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EXHIBIT 10.8
PURCHASE AND
SALE AGREEMENT
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This PURCHASE AND SALE AGREEMENT (the "Agreement") is entered into as of
this 17 day of April, 1998, by and among WREP 1998-1 LLC, a Delaware limited
liability company (the "Purchaser"), G.I. JOE'S, INC., an Oregon corporation
(the "Seller"), and PD PROPERTIES, L.L.C., an Oregon limited liability company
("PD").
RECITALS
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A. Seller owns fee title or (as to the Gresham property) a ground leasehold
estate in certain real property, the legal descriptions of which are attached as
Exhibit A, which are currently improved with retail stores, warehouses and
offices operated by Seller (each such property, together with all improvements
located thereon, is hereinafter individually referred to as a "Property", and
all such properties collectively referred to as the "Properties").
B. PD and an affiliate of Purchaser previously entered into a letter
commitment dated February 10, 1998, concerning a prospective bridge financing
and option to acquire the Properties, which is being superseded by this
Agreement.
C. Purchaser desires to acquire all of the Property from Seller and
simultaneously lease the same to Seller, upon and subject to the terms of this
Agreement and a Lease Agreement ("Lease") in the form attached hereto as Exhibit
C, to be entered into by Purchaser as landlord/lessor and Seller as
tenant/lessee, with PD as one of the guarantors of such Lease.
D. Seller is willing to sell and convey all of the Properties to Purchaser
and to simultaneously lease the same from Purchaser, on and subject to the
terms, covenants and conditions of this Agreement and the Lease.
AGREEMENT
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1. PURCHASE AND SALE OF THE PROPERTY. Seller agrees to sell the Properties
to Purchaser, and Purchaser agrees to purchase the Properties from Seller, on
the terms and conditions set forth in this Agreement. The Properties consists
of:
(a) All of the land described in Exhibit A attached hereto (the
"Land") and all easements, rights and interests appurtenant thereto, if
any;
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(b) All of the improvements and fixtures (which excludes the
inventory, display cases, equipment, furniture, fixtures and equipment
("FF&E") and other personal property of Seller, but includes, without
limitation, all fire and safety systems and other fixtures and equipment as
part of the improvements that are necessary to operate the improvements in
accordance with applicable law as building structures) currently situated
on the Land (the "Improvements"); and
(c) All of Seller's rights in all of the following intangible property
now or hereafter existing with respect to the Property (the "Intangible
Property"); provided, however, the Intangible Property and all payments and
proceeds derived therefrom may be retained and used by Seller so long as
the Lease (defined below) remains in effect:
(1) All plans and specifications, all building permits and other
permits required in connection with the construction of the
Improvements and all warranties, guaranties and sureties now or
hereafter received in connection with the construction of the
Improvements, if any, including, without limitation, all rights
of Seller under any plans, specifications, drawings and permits
and all architectural, engineering or construction contracts with
respect to the Improvements and all additions and alterations
thereto;
(2) All licenses, permits, approvals and certificates of occupancy
relating to the zoning, land use, ownership, operation,
occupancy, construction or maintenance of the Improvements
running to or in favor of the Seller or the Improvements, and all
deposits to governmental authorities relating to the Seller or
the Improvements;
(3) All service and maintenance contracts and equipment leases in
connection with or used by the Seller (if any) in the operation
of the Improvements for any lawful use (as opposed to Seller's
particular use in its business) and which are accepted by
Purchaser; and
(4) All accounts, books, records, studies, documents, tests, surveys,
assessments, audits, appraisals, contracts, contract rights,
claims and warranties related to the Property, but excluding any
of the foregoing which relate to Seller's
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business conducted from the Property and any insurance policies
and insurance policy proceeds.
2. PURCHASE PRICE. The total purchase price for. all of the Property (the
"Purchase Price") is Twenty-Eight Million Four Hundred Fifty Thousand Dollars
($28,450,000). Subject to the adjustments, credits and holdbacks set forth in
this Agreement, the entire purchase price shall be paid to the Seller on the
Closing Date (defined below). The parties have agreed on an allocation of the
total Purchase Price to the Properties, as shown on the schedule attached as
Exhibit D ("Allocation Schedule").
3. PURCHASER'S CONTINGENCIES.
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3.1 Submission of Review Information. After the date of mutual execution of
this Agreement (said execution date being hereinafter referred to as the
"Effective Date"), Seller shall submit to Purchaser true and complete copies of
the following information ("Seller's Reports"), all of which shall be subject to
Purchaser's review and approval prior to the Closing Date provided below:
(a) Seller's Organizational Documents. The entity documents for
Seller. Such documents shall include Seller's articles of incorporation,
bylaws, an incumbency certificate certified by its secretary which
identifies its current directors and officers and a current certificate of
good standing issued by the Oregon Corporation Division/Secretary of State.
(b) Seller's Authorizations. Corporate resolutions adopted by Seller's
Board of Directors authorizing Seller's execution and delivery of this
Agreement and the Lease.
(c) Seller's Financial Statements. An updated financial statement or
confirmation in form and substance satisfactory to Purchaser that Seller's
financial statements provided to Purchaser in connection with the Loan
remain accurate in all material respects.
(d) Title Report. Current title report(s) (collectively, the "Title
Report") showing the status of and all exceptions to title and containing
the title company's commitment to issue the title insurance policy or
policies to be provided by Seller to Purchaser in connection with this
transaction and the related financing transaction by Purchaser as
borrower/grantor and Credit Suisse First Boston Mortgage Capital LLC or its
affiliates ("Lender") to be secured by the Property (the "Loan").
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(e) Environmental Questionnaire. An environmental questionnaire
relating to the Land and Improvements in a form provided by Purchaser or
Lender (if required), and completed by Seller.
(f) Environmental Assessment. Such environmental assessments or
updates of environmentals as Purchaser and Lender may require, which
reflect the current environmental status of the Land and Improvements and
the property adjacent thereto, including the current condition of the soils
and groundwater including, an assessment by one or more qualified
registered professional engineers, hydrologists, or other scientists that
there exists no evidence of past or ongoing release at, upon, under, or
within, or of past or ongoing migration from neighboring lands to, the
Property, of hazardous materials and there exists no evidence that asbestos
or asbestos-containing materials, polychlorinated biphenyl's (PCBs), radon
gas, or urea formaldehyde foam insulation is present (the "Assessments").
(g) Remediation Confirmation. Confirmation in form and substance
satisfactory to Purchaser that all monitoring and further assessments
recommended in the Assessments have been completed and that the results
thereof verify that no hazardous substances, wastes or materials regulated
by any federal or state environmental laws ("Environmental Laws") exist in
concentrations above the legal maximum limits and to the extent any
remediation of the Land or the Improvements have been undertaken the same
have been completed and accepted by the governing agency.
(h) Summary of Capital Repairs and Rights of Recoupment or Abatement.
A summary of all capital repairs, improvements and alterations made to the
Improvements within the ninety (90) day period immediately before the
closing date, and/or that are required of Purchaser as landlord/lessor
under the Lease or that are subject to rights of reimbursement, offset or
recoupment by Seller from Purchaser after the date of the closing of the
purchase (the "Closing Date"), and/or any "free rent" or reduced rent or
other rights of reimbursement, offset, abatement or recoupment under the
Lease that would be applicable after the Closing Date, together with
evidence satisfactory to Purchaser that all of the costs thereof have been
paid or that the parties have reserved from disbursement of proceeds to
Seller sufficient funds to pay for such work or to reimburse Seller for any
such rights of reimbursement, offset, recoupment or abatement.
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(i) Litigation Confirmation. If there is any current litigation or
claims made against or involving Seller or with respect to the Property
which are pending or threatened, a written disclosure by Seller summarizing
the nature of such litigation or claims, or, with respect to any claims
which have been filed or served, Seller will deliver (on Purchaser's
request) a complete copy of the complaints, answers and any amendments
thereof.
(j) Citations. All notices of violations and citations, including any
criminal citations or allegations of criminal activity on or about the
Property, currently pending or which have been received by Seller with
respect to any of the Properties prior to Closing Date.
(k) Additional Reports. Such other reports, tests, information and
data as Purchaser may reasonably request prior to the Closing Date, if any.
3.2 Purchaser's Reports. In addition to Seller's Reports, Purchaser shall
obtain and shall have the right to obtain and approve any other reports
regarding Seller or the Property (the "Purchaser's Reports"), including, without
limitation, the following, if and to the extent required by Purchaser:
(a) Appraisal. An appraisal confirming that the current fair market
value of the Property is not less than the Purchase Price.
(b) Survey. A survey or update to survey, certified to Purchaser and
Lender (to the extent such certification to Lender is required in
connection with the Loan), in form sufficient to satisfy Lender's
requirements and to obtain the issuance of the Title Policy.
(c) UCC Report. The UCC Report (defined below).
(d) Structural Inspection Report. A certification by an engineering
firm as to (a) the adequacy of the structural design and mechanical
specifications of the improvements, and (b) the adequacy and quality of the
improvements and the materials and workmanship employed therein.
(e) Disability Laws. Evidence or an updated certificate from an
engineer or the appropriate governmental agency, in form and substance
acceptable to Purchaser, that no work on the Property is presently required
to place them in compliance with The Americans with Disabilities Act of
1990.
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(f) Litigation Report. A report provided by commercial litigation
service, if required by Purchaser, which identifies any litigation or other
adversarial proceedings involving Seller or the Property.
3.3 Supplemental Information. Seller agrees that to the extent Seller
obtains any other information, reports, assessments or data, if any, which in
any manner relate to or amend any of the Seller's Reports, or if Seller becomes
aware that any information contained in any of Seller's or Purchaser's Reports
becomes incorrect in any material respect, Seller shall promptly furnish
Purchaser with such additional reports or amendments or contrary or conflicting
information.
3.4 Purchaser's Inspection Rights. In addition to reviewing the Seller's
and Purchaser's Reports (collectively, the "Due Diligence Reports"), Purchaser
shall have the right, prior to the Closing Date and at Purchaser's expense, to
inspect the Property and any other books and records related to the Property
from time to time; provided, however, any intrusive tests into the Land or
Improvements shall require Seller's prior written approval, which approval shall
not be unreasonably withheld, conditioned or delayed. Pursuant to Section 3.6,
Seller shall reimburse Purchaser for the reasonable out-of-pocket costs of such
inspections. Except for any damage caused by wrongful misconduct or negligence
by Purchaser or its contractors or agents, any restoration of the Property to
substantially the same condition immediately preceding such inspection shall be
undertaken and paid for by Seller. In no event shall Purchaser be liable or
responsible for the contents or results of any reports or the discovery of any
information resulting from its inspections.
3.5 Payments for Due Diligence Reports. All costs and expenses of all of
the Due Diligence Reports and other tests, inspections and studies of the
Property for which Seller is liable under this Agreement shall be paid by Seller
when due or reimbursed to Purchaser within five (5) days after written demand
therefor, regardless of whether this sale closes.
3.6 Seller's Expense Reimbursements. Seller agrees that Seller shall
reimburse Purchaser for up to $100,000 of its actual out-of-pocket expenses paid
to unrelated third parties in good faith in connection with this Agreement. Such
costs may include, but shall not be limited to, fees paid to Purchaser's
consultants, brokers, accountants, attorneys, assessors, appraisers, surveyors,
architects, title companies and planners (collectively, "Purchaser's Service
Providers"). Seller's obligations under this Section shall survive a
cancellation, forfeiture or termination of this Agreement.
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3.7 Other Holdbacks and Funded Reserves. The parties will holdback at
closing, or will place into a funded reserve, any additional amounts required by
Lender as holdbacks or reserves under the Loan (for property taxes, insurance,
tenant improvement and leasing commissions, seismic, capital expenditures, and
other matters), which will be in accordance with the schedule attached or to be
attached as Exhibit E (the "Expense Schedule").
3.8 Removal of Inspection Contingencies. The following procedure shall be
employed in connection with Purchaser's removal of its inspection contingencies:
(a) Purchaser shall have until the Closing Date (the "Review Period")
within which to accept the Property. If, by the end of the Review Period,
Purchaser has not notified Seller in writing that Purchaser accepts the
Property in its then current condition, this Agreement shall automatically
terminate. This Agreement thereafter shall be null and void and neither
party shall have any obligation to the other except as otherwise stated
herein.
(b) If Purchaser elects, Purchaser may offer Seller the opportunity to
correct any items Purchaser determines to be unacceptable at Seller's
expense by providing Seller with written notice prior to the end of the
Review Period of what must be corrected, by what dates and in what manner.
The foregoing includes any requirement to adjust the purchase price if the
appraisal obtained by Purchaser indicates that the current fair market
value of the Property is less than the purchase price stated herein.
(c) Within five (5) days after Seller is given such notice Seller
shall notify Purchaser in writing of whether and to the extent Seller will
effect and pay for such corrections or agree to such purchase price
adjustment. Unless otherwise stated in Purchaser's notice, any such items
which are in the nature of repairs, alterations, corrections or
remediations shall be completed prior to the Closing Date. If Seller fails
to give such notice within said five (5) days, Seller will be deemed to
have refused to agree to such corrections and purchase price adjustment.
(d) Within five (5) days after Seller gives such notice (or after the
last day of the period within which such notice is to be given if it is
not), Purchaser may elect to (i) cancel this Agreement, or (ii) agree to
waive its contingencies as provided in this Section. The failure of
Purchaser to give such notice within such five (5) day period shall be
deemed an election to cancel this Agreement. If this Agreement is not so
canceled Seller shall
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promptly commence and proceed with diligence to completion prior to the
Closing Date with the correction of the items which Seller agreed to
undertake in its notice to Purchaser.
4. SELLER'S TITLE TO THE PROPERTY.
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4.1 Title Report. Seller shall, at Seller's expense, provide a Title Report
on each Property from a title insurance company approved by Purchaser (the
"Title Agent"). The Title Report shall include a commitment for an extended ALTA
form of owner's (or with respect to the ▇▇▇▇▇▇▇ Property ground leased by
Seller, a leasehold) policy of title insurance (collectively, the "Title
Policy"). The Title Report shall be accompanied by legible copies of all special
exceptions listed therein and shall confirm the willingness of the Title Agent
to issue such endorsements as Purchaser may require after review of the Title
Reports (the "Endorsements").
Purchaser shall have until the end of the Review Period in which to notify
Seller in writing of Purchaser's disapproval of any exceptions shown in the
Title Report, other than any liens to be satisfied by Seller by the Closing
Date.
4.2 UCC Search. Purchaser may, at Seller's expense, obtain from a
commercial search service a report disclosing the existence of any UCC financing
statements or liens recorded or filed against any portion of the Property (the
"UCC Report"). Purchaser shall notify Seller as to whether it objects to any
security interests or liens reflected in the UCC Report. Seller will cause any
security interests that are encumbrances against the buildings or Property to be
released (other than any security interests that encumber only the furniture,
fixtures and equipment of Seller and other assets that Seller is not selling to
Purchaser).
4.3 Title Defects. If Purchaser does not elect to cancel this Agreement,
Purchaser's objections to the disapproved exceptions Seller elects not to
eliminate shall be deemed waived and the Property shall be conveyed to the
Purchaser with such defects without credit against the purchase price. The
foregoing notwithstanding, Seller agrees that except for the lien for any
nondelinquent taxes and the lien for any nondelinquent special assessments
accepted by Purchaser, it shall cause all monetary liens against the Property
which are not accepted by Purchaser to be released of record by the Closing
Date.
5. SELLER'S REPRESENTATIONS.
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5.1 Content of Representations. Seller represents, warrants and covenants
to Purchaser as follows:
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(a) Delivery of Seller's Reports. Except to the extent otherwise
expressly waived by Purchaser in writing, Seller shall deliver all of
Seller's Reports and any amendments or corrections thereof to Purchaser as
and when required by this Agreement.
(b) Accuracy of Seller's Reports. To the best of Seller's knowledge,
all of the Seller's Reports Seller has provided and hereafter provides to
Purchaser in connection with this Agreement are and shall be true and
accurate in all material respects.
(c) No Additional Title Defects. There are no title defects in or
encumbrances against the Property which will not be shown in the Title
Report, no person has any adverse, prescriptive rights or rights of
possession except as stated in this Agreement, and no encroachments exist
upon or from the Land.
(d) No Violation of Zoning and Other Laws. The existing use and
condition of the Property is not a nonconforming use and does not violate
any subdivision, zoning, building, health, environmental, personal
disabilities, fire or safety statute, ordinance, regulation or code in any
material respect. As of the date hereof, neither Seller nor, to the best of
Seller's knowledge, any of Seller's agents and employees have received any
written notice from any governmental agency alleging violations of any
building codes, building or use restrictions, zoning ordinances, rules and
regulations. All licenses, permits and other approvals required for the
construction and operation of the Improvements have been issued and are in
good standing. If, between the date of this Agreement and the Closing Date
Seller receives any written notice or written citation of any alleged
violation of any statute, code or ordinance with respect to the Property or
Seller's use thereof, it shall promptly provide Purchaser with a true and
correct copy thereof.
(e) No Litigation. There is no pending or threatened litigation or
administrative action with respect to Seller or, to the best of Seller's
knowledge, the Property.
(f) Eminent Domain. There is no pending or contemplated eminent
domain, condemnation or other governmental taking of the Property or any
portion thereof.
(g) Access to Property. The Property has vehicular and pedestrian
access to public rights-of-way.
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(h) Separate Tax Parcel. The Land and Improvements constitute a
separate tax parcel or parcels which does or do not include any other
property.
(i) Assessments. To the best of Seller's knowledge, there are no
special or general assessments which are in addition to those which will be
disclosed in the Title Report which have been levied against or are
proposed for the Property.
(j) No Breach of Agreements. This Agreement and the consummation of
the transaction evidenced by this Agreement will not violate any other
agreement to which Seller is a party or their respective organizational
documents, or any law, statute or ordinance which is binding upon the
Property or Seller.
(k) Contract Default. Three exist no material defaults under any
management, maintenance or service contracts executed in connection with
the Property.
(l) Nonforeign Status. Seller warrants that it is not a "foreign
person" as defined in Section 1445 of the Internal Revenue Code of 1954, as
amended. Seller shall deliver to Purchaser at closing a Certificate of
Nonforeign Status setting forth Seller's address and United States taxpayer
identification number and certifying that it is not a foreign person as so
defined.
(m) Executory Agreements. Attached to this Agreement as Exhibit B is
the list of all management, service and maintenance and equipment leases
for the Property (the "Service Contracts"), together with their expiration
dates or the notice period which must precede their termination. To the
best of Seller's knowledge, no default exists under any of the Service
Contracts and all Service Contracts are currently in full force and effect.
(n) Government Obligations. There are no unperformed obligations which
are currently due relative to the Property to any governmental or
quasi-governmental body or authority. All water and sewer hook-up fees and
other fees payable in connection with the annexation, zoning or improvement
of the Land and which are now due have been paid.
(o) Utility Services. The Improvements are serviced by public
electric, gas, water, sewer and telephone utilities sufficient to operate
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full-time, Seller's current business in and from the Improvements and there
exist no unpaid connection, hook-up or similar charges with respect
thereto. All utilities serving the Improvements are on meters which do not
monitor any other property.
(p) Environmental Matters. No portion of the Property lies within a
designated wetland or other environmentally sensitive area. Except as
stated in the Assessments, Seller has not caused nor, to the best of
Seller's knowledge, has any other person caused, any hazardous substance,
waste or material to be used, generated, stored or disposed of on or
transported to or from the Land or Improvements in violation of any
Environmental Laws, nor have any underground storage tanks or transformers
existed on or under the Land nor are there any asbestos-containing
materials present in the Improvements. Except as stated in the Assessments,
there are presently no hazardous waste, substance or material on, under or
within the Property. For the purposes of this Agreement, "hazardous
substance, waste or material" shall mean petroleum-based products,
asbestos, asbestos-containing material, lead paint, PCBs and all other
hazardous substances, wastes or substances which are so defined in any
Environmental Laws.
(q) Condition of Improvements. There are no material defects in any
portion of the Improvements and the Improvements are not infested with
termite or other insects or animals. Conditions caused by ordinary wear and
tear and depreciation and which ordinarily arise during the course of
owning and operating Seller's business at the Property shall not be
considered material defects for the purposes of this representation.
(r) Insurability of Property. Seller has not received any formal or
informal notice from any insurance company of any defect or inadequacies in
the Property which would adversely affect the insurability of the
Improvements or which would increase the cost of any insurance beyond that
which would ordinarily and customarily be charged for insuring comparable
property used for similar purposes in the vicinity of the Property.
(s) Soil Conditions. The surface and subsurface condition of the Land
is such that it will support the Improvements without present need for
additional subsurface excavation, fill, footing, caissons or other
installations, and the Improvements have been constructed in a manner which
is compatible with the soil conditions at the time of construction.
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(t) No Other Adverse Conditions. There are no other facts,
circumstances or conditions which could have a material, adverse impact
upon the physical condition, value or permitted use of the Property or
Seller's ability to perform its obligations under this Agreement or which
would be likely to cause any other representation hereto to become
incorrect in any material respect.
5.2 Seller's Knowledge. To the extent that any of the foregoing
representations are limited "to the best of Seller's knowledge" (or words of
similar effect), such knowledge shall (i) include the knowledge of the
principals of Seller that have been involved in the negotiation of this
Agreement or that are regularly involved in the operation or management of real
estate of Seller, and (ii) will presume and assume familiarity by Seller with
Seller's records and files.
5.3 Survival of Warranties. All of Seller's warranties in this Agreement
shall be deemed given only as of the date of this Agreement, but shall be
updated in a certificate provided to Purchaser at and as of the Closing Date.
6. CONDITIONS TO CLOSING.
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6.1 Purchaser's Conditions. Purchaser's obligation to close this
transaction is subject to the satisfaction of all of the following conditions:
(a) Seller's Compliance. Seller's fulfillment of each of its
obligations under this Agreement in all material respects, including,
without limitation, the delivery of all of the Seller's Reports to
Purchaser within the Report Period.
(b) Seller's Representations. The continuing accuracy of all of
Seller's warranties and representations in this Agreement in all material
respects, including the lack of discovery of any fact or circumstance of
which Seller did not have knowledge on the date Seller executes this
Agreement (regardless of whether such fact or circumstance arose or was
discovered thereafter).
(c) Status of Title. The absence of any monetary lien or other
material defect in title to the Property which was not permitted by this
Agreement or approved in writing by Purchaser.
(d) Permitted Uses. The absence of any material violation of any
applicable statute, law or regulation regarding the physical condition of
the Property or Seller's use thereof for its current business purpose or of
any
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change in any laws or statutes which materially affect the Seller's
ability to use the Property for its current business purposes.
(e) Hazardous Waste. The absence of Purchaser's discovery of any
hazardous material, waste or substance on or about the Property (i) which
was not reported to Purchaser in writing at least ten (10) days prior to
the end of the Review Period, (ii) which violates any applicable statute,
law or ordinance, and (iii) the cost of the abatement, removal or disposal
of which, to the full extent required by any applicable statute, law or
ordinance or which, in Purchaser's reasonable judgment, is needed to avoid
additional contamination or pollution of the Property or any adjoining
property, is likely to exceed Ten Thousand Dollars ($10,000).
(f) Material Condemnation. The absence of any condemnation or the
institution of condemnation proceedings which results in the taking of any
of the Improvements with a value of more than Ten Thousand Dollars
($10,000), or a reduction in the number of any parking spaces below the
minimum level required by law for the current use of the Property or the
Property becoming a nonconforming use under applicable law. If this
transaction closes, Seller shall assign to Purchaser on the Closing Date
all condemnation awards and rights to awards which were not used by Seller
to pay the costs of any restorations of the Land or Improvements
necessitated by any such condemnation.
(g) Material Casualty. The absence of any material damage by casualty
to the Improvements which has not been repaired by Seller by the Closing
Date. For the purposes hereof, a "material damage by casualty" shall be
deemed any damage by fire or other casualty which has not been repaired and
paid for by the Closing Date and for which the estimated cost of the
remaining repairs exceeds Ten Thousand Dollars ($10,000). If the
Improvements suffer any material damage by casualty Purchaser shall have
the right and option to terminate this Agreement within fifteen (15) days
after the date Purchaser is notified of the casualty in writing or by the
Closing Date, whichever first occurs. Seller shall also have the right to
cancel this Agreement if such material damage by casualty is not covered by
Seller's insurance policy unless Purchaser is willing to reduce the
purchase price by the amount estimated to be necessary to pay the labor and
material costs to restore the damage. If Purchaser does not elect to
terminate this Agreement by such date, this transaction shall close without
increase or decrease in the purchase price, Seller shall proceed to effect
such repairs to return the damaged portions of the Property to the
condition existing immediately prior to the casualty and shall complete the
same as
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soon as reasonably possible prior to or after the Closing Date and shall
be entitled to all insurance proceeds which are paid because of the
casualty. If the estimated cost to repair any damage by casualty as of the
Closing Date is less than Ten Thousand Dollars ($10,000), Purchaser shall
not have the right to terminate this Agreement because of such casualty and
Seller shall promptly proceed to effect the repairs as stated above. All
repair cost estimates referred to in this paragraph shall be made by
reference to a fixed price construction contract which Seller shall obtain
as promptly as is reasonably possible after the date of the casualty.
(h) Seller's Financial Condition. If there occurs any material adverse
change in the financial condition of Seller, as indicated in the financial
statements approved by Purchaser, or if Seller generally becomes unable to
pay its debts as they become due, make any assignment for the benefit of
creditors or file or have filed against it any bankruptcy or other
insolvency proceeding. Any reduction in the net worth of Seller by more
than ten percent (10%) from that which is reflected in a financial
statement approved by Purchaser shall be deemed a material adverse change
for the purpose of this Section.
(i) Execution and Delivery of Lease. If the Lease is not executed or
delivered by Seller for any reason.
6.2 Seller's Conditions. Seller's obligation to close this transaction is
subject to Purchaser's fulfillment of each of its obligations under this
Agreement.
6.3 Failure of Closing Conditions. In the event any one or more of the
above conditions is not satisfied as of the Closing Date, or if the party whom
such condition is intended to benefit reasonably determines that the same are
not capable of being so satisfied by the Closing Date, such party may:
(a) waive such condition by so advising the other party in writing,
whereupon this sale shall close in accordance with the terms hereof and the
purchase price shall be adjusted if and to the extent the condition relates
to a misrepresentation by the other party to this Agreement and the waiving
party incurs or reasonably expects to incur any expense to remedy or
satisfy any of such conditions;
(b) extend the Closing Date for up to thirty (30) days and, to the
extent constituting a misrepresentation or default of the other party,
require the other party to satisfy the condition to the extent feasible or
if capable of being satisfied by monetary payment; or
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(c) elect to cancel this Agreement, in which event, and except to the
extent the parties' remedies are otherwise limited by this Agreement, the
nonperforming party, if any, shall continue to be liable to the other party
hereto for its damages and expenses caused by such failure or inability to
close this transaction with all conditions satisfied.
7. CLOSING.
-------
7.1 Closing Date. This transaction will be closed on a date selected by
Purchaser and reasonably acceptable to Seller, after the execution and delivery
to the Escrow Agent of the Seller's deed and the Lease, the deposit of the
purchase price and the fulfillment of the other closing obligations (the
"Closing"). The date ton which the Closing occurs is referred to as the "Closing
Date."
7.2 Manner and Place of Closing. This transaction will be closed at the
offices of the Title Agent in Portland, Oregon, or in the office of the Seller's
counsel, or by such other person as the parties may mutually agree to in
writing. Closing shall take place in the manner and in accordance with the
provisions set forth in this Agreement.
7.3 Prorations, Adjustments.
-----------------------
(a) All ad valorem real property taxes and special assessments,
insurance premiums, utility expenses and obligations under all repair and
maintenance contracts shall be paid by Seller as and when due and shall
continue to be paid by Seller pursuant to the terms of the Lease. Any such
expense or rights of recoupment, abatement or offset will be prorated and
adjusted and adequate reserves or holdbacks set up to cover the expense, or
right of recoupment, abatement or offset, in a manner satisfactory to
Purchaser.
(b) Seller shall pay all documentary and conveyance excise and sales
taxes (including, without limitation, the entire Washington County
documentary tax) in connection with this sale and the Lease and the
recording fees for Seller's deed. Subject to the limits set forth in
Section 3.6, to the extent not previously paid by Seller, Seller shall pay
or reimburse Purchaser for all Seller's Reports, Purchaser's Reports,
Purchaser's Service Providers and all other third-party costs incurred by
Purchaser in connection with this Agreement. To the extent not paid at
Closing, Seller shall pay such costs or reimburse Purchaser therefor upon
demand after Closing.
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16
(c) Seller shall pay the premium(s) for Purchaser's owner's title
insurance policy and all of the Endorsements.
(d) Subject to the limits set forth in Section 3.6, Seller shall pay
all other costs, expenses, fees and charges incurred in connection with the
Closing, including all of Purchaser's attorneys' fees and expenses for the
negotiation, documentation and closing of this transaction at such
attorneys' standard hourly rate.
(e) At closing, the Title Agent shall hold back an amount equal to
120% of estimates of costs for improvements that will be required for
seismic modifications and other repairs to the Property that have been
identified as of the Closing Date, if any, to be held and disbursed in
accordance with such escrow instructions as may be acceptable to Purchaser,
Seller and Title Agent.
7.4 Events of Closing. This transaction will be closed on the Closing Date
as follows:
(a) If there have been any changes in Seller's warranties under this
Agreement, Seller will provide a written disclosure of the matters that
have arisen that are inconsistent with the warranties of Seller in this
Agreement.
(b) Seller shall provide Purchaser with the Certificate of Nonforeign
Status as provided in I.R.C. ss. 1445.
(c) Seller shall provide Purchaser with the written opinion of legal
counsel(s) for Seller, in form and substance satisfactory to Purchaser and
its counsel, to the effect that: (i) Seller is a duly organized and validly
existing corporation, with full authority to enter into and perform this
Agreement and the Lease; (ii) this Agreement and the Lease have been duly
executed by a person properly authorized to do so on behalf of Seller;
(iii) to the best of such counsel's knowledge, this Agreement does not
violate the terms or provisions of any other contract or agreement to which
Seller is a party; (iv) such counsel has no knowledge of any pending or
threatened litigation or citations relating to the Seller or the Property;
(v) to the best of such counsel's knowledge, the Land and Improvements
comply with all applicable laws, ordinances and regulations, including all
environmental laws; and (vi) subject to such assumptions and exceptions as
may be approved by Purchaser's counsel, this Agreement and the Lease are
enforceable against Seller in accordance with their terms.
- 16 -
17
(d) Seller shall assign to Purchaser any insurance proceeds and
condemnation awards as and to the extent required by this Agreement.
(e) The Title Agent shall calculate the expenses to be paid at Closing
and the parties shall be charged and credited accordingly.
(f) Purchaser shall pay the entire purchase price to Seller in cash,
as adjusted the charges, credits and holdbacks set forth in this Agreement.
(g) Any liens to be paid by Seller at closing shall be paid and
satisfied of record at Seller's expense.
(h) The existing lease of the Gresham Property by Seller, as lessee,
shall be assigned to Purchaser, by warranty assignment of lease, and the
Lease will constitute a sublease under such underlying lease.
(i) Seller shall convey the real property to Purchaser or its
affiliated entity (as Purchaser direst) by statutory warranty deed, subject
only to the matters accepted by Purchaser in writing pursuant to this
Agreement.
(j) Seller shall convey the Intangible Property to Purchaser by good
and sufficient assignment.
(k) Purchaser and Seller shall execute and deliver the Lease.
(l) The Title Agent shall be committed to issuing the policy herein
described upon recordation of the closing documents.
(m) The Title Agent shall record the Seller's deed and assignment of
lease to Purchaser.
7.5 Title Insurance. As soon as possible after the Closing Date, Seller
shall furnish Purchaser an extended ALTA form of owner's (as to Gresham,
leasehold) policy of title insurance in the amount of the Purchase Price with
the Endorsements, subject only to the Title Agent's standard preprinted
exceptions for such form and except for the matters accepted by Purchaser in
writing pursuant to this Agreement.
7.6 Lease. Concurrently with the closing of this sale, Purchaser and Seller
shall execute one or more leases covering all of the Properties from Purchaser,
as landlord, to Seller, as tenant, on the terms and in the form of the Lease
attached hereto as Exhibit C. The rent under each such Lease will be in
accordance with the Allocation Schedule attached as Exhibit D. Each Lease will
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18
be guaranteed by PD and the other guarantors shown on the Guaranty attached to
the Lease.
7.7 Commitment Fee. Seller agrees that a commitment fee in the amount set
forth on the Expense Schedule attached as Exhibit E will be owed to Purchaser at
Closing. Seller agrees to pay the commitment fee to Purchaser within 12 months
of the Closing Date, at the closing of an initial public offering by Seller, or
at the closing of a sale of 10% of the common or preferred stock of Seller,
whichever occurs first.
8. DEFAULTS AND FAILURE TO CLOSE.
-----------------------------
8.1 Seller's Remedies. If Purchaser fails to complete this purchase without
legal excuse, Seller shall have the right to recover the greater of the expense
reimbursements paid by Seller pursuant to Section 3 of this Agreement or Ten
Thousand Dollars ($10,000), either of such sums being hereby specifically agreed
to be liquidated damages; that such amount constitutes the parties' best
reasonable attempt to estimate Seller's actual and consequential damages that
would be incurred in the event of such default; that any such damages would be
extremely difficult and impractical to quantify; and that such damages are
expressly intended to and shall constitute Seller's sole and exclusive remedy
for such default.
8.2 Purchaser's Remedies. If this transaction fails to close because of
Seller's fault or Seller's inability to close, Purchaser shall be entitled to
such remedies for breach of contract as may be available under applicable law,
including (without limitation) the remedy of specific performance of this
Agreement and the Lease and the right to recover its actual and consequential
damages. Purchaser shall also have the right to enjoin any violations of
Seller's covenants herein.
8.3 Defaults. Except for Seller's obligation to provide Seller's Reports to
Purchaser within the Report Period or the parties' wrongful failure to close or
to satisfy any condition to closing by the required Closing Date, no party shall
be deemed in default under this Agreement unless such party is given written
notice of its failure to comply with this Agreement and such failure continues
for a period of ten (10) days following the date such notice is given.
8.4 Costs and Attorneys' Fees. In the event suit, action, arbitration or
mediation is instituted to interpret or enforce the terms of this Agreement, the
prevailing party shall be entitled to recover from the other party such sum as
the court, arbitrator or mediator may adjudge reasonable as costs and expert
witness
- 18 -
19
and attorneys' fees at trial, on any appeal, and on any petition for review, in
addition to all other sums provided by law.
9. CONDUCT OF BUSINESS.
-------------------
9.1 Contracts. From the date of this Agreement until the Closing Date,
Seller shall perform all of its obligations as and when required by any
agreements or contracts with respect to the Property and shall continue to
operate the Property in accordance with customary and prudent management and
operating standards and practices and will take no steps or actions which it
knows would be detrimental to the value or future potential of the Property.
9.2 Insurance. Seller shall continue to maintain its current casualty and
liability insurance policies on the Property until the Closing Date.
9.3 Leases. Between the date of this Agreement and the Closing Date Seller
shall not enter into any leases of the Property or any portion thereof without
Purchaser's prior written consent.
9.4 Property Maintenance. Seller agrees to maintain and repair the Property
between the date of this Agreement and the Closing Date so as to cause the same
to be delivered to Purchaser in substantially the same condition existing as of
end of the Review Period, ordinary wear and tear excepted. Prior to the Closing
Date, Seller shall promptly notify Purchaser regarding any item of repair,
replacement or maintenance of which Seller becomes aware and which requires an
expenditure in excess of Five Thousand Dollars ($5,000).
9.5 Books and Records. Seller agrees to continue to maintain its current
books and records relating to the Property, plus such additional records as
Purchaser may reasonably require.
9.6 No Marketing. Seller shall not offer the Property for sale or solicit
or accept offers to purchase the Property or any portion thereof so long as this
Agreement is in effect.
10. INDEMNIFICATION.
---------------
10.1 Seller's Indemnification. Seller agrees to defend, indemnify and hold
Purchaser harmless from and against and reimburse Purchaser for all claims,
damages, losses and attorneys' fees which are caused by Seller's failure to
perform any obligation under any lease or contract for the Property prior to the
Closing Date or for which Seller is responsible in accordance with the terms of
this Agreement.
- 19 -
20
10.2 Survival of Indemnification. The indemnifications contained in this
Section shall survive the closing of this transaction.
11. LEGAL RELATIONSHIPS.
-------------------
11.1 Parties' Authority. The act, instruction, waiver, consent, knowledge
and giving and receipt of notices of or by _______________ and _______________
[indicate person(s) authorized to bind Seller] shall be deemed that of Seller,
and Purchaser shall have no duty to inquire into such person's authority.
11.2 Description of Transaction. This Agreement creates only the
relationship of seller and buyer and no joint venture, partnership or other
joint undertaking is intended hereby, and neither party hereto shall have any
rights to make any representations or incur any obligations on behalf of the
other. Neither Seller nor Purchaser has authorized any agent to make any
representations, admit any liability or undertake any obligation on its behalf.
No party is executing this Agreement on behalf of an undisclosed principal, and
no third party is intended to be benefitted by this contract. No entity or
person who controls, is controlled by or under the common control with Purchaser
shall be liable for Purchaser's acts, omissions or obligations hereunder unless
and to the extent such liability is expressly undertaken in a guaranty or other
agreement executed by the party to be charged. The parties agree that this
Agreement involves only the sale and lease of the Property, that Purchaser is
not acquiring any business or ongoing liability of Seller, and except to the
limited extent assumed by Purchaser in writing, Purchaser shall have no
successor liability to any employee, agent or other person with whom Seller has
contracted or to whom Seller is liable. The parties hereto specifically intend
that this Agreement and the Lease constitute a true sale and lease of the
Property and is not a financing transaction, and Seller shall convey and
Purchaser shall acquire fee simple absolute title to the Property on the Closing
Date and all residual interests therein which exist upon the termination or
expiration of the Lease.
11.3 Real Estate Commissions. Each party shall indemnify, defend and hold
the other harmless against all claims made for any commission or finder's fee in
connection herewith to which the indemnified party did not agree in writing.
11.4 Indemnified Parties. Any indemnification contained in this Agreement
for the benefit of Purchaser shall extend to Purchaser's officers, employees,
and agents.
11.5 Assignments and Successors. Seller shall not assign this Agreement or
Seller's right and obligation to execute the Lease without Purchaser's
- 20 -
21
prior written consent in each instance. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of the parties hereto and their respective
successors and assigns.
12. CONSTRUCTION OF AGREEMENT.
-------------------------
12.1 Consideration. Seller and Purchaser agree that while Purchaser retains
the right to disapprove of any of the Due Diligence Reports or the results of
Property-related tests or inspections as stated in this Agreement and as a
result elect not to purchase the Property, Seller and Purchaser will each be
incurring certain nonreimbursable expenses and foregoing other transactional
opportunities and that such provides sufficient consideration for the
enforceability of this Agreement and each of the parties hereto waives any right
to claim or allege that there exists insufficient consideration therefor.
12.2 Tax and Accounting Consequences. Each of the parties hereto
acknowledges and agrees that neither party has made any representation as to how
this Agreement, the Lease or any given income, expense, liability, deduction, or
credit related thereto shall be treated or characterized for any federal, state
or local income or other tax or accounting purposes, and each party shall rely
solely upon its own tax advisors and accountants with respect thereto. Neither
this Agreement nor the Lease is or shall be conditioned upon how this
transaction or any portion thereof or any interests in the Property are treated
for any tax or accounting purposes under any past, existing or future tax
statute, ordinance, regulation or standard.
12.3 Notices. Notices under this Agreement shall be in writing and if
personally delivered or telefaxed shall be effective when received. If mailed, a
notice shall be deemed effective on the second day after deposited as registered
or certified mail, postage prepaid, directed to the other party. Notices shall
be delivered, mailed or telefaxed to the following address and telephone
numbers:
Seller: G. I. JOE'S, INC.
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
c/o ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telefax No.: (▇▇▇) ▇▇▇-▇▇▇▇
- 21 -
22
With a copy to:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Purchaser: WREP 1998-1 LLC
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇'▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telefax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
--------------
Stoel Rives LLP
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telefax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any person may change its address for notices by at least five (5) days' advance
written notice to the other.
12.4 Time of Essence. Except as otherwise specifically provided in this
Agreement, time is of the essence of each and every provision of this Agreement.
12.5 Invalidity of Provisions. If any provision of this Agreement, or any
instrument to be delivered by Purchaser at closing pursuant to this Agreement,
is declared invalid or is unenforceable for any reason, such provision shall be
deleted from such document and shall not invalidate any other provision
contained in the document.
12.6 Neutral Construction. This Agreement has been negotiated with each
party having the opportunity to consult with legal counsel and shall not be
construed against either party.
12.7 Captions. The captions of the Sections are used solely for convenience
and are not intended to alter or confine the provisions of this Agreement.
12.8 Waiver. The failure of any party at any time to require performance of
any provision of this Agreement shall not limit the party's right to enforce
such provision. Waiver of any breach of any provision shall not be a waiver of
any
- 22 -
23
succeeding breach of the provision or a waiver of the provision itself or any
other provision.
12.9 Subsequent Modifications. This Agreement and any of its terms may only
be changed, waived, discharged or terminated by a written instrument signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought.
12.10 Saturday, Sunday and Legal Holidays. If the time for performance of
any of the terms, conditions and provisions hereof shall fall on a Saturday,
Sunday or legal holiday, then the time of such performance shall be extended to
the next business day thereafter.
12.11 Venue. In any action brought to interpret or enforce any of the
provisions of this Agreement, the venue of same shall be laid in any county in
which the Property is located or in Multnomah County, Oregon, at the option of
the person instituting the suit.
12.12 Applicable Law. This Agreement shall be construed, applied and
enforced in accordance with the laws of the State of Oregon. All sums referred
to in this Agreement shall be calculated by and payable in the lawful currency
of the United States.
12.13 No Offer. The presentation and negotiation of this Agreement shall
not be construed as an offer by Purchaser to acquire the Property or obligate
either party unless and until this Agreement has been executed by both parties.
12.14 Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to Seller's sale of the Property to Purchaser and
supersedes and replaces all written and oral agreements previously made or
existing between the parties.
12.15 Counterparts. This Agreement may be executed simultaneously or in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same contract.
[NO MORE TEXT ON THIS PAGE]
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24
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.
SELLER: PURCHASER:
G.I. JOE'S, INC., WREP 1998-1 LLC,
an Oregon corporation a Delaware limited liability company
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇'▇▇▇▇
------------------------------- --------------------------------
Printed Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Printed Name: ▇▇▇▇▇ ▇'▇▇▇▇
----------------- ------------------
Its President Its SVP
--------------------------- ----------------------------
PD PROPERTIES, L.L.C.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------
Its Manager
----------------------------
- 24 -
25
EXHIBIT A
Legal Description
-----------------
▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇
A tract of land situate in the Northeast one-quarter of Section 9 and
Northwest one-quarter of Section 10, Township 1 South, Range 3 East, of the
Willamette Meridian, in the City of ▇▇▇▇▇▇▇, County of Multnomah and State
of Oregon, being more particularly described as follows, to-wit:
Beginning at the Southwest corner of the plat of ▇▇▇▇▇▇▇▇'▇ ADDITION marked
by a one and one-quarter inch (1 1/4") iron pipe; thence North 89(0)44'39"
East along the South line of the plat of ▇▇▇▇▇▇▇▇'▇ ADDITION a distance of
66.65 feet to the most Easterly Northeast corner of a parcel conveyed to
Real Property Resources, Inc. (RPR) from the International Church of the
Foursquare Gospel, said corner is marked by a 5/8-inch iron rod; thence
South 0(0)08'04" East along the Easterly line of said (RPR) parcel a
distance of 15.67 feet to the true point of beginning of the herein
described tract, located on the centerline of a 30.00 feet wide driving
aisle; thence South 0(0)08'04" East along the Easterly line of said RPR
parcel a distance of 305.00 feet; thence South 89(0)51'56" West a distance
of 315.00 feet to the centerline of a 30.00 feet wide driving aisle; thence
South 0(0)08'04" East along the centerline of said driving aisle, parallel
with the East line of said RPR parcel, a distance of 131.00 feet; thence
South 89(0)51'56" West a distance of 196.80 feet to the center of a 30.00
feet wide driving aisle; thence North 0(0)08'04" West along the centerline
of said driving aisle, parallel with the East line of said RPR parcel a
distance of 421.00 feet; thence South 89(0)51'56" West a distance of 210.46
feet to a point on the Easterly right-of-way line of Northwest ▇▇▇▇▇▇▇
Avenue; thence North 0(0)25'51" East along said Easterly right-of-way line
a distance of 15.00 feet to a point of intersection with the centerline of
a 30.00 feet wide driving aisle; thence North 89(0)51'56" East along said
driving aisle centerline a distance of 722.11 feet to the point of
beginning.
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
A part of the ▇.▇. ▇▇▇▇▇▇ Donation Land Clayim, a part of Tract 1,
▇▇▇▇▇▇▇▇▇ ACRES, a part of Tracts 17, 19 and all of Tract 18,
Exhibit A - Page 1
26
CONCORD. in the County of Clackamas and State of Oregon, more particularly
described as follows:
BEGINNING at the intersection of the Easterly right of way line of Oregon
State Highway 99 E. (▇▇▇▇▇▇▇▇▇▇ Blvd.) and the Northerly right of way line
of Concord Avenue; thence North 28(0)05' West, along the Easterly right of
way line of said ▇▇▇▇▇▇▇ ▇▇▇▇.▇▇ feet to a 5/8-inch iron rod in the
Southeasterly line of ▇▇▇▇▇▇ Avenue; thence tracing said Southeasterly line
North 52(0)59'20" East 473.78 feet to a 5/8-inch iron rod in the
Southwesterly line of Olive Avenue, as it presently exists; thence tracing
the said Southwesterly line of Olive Avenue, as presently exists, South
40(0)07'39" East 410.24 feet to a 5/8-inch iron rod; thence South
37(0)00'37" East 291.92 feet; along the Southwesterly right of way line of
Olive Avenue, as it exists, to an iron rod at the most Northerly corner of
a tract conveyed to School District No. 28, by deed recorded in Book 36,
Page 311, Deed Records of Clackamas County; thence South 62(0)51'43" West
106.72 feet to the most Northerly corner of the said ▇▇▇▇▇▇ Donation Land
Claim; thence South 27(0)19'14" East along the Northeasterly line of said
Donation Land Claim, 214.82 feet to an iron rod; thence South 66(0)26'22"
West 263.74 feet to an iron rod; thence South 27(0)19'14" East 250 feet to
the Northerly right of way line of Concord Avenue; thence South 66(0)26'38"
West 231 feet to the place of beginning.
TOGETHER WITH that portion of vacated Olive Avenue which attached thereto
pursuant to vacation thereof by Ordinance No. 77-879 of Clackamas County a
certified copy of which recorded June 20, 1977 as Recorder's Fee No. 77
23737.
EXCEPTING THEREFROM a tract of land in Lots 17 and 18, CONCORD, in the
County of Clackamas and State of Oregon, being more particularly described
as follows:
BEGINNING at the intersection of the Easterly right of way line of Oregon
State Highway 99 E. (▇▇▇▇▇▇▇▇▇▇ Blvd.) and the Southeasterly line of ▇▇▇▇▇▇
Avenue; thence tracing said Southeasterly line North 52(0)59'20" East a
distance of 150 feet to a point; thence South 28(0)05' East parallel with
the Easterly line of said ▇▇▇▇▇▇▇▇▇▇ Blvd., a distance of 200 feet to a
point; thence South 52(0)59'20" West parallel with the Southeasterly line
of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ feet to a point on the Easterly line of ▇▇▇▇▇▇▇▇▇▇
Blvd.; thence North 28(0)05' West along said Easterly line 200 feet to the
point of beginning.
Exhibit A - Page 2
27
ALSO EXCEPTING THEREFROM a tract of land in the East one-half of Section
12, Township 2 South, Range 1 East, of the Willamette Meridian, in the
County of Clackamas and State of Oregon, further described as follows:
BEGINNING at a point in the Southeasterly line of ▇▇▇▇▇▇ Avenue that is
150.00 feet Northeasterly from the intersection of said line with the
Northeasterly line of ▇▇▇▇▇▇▇▇▇▇ Blvd.; thence North 52(0)59'20" East along
the Southeasterly line of ▇▇▇▇▇▇ Avenue 323.78 feet to an iron rod at the
intersection of said line with the Southwesterly line of Olive Avenue as it
presently exists; thence South 40(0)07'39" East along said Southwesterly
line of Olive Avenue as it presently exists, 410.24 feet to a 5/8-inch iron
rod; thence South 37(0)00'37" East along the Southwesterly line of Olive
Avenue, as it presently exists, 125.56 feet; thence South 63(0)55' West
574.96 feet to a point in the Northeasterly line of ▇▇▇▇▇▇▇▇▇▇ Blvd.;
thence North 28(0)05' West along said Northeasterly line 251.39 feet to a
point that is 200.00 feet Southeasterly from the intersection of said line
with the Southeasterly line of ▇▇▇▇▇▇ Avenue; thence North 52(0)59'20"
East, parallel with the ▇▇▇▇▇▇ Avenue, 150.00 feet; thence North 28(0)05'
West, parallel with ▇▇▇▇▇▇▇▇▇▇ Blvd., 200.00 feet to the place of
beginning.
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
A parcel of land in the Southwest quarter of the Northwest quarter of
Section 18, Township 2 South, Range 1 East, of the Willamette Meridian, in
the County of Clackamas and State of Oregon, said parcel being a portion of
Lots 26 and 27, ROSEWOOD Subdivision, said parcel being more particularly
described as follows:
BEGINNING at a point on the North line of Lot 27 which bears North
89(0)02'37" West a distance of 276.04 feet from a 1/2-inch iron rod at the
Northeast corner of said Lot 27; running thence South 0(0)04'27" East a
distance of 186.60 feet, parallel with the East line of Lot 27; thence
South 89(0)55'33" West a distance of 89.39 feet; thence South 0(0)04'27"
East a distance of 412.47 feet; thence South 89(0)55'33" West a distance of
292.08 feet to a point that is 40.00 feet Easterly from (when measured at
right angles) the West line of Section 18, as measured from the West
quarter corner and the Northwest corner of Section 18; thence North
0(0)03'38" West, parallel with the West line of said Section 18, a distance
of 605.93 feet to the North line of Lot 26, ROSEWOOD; thence South
89(0)02'37" East, along
Exhibit A - Page 3
28
the North line of Lots 26 and 27, a distance of 381.39 feet to the point
of beginning.
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
A tract of land in the South half of the Southwest quarter of Section 11,
Township 3 South, Range 1 West, of the Willamette Meridian, in the City of
Wilsonville, County of Clackamas and State of Oregon, said tract being a
portion of those tracts of land conveyed to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as recorded
in Book 106, Page 316, Deed Records, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. as recorded
in Book 106, Page 317, Deed Records; said tract is described as follows:
BEGINNING at a 5/8 inch iron rod on the North line of that 25.00 foot wide
tract of land conveyed to the City of Wilsonville, for road purposes, as
recorded as Recorder's Fee No. 72-33376, Film Records, said beginning point
bears South 89(0)34'52" West 1330.42 feet and North 00(0)27'08" West 25.00
feet from the quarter corner on the South line of Section 11, said
beginning point also being on the Easterly line of that Transmission Line
Easement conveyed to the United States of America as recorded in Book 522,
Page 49 and in Book 515, Page 231, Deed Records; thence North 00(0)27'08"
West 1292.97 feet along the East line of said easement to a 5/8 inch iron
rod on the South line of that tract of land conveyed to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
as recorded in Book 105, Page 454, Deed Records; thence North 89(0)28'53"
East 556.25 feet along the said South line of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ tract to a
5/8 inch iron rod on the Westerly line of the Oregon Electric Railway
Company right of way; thence following the Westerly line thereof, South
32(0)07'22" East 337.01 feet to a 5/8 inch iron rod at a point of curve;
thence on a 2639.93 foot radius curve to the right 1083.79 feet along the
arc (the long chord bears South 21(0)11'24" East 1077.23 feet) to a 5/8
inch iron rod on the North line of the aforesaid City of Wilsonville tract;
thence South 89(0)34'52" West 1114.63 feet to the point of beginning.
EXCEPTING THEREFROM the Southerly 18 feet conveyed to the City of
Wilsonville for roadway purposes by instrument recorded February 27, 1979
as Fee No. 79-8026, Clackamas County Records.
ALSO EXCEPTING the Westery 31 feet dedicated to the City of Wilsonville for
road purposes, said dedication parcel being more particularly described as
follows:
Exhibit A - Page 4
29
A tract of land in the South half of the Southwest quarter of Section 11,
Township 3 South, Range 1 West, of the Willamette Meridian, in the County
of Clackamas and State of Oregon, said tract being a portion of those
tracts of land conveyed to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as recorded in Book 106, Page
316, Deed Records and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., as recorded in Book 106, Page
317, Deed Records; said tract is described as follows:
Beginning at a 5/8 inch iron rod on the North line of that 25.00 foot wide
tract of land conveyed to the City of Wilsonville, for road purposes, as
recorded as Recorder's Fee No. 72-33376, Film Records, said beginning point
bears South 89(0)34'52" West 1330.42 feet and North 00(0)27'08" West 25.00
feet from the quarter corner on the South line of Section 11, said
beginning point also being on the Easterly line of that Transmission Line
Easement conveyed to the United States of America as recorded in Book 522,
Page 49, and in Book 515, Page 231, Deed Records; thence North 00(0)27'08"
West 1292.97 feet along the East line of said easement to a 5/8 inch iron
rod on the South line of that tract of land conveyed to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
as recorded in Book 105, Page 454, Deed Records; thence North 89(0)28'53"
East 31.00 feet along the said South line of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ tract;
thence South 00(0)27'08" East 1293.02 feet to the North line of the
aforesaid City of Wilsonville tract; thence South 89(0)34'52" West 31.00
feet to the point of beginning.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇▇
Parcel 2 of PARTITION PLAT NO. 93-106, recorded November 3, 1993 in Reel 1117 at
Page 580, ▇▇▇▇▇▇ County, Oregon.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇▇
Parcel 1 of PARTITION PLAT NO. 93-106, recorded November 3, 1993 in Reel 1117 at
Page 580, ▇▇▇▇▇▇ County, Oregon.
Exhibit A - Page 5
30
EXHIBIT B
LIST OF SERVICE CONTRACTS (IF ANY ARE BINDING ON PURCHASER)
-----------------------------------------------------------
NONE
B-1
31
EXHIBIT C
FORM OF THE LEASE
-----------------
C-1
32
EXHIBIT D
ALLOCATION SCHEDULE
-------------------
D-1
33
EXHIBIT A
EXHIBIT "D" TO PURCHASE AND SALE AGREEMENT
GI JOES-AUTOMOTIVE AND SPORTING GOODS RETAIL
REAL ESTATE ACQUISITION/LEASE BACK
------------------------------------------------------------------------------------------------------------------------------------
GI Joes Purchase Square Lease Appraised WFSG
Location Appraised Value Price Footage Land SF Rate Gross Income Gross Cap Gross Cap Comments
------------------------------------------------------------------------------------------------------------------------------------
Tualatin 5,480,000.00 6,150,000 55,100 192,921 $12.00 $ 661,200.00 12.07% 10.75%
Gresham 3,870,000.00 4,160,000 55,888 - $ 8.00 $ 447,104.00 11.55% 10.75% 1
Oakgrove 4,580,000.00 4,340,000 66,545 238,709 $ 7.00 $ 465,815.00 10.17% 10.73%
Lancaster-GI Joes 4,500,000.00 4,300,000 66,046 179,467 $ 7.00 $ 462,322.00 10.27% 10.75%
Lancaster-Thriftway 2,185,000.00 1,675,000 29,952 170,000 $ 6.00 $ 179,712.00 8.22% 10.73% 2
Dist-Warehouse 7,085,000.00 7,075,000 146,006 614,196 $ 3.75 $ 547,522.50 10.72% 10.74%
Dist-Office inc above 25,728 inc above $ 8.25 $ 212,256.00 inc above inc above
27,700,000.00 27,700,000.00 445,265 1,395,293 $2,975,931.50 10.74% 10.74%
Comments
1. Tenant pays the ground rent in addition to the lease rate = $92,500
annually.
2. Tenant Improvements to be completed and paid for by GI Joes prior to sale
to Wilshire or escrowed. Lease to be signed with Office Depot at $6 per SF
NNN prior to sale.
Lease Provisions
1. Fifteen year term. Full triple net leases including all tenant paid
maintenance and capital expenditures.
2. CPI increases at start of sixth and eleventh year. Annually CPI not to
exceed 4% per year.
34
EXHIBIT E
EXPENSE SCHEDULE
----------------
D-2
35
EXHIBIT "E"
GI Joes Reserves at Closing
Total
Engineering Engineering Environmental Reserved
Property Immediate Needs Environmental @ 125% @ 125% @ 125%
---------------------------------------------------------------------- ----------- ------------- --------
Tualatin $79,000 $3,200 $98,750 $4,000 $102,750
Gresham (1) $61,500 $2,000 $76,875 $2,500 $79,375
Oak Grove (2) $264,200 $2,500 $330,250 $3,125 $333,375
Lancaster $83,000 $2,500 $103,750 $3,125 $106,875
Lancaster-Office Depot $44,000 $500 $55,000 $625 $55,625
build out obligations
for G.I. Joes
* Asbestos @ $28,000
* More roof @ $ 5,000
* HVAC @ $78,500
-------
$111,500 @ 125% = $139,375
Dist - Office/Warehouse $0 $4,000 $0 $5,000 $5,000
--------------------- -------------- ------------ ------------- --------
$531,700 $14,700 $664,625 $18,375 $683,000
--------
+ $139,375
----------
$822,357
Total Reserve
1) Gresham immediate needs based on ENSR report ($1,500 mostly for new roof)
plus seismic bracing per ▇▇▇▇/Okubo at $60,000. Gresham on-going reserves
based on ENSR report (13.75 yr term).
2) Oak Grove immediate needs based on ENSR report ($184,200, mostly for new
roof) plus seismic bracing per ▇▇▇▇/Okubo a $80,000. Oak Grove on-going
reserves based on ENSR report (13.75 yr term).