTS AND RENTS. Seller shall have paid fully, or Buyer
shall receive a credit against the Purchase Price, for any and all rent
concessions, leasing commissions and tenant improvement costs, and all other
amounts payable by Seller as provided in this Agreement with respect to such
Lease and the premises leased thereunder.
7.9 GROUND LESSOR CONSENTS. To the extent required, the landlord under
the Ground Lease shall have executed and delivered to Buyer and Seller its
consent to Seller's execution and delivery of the Ground Lease Assignment to
Buyer, subject only to such conditions, if any, which are consistent with the
transaction contemplated pursuant to this Agreement, and which is otherwise in
form and content acceptable to Buyer in its discretion, reasonably exercised.
7.10 CONCURRENT CLOSINGS. Buyer and Seller, concurrently with the
Closing, shall have closed and consummated the transactions contemplated
pursuant to those certain Contribution Agreements (the "RELATED AGREEMENTS")
entered into by and between the DownREIT LLC and Portland Fixture Limited
Partnership and PFMGP, Inc., an Oregon corporation, and by and between the
DownREIT LLC and Portland Fixture Limited Partnership, H&O Properties and
Independent Member Corp., and pursuant to which Buyer will purchase Mikz
Development, L.L.C. and Smudik Development L.L.C., respectively.
7.11 DOWNREIT BUYER. Buyer and Seller shall have formed a limited
liability company under and pursuant to the laws of the State of Delaware, fully
qualified to transact business in the State of Oregon (the "DOWNREIT LLC"), and
shall have entered into an operating agreement with respect to such DownREIT LLC
("DownREIT Operating Agreement"), all on such terms as are mutually agreeable to
each party through good faith and diligent negotiations; and all of Buyer's
rights and obligations hereunder shall have been assigned and delegated to such
DownREIT LLC.
7.12 TERMINATION. If any of the foregoing conditions are neither
fulfilled, nor waived as provided above, Buyer, at its election by written
notice to Seller, may terminate this Agreement and be released from all
obligations under this Agreement (other than those described in this Section
7.12 and Sections 5.3, 5.5, 15.2(b) and 15.10 hereof). In the event of such
termination by Buyer, the Deposit and all interest accrued thereon shall be
returned immediately to Buyer, all documents deposited in Escrow by Buyer or
Seller shall be returned to the depositing party, the costs of the Title Company
and Escrow Holder shall be borne equally by Buyer and Seller, and, except as
otherwise set forth in this Article VII, each party hereto shall bear its own
costs incurred herewith. If any non-fulfilled conditions also constitute a
breach by
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Seller of its obligations under this Agreement, then Buyer may proceed also
under Section 9.12(a) below.
ARTICLE VIII
SELLER'S CONDITIONS PRECEDENT TO CLOSING
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Seller's obligation to sell the Property shall be conditioned upon the
fulfillment of each of the following conditions precedent:
8.1 COMPLIANCE BY BUYER. Buyer shall have complied with each and every
covenant, undertaking and agreement to be kept or performed by Buyer as provided
in this Agreement; and each representation and warranty made in this Agreement
by Buyer shall remain true and accurate in all material respects both at the
time made and on the Closing Date.
8.2 CONCURRENT CLOSINGS. Buyer and Seller, concurrently with the
Closing, shall have closed and consummated the transactions contemplated
pursuant to the Related Agreements.
8.3 DOWNREIT BUYER. Buyer and Seller shall have formed the DownREIT LLC,
and shall have entered into an operating agreement with respect to such DownREIT
LLC, all on such terms as are mutually agreeable to each party through good
faith and diligent negotiations; and all of Buyer's rights and obligations
hereunder shall have been assigned and delegated to such DownREIT LLC.
8.4 NO MATERIAL ADVERSE CHANGE. There shall have been no material
adverse change in the business, financial condition or results of operations of
Buyer. For purposes of the foregoing sentence, the parties acknowledge that
variations in the share price of Buyer's capital stock on the New York Stock
Exchange shall not be considered in making such determination.
8.5 IMPROVEMENT COSTS. At Closing, Buyer shall have (i) paid to Seller
an amount equal to Seller's actual and reasonable engineering, architectural and
consulting fees and expenses incurred in connection with presently ongoing
improvement projects for the Oregon Trail and Hermiston Shopping Centers and
(ii) assumed all of Seller's obligations under the construction contracts for
such improvement projects.
8.6 TERMINATION. If any of the foregoing conditions are neither
fulfilled nor waived by Seller, Seller shall have the option to terminate this
Agreement by delivering to Buyer and Escrow Holder written notice of such
termination; provided, however, that Seller may not terminate this Agreement
under this Section 8.6 unless Buyer fails to cause any non-fulfilled
condition(s) to be satisfied within three (3) days after written
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notice thereof from Seller. If any non-fulfilled condition(s) also constitute a
breach by Buyer of its obligations under this Agreement, Seller shall have the
right to proceed under Section 9.12(b) below. If Seller elects to terminate this
Agreement, Escrow Holder, without any further instruction from either Buyer or
Seller, shall pay to Seller the Deposit if the condition that was not satisfied
is the condition set forth in Section 8.1. Thereafter, this Agreement shall be
null and void and of no further force or effect and, except as provided in this
Section 8.6 and Sections 5.3, 5.5, 15.2(b) and 15.10 hereof, neither party shall
have any further rights or obligations hereunder, other than those rights and
obligations that, by their terms survive the termination of this Agreement. In
the event of such termination by Seller, all documents deposited in Escrow by
Buyer or Seller shall be returned to the depositing party, the costs of the
Title Company and Escrow Holder shall be borne equally by Buyer and Seller and
each party hereto shall bear its own costs incurred herewith.
ARTICLE IX
ESCROW AND CLOSING
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9.1 DEPOSIT WITH ESCROW HOLDER AND ESCROW INSTRUCTIONS. Escrow herein
(the "ESCROW") shall be established with Escrow Holder, at the address set forth
above. Upon execution of this Agreement, the parties shall deposit an executed
copy of this Agreement with Escrow Holder. This Agreement shall serve as the
instructions to Escrow Holder to consummate the purchase and sale contemplated
hereby.
9.2 CLOSING.
(a) Except as may be provided otherwise herein, the Closing shall
occur on ____________, 1998, unless the parties hereto agree in writing to an
earlier or later date.
(b) If either party has complied with the terms and conditions of
this Agreement before the scheduled Closing Date and the other party is not in a
position to close by the scheduled Closing Date (other than for reasons beyond
such party's control), the defaulting party shall be deemed to be in material
breach of this Agreement. The party who has fully complied may terminate this
Agreement and, whether or not this Agreement is terminated, Buyer may exercise
all remedies available to it at law or in equity, and Seller's remedies shall be
limited to the provisions for liquidated damages set forth in Section 4.4
hereof.
9.3 DELIVERIES BY SELLER. At least one (1) business day prior to the
Closing Date, Seller shall deliver or cause to be delivered to Escrow Holder the
following:
(a) the Deeds, duly executed and acknowledged by Seller and in
recordable form;
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(b) Seller's Non-Foreign Affidavit, in the form of EXHIBIT F
attached hereto, duly executed and acknowledged by Seller; and
(c) any other cash, documents, or instruments called for
hereunder to be paid, executed, or delivered by Seller that have not previously
been delivered by Seller to Escrow Holder; and
(d) such articles of incorporation, agreements or certificates of
partnership, resolutions, authorizations, bylaws, certifications or other
corporate, partnership or trust documents or agreements or other reasonable
proof of authority relating to Seller as Buyer or Escrow Holder shall reasonably
require in connection with this transaction.
9.4 DELIVERIES BY BUYER. On or before the Closing Date, Buyer shall
deliver or cause to be delivered to Escrow Holder the following:
(a) immediately available funds sufficient to pay the Balance,
Buyer's portion of the closing costs, the amounts owed to Seller pursuant to
Section 8.5, and any other amounts payable by Buyer in order to permit Escrow
Holder to close the Escrow;
(b) such documents as are necessary to assume the construction
contracts referenced in Section 8.5; and
(c) any other cash, documents or instruments called for hereunder
to be paid, executed or delivered by Buyer or that are required for the Closing
hereunder that have not been previously delivered by Buyer to Escrow Holder.
9.5 ADDITIONAL DELIVERIES BY BUYER AND SELLER. At least one (1) business
day prior to the Closing Date, Seller also shall deliver or cause to be
delivered to Escrow Holder, and Buyer also shall deliver or cause to be
delivered to Escrow Holder, the following documents:
(a) the Ground Lease Assignment, duly executed and acknowledged
by Seller and Buyer and in recordable form;
(b) the ▇▇▇▇ of Sale, duly executed and acknowledged by Seller;
(c) the Contract Assignment, duly executed and acknowledged by
Seller and Buyer;
(d) the Lease Assignment, duly executed and acknowledged by
Seller and Buyer and in recordable form; and
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(e) a closing statement prepared by Escrow Holder and approved by
Buyer and approved by Seller.
9.6 OTHER INSTRUMENTS. Seller shall deliver all Tenant Notices to
Tenants concurrently with the Closing, and shall provide copies of same for
Buyer's review not later than two (2) days prior to the Closing Date. Seller and
Buyer each shall deposit any other documents or instruments that may be
reasonably required by the other party and/or Escrow Holder, or that are
otherwise required to close the Escrow and consummate the purchase and sale of
the Property in accordance with the terms hereof.
9.7 PRORATIONS AND APPORTIONMENTS.
(a) All revenues from the Property and all expenses of the
Property shall be prorated and apportioned as of 12:01 a.m., Pacific time, on
the Closing Date (the "PRORATIONS"). Taxes shall be prorated as of the Closing
Date, based on a 365-day year. Seller shall be charged and credited for such
Prorations up to the Closing Date and Buyer shall be charged and credited (or,
at Seller's option, paid by check for unused security or other deposits) for all
of the same on and after the Closing Date. Prior to the Closing, Buyer and
Seller shall review and approve the Prorations. If the actual amounts to be
prorated are not then known, or if any additional expenses are incurred or
income received after the date the Prorations are made, the Prorations shall be
made on the basis of the best evidence then available. When actual figures are
later received, a cash settlement will be made between Seller and Buyer. To the
extent possible, Seller shall have all metered utilities read by the applicable
utility provider as of the Closing Date. As to each utility which is so read,
Seller shall have the responsibility to pay at Closing each ▇▇▇▇ therefore, and
Buyer shall be responsible for all subsequent charges for such utilities. To the
extent such utilities may not be read as of the Closing, such utility bills
shall be prorated when the last ▇▇▇▇ incurred by Seller is received. No
Prorations shall be made for rents, license payments, receivables or accounts
("REVENUES") delinquent as of the Closing Date, and no credit shall be given to
Seller for any Revenues delinquent as of the Closing Date. As used in the
immediately preceding sentence, the term "delinquent" shall mean, with respect
to any Revenue, that the Revenue in question accrued at any time prior to the
then-current calendar month. Nevertheless, if Buyer collects any Revenues that
were delinquent on or before the Closing, such Revenues shall be attributed
first to the current Revenues and then to the portion that was delinquent on or
before the Closing and Buyer shall promptly remit to Seller the portion of such
Revenues collected, if any, attributable to the period of time prior to the
Closing Date; provided, however, that Seller shall not be entitled to commence
any legal proceeding or alternative proceedings seeking to evict any Tenant
because of such Tenant's failure to pay delinquent rents or amounts claimed to
be owing by Seller.
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(b) Tenants may be obligated to pay Additional Rents. Seller
shall estimate a "true-up" of Additional Rents as of the Closing Date, and
Additional Rents shall be prorated as of the Closing on the basis of such
estimated true-up. Seller and Buyer shall re-prorate Additional Rents (including
any portions thereof that may be required to be refunded to Tenants) at the time
that such estimated true-up is actually adjusted and/or reconciled. Any amounts
that may be due from Seller as a result of such re-prorations shall be paid by
Seller to Buyer promptly after written request therefor is delivered to Seller
by Buyer (together with evidence reasonably satisfactory to Seller of the
amounts due the Tenants). Any amounts that may be due to Seller as a result of
such re-prorations shall be paid by Buyer to Seller promptly following such
re-prorations. Notwithstanding the foregoing, Seller shall have reconciled
fully, and made all necessary adjustments with Tenants, Additional Rents for all
prior years through 1997, prior to the Closing Date. Buyer shall be responsible
for reimbursing to Tenants, and may collect from Tenants, as applicable, all
Additional Rents required pursuant to such reconciliation; Seller shall not be
entitled to contact any Tenant with respect to such reconciliation, nor commence
any legal proceeding or alternative proceedings seeking to evict any Tenant
because of such Tenant's failure to pay delinquent rents or amounts claimed to
be owing to Seller.
(c) Seller shall be responsible for the payment of all leasing
commissions earned prior to the Effective Date, and Buyer shall be responsible
for the payment of any leasing commissions earned from and after the Effective
Date, regardless of when any such leasing commissions become due, provided that
such commissions have been disclosed to and approved by Buyer prior to
expiration of the Inspection Period. Each party to this Agreement shall
indemnify the other party against and hold the other party harmless (using
counsel reasonably satisfactory to such other party) from and against any and
all damages, liabilities, costs, expenses and losses (including, but not limited
to attorneys' fees and costs) arising out of any action for the collection of
leasing commissions that are such party's responsibility pursuant to this
subsection.
(d) The provisions of this Section shall survive the Closing.
9.8 COSTS AND EXPENSES. Seller shall pay for that portion of the premium
for the Owner's Title Policy in the amount of the Purchase Price attributable to
standard coverage, and Buyer shall pay the portion attributable to extended
coverage. Seller and Buyer shall share equally the cost of any city and/or
county transfer taxes applicable to the transfer of the Property to Buyer.
Seller shall pay all recording charges for the Deeds, the Ground Lease
Assignments and the Lease Assignments, and the cost, if any, to record any
corrective instruments. If Buyer elects to obtain endorsements for the Owner's
Title Policy, in addition to those necessary to cure title objections as
provided for in Section 6.2, Buyer shall pay all the premiums for such
additional endorsements. Buyer shall also pay any prepayment fees or penalties
charged by U.S. Bank in connection with the payment in full at Closing of its
loans in
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connection with the Property, any special sales, gross receipts or transaction
taxes imposed on Buyer in connection with the purchase and sale of the Property.
Costs and charges of the Escrow shall be borne equally by Seller and Buyer. All
other taxes, costs, and charges for the sale of the Property shall be paid by
Seller and/or Buyer, as the case may be, in accordance with the usual customs
and practices in the respective counties in which the Real Property is located.
9.9 INSURANCE; UTILITIES. Buyer acknowledges that Seller will cause its
policies of casualty and liability insurance to be terminated with respect to
the Property as of the Closing Date. Buyer shall be responsible for obtaining
its own insurance as of the Closing Date and thereafter. Any deposits for
utilities made by Seller shall be refunded to Seller and Buyer shall arrange for
any required replacements therefor and Buyer shall be responsible for obtaining
its own utilities as of the Closing Date and thereafter.
9.10 CLOSE OF ESCROW. Provided that (i) Escrow Holder has received the
documents and funds described in Sections 9.3, 9.4, and 9.5 hereof; (ii) Escrow
Holder has not received prior written notice from either party to the effect
that an agreement of either party made hereunder has not been performed or to
the effect that any condition set forth herein has not been satisfied or waived;
(iii) Buyer has not elected to terminate its rights and obligations hereunder
pursuant to Article VII; and (iv) the Title Company has issued or is
unconditionally prepared and committed to issue the Owner's Title Policy to
Buyer, Escrow Holder is authorized and instructed on the Closing Date to:
(a) cause the Deed, the Ground Lease Assignment and the Lease
Assignments to be recorded, in that order, in the Official Records of the
appropriate counties;
(b) deliver the cash portion of the Purchase Price to Seller,
less Seller's share of closing costs and Prorations (except to the extend paid
to Buyer by check in accordance with Section 9.7 hereof), in the manner
specified by Seller in separate instructions to Escrow Holder;
(c) deliver to Buyer an original of each of the ▇▇▇▇ of Sale and
the Contract Assignment, and (1) as-recorded conformed copy of each of the Deed,
the Ground Lease Assignment and the Lease Assignments, and deliver to Seller an
original of each of the ▇▇▇▇ and Sale and the Contract Assignment, and (1)
as-recorded conformed copy of each of the Deed, the Ground Lease Assignment and
the Lease Assignment; and
(d) deliver Seller's Non-Foreign Affidavit to Buyer.
9.11 NOTIFICATION; CLOSING STATEMENTS. If Escrow Holder cannot comply
with the instructions herein (or as may be provided later), Escrow Holder is not
authorized
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to cause the recording of any of the Documents. If Escrow Holder is unable to
cause the recording, Escrow Holder shall notify the parties without delay.
Immediately after the Closing, Escrow Holder shall deliver to Buyer and Seller,
respectively, at their addresses listed in Section 15.1 hereof, a true, correct
and complete copy of the Seller's and Buyer's Closing Statements, in forms
customarily prepared by Escrow Holder, as well as all other instruments and
documents to be delivered to Buyer and Seller.
9.12 DEFAULT AND REMEDIES.
(a) If prior to or at Closing, Seller shall have failed to
perform in any material respects any of the covenants and/or agreements
contained herein which are to be performed by Seller, or if any warranty
or representation made by Seller herein is not true and correct in all
material respects, Buyer may seek specific performance of this Agreement
or may bring suit for damages against Seller; provided, however, that
any suit for damages brought by Buyer shall be limited to recovery of
Buyer's actual out of pocket costs and expenses incurred by Buyer in
pursuit of the transactions contemplated hereby. Any such suit for
specific performance or damages must be filed within the earlier of (i)
ninety (90) days from and after the date Buyer has actual knowledge of
any material misrepresentation or failure of warranty and (ii) one (1)
year following Seller's breach or shall be deemed waived for all
purposes. Notwithstanding the foregoing, absent independent arrangements
between Buyer and Seller, Buyer shall not be entitled to seek redress
against Seller following the Closing for breaches of representations and
warranties that occurred prior to or at Closing, if such breach(es) or
the facts underlying such breach(es) were known at the time of Closing
by Buyer.
With respect to any breach of a representation or warranty
of and by Seller which is not known by Buyer at Closing, Buyer shall be
entitled, in addition to the foregoing remedies, to be indemnified and
held harmless from and against the aggregate of all expenses, losses,
costs, deficiencies, liabilities and damages (including, without
limitation, related counsel and paralegal fees and expenses) incurred by
Buyer and resulting from or arising out of such breach of a
representation or warranty made by Seller in or pursuant to this
Agreement.
(b) If prior to or at Closing, Buyer shall have failed to perform
in any material respect any of the covenants and/or agreements contained
herein which are to be performed by Buyer or if any warranty or
representation made by Buyer herein is not true and correct in all
material respects, then Seller shall be entitled, after providing Buyer
with written notice thereof and the same remaining uncured for at least
five (5) days thereafter, to exercise the remedies
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set forth in Section 4.5, which shall be Seller's sole and exclusive
remedies in such event.
ARTICLE X
REPRESENTATIONS, WARRANTIES AND COVENANTS
-----------------------------------------
10.1 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and
warrants to Seller as follows:
(a) Buyer is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Maryland, with full right,
power, and authority to take title to the Property, and to enter into and
otherwise perform and comply with the terms of this Agreement;
(b) This Agreement and all documents executed by Buyer that are
to be delivered to Seller at the Closing are, or at the time of Closing will be,
duly authorized, executed and delivered by Buyer; and
(c) This Agreement and all documents executed by Buyer that are
to be delivered to Seller at the Closing are, or at the Closing will be, legal,
valid and binding obligations of Buyer, and do not, and at the time of Closing
will not, violate any provisions of any agreement or judicial order to which
Buyer is a party or to which Buyer is subject.
10.2 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Buyer as follows:
(a) Seller is a limited partnership duly organized, validly
existing, and in good standing under the laws of the State of Oregon, with full
right, power, and authority to convey to Buyer all of Seller's right, title and
interest in and to the Property, and to enter into and otherwise perform and
comply with the terms of this Agreement;
(b) This Agreement and all documents executed by Seller that are
to be delivered to Buyer at the Closing are, or at the time of Closing will be,
duly authorized, executed and delivered by Seller; and
(c) This Agreement and all documents executed by Seller that are
to be delivered to Buyer at Closing are, or at the time of Closing will be,
legal, valid and binding obligations of Seller, and do not, and at the time of
Closing will not, violate any provisions of any agreement or judicial order to
which Seller is a party or to which Seller or the Property is subject.
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(d) To the best of Seller's knowledge, Seller has good and
marketable title to the Property and at Closing such title shall be subject only
to the Permitted Exceptions.
(e) To the best of Seller's knowledge, other than the Property,
there are no items, tangible or intangible, real or personal, owned by the
Seller or any affiliate of Seller as of now or at any time heretofore and used
in conjunction with the Property or any portion thereof.
(f) To the best of Seller's knowledge, all of the Property, and
the existing uses of the Property, are in compliance with all applicable laws,
ordinances, rules, regulations, and requirements of all governmental authorities
having jurisdiction thereof, including, without limitation thereto, those
pertaining to zoning, land use, subdivision, building, safety, fire and health.
(g) To the best of Seller's knowledge, there is no action, suit,
proceeding or investigation pending, nor to Seller's knowledge threatened,
before any agency, court, or other governmental authority which relates to the
Seller or the ownership, maintenance, or operation of the Property.
(h) There is no condemnation or eminent domain proceeding
affecting the Property or any portion thereof currently pending nor, to Seller's
knowledge, is any such proceeding threatened.
(i) Seller has received no notice of any failure of the Seller to
comply with any applicable governmental requirements in respect of the use,
occupation and construction of the Property, including but not limited to
environmental, zoning, platting and other land use requirements which have not
been heretofore corrected to the satisfaction of the appropriate governmental
authority, and Seller has received no notice of and has no knowledge of any
violations or investigations relating to any such governmental requirement.
(j) Seller has received no notice of any default or breach by the
Seller under any covenants, conditions, restrictions, rights-of-way, or
easements which may effect the Seller in respect to the Property or may effect
the Property or any portion thereof, and no such default or breach now exists.
(k) To the best of Seller's knowledge, and except as disclosed by
the PTRs, no special or general assessments have been levied, or to Seller's
knowledge are any such assessments threatened against all or any part of the
Property.
(l) To the best of Seller's knowledge, there has been no material
default or any claim of material default, and no event has occurred which with
notice or lapse of time or both would constitute a material default, under any
Lease, and to
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Seller's knowledge no Tenant has asserted or has any defense, set off, or claim
with regard to his tenancy pursuant to the lease, any law or otherwise.
(m) To the best of Seller's knowledge, all water, sewer, gas,
electric, telephone and drainage facilities and all other utilities required by
law or by the normal use and operation of the Property are and at the time of
Closing will be installed to the property lines of the Real Property, are and at
the time of Closing will be connected and operating pursuant to valid permits,
and are and at the time of Closing will be adequate to service the Property and
to permit full compliance with all requirements of law and normal usage of the
Property by Seller and its licensees and invitees. All public utilities required
for the operation of the Property either enter the Property through adjoining
public streets, or if they pass through adjoining private land do so in
accordance with valid public easements or private easements which will inure to
the benefit of Buyer at Closing and thereafter.
(n) To the best of Seller's knowledge, the heating, ventilation,
air conditioning, mechanical, electrical and other systems and equipment forming
a part of or used in connection with the Property are operative and in good
working condition, normal wear and tear excepted, and in compliance with all
applicable laws, ordinances, regulations and requirements.
(o) Seller is not a foreign person as defined in Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended.
(p) Seller has not received any notice or complaint from any
authority or person that the Property does not comply with all applicable
requirements of the Equal Opportunity for Individuals Act (ADA), 42 U.S.C. 12101
and the regulations promulgated and set forth at 28 CFR 36.401 et seq.
(q) To the best of Seller's knowledge, the survey, mechanical and
structural plans and specifications, soils reports, certificates of occupancy,
warranties, operating statements, income and expense reports and all other books
and records relating to or affecting the Property, and all other contracts or
documents delivered to Buyer pursuant to this Agreement or in connection with
the execution hereof are and at the time of Closing will be true and correct
copies, are and at the time of Closing will be in full force and effect and
contain no inaccuracies or misstatements of fact, and all such documents in
Seller's possession or control relating to or affecting the Property have been
or will be delivered to Buyer pursuant to this Agreement.
(r) To the best of Seller's knowledge, no representation,
warranty or statement of Seller in this Agreement or in any certificate, exhibit
or schedule furnished or to be furnished to Buyer pursuant to this Agreement or
in connection with the transactions contemplated hereby contains or will contain
any untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the
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statements or facts contained therein misleading. To the best of Seller's
knowledge, all such representations, warranties or statements of Seller are
based upon current, accurate and complete information as of the time of their
making and there has been no adverse material change in such information
subsequent thereto.
(s) The copies of the Leases delivered to Buyer are true and
correct copies of all such Leases and are in full force and effect and there are
no other agreements, written or oral, with respect to the tenancies. There are
no unpaid amounts due and owing by Seller under any such Lease, except for
amounts for which Buyer is to receive full credit through proration at Closing.
No Tenant under any of the Leases has prepaid any rent or other charges for more
than the current month. No Tenant under any of the Leases has any right or
option to purchase the Property or any portion thereof or interest therein, and
there are no outstanding agreements of sale with respect to the Property or any
portion thereof or any interest therein. Except as provided in the Leases, no
Tenant has the right to renew or extend any of the Leases or has any options or
rights of first refusal with respect to leasing of other space, and no Tenant
has the right to free rent, rebate, allowance, concession, security or other
deposit.
(t) To the best of Seller's knowledge, the copies of the
Contracts and all Information previously delivered to Buyer are true and correct
copies of all such Contracts and Information and are in full force and effect.
There are no unpaid amounts due and owing by Seller under any such Contract,
except for amounts for which Buyer is to receive full credit through proration
at Closing. There are no other service or maintenance contracts relating to the
Property.
(u) Except as disclosed in writing to Buyer, there are no
commissions, finder's fees or other compensation owing or which may become owing
to any broker or any other person or entity with respect to any Lease or
occupancy agreement including, without limitation, any such compensation with
respect to any future renewals, extensions or expansions thereof.
(v) Seller is not party to, or otherwise bound by, any collective
bargaining agreement or multi-employer pension fund covering employees who
service the Property.
(w) To the best of Seller's knowledge, there is no current labor
dispute with any maintenance or other personnel or employees of Seller or any
contracts with respect to the Property which could adversely affect the use,
operation or value of the Property.
(x) Other than as disclosed otherwise in SCHEDULE I attached
hereto and incorporated herein by this reference, Seller has obtained all
licenses, permits, approvals, easements and rights of way required from all
governmental authorities
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having jurisdiction over the Property or from private parties for the normal use
and operation of the Property and to ensure free and unimpeded vehicular and
pedestrian ingress to and egress from the Property as required to permit the
normal intended usage of the Property by the tenants thereof, their invitees and
customers. Seller has materially complied with all such licenses and permits and
has not received any notice that any such licenses or permits will not be
renewed upon expiration, or of any material conditions which will be imposed in
order to receive any such renewal.
(y) Seller knows of no facts nor has Seller failed to disclose to
Buyer any fact which would prevent Buyer from using and operating the Property
after Closing in the manner in which the Property has been used, leased and
operated prior to the date hereof.
(z) Seller has not committed nor obligated itself in any manner
whatsoever to sell the Property to any party other than Buyer. Seller has not
hypothecated or assigned any rents or income from the Property in any manner,
other than pursuant to any existing mortgage financing secured by the Property
as of the Effective Date.
(aa) With respect to each of the Ground Leases: (i) Seller is the
sole tenant thereunder; (ii) there exists no default of Seller thereunder, or
any event, fact or circumstance, which with the giving of notice or passage of
time, or both, would constitute a default thereunder, nor to Seller's knowledge
does there exist any default of the landlord thereunder, or any event, fact or
circumstance, which with the giving of notice or passage of time, or both, would
constitute a default thereunder and (iii) there has been no modification or
amendment thereto except as disclosed in writing to Buyer.
(ab) ENVIRONMENTAL MATTERS. Except as set forth on Schedule 2, no
governmental authority has notified Seller of the need to take corrective action
regarding elimination or control of Hazardous Materials on or about the
Property. Except as set forth on Schedule 2, and except in accordance with
applicable laws, neither Seller nor, to the best of Seller's knowledge, any
other tenant, occupant or user of the Property has used, generated,
manufactured, installed, released, discharged, stored or disposed of any
Hazardous Materials on, under, in or about the Property, or transported any
Hazardous Materials to or from the Property, and there are no Hazardous
Materials or underground storage tanks located on, under, in or about the
Property.
(ac) Seller shall hold as confidential all information concerning
Buyer or the transaction contemplated hereby disclosed to Seller in connection
with said transaction; and Seller shall not, prior to Closing, release any such
information to third parties without Buyer's prior written consent, except
pursuant to a court order requiring such release or as otherwise may be required
by law.
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As used herein, the phrase "Seller's Knowledge" or words of similar import means
the collective, actual knowledge of ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, without
imputation from any other source.
No examination or investigation of the Property by or on behalf of the Buyer
prior to the Closing shall in any way modify, affect, or diminish Seller's
obligation under the representations, warranties, covenants, and agreements
contained in this Agreement.
10.3 CONTINUATION AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties by the respective parties contained in this
Article 10 are intended to and shall remain true and correct as of the time of
the Closing, shall be deemed to be material, and shall survive the execution and
delivery of this Agreement, the delivery of the Deed and transfer of title to
the Property for a period of one (1) year following the Closing Date.
ARTICLE XI
POSSESSION
----------
Possession of the Property shall be delivered to Buyer immediately
following the Closing, subject to the rights of Tenants.
ARTICLE XII
OPERATION OF THE PROPERTY
-------------------------
During the Escrow Period, Seller shall not accept any payment of rent
(except as a security deposit) or other charges from any tenant of the Property
applicable to a period exceeding one (1) month in advance, nor apply any
security deposit to rent due from any tenant of the Property without in each
case obtaining Buyer's prior written consent thereto (which consent shall not be
unreasonably withheld or delayed by Buyer). In addition to the foregoing,
Seller: (i) shall manage, maintain, operate, and service the Property consistent
with standards in the industry for the first class operation of similar projects
of comparable quality in the same area as the Property is located, maintaining
present services; (ii) shall keep the Property and every portion thereof in
reasonably good working order and repair; (iii) shall maintain a sufficient
inventory of supplies, materials, equipment and other personal property for the
proper management, maintenance, operation and servicing of the Property; and
(iv) shall not, except with Buyer's prior written consent (which consent shall
not be unreasonably withheld or delayed by Buyer), approve, consent to, or
otherwise permit any material change in the operations of the Property during
the Escrow Period, including, without limitation:
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(a) any material alterations to the Improvements except as may be
necessary in order to perform ordinary, scheduled maintenance;
(b) cancellation of or material reduction in the amount or scope of
coverage under any insurance currently maintained with respect to the Property;
(c) cancellation or surrender of any existing Permit; and
(d) any other material variation from Seller's ordinary course of
business in connection with the Property.
ARTICLE XIII
LOSS BY FIRE OR OTHER CASUALTY; CONDEMNATION
--------------------------------------------
13.1 DAMAGE OR DESTRUCTION.
(a) Before the Closing, risk of loss with regard to the Property
shall be borne by Seller. If, before the Closing, the Improvements or the
Personal Property are destroyed or materially damaged, Buyer's rights and
obligations with respect to the Property shall be as follows:
(i) if with respect to any Shopping Center the destruction
or damage involves a diminution in value equal to or less than One Hundred
Thousand and No/100ths Dollars ($100,000.00) or with respect to the Property a
diminution in value equal to or less than Two Hundred Thousand and No/100ths
Dollars ($100,000.00) (each, a "DIMINUTION THRESHOLD"), Buyer shall be obligated
to proceed to close the transaction (subject to satisfaction of the other
provisions hereof) and, if, but only if, Escrow actually closes, Buyer shall
receive a credit against the Purchase Price equal to the lesser of (A) the cost
to repair the damage or destruction and (B) the amount of the deductible under
Seller's casualty insurance policy; or
(ii) if the destruction or damage involves a diminution in
value of more than the Diminution Threshold, Buyer shall have the option (which
must be exercised by Buyer within fifteen (15) calendar days after Buyer's
receipt of written notice from Seller advising of such destruction or damage),
to terminate this Agreement as to that portion of the Property attributable to
the affected Shopping Center and proceed with the Closing as to the remainder of
the Property, or to terminate this Agreement as to all of the Property. If Buyer
elects to proceed with Closing, Buyer shall receive a credit against the
Purchase Price equal to the lesser of (A) the cost to repair the damage or
destruction and (B) the amount of the deductible under Seller's casualty
insurance policy.
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(b) If Buyer and Seller cannot agree as to the diminution in
value, then such diminution in value shall be determined by subtracting from the
Purchase Price the fair market value of the Property after the damage, as
determined by an M.A.I. appraiser appointed by two (2) other M.A.I. appraisers
nominated one (1) each by Seller and Buyer. The expense of the appraiser shall
be borne equally by Buyer and Seller.
(c) If Buyer is obligated or elects to proceed to close the
transaction under either subsection (a)(i) or (a)(ii) above, all casualty
insurance proceeds from Seller's casualty insurance policy shall be assigned by
Seller to Buyer at the Closing and forwarded to Buyer immediately upon receipt
thereof by Seller.
(d) If Buyer elects to terminate this Agreement under subsection
(a)(ii) above, this Agreement shall become null and void and of no further force
or effect as to all unperformed rights and obligations of the parties and,
except as provided in Sections 5.3, 5.5, 15.2(b) and 15.10 hereof, neither Buyer
nor Seller shall have any further rights, duties, liabilities or obligations to
the other by reason thereof, other than those rights and obligations that, by
their terms, survive termination of this Agreement. In the event of such
termination, the costs of the Title Company and Escrow Holder shall be borne
equally by Buyer and Seller. Also, each party shall bear its own costs incurred
hereunder.
13.2 CONDEMNATION.
(a) If, before the Closing, all of the Property shall be taken by
condemnation or eminent domain, this Agreement shall become null and void and of
no further force or effect as to all unperformed rights and obligations of the
parties and, except as provided in Sections 5.3, 5.5, 15.2(b) and 15.10 hereof,
neither Buyer nor Seller shall have any further rights, duties, liabilities or
obligations to the other by reason hereof, other than those rights and
obligations that, by their terms, survive the termination of this Agreement. In
the event of such termination, the costs of the Title Company and Escrow Holder
shall be borne equally by Buyer and Seller. Also, each party shall bear its own
costs incurred hereunder.
(b) If, before the Closing, (i) less than all of the Property
shall be taken by condemnation or eminent domain, (ii) there is any taking of
land lying in the bed of any street, road, highway or avenue, open or proposed,
in front of or adjoining all or any part of the Land, or (iii) there is any
change of grade of such street, road, highway or avenue, provided such taken or
change of grade involves a diminution in value of more than the Diminution
Threshold, then Buyer, at Buyer's option, may terminate this Agreement as to
that portion of the Property attributable to the affected Shopping Center and
proceed with the Closing as to the remainder of the Property, or to terminate
this Agreement as to all of the Property. If Buyer elects to terminate this
Agreement under this subsection (b), this Agreement shall become null and void
and
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of no further force or effect and, except as provided in Sections 5.3, 5.5,
15.2(b) and 15.10 hereof, neither Buyer nor Seller shall have any further
rights, duties, liabilities or obligations to the other by reason hereof, other
than those rights and obligations that, by their terms, survive the termination
of this Agreement. In the event of such termination, the costs of the Title
Company and Escrow Holder shall be borne equally by Buyer and Seller. Also, each
party shall bear its own costs incurred hereunder.
(c) If Buyer and Seller cannot agree as to the diminution in
value, then such diminution in value shall be determined by subtracting from the
Purchase Price the fair market value of the Property after the taking, as
determined by an M.A.I. appraiser appointed by two (2) other M.A.I. appraisers
nominated one (1) each by Seller and Buyer. The expense of the appraiser shall
be borne equally by Buyer and Seller.
(d) If this Agreement is not terminated in accordance with the
foregoing, or if such taking involves a diminution in value equal to or less
than the Diminution Threshold, Buyer shall accept title to the Property subject
to such taking. In such event, Buyer shall receive a credit against the Purchase
Price in amount of the diminution in value, and the award for such taking shall
be paid to Seller.
ARTICLE XIV
ENVIRONMENTAL INDEMNIFICATION
-----------------------------
14.1 AGREEMENT BY SELLER TO INDEMNIFY. Seller agrees to indemnify and
hold the Buyer and its officers, directors, employees and agents of each thereof
(collectively, the "INDEMNIFIED PARTY") harmless from and against the aggregate
of all expenses, losses, costs, deficiencies, liabilities and damages
(including, without limitation, related counsel and paralegal fees and expenses)
incurred or suffered by the Indemnified Party (collectively, "INDEMNIFIABLE
DAMAGES") resulting from or arising out of any breach of the representation or
warranty made by Seller pursuant to Section 10.2(ab) "Indemnifiable Damages"
shall specifically include, without limitation, costs incurred in connection
with any investigation of site conditions or any cleanup, remedial, removal,
restoration or other response work required by any federal, state, or local
governmental agency or political subdivision because of Hazardous Material
present as a result of any action or inaction on the part of Seller or it
agents, employees, contractors, invitees or tenants in any improvements on the
Property or the soil or ground water on, under or adjacent to the Property.
14.2 The provisions of this Article 14 shall survive the Closing (i) for
a period of one (1) year as to all environmental matters covered by this Article
XIV for which no disclosure has been made by Seller to Buyer as of Closing.
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ARTICLE XV
MISCELLANEOUS
-------------
15.1 NOTICES. Any communication, notice or demand of any kind whatsoever
that either party may be required or may desire to give to or serve upon the
other shall be in writing, addressed to the parties at the addresses set forth
below, and delivered by personal service, by Federal Express or other reputable
overnight delivery service, or by facsimile transmission:
If to Seller: c/o Mercury Development
▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇, President
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
With a copy to: Miller, Nash, Wiener, Hager & ▇▇▇▇▇▇▇ LLP
3500 U.S. Bancorp Tower
▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
If to Buyer: Pan Pacific Retail Properties, Inc.
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇,
President and Chief Executive
Officer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to: ▇▇▇▇ ▇▇▇▇ Peek ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any such notice shall be deemed delivered as follows: (a) if
personally delivered, the date of delivery to the address of the person to
receive such notice; (b) if sent by Federal Express or other reputable overnight
courier service, the date of delivery to the address of the person to receive
such notice; or (c) if sent by facsimile transmission, on the Business Day
transmitted to the person to receive such notice if sent by 5:00 p.m.,Pacific
time, on such Business Day, and the next Business Day if sent after 5:00 p.m.,
Pacific time, or on a day other than a Business Day. Any notice sent by
facsimile transmission must be confirmed by sending by Federal Express or other
reputable overnight delivery service a copy of the notice sent by facsimile
transmission. Any party may change its address for notice by written notice
given to the other at least five (5) calendar days before the effective date of
such change in the manner provided in this Section 15.1.
15.2 BROKERS AND FINDERS. In the event of a claim for broker's fees,
finder's fees, commissions or other similar compensation in connection herewith:
(i) Buyer, if such claim is based upon any agreement alleged to have been made
by Buyer, shall indemnify, defend (using counsel reasonably satisfactory to
Seller) and hold Seller harmless from and against any and all damages,
liabilities, costs, expenses and losses (including, without limitation,
attorneys' fees and costs) that Seller sustains or incurs by reason of such
claim; and (ii) Seller, if such claim is based upon any agreement alleged to
have been made by Seller, shall indemnify, defend (using counsel reasonably
satisfactory to Buyer) and hold Buyer harmless from and against any and all
damages, liabilities, costs, expenses and losses (including, without limitation,
attorneys' fees and costs) that Buyer sustains or incurs by reason of such
claim. The provisions of this subsection shall survive the termination of this
Agreement or the Closing.
15.3 SUCCESSORS AND ASSIGNS. Buyer may assign and delegate its rights
and obligations hereunder to the DownREIT LLC with respect to any or all of the
Shopping Centers and those portions of the Property related thereto (each, a
"Shopping Center Property"); and upon each such assignment and delegation, the
DownREIT LLC shall be deemed the Buyer hereunder for all purposes with respect
to such portion of the Property. In the event less than all of Buyer's rights
hereunder are assigned to the DownREIT LLC, then as to the Shopping Center
Property(ies) for which no assignment is made, Buyer and Seller shall enter into
a new Purchase and Sale Agreement for such
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unassigned Shopping Center Property(ies) on terms consistent with those
applicable to such Shopping Center Property(ies) hereunder, and otherwise in the
form of this Agreement. Other than such assignment, neither Seller nor Buyer may
assign their rights hereunder without the prior written consent of the other
party, which consent may be withheld in such party's sole and absolute
discretion; and any attempted or purported assignment in contravention of the
terms and provisions of this Section 15.3 shall be null and void. This Agreement
shall be binding upon, and inure to the benefit of, the parties hereto and their
respective heirs, administrators and permitted successors and assigns.
15.4 AMENDMENTS. This Agreement may be amended or modified only by a
written instrument executed by both parties.
15.5 INTERPRETATION. Words used in the singular shall include the
plural, and vice-versa, and any gender shall be deemed to include the other. The
captions and headings of the Articles and Sections of this Agreement are for
convenience of reference only, and shall not be deemed to define or limit the
provisions hereof. Further, each party hereby acknowledges that such party and
its counsel, after negotiation and consultation, have reviewed and revised this
Agreement. As such, the terms of this Agreement shall be fairly construed and
the usual rule of construction, to the effect that any ambiguities herein should
be resolved against the drafting party, shall not be employed in the
interpretation of this Agreement or any amendments, modifications or exhibits
hereto or thereto.
15.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Oregon.
15.7 MERGER OF PRIOR AGREEMENTS. This Agreement constitutes the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous oral or written representations,
warranties, statements, documents, understandings and agreements with respect
thereto.
15.8 ATTORNEYS' FEES AND COSTS. If either Buyer or Seller brings any
suit or other proceeding with respect to the subject mater or the enforcement of
this Agreement, the prevailing party (as determined by the court, agency or
other authority before which such suit or proceeding is commenced), in addition
to such other relief as may be awarded, shall be entitled to recover reasonable
attorneys' fees, expenses and costs of investigation actually incurred. The
foregoing includes, without limitation, attorneys' fees, expenses and costs of
investigation incurred in appellate proceedings, costs incurred in establishing
the right to indemnification, or in any action or participation in, or in
connection with, any case or proceeding under Chapter 7, 11 or 13 of the
Bankruptcy ▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Section 101 et seq., or any successor
statutes.
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15.9 TIME OF ESSENCE. Time is of the essence of this Agreement.
15.10 CONFIDENTIALITY. Buyer and Seller agree that, to the extent
reasonably practical, they shall keep the contents of this Agreement and the
contents of any environmental report prepared by or for Buyer in connection with
this Agreement confidential and that no publicity or press release to the
general public or otherwise with respect to this transaction shall be made by
either party without the prior written consent of the other party (which consent
may be given or denied in the other party's sole and absolute discretion),
except that Buyer is hereby authorized to prepare and issue a press release to
the general public announcing its purchase of the Property at the Closing.
Otherwise, the confidentiality provisions of this Section 15.10 shall survive
the Closing.
15.11 NO WAIVER. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other provision, whether
or not similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party make the waiver.
15.12 FURTHER ACTS. Each party, at the request of the other, shall
execute, acknowledge (if appropriate) and deliver whatever additional documents,
and do such other additional acts, as may be reasonably required in order to
accomplish the intent and purposes of this Agreement.
15.13 EXHIBITS. Exhibits A through H, inclusive, and Schedules I and 2
are attached hereto and incorporated herein by reference.
15.14 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original, but all
of which, when taken together, shall constitute one and the same instrument,
with the same effect as if all of the parties to this Agreement had executed the
same counterpart. Any signature page of any counterpart of this Agreement may be
detached and reattached to any other counterpart of this Agreement.
15.15 NO INTENT TO BENEFIT THIRD PARTIES. Seller and Buyer do not intend
by any provision of this Agreement to confer any right, remedy or benefit upon
any third party, and no third party shall be entitled to enforce, or otherwise
shall acquire any right, remedy or benefit by reason of, any provision of this
Agreement.
15.16 PERFORMANCE DUE ON DAY OTHER THAN BUSINESS DAY. If the time period
for the performance of any act called for under this Agreement expires on a
Saturday, Sunday or Holiday, the act in question may be performed on the next
succeeding Business Day.
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15.17 JOINT AND SEVERAL OBLIGATIONS. If Buyer or Seller is comprised of
more than one person or entity, then all persons or entities that comprise Buyer
and Seller, as applicable, shall be jointly and severally liable for all the
covenants, agreements, and obligations of Buyer or Seller, as the case may be,
contained in this Agreement.
15.18 SURVIVAL OF OBLIGATIONS. In addition to terms which by their
express provision are to survive the Closing, all other terms and provisions
which by their nature are to be performed or be applicable after the Closing
shall survive the Closing.
15.19 AUDIT RESPONSIBILITIES. From time to time, both before and after
Closing, Buyer may be engaged in financing and other transactions which will
require that both Buyer and the operation of the Property be audited as to then
current and past operations of the Property, including periods of time during
which Seller owned the Property. As a material inducement for Buyer to enter
into this Agreement, Seller agrees that upon written request of Buyer, Seller
shall render its timely and cooperative efforts, at no additional cost to
Seller, to any such auditors in delivering such responses to inquiries and
information as is within the knowledge or records of Seller with respect to the
operations of the Property or which is within the control or reasonable ability
of Seller to obtain, including, without limitation, operating statements and
other financial information relevant to the Property and its operations. In
addition to the foregoing, Seller shall sign and deliver to any such auditor,
such auditor's standard representation letter with respect to the foregoing
matters, revised by Seller only to the extent necessary to make same true and
correct as to the matters represented therein by Seller.
15.20 OREGON STATUTORY DISCLAIMER. THE PROPERTY DESCRIBED IN THIS
INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES.
THE PROPERTY IS SUBJECT TO LAND USE LAWS AND REGULATIONS, WHICH, IN FARM OR
FOREST AREAS, MAY NOT AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND WHICH
LIMIT LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.090 IN
ALL ZONES. BEFORE SIGNING OF ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE
TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING
DEPARTMENT TO VERIFY APPROVED USES AND EXISTENCE OF FIRE PROTECTION FOR
STRUCTURES.
37.
39
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the dates written below.
"Seller"
PORTLAND FIXTURE LIMITED PARTNERSHIP,
AN OREGON LIMITED PARTNERSHIP
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: PRESIDENT
"Buyer"
PAN PACIFIC RETAIL PROPERTIES, INC.,
A MARYLAND CORPORATION
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: PRESIDENT & CHIEF EXECUTIVE
OFFICER
38.
40
ACCEPTANCE OF ESCROW INSTRUCTIONS
The undersigned, as Escrow Holder in connection with the purchase and
sale of the Property, hereby acknowledges the terms and conditions of the escrow
instructions set forth in this Agreement and agrees to perform its obligations
in connection therewith.
"ESCROW HOLDER"
By:
-------------------------------
Print Name:
-----------------------
Print Title:
----------------------
39.
41
EXHIBIT A
SCHEDULE AND LEGAL DESCRIPTION OF PROPERTIES
42
EXHIBIT B
FORM OF DEED
[See Following Pages]
43
AFTER RECORDING RETURN TO:
Pan Pacific Retail Properties, Inc.
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President and CFO
UNTIL A CHANGE IS REQUESTED, ALL TAX STATEMENTS SHALL BE SENT TO:
Pan Pacific Retail Properties, Inc.
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President and CFO
STATUTORY BARGAIN AND SALE DEED
(OREGON)
_____________________________________, Grantor, conveys to , Grantee,
the improvements located on the real property described as Parcels
____________________ and the land and improvements described in
_______________________________ in EXHIBIT A attached hereto.
This conveyance is made by Grantor and accepted by Grantee subject to
those matters set forth on EXHIBIT B attached hereto.
The true consideration for this conveyance is $______________.
THIS INSTRUMENT WILL NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS
INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE
SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE
PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANING DEPARTMENT TO
VERIFY APPROVED USES AND TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR
FOREST PRACTICES AS DEFINED IN ORS 30.930.
1
44
Executed as of this _____ day of _______________, 1998.
GRANTOR:
------------------------------------
------------------------------------
By:
--------------------------------
Its:
-------------------------------
ALL-PURPOSE ACKNOWLEDGMENT
STATE OF OREGON )
)ss.
COUNTY OF __________ )
On the _____ day of _______________, 1998, before me,
___________________, a Notary Public in and for the State of _____________,
personally appeared ________________________, personally known to me (or proved
tome 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, in and for said
County and State
My Commission Expires:____________
2
45
EXHIBIT B-1
FORM OF GROUND LEASE ASSIGNMENT
[See Following Pages]
46
RECORDING REQUESTED BY,
WHEN RECORDED MAIL TO:
Pacific Retail Properties, Inc.
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President and CFO
================================================================================
ASSIGNMENT AND ASSUMPTION OF GROUND LEASE
-----------------------------------------
This ASSIGNMENT AND ASSUMPTION OF GROUND LEASE (this "ASSIGNMENT") is
made as of this _____ day of _______________,1998, by PORTLAND FIXTURE LIMITED
PARTNERSHIP, an Oregon limited partnership ("ASSIGNOR"), and PAN PACIFIC RETAIL
PROPERTIES, INC., a Maryland corporation ("ASSIGNEE").
R E C I T A L S :
-----------------
A. Assignor is presently the owner and holder of all of the lessee's
interest in the leasehold interest created by that certain Lease dated December
3, 1975, entered into by and between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, as lessor, and Portland
Fixture Co., a corporation, and ▇▇▇▇▇▇▇ Development Co., a corporation, as
lessee, (the "GROUND LEASE"), which Ground Lease affects the real property
located in the County of Umatilla, State of Oregon, more particularly described
in Exhibit A attached hereto and incorporated herein by this reference the
("PROPERTY"); and
B. Pursuant to that certain Purchase and Sale, Exchange and Ground Lease
Assignment and Agreement and Escrow Instructions, dated as of September ___,
1998 (the "AGREEMENT"), by and between Assignor and Assignee, Assignee has
agreed to purchase from Assignor all of Assignor's right, title, estate and
interest as lessee in, to and under the Ground Lease.
NOW, THEREFORE, in order to carry out the terms of the Agreement, and in
consideration of the mutual covenants and agreements herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged. Assignor and Assignee hereby agree as follows:
1. Assignment. Assignor hereby grants, transfers, conveys and assigns to
Assignee all of Assignor's right, title, estate and interest in, to and under
the Ground Lease, together with (i) any and all right, title, estate and
interest of Assignor as lessee or tenant under the Ground Lease, whether now
owned or hereafter acquired, in and to the real property which is the subject
thereof and any improvements and fixtures
1
47
located thereon, (ii) any rights, privileges, easements, rights of way, or
appurtenances appertaining thereto (including, without limitation, any and all
rents, issues, profits, royalties, license revenues, concession revenues, income
and other benefits derived from such real property hereafter accruing, and any
and all claims, causes of action, rights to proceeds or awards related to such
real property hereafter accruing), and (iii) all right, title, estate and
interest of Assignor in and to security deposits and prepaid rents, if any, as
have been paid by Assignor pursuant to the Ground Lease.
2. Assumption. Assignee hereby accepts such assignment of Assignor's
right, title, estate and interest in, to and under the Ground Lease, and, in
addition, (i) assumes and agrees to be bound by all of the terms of the Ground
Lease, and (ii) agrees to keep, perform, fulfill, and observe all of the terms,
covenants, obligations, agreements, and conditions required to be kept,
performed, fulfilled, and observed by the lessee under the Ground Lease from and
after the execution and delivery of this Assignment by Assignor and Assignee.
3. Indemnification of Assignor. Assignee hereby agrees to indemnify,
defend, and hold Assignor harmless from and against any and all liability, loss,
cost, damage and expense (including, without limitation, reasonable attorneys'
fees and costs) directly or indirectly arising out of or based upon Assignee's
failure to keep, perform, fulfill and observe any of the terms, covenants,
obligations, agreements, and conditions required to be kept, performed,
fulfilled, and observed by the lessee under the Ground Lease from and after the
execution and delivery of this Assignment by Assignor and Assignee.
4. Indemnification of Assignee. Assignor hereby agrees to indemnify,
defend, and hold Assignee harmless from and against any and all liability, loss,
cost, damage and expense (including, without limitation, reasonable attorneys'
fees and costs) directly or indirectly arising out of or based upon Assignor's
failure to keep, perform, fulfill, and observe any of the terms covenants,
obligations, agreements, and conditions required to be kept, performed,
fulfilled, and observed by the lessee under the Ground Lease prior to the
execution and delivery of this Assignment by Assignor and Assignee.
5. Rentals. All rents payable under or pursuant to the Ground Lease
shall be prorated as between Assignor and Assignee pursuant to, and in
accordance with, the terms of the Agreement.
6. Further Assurances. Assignor hereby covenants that it will, at any
time and from time to time following a written request therefor, execute and
deliver to Assignee and its successors and assigns, any additional or
confirmatory instruments and take such further acts (including, without
limitation, sending notices of this Assignment to the landlord under the Ground
Lease) as Assignee may reasonably request to evidence fully the assignment
contained herein.
2
48
7. Appointment. Assignor hereby irrevocably appoints Assignee and its
successors and assigns, as the true and lawful attorney and agent of Assignor,
in Assignor's name and stead, to enforce the provisions of the Ground Lease.
8 Binding Effect. This Assignment shall inure to the benefit of and
shall be binding upon the parties hereto and their respective successors and
assigns.
9. Survival of Certain Provisions. The provisions of Sections 2, 3, 4,
5, 6 and 7 hereof shall survive the execution and delivery of this Assignment by
Assignor and Assignee and the grant, transfer, conveyance, and assignment of the
Ground Lease pursuant hereto.
10. Governing Law. This Assignment shall be construed in accordance with
and governed by the laws of the State of Oregon.
11. Counterparts. This Assignment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute one and the same instrument.
"Assignor"
PORTLAND FIXTURE LIMITED PARTNERSHIP,
AN OREGON LIMITED PARTNERSHIP
-----------------------------------------
By:
Its:
[signatures continue]
3
49
"Assignee"
PAN PACIFIC RETAIL PROPERTIES, INC.,
A MARYLAND CORPORATION
---------------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: PRESIDENT & CHIEF EXECUTIVE OFFICER
STATE OF__________________ )
)ss.
COUNTY OF ________________ )
On the ____ day of _______________, 1998, before me, a Notary Public in
and for said State, personally appeared _________________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(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 signatures) 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.
Signature __________________________________ (Seal)
4
50
STATE OF _________________ )
)ss.
COUNTY OF ________________ )
On this _____ day of _______________, 1998, before me, a Notary Public
in and for said State, personally appeared , personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(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 signatures) 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.
Signature _________________________________ (Seal)
5
51
EXHIBIT C
FORM OF ▇▇▇▇ OF SALE
[See Following Pages]
52
▇▇▇▇ OF SALE
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged,
_______________________________________________________________ ("TRANSFEROR"),
hereby sells, bargains, transfers, assigns, grants, delivers and conveys to PAN
PACIFIC RETAIL PROPERTIES, INC., a Maryland corporation ("TRANSFEREE"), all of
the personal property owned by Transferor and located on, or used in connection
with, the real property located in the County of ___________, State of Oregon,
described in Exhibit A attached hereto and incorporated herein by this
reference, including, without limitation, those items described on Exhibit B
attached hereto and incorporated herein by this reference (collectively, the
"PERSONAL PROPERTY").
TO HAVE AND TO HOLD the Personal Property, together with, all and
singular, the rights and appurtenances thereto belonging to Transferee, its
successors and assigns.
Transferor hereby covenants that it will, at any time and from time to
time, following a written request therefor, execute and deliver to Transferee
and its successors and assigns, any additional or confirmatory instruments and
take such further acts as Transferee may reasonably request to evidence fully
the conveyance contained herein.
DATED: this _____ day of _______________, 1998.
------------------------------------
------------------------------------
By:
--------------------------------
Its:
------------------------------
"Transferor"
53
EXHIBIT D
FORM OF CONTRACT ASSIGNMENT
[See Following Pages]
54
ASSIGNMENT AND ASSUMPTION OF CONTRACTS,
---------------------------------------
PERMITS AND OTHER RIGHTS
------------------------
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS, PERMITS AND OTHER RIGHTS
(this "ASSIGNMENT") is made as of this _____ day of _______________, 1998, by
__________________________________________________ ("ASSIGNOR"), and PAN PACIFIC
RETAIL PROPERTIES, INC, a Maryland corporation ("ASSIGNEE").
R E C I T A L S :
-----------------
A. Assignor is a party to and presently has certain rights under those
contracts more particularly described in Schedule I attached hereto and
incorporated herein by this reference (collectively, the "AGREEMENTS"); and
B. Pursuant that certain Purchase and Sale Agreement and Escrow
Instructions, dated as of ____________, 1998 (the "AGREEMENT"), by and between
Assignor and Assignee, Assignee has agreed to purchase from Assignor all of
Assignor's right, title and interest in and to the real property located in the
County of ___________, State of Oregon, described in Exhibit A attached hereto
and incorporated herein by this reference (the "REAL PROPERTY"), together with
all of Assignor's right, title, and interest in and to the Agreements.
NOW, THEREFORE, in order to carry out the terms of the Agreement, and in
consideration of the mutual covenants and agreements herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. Assignment. Assignor hereby assigns, transfers and conveys to
Assignee, subject to the provisions of the Agreements, all of Assignor's right,
title, and interest (if any) in and to the Agreements, all plans, drawings and
specifications for the improvements located upon the Real Property, and all
intangible property exclusively used or useful in connection with the Real
Property or the improvements thereon to the extent assignable by Assignor,
including, without limitation, all tradenames exclusively used or useful in
connection with the Real Property, and all approvals, variances, entitlements,
contract rights, guarantees, licenses, permits, approvals and warranties. The
Agreements and the other property and rights assigned in this Section 1 are
hereinafter collectively referred to as the "CONTRACTS".
2. Assumption. Assignee hereby accepts such assignment of the Contracts
and, in addition, (i) assumes and agrees to be bound by all of the terms of the
Contracts, and (ii) agrees to keep, perform, fulfill, and observe all of the
terms, covenants, obligations, agreements and conditions required to be kept,
performed,
1
55
fulfilled, and observed by Assignor under, or with respect to, the Contracts
from and after the execution and delivery of this Assignment by Assignor and
Assignee.
3. Indemnification of Assignor. Assignee hereby agrees to indemnify,
defend, and hold Assignor harmless from and against any and all liability, loss,
cost, damage and expense (including, without limitation, reasonable attorneys'
fees and costs) directly or indirectly arising out of or based upon the failure
of Assignee to keep, perform, fulfill, and observe all of the terms, covenants,
obligations, agreements, and conditions required to be kept, performed,
fulfilled, or observed by Assignor under, or with respect to, the Contracts from
and after the execution and delivery of this Assignment by Assignor and
Assignee.
4. Indemnification of Assignee. Assignor hereby agrees to indemnify,
defend, and hold Assignee harmless from and against any and all liability, loss,
cost, damage and expense (including, without limitation, reasonable attorneys'
fees and costs) directly or indirectly arising out of or based upon the failure
of Assignor to keep, perform, fulfill, and observe all of the terms covenants,
obligations, agreements, and conditions required to be kept, performed,
fulfilled, or observed by Assignor under, or with respect to, the Contracts
prior to the execution and delivery of this Assignment by Assignor and Assignee.
5. Contract Payments. All amounts payable by Assignor or to Assignor
under or pursuant to the Contracts shall be prorated as between Assignor and
Assignee pursuant to, and in accordance with, the terms of the Agreement.
6. Further Assurances. Assignor hereby covenants that it will, at any
time and from time to time following a written request therefor, execute and
deliver to Assignee and its successors and assigns, any additional or
confirmatory instruments and take such further acts as Assignee may reasonably
request to evidence fully the assignment contained herein.
7. Appointment. Assignor hereby irrevocably appoints Assignee and its
successors and assigns, as the true and lawful attorney and agent of Assignor,
in Assignor's name and stead, to enforce the provisions of the Contracts.
8. Counterparts. This Assignment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute one and the same instrument.
9. Governing Law. This Assignment shall be construed in accordance with
and governed by the laws of the State of Oregon.
2
56
10. Binding Effect. This Assignment shall inure to the benefit of and
shall be binding upon the parties hereto and their respective successors and
assigns.
11. Survival of Certain Provisions. The provisions of Sections 2, 3, 4,
5, 6 and 7 hereof shall survive the execution and delivery of this Assignment by
Assignor and Assignee and the assignment of the Contracts pursuant hereto.
------------------------------------
------------------------------------
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
"Assignor"
PAN PACIFIC RETAIL PROPERTIES, INC.,
a Maryland corporation
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
"Assignee"
3
57
EXHIBIT E
FORM OF LEASE ASSIGNMENT
[See Following Pages]
58
RECORDING REQUESTED BY,
WHEN RECORDED MAIL TO:
Pacific Retail Properties, Inc.
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President and CFO
================================================================================
ASSIGNMENT AND ASSUMPTION OF LEASES
-----------------------------------
This ASSIGNMENT AND ASSUMPTION OF LEASES (this "ASSIGNMENT") is made as
of this _____ day of _______________,1998, by ________________________________
_________________________________ ("ASSIGNOR"), and PAN PACIFIC RETAIL
PROPERTIES, INC., a Maryland corporation ("ASSIGNEE").
R E C I T A L S :
-----------------
A. Assignor is presently the owner and holder of all of the lessor's
interest in the leases and tenancies described in Schedule I attached hereto and
incorporated herein by this reference (collectively, the "LEASES"), which Leases
affect the real property located in the County of ___________, State of Oregon,
more particularly described in Exhibit A attached hereto and incorporated herein
by this reference the ("PROPERTY"); and
B. Pursuant to that certain Purchase and Sale Agreement and Escrow
Instructions, dated as of _____________, 1998 (the "AGREEMENT"), by and between
Assignor and Assignee, Assignee has agreed to purchase from Assignor all of
Assignor's right, title, estate and interest in and to the Property and all of
Assignor's right, title, estate and interest as lessor in, to and under the
Leases.
NOW, THEREFORE, in order to carry out the terms of the Agreement, and in
consideration of the mutual covenants and agreements herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged. Assignor and Assignee hereby agree as follows:
1. Assignment. Assignor hereby grants, transfers, conveys and assigns to
Assignee all of Assignor's right, title, estate and interest in, to and under
the Leases, together with (i) any and all right, title, estate and interest of
Assignor as lessor or
1
59
landlord under the Leases, whether now owned or hereafter acquired, in and to
the real property which is the subject thereof and any improvements and fixtures
located thereon, (ii) any rights, privileges, easements, rights of way, or
appurtenances appertaining thereto (including, without limitation, any and all
rents, issues, profits, royalties, license revenues, concession revenues, income
and other benefits derived from such real property hereafter accruing, and any
and all claims, causes of action, rights to proceeds or awards related to such
real property hereafter accruing), (iii) all right, title, estate and interest
of Assignor in and to security deposits and prepaid rents, if any, as have been
paid to Assignor pursuant to such Leases and have not, prior to the date hereof,
been applied or repaid by Assignor, and (iv) all right, title, estate and
interest of Assignor in and to subleases, if any, relating to such real
property.
2. Assumption. Assignee hereby accepts such assignment of Assignor's
right, title, estate and interest in, to and under the Leases, and, in addition,
(i) assumes and agrees to be bound by all of the terms of the Leases, and (ii)
agrees to keep, perform, fulfill, and observe all of the terms, covenants,
obligations, agreements, and conditions required to be kept, performed,
fulfilled, and observed by the lessor under the Leases from and after the
execution and delivery of this Assignment by Assignor and Assignee.
3. Indemnification of Assignor. Assignee hereby agrees to indemnify,
defend, and hold Assignor harmless from and against any and all liability, loss,
cost, damage and expense (including, without limitation, reasonable attorneys'
fees and costs) directly or indirectly arising out of or based upon Assignee's
failure to keep, perform, fulfill and observe any of the terms, covenants,
obligations, agreements, and conditions required to be kept, performed,
fulfilled, and observed by the lessor under the Leases from and after the
execution and delivery of this Assignment by Assignor and Assignee.
4. Indemnification of Assignee. Assignor hereby agrees to indemnify,
defend, and hold Assignee harmless from and against any and all liability, loss,
cost, damage and expense (including, without limitation, reasonable attorneys'
fees and costs) directly or indirectly arising out of or based upon Assignor's
failure to keep, perform, fulfill, and observe any of the terms covenants,
obligations, agreements, and conditions required to be kept, performed,
fulfilled, and observed by the lessor under the Leases prior to the execution
and delivery of this Assignment by Assignor and Assignee.
5. Rentals. All rents payable under or pursuant to the Leases shall be
prorated as between Assignor and Assignee pursuant to, and in accordance with,
the terms of the Agreement.
2
60
6. Further Assurances. Assignor hereby covenants that it will, at any
time and from time to time following a written request therefor, execute and
deliver to Assignee and its successors and assigns, any additional or
confirmatory instruments and take such further acts (including, without
limitation, sending notices of this Assignment to the tenants under the Leases)
as Assignee may reasonably request to evidence fully the assignment contained
herein.
7. Appointment. Assignor hereby irrevocably appoints Assignee and its
successors and assigns, as the true and lawful attorney and agent of Assignor,
in Assignor's name and stead, to enforce the provisions of the Leases.
8 Binding Effect. This Assignment shall inure to the benefit of and
shall be binding upon the parties hereto and their respective successors and
assigns.
9. Survival of Certain Provisions. The provisions of Sections 2, 3, 4,
5, 6 and 7 hereof shall survive the execution and delivery of this Assignment by
Assignor and Assignee and the grant, transfer, conveyance, and assignment of the
Leases pursuant hereto.
10. Governing Law. This Assignment shall be construed in accordance with
and governed by the laws of the State of Oregon.
11. Counterparts. This Assignment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute one and the same instrument.
------------------------------------
------------------------------------
By:
--------------------------------
Its:
-------------------------------
"Assignor"
PAN PACIFIC RETAIL PROPERTIES, INC.,
a Maryland corporation
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
3
61
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
"Assignee"
STATE OF__________________ )
)ss.
COUNTY OF ________________ )
On the ____ day of _______________, 1998, before me, a Notary Public in
and for said State, personally appeared _________________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(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 signatures) 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.
Signature __________________________________ (Seal)
4
62
STATE OF _________________ )
)ss.
COUNTY OF ________________ )
On this _____ day of _______________, 1998, before me, a Notary Public
in and for said State, personally appeared , personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(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 signatures) 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.
Signature _________________________________ (Seal)
5
63
EXHIBIT F
FORM OF SELLER'S NON-FOREIGN AFFIDAVIT
[See Following Pages]
64
NON-FOREIGN AFFIDAVIT
---------------------
Section 1445 of the Internal Revenue Code of 1986, as amended (the
"IRC"), provides that a transferee of a U.S. real property interest must
withhold tax if the transferor is a foreign person, to inform the transferee
that withholding of tax is not required upon the disposition of a U.S. real
property interest by _____________________________________________________
("TRANSFEROR"), the undersigned hereby certifies the following on behalf of
Transferor:
1. Transferor is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
IRC and the regulations promulgated thereunder);
2. Transferor's U.S. taxpayer I.D. number is _________________; and
3. Transferor's office address is __________________________________
____________________________________________________________________________.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service and that any false statement contained herein could be
punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined the foregoing
certification and, to the best of my knowledge and belief, it is true, correct,
and complete, and I further declare that I have authority to sign this document
on behalf of the Transferor.
"TRANSFEROR"
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By:
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Its:
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65
STATE OF __________________ )
)ss.
COUNTY OF ________________ )
On the ____ day of _______________, 1998, before me, a Notary Public in
and for said State, personally appeared __________________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(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 signatures) 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.
Signature __________________________________ (Seal)
66
EXHIBIT G
FORM OF TENANT NOTICES
[See Following Pages.]
67
_______________, 1998
VIA CERTIFIED MAIL --
RETURN RECEIPT REQUESTED
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Re: Lease Dated _______________, 19__
Dear _______________:
This is to notify you that _____________________________________
("_________") has sold its interest in the property commonly known as the
________________________________ and located at ___________________________
_______________________________________________, and has assigned its interest
as landlord under your lease to the new owner, PAN PACIFIC RETAIL PROPERTIES,
INC. ________ has also transferred to the new owner the security deposit held by
________ under the lease in the amount of $__________ [if none, so state]. No
claims have been made against the security deposit [if a claim has been made, so
state].
Please direct all future rental and other payments and communications
under your lease to:
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68
EXHIBIT H
FORM OF TENANT ESTOPPEL CERTIFICATE
[See Following Pages]
69
TENANT ESTOPPEL CERTIFICATE
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(Tenant Name)
TO: PAN PACIFIC RETAIL PROPERTIES, INC., a Maryland corporation
THIS IS TO CERTIFY THAT:
1. The undersigned is the tenant under that certain Lease dated
_______________, 19__ ("Lease") by and between ________________________
as lessor ("Landlord") and ____________________________________ as
tenant ("Tenant"), covering certain premises commonly known and designated as
Space _____, _____________________________________________________________
__________________________________________________________________("Premises").
2. The Lease has not been modified, changed, altered, assigned,
supplemented or amended in any, respect except as indicated below (if none,
state "none"). The Lease is valid and in full force and effect on the date
hereof. The Lease, as modified by the amendments or assignments listed below, if
any, represents the entire agreement between Landlord and Tenant with respect to
the Premises.
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
3. Tenant is not entitled to, and has made no agreement with Landlord,
or its agents or employees, concerning free rent, partial rent, rebate of rent
payments, credit or offset or reduction in rent, or any other type of rental
concession including, without limitation, lease, support payments or lease
buy-outs, except as indicated below, (if none, state "none").
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
4. The Lease term began on _______________, 19__, and the termination
date of the present term of the Lease, excluding unexercised renewals, is
_______________, 19__.
5. Tenant has paid rent for the Premises for the period up to and
including ____________, 19__. No such rent (not including security deposits) has
been paid more than one (1) month in advance of its due date, except as
indicated below, (if none, state "none"). The Tenant's security deposit is
$_______________.
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
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6. No event has occurred and no condition exists which, with the giving
of notice or the lapse of time or both, will constitute a default by Tenant or,
to Tenant's best knowledge, by Landlord, under the Lease. To the best knowledge
of Tenant, Tenant has no existing defenses or offsets against the enforcement of
the lease by Landlord.
7. All required contributions by Landlord to Tenant on account of
Tenant's tenant improvements have been completed in accordance with the terms of
the Lease, except as indicated below (if none, state "none").
8. Except as set forth in the Lease, Tenant has no outstanding options,
rights of first refusal or rights of first offer to purchase the Premises or any
part thereof or all or any part of the real property of which the Premises are a
part.
9. No action, whether voluntary or otherwise, are pending against Tenant
under the bankruptcy laws of the United States or any state thereof.
10. Tenant has not sublet the Premises to any sublessee and has not
assigned any, of its rights under the Lease, except as indicated below (if none,
state "none"). No one except Tenant and its employees occupies the Premises.
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
11. The address for notice to be sent to Tenant is as set forth in the
Lease. (If not, indicate correct address below.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
12. The Premises have not been used by Tenant and Tenant does not plan
to use the Premises for any activities which, directly or indirectly, involve
the use, generation, treatment storage, transportation or disposal of any
petroleum product or any toxic or hazardous chemical material, substance,
pollutant or waste in violation of any applicable law.
13. Tenant has not received any written notice from any government
authority of violation of any federal, state, county or local statutes, laws,
rules or regulations of area governmental authorities relating to environmental,
health or safety matters and, to Tenant's actual knowledge, there are no writs,
injunctions, decrees, orders or judgments outstanding lawsuits, claims,
proceedings or investigations pending or threatened, relating to Tenant's use,
maintenance or operation of the Premises.
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14. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of Tenant.
Dated: _______________, 1998.
[NAME OF TENANT]
By:
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Its:
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72
SCHEDULE I
LIST OF UNOBTAINED PERMITS, LICENSES, ETC.