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EXHIBIT 10.1
AGREEMENT FOR PURCHASE AND SALE
OF THE
LINCOLN PACIFIC INDUSTRIAL FUND PORTFOLIO
MAY 23, 1997
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TABLE OF CONTENTS
ARTICLE I - BASIC DEFINITIONS................................................. 1
ARTICLE II - PURCHASE AND SALE................................................. 3
ARTICLE III - CONDITIONS PRECEDENT............................................. 8
ARTICLE IV - COVENANTS, WARRANTIES
AND REPRESENTATIONS............................................... 9
ARTICLE V - DEPOSIT........................................................... 14
ARTICLE VI - ESCROW AND CLOSING.... .... ...................................... 15
ARTICLE VII - MISCELLANEOUS.................................................... 20
EXHIBIT A - DISCLOSURE STATEMENT
EXHIBIT B - LIST OF PROPERTIES
EXHIBIT C - INSPECTION LETTER
EXHIBIT D - LEGAL DESCRIPTION OF LAND
EXHIBIT E - LIST OF TENANT LEASES
EXHIBIT F - LIST OF CONTRACTS
EXHIBIT G - FORM OF GRANT DEED
EXHIBIT H - FORM OF ▇▇▇▇ OF SALE
EXHIBIT I - FORM OF ASSIGNMENT AND ASSUMPTION
OF INTANGIBLE PROPERTY
EXHIBIT J - QPAM CERTIFICATE
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AGREEMENT FOR PURCHASE AND SALE
OF THE
LINCOLN PACIFIC INDUSTRIAL FUND PORTFOLIO
THIS AGREEMENT FOR PURCHASE AND SALE (this "Agreement") is made and
entered into as of May 23, 1997, by and between Lincoln Pacific Industrial Fund
Limited Partnership, a Delaware limited partnership ("Seller"), and Pacific Gulf
Properties Inc., a Maryland corporation ("Buyer").
RECITALS
A. Seller is the owner of certain improved real property consisting
generally of the five industrial parks listed on Exhibit A hereto (each
separately, a "Property", and the five Properties collectively and as more
specifically described below, the "LPIF Portfolio").
B. Buyer desires to purchase the LPIF Portfolio from Seller and Seller
desires to sell the LPIF Portfolio to Buyer, subject to the terms and conditions
contained in this Agreement.
AGREEMENT
NOW, THEREFORE, Buyer and Seller do hereby agree as follows:
ARTICLE I
BASIC DEFINITIONS
Closing Date. The term "Closing Date" shall mean the date that is
fifteen (15) days following the expiration or earlier termination of the
Inspection Period, or any earlier date approved in writing by Buyer and Seller
for the close of escrow with respect to the purchase and sale of the LPIF
Portfolio.
Code. The term "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
Contract Period. The term "Contract Period" shall mean the period from
the date of this Agreement through and including the Closing Date.
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Contracts. The term "Contracts" shall mean all maintenance, service and
other operating contracts, equipment leases and other arrangements or agreements
to which Seller is a party affecting the ownership, repair, maintenance,
management, leasing or operation of the LPIF Portfolio.
Disclosure Statement. The term "Disclosure Statement" shall mean the
statement attached to this Agreement as Exhibit A.
ERISA. The term "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
Escrow Company. The term "Escrow Company" shall mean Commonwealth Land
Title Insurance Company, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attn:
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (telephone no. ▇▇▇-▇▇▇-▇▇▇▇).
Improvements. The term "Improvements" shall mean all buildings,
structures and other improvements located on the Land.
Inspection Letter. The term "Inspection Letter" shall mean a letter in
the form attached as Exhibit C to this Agreement, to be delivered by Buyer to
Seller on or prior to the close of the Inspection Period pursuant to Section 2.5
below.
Inspection Period. The term "Inspection Period" shall mean the period
commencing on the date of this Agreement, and expiring at 5:00 p.m. Pacific Time
on the date that is thirty (30) days following the date of this Agreement,
provided that the Inspection Period may end earlier at Buyer's election upon
delivery by Buyer to Seller of the Inspection Letter (representing the
conclusive waiver by Buyer of any further Inspection Period).
Intangible Property. The term "Intangible Property" shall mean Seller's
rights and interests, if any, in: (a) the Tenant Leases, (b) the Contracts; (c)
any and all transferable or assignable permits, building plans and
specifications, certificates of occupancy, operating permits, sign permits,
development rights and approvals, certificates, licenses, warranties and
guarantees, trade names, service marks, engineering, soils, pest control and
other reports relating to the LPIF Portfolio, tenant lists, advertising
materials, and telephone exchange numbers identified with the LPIF Portfolio;
and (d) all other transferable intangible property, miscellaneous rights,
benefits or privileges of any kind or character with respect to the LPIF
Portfolio, including, without limitation, the right to use the name "Lincoln
Distribution Center" and any other trade name now used in connection with any
Property.
Land. The term "Land" shall mean, collectively, the several parcels of
land described on Exhibit D to this Agreement, together with all of Seller's
rights, if any (including mineral, air and water rights), privileges and
easements appurtenant to or used
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in connection with the beneficial use and enjoyment of said parcels of land, and
all of Seller's right, title and interest, if any, in and to all roads,
easements, rights of way and alleys adjoining or servicing said parcels of land.
LPIF Portfolio. The term "LPIF Portfolio" shall mean all of Seller's
right, title and interest in and to the Real Property, the Personal Property and
the Intangible Property.
Personal Property. The term "Personal Property" shall mean all
furniture, furnishings, trade fixtures, building systems and equipment
(including, without limitation, HVAC, security and life safety systems) and
other tangible personal property owned by Seller that is located at and used in
connection with the operation of the Real Property.
Property. The term "Property" shall have the meaning set forth in
Recital A above.
QPAM Certificate. The term "QPAM Certificate" shall mean a certificate
of Buyer in the form of Exhibit J hereto.
Real Property. The term "Real Property" shall mean, collectively, the
Land and the Improvements.
Seller's Knowledge. The term "Seller's knowledge" shall have the
meaning set forth in Section 4.1 below.
Tenant Leases. The term "Tenant Leases" shall mean all leases, rental
agreements or other agreements (including all amendments or modifications
thereto and guaranties thereof) to which Seller is a party or the
successor-in-interest of a party which entitle any person to the occupancy or
use of any portion of the Real Property.
Title Company. The term "Title Company" shall mean Commonwealth Land
Title Company, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attn: ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (telephone no. ▇▇▇-▇▇▇-▇▇▇▇).
ARTICLE II
PURCHASE AND SALE
Section 2.1 Purchase and Sale. Seller agrees to sell the LPIF Portfolio
to Buyer, and Buyer agrees to purchase the LPIF Portfolio upon all of the terms,
covenants and conditions set forth in this Agreement.
Section 2.2 Purchase Price. The aggregate purchase price for the LPIF
Portfolio (the "Purchase Price") shall be the sum of Sixty-Seven Million Two
Hundred Fifty Thousand Dollars ($67,250,000). The parties agree to report the
Purchase Price as
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being allocated among the Properties as provided in Exhibit B hereto for all
income tax reporting and other purposes. The entire amount of the Purchase Price
(less the Deposit delivered pursuant to Article V below) shall be payable by
Buyer to Seller in cash on the Closing Date through the escrow described in
Section 6.1 below.
Section 2.3 Buyer's Review and Seller's Disclaimer.
(a) Subject to the provisions of subsection 2.3(c) below, during the
Inspection Period Buyer shall be permitted to make a complete review and
inspection of the physical, legal, economic and environmental condition of the
LPIF Portfolio, including, without limitation, any Tenant Leases and Contracts,
books and records maintained by Seller or its agents relating to the LPIF
Portfolio, boundary and other survey-related issues relating to the Real
Property, pest control matters, soil condition, asbestos, PCB, hazardous waste,
toxic substance or other environmental matters, compliance with building,
health, safety, land use and zoning laws, regulations and orders, plans and
specifications, structural, life safety, HVAC and other building system and
engineering characteristics, traffic patterns and all other information
pertaining to the LPIF Portfolio. Without representation or warranty, except as
expressly set forth in Section 4.1 below, Seller shall cooperate in Buyer's
review and provide Buyer with the opportunity to review books and records
maintained by Seller or its agents relating to the LPIF Portfolio, leases,
financial reports, surveys and other third-party inspection reports and similar
non-proprietary or confidential materials in Seller's possession relating to the
LPIF Portfolio (the "Seller's Records"). In addition, Seller shall exercise
reasonable efforts to obtain during the Inspection Period any tenant estoppel
certificates and subordination agreements that Buyer and its lender may
reasonably request. Buyer acknowledges (i) that Seller played no role in the
development or construction of any of the Properties comprising the LPIF
Portfolio, (ii) that Buyer has entered into this Agreement with the intention of
making and relying upon its own investigation of the physical, environmental,
economic and legal condition of the LPIF Portfolio, and (iii) that Buyer is not
relying upon any representations and warranties, other than those specifically
set forth in Section 4.1 below, made by Seller or anyone acting or claiming to
act on Seller's behalf concerning the LPIF Portfolio. Buyer further acknowledges
that it has not received from Seller any accounting, tax, legal, architectural,
engineering, property management or other advice with respect to this
transaction and is relying solely upon the advice of its own accounting, tax,
legal, architectural, engineering, property management and other advisors. Buyer
specifically undertakes and assumes all risks associated with the matters
disclosed by Seller on the Disclosure Statement. Subject to the provisions of
Section 4.1 of this Agreement, Buyer shall purchase the LPIF Portfolio in its
"as is" condition on the Closing Date and assumes the risk that adverse
physical, environmental, economic or legal conditions may not have been revealed
by its investigation. Without limiting the generality of the foregoing, if
Seller has not already done so, then within three (3) days after the date of
this Agreement, Seller shall deliver or cause to be delivered to Buyer, or
otherwise make available for review by Buyer at the
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applicable property manager's offices in Southern California, to the extent
available from Seller's Records, and in the possession or control of Seller, the
following:
(i) Survey. Any existing, most recent survey of the Real Property.
(ii) Tax Bills. Copies of the most recent property tax bills and
assessments of the Property.
(iii) Leases. Copies of all Tenant Leases and tenant files.
(iv) Contracts. Copies of all Contracts.
(v) Reports. All third party generated reports relating to the
condition of the LPIF Portfolio, including environmental reports, environmental
audits, soils reports, physical and engineering reports, building and
improvement plans, and structural calculations.
(vi) Operating Statements. All income and expense statements,
year-end financial and monthly operating statements and maintenance records for
the three (3) most recent calendar years prior to the Closing Date and, to the
extent available, the current calendar year to date. Buyer shall have the right,
during the Inspection Period, to audit Seller's Records for these time periods,
following reasonable notice and during normal business hours.
(vii) Rent Roll. A current rent roll, together with a rent
delinquency report (the "Rent Roll").
(viii) Permits. All government permits and approvals relating to
the LPIF Portfolio (the "Permits").
(b) Except with respect to any claims arising out of any breach of this
Agreement, including, without limitation, covenants, representations or
warranties set forth in Section 4.1 below, Buyer, for itself and its agents,
affiliates, successors and assigns, hereby releases and forever discharges
Seller, its agents, affiliates, successors and assigns from any and all rights,
claims and demands at law or in equity, whether known or unknown at the time of
this Agreement, which Buyer has or may have in the future, arising out of the
physical, environmental, economic or legal condition of the LPIF Portfolio (or
any individual Property), including, without limitation, any claim for
indemnification or contribution arising under the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. Section 9601, et. seq.) or
any similar federal, state or local statute, rule or ordinance relating to
liability of property owners for environmental matters.
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Buyer hereby specifically acknowledges that Buyer has carefully
reviewed this subsection and discussed its import with legal counsel and that
the provisions of this subsection are a material part of this Agreement.
[SIG]
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Buyer
(c) Seller shall cause its agents to cooperate reasonably with Buyer to
facilitate Buyer's exercise of the rights of review and inspection set forth in
subsection (a) above, and Buyer acknowledges and agrees that its exercise of
such rights shall be subject to the following limitations: (i) any entry onto
the Real Property by Buyer, its agents or representatives, shall be during
normal business hours, following reasonable prior notice to Seller and delivery
to Seller of satisfactory evidence of Buyer's general liability insurance, and,
at Seller's discretion, accompanied by a representative of Seller; (ii) Buyer
shall not conduct any drilling, test borings or other disturbance of the Real
Property for review of soils, compaction, environmental, structural or other
conditions without Seller's prior written consent; (iii) any discussions or
interviews with any tenants of the Real Property or their personnel shall be
conducted in the presence of Seller or its representatives; (iv) Buyer shall
exercise reasonable diligence not to disturb the use or occupancy of any
occupant of any Property; and (v) Buyer shall indemnify, defend and hold Seller
harmless from all loss, cost, and expense resulting from any entry or
inspections performed by Buyer, its agents or representatives. The provisions of
Section 2.3(c)(V) shall survive any termination of this Agreement, but only
for a period of 24 months after such termination.
Section 2.4 Permitted Title Exceptions. Seller has previously
obtained from Title Company and delivered to Buyer for its review a current
preliminary title report with respect to each Property (collectively, the "Title
Reports"), together with all documents and information pertaining to the
exceptions to title listed in the Title Reports. Buyer shall, at its expense,
obtain during the Inspection Period any surveys of the Real Property desired by
Buyer or required by Title Company as a condition to the issuance of the Title
Policies described in Section 3.l(a)(iii) below (collectively, the "Surveys").
Buyer acknowledges that Seller has, in its name, ordered from two surveyors an
updated Survey for each Property prior to the date of this Agreement. Buyer will
work directly with each such surveyor to obtain Surveys to its specifications,
and will pay the fees and costs associated with the preparation of each such
Survey. Seller shall have no obligation to pay the fees or costs of the Surveys.
The foregoing obligation of Buyer shall survive any termination of this
Agreement. Seller has been informed that the estimated fees and costs for all
five Surveys is $21,700. Buyer may advise Seller in writing and in reasonable
detail, preferably not later than ten business days prior to the close of the
Inspection Period, what exceptions to title, if any, listed in the then-current
Title Reports or disclosed on the Surveys are not acceptable to Buyer (the
"Title Objections"). Buyer shall not, however, unreasonably express disapproval
of any exceptions to title and, prior
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to notifying Seller of any Title Objections, shall endeavor in good faith to
cause Title Company to modify and update the Title Reports to reflect requested
corrections and revisions. Seller shall have the remaining period of the
Inspection Period, if any, to give Buyer notice that (a) Seller will remove any
Title Objections from title (or afford the Title Company necessary information
or certifications to permit it to insure over such exceptions), or (b) Seller
elects not to cause such exceptions to be removed. Seller's failure to provide
notice to Buyer prior to the expiration of the Inspection Period as to any Title
Objection shall be deemed an election by Seller not to remove the Title
Objection. If Seller so notifies or is deemed to have notified Buyer that Seller
shall not remove any or all of the Title Objections, Buyer shall have until the
close of the Inspection Period to determine whether (i) to proceed with the
purchase and take the LPIF Portfolio subject to such exceptions or (ii) to
terminate this Agreement. Buyer's delivery of the Inspection Letter shall
constitute Buyer's conclusive agreement to accept the LPIF Portfolio subject to
the Permitted Exceptions. "Permitted Exceptions" shall include and refer to (x)
any and all exceptions to title disclosed by the Title Reports or the Surveys,
excepting solely Title Objections timely identified by Buyer which Seller has
notified Buyer pursuant to this Section that Seller is willing to remove, and
(y) any other exceptions to title approved by or resulting from the acts,
omissions or status of Buyer. Anything contained herein to the contrary
notwithstanding and notwithstanding any approval or deemed approval given by
Buyer hereunder, except for real estate taxes not yet due or payable, Seller
shall cause all mortgages, deeds of trust and other monetary encumbrances,
including without limitation all mechanics' liens, to be released and reconveyed
from the Property on or prior to the Closing Date. Nothing contained in this
paragraph shall be understood to require Buyer to make any decision with respect
to the condition of title to any Property prior to the expiration of the
Inspection Period, nor to require Seller to respond to any notice from Buyer of
Title Objections.
Section 2.5 Inspection Letter. At any time on or prior to the close of
the Inspection Period and if and when Buyer has completed to its satisfaction
the inspection and review contemplated by Sections 2.3 and 2.4 hereof, Buyer
shall deliver to Seller an executed Inspection Letter in the form attached
hereto as Exhibit C. Buyer's delivery of the executed Inspection Letter shall
(i) confirm satisfaction of the conditions precedent described in Sections 3.1
(a)(i) and 3.1 (a)(ii) below, (ii) represent the conclusive waiver by Buyer of
any further Inspection Period, (iii) constitute Buyer's conclusive agreement to
accept the LPIF Portfolio subject to any Permitted Exceptions and (iv)
constitute Buyer's conclusive agreement to accept or waive any matters disclosed
to Buyer in writing prior to the close of the Inspection Period.
Section 2.6 Adequate Consideration. Notwithstanding anything in this
Agreement to the contrary, to induce Buyer to enter into this Agreement and to
expend the time and resources necessary to evaluate the LPIF Portfolio and
possibly forego other opportunities while doing so, Seller hereby grants to
Buyer the rights to terminate this Agreement that are expressly provided in this
Agreement. Such expenditures of time and
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resources and possible loss of opportunity by Buyer constitute adequate
consideration for Seller's remaining bound by this Agreement, notwithstanding
such termination rights in Buyer.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions.
(A) Notwithstanding anything in this Agreement to the contrary, Buyer's
obligation to purchase the LPIF Portfolio shall be subject to and contingent
upon the satisfaction or waiver of the following conditions precedent:
(i) Buyer's inspection and approval, within the Inspection Period,
of all physical, environmental, economic and legal matters relating to the LPIF
Portfolio, pursuant to Sections 2.3 and 2.4 above;
(ii) Buyer's receipt and approval, within the Inspection Period, of
such tenant estoppel certificates and subordination agreements as Buyer and its
lender may deem necessary;
(iii) The willingness of Title Company to issue for each of the
five Properties constituting the LPIF Portfolio, upon the sole condition of the
payment of its regularly scheduled premium, its American Land Title Association
extended coverage Owner's Policy of Title Insurance [1970 Form] (each, a "Title
Policy" and collectively, the "Title Policies"), with such endorsements as may
have been requested by Buyer and agreed to by Title Company during the
Inspection Period (collectively, the "Endorsements"), with each respective Title
Policy insuring Buyer, in the amount of the portion of the Purchase Price
allocated to the applicable Property as set forth in Exhibit B hereto, that fee
simple title to the Real Property is vested of record in Buyer on the Closing
Date subject only to the printed conditions and exceptions of such policy and
the Permitted Exceptions; and
(iv) Seller's performance or tender of performance of all material
obligations under this Agreement and the material truth and accuracy of Seller's
express representations and warranties as of the date of this Agreement, as
updated under the provision of Section 4.5 hereof.
(b) Notwithstanding anything in this Agreement to the contrary,
Seller's obligation to sell the LPIF Portfolio shall be subject to and
contingent upon the satisfaction or waiver of the following conditions
precedent:
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(i) Buyer's performance or tender of performance of all material
obligations under this Agreement and the material truth and accuracy of Buyer's
express representations and warranties as of the date of this Agreement and as
of the Closing Date;
(ii) Buyer shall have executed and delivered the QPAM Certificate
to Seller dated as of the Closing Date; and
(iii) The satisfaction or Buyer's written waiver of the conditions
set forth in subparagraphs (a)(i), (ii), (iii) and (iv) above.
Section 3.2 Portfolio Acquisition. Except as expressly provided in
Section 7.1 below, the satisfaction or Buyer's waiver of the conditions
precedent to Buyer's obligation to purchase the LPIF Portfolio shall be
determined with respect to the LPIF Portfolio as a whole, rather than with
respect to any individual Property, and Buyer shall not have the right to
acquire less than all five of the Properties.
Section 3.3 Failure or Waiver of Conditions Precedent. In the event any
of the conditions set forth in Section 3.1 are not fulfilled or waived, the
party benefited by such condition may, by written notice to the other party,
terminate this Agreement, whereupon all rights and obligations hereunder of each
party shall be at an end. Either party may, at its election, at any time or
times on or before the date specified for the satisfaction of the condition,
waive in writing the benefit of any of the conditions set forth in Section
3.1(a) and 3.l(b) above. Notwithstanding the foregoing, Buyer's failure to
deliver to Seller on or prior to the close of the Inspection Period an executed
Inspection Letter in the form attached as Exhibit C, without modification or
qualification in any manner whatsoever, shall be deemed a failure of the
condition set forth in Section 3.1(a)(i) above. In the event this Agreement is
terminated as a result of the failure of any condition set forth in Section
3.1(a), Seller shall return the full amount of the Deposit to Buyer. In any
event Buyer's consent to the close of escrow pursuant to this Agreement shall
waive any remaining unfulfilled conditions.
ARTICLE IV
COVENANTS, WARRANTIES AND REPRESENTATIONS
Section 4.1 Seller's Warranties and Representations. Seller hereby
makes the following representations and warranties to Buyer as of the date of
this Agreement; provided that each of such representations and warranties shall
be deemed to be modified by any contrary or qualifying information contained in
any reports, schedules or other informational materials delivered or made
available to Buyer on or before the date of this Agreement or set forth in the
Disclosure Statement:
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(A) Seller has full power and lawful authority to enter into and carry
out the terms and provisions of this Agreement and to execute and deliver all
documents which are contemplated by this Agreement, and all actions of Seller
necessary to confer such power and authority upon the persons executing this
Agreement (and all documents which are contemplated by this Agreement) on behalf
of Seller have been taken;
(b) The Tenant Leases listed on the attached Exhibit E constitute all
of the leases and rental agreements presently in effect with respect to the Real
Property;
(c) To Seller's knowledge, the copies of the Tenant Leases which Seller
has delivered or made available to Buyer pursuant to this Agreement are true,
correct and complete in all material respects;
(d) To Seller's knowledge, the Rent Roll, including the rent
delinquency report, is complete and accurate. Seller has not received written
notice (i) of any default by the tenant or Seller under any of the Tenant
Leases, or (ii) that any tenant intends to terminate its Tenant Lease prior to
the expiration of its scheduled term;
(e) Seller has received no written notice from any governmental
authority that any of the improvements located on the Real Property are
presently in violation of any applicable building codes, zoning or land use
laws, or other law, order, ordinance, rule or regulation affecting the Real
Property (collectively, "Applicable Laws");
(f) To Seller's knowledge, (i) the Contracts listed on the attached
Exhibit F constitute all of the service and equipment contracts affecting the
LPIF Portfolio which may be binding upon Buyer following the Closing Date, (ii)
the copies of all such Contracts which Seller has delivered or made available to
Buyer pursuant to this Agreement are true, correct and complete in all material
respects; and (iii) there exists no material default by Seller or any other
party to any Contract;
(g) There are no pending condemnation proceedings against the Real
Property, and Seller has received no written notice from any governmental
authorities that any such proceedings are threatened;
(h) There is no pending litigation, and Seller has received no written
notice of any threatened litigation, (i) affecting any of the five Properties
constituting the LPIF Portfolio (other than litigation arising in the ordinary
course of the operation of the Properties and fully covered by insurance, all of
which ordinary course and fully insured litigation, to Seller's knowledge, is
set forth on the Disclosure Statement) or (ii) against Seller which would
materially and adversely affect Seller's capacity to perform under this
Agreement,
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(i) Seller is not a "foreign person" within the meaning of Section
1445(f)(3) of the Code;
(j) To Seller's knowledge, there are no underground or other storage
tanks situated on the Real Property, and Seller has received no written notice
of the existence of any Hazardous Materials at the Real Property in violation of
Applicable Laws. For purposes of this Agreement, "Hazardous Materials" shall
mean inflammable explosives, radioactive materials, asbestos, polychlorinated
biphenyls, hazardous materials, hazardous wastes, hazardous or toxic substances,
oil, or related materials, which are listed in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the Resource
Conservation and Recovery Act, the Clean Water Act, the Clean Air Act, the Toxic
Substances Control Act, the Safe Drinking Water Act or California's
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇-▇▇▇▇▇▇ Hazardous Substance Account Act, Hazardous Waste
Control Law, Safe Drinking Water and Toxic Enforcement Act of 1986, or in the
regulations adopted and publications promulgated pursuant thereto, or in any
other federal, state or local environmental law, ordinance, rule or regulation;
(k) To Seller's knowledge, the Seller's Records that Seller has
delivered or made available to, or will deliver or make available to, Buyer,
constitute complete copies thereof, and
(1) To Seller's knowledge, Seller has delivered or made available to
Buyer all of Seller's Records.
As used herein, the term "Seller's knowledge" or words of similar effect shall
mean the current actual, subjective knowledge of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ after
inquiry of the property managers of each Property. Neither ▇▇. ▇▇▇▇▇▇▇▇▇ nor any
party other than Seller shall bear responsibility for any breach of
representation. Seller, however, represents and warrants that ▇▇. ▇▇▇▇▇▇▇▇▇ is
the individual within Seller's investment advisory organization with principal
administrative and oversight responsibility for the LPIF Portfolio.
Section 4.2 Seller's Covenants. Seller hereby covenants and agrees as
follows:
(a) during the Contract Period, Seller shall ensure that the LPIF
Portfolio is operated and maintained in a manner consistent with past practices
and maintain reasonable and customary levels and coverages of insurance and
Seller shall not create or acquiesce in the creation of liens or exceptions to
title other than the Permitted Exceptions or voluntarily take any action (other
than as may be permitted pursuant to subparagraph (b) of this Section 4.2) to
render any of the representations or warranties of Seller set forth in Section
4.1 materially incorrect; and
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(b) during the Contract Period, Seller will not execute or modify any
Tenant Leases or Contracts, (i) without promptly notifying Buyer thereof and
providing Buyer with copies of the relevant contract documents, and (ii) as to
any Tenant Lease or Contract (or modification thereof) executed during the
period between the expiration of the Inspection Period and the Closing Date,
without Buyer's prior approval, which approval shall not be unreasonably
withheld and shall be deemed given if Buyer should fail to approve or disapprove
any such matter in writing within 5 days following Seller's request for such
action.
(c) Seller shall terminate on or before the Closing Date, at no cost or
expense to Buyer, any and all Contracts that are not approved by Buyer prior to
the expiration of the Inspection Period. In particular, Buyer will not retain
the existing employees and management agents of Seller for the LPIF Portfolio,
and, accordingly, on the Closing Date, Seller shall (i) cause all employment and
management agreements respecting the LPIF Portfolio to be terminated, and
deliver evidence of such termination to Buyer, and (ii) remove all employees and
management personnel from the Real Property.
Section 4.3 Buyer's Warranties and Representations.
(a) Buyer hereby represents and warrants to Seller that (i) Buyer has
and as of the Closing Date shall have, full power and lawful authority to enter
into and carry out the terms and conditions of this Agreement and to execute
and deliver all documents which are contemplated by this Agreement, (ii) all
actions necessary to confer such power and authority upon the persons executing
this Agreement and all documents which are contemplated by this Agreement to be
executed on behalf of Buyer or its assignee have been taken, and (iii) Buyer has
received no written notice of any threatened or pending litigation which would
materially and adversely affect Buyer's capacity to perform under this
Agreement.
(b) All of Buyer's representations and warranties set forth in the QPAM
Certificate are true and correct as of the date of this Agreement.
Section 4.4 Limitations. The parties agree that (a) Seller's
indemnification obligations, warranties and representations contained in this
Agreement and in any document executed by Seller pursuant to this Agreement
shall survive Buyer's purchase of the LPIF Portfolio only for a period of 12
months after the Closing Date (the "Limitation Period"), (b) Seller's aggregate
liability for claims arising out of such representations and warranties shall
not exceed $1,000,000, and (c) Buyer shall provide actual written notice to
Seller of any breach of such warranties or representations and shall allow
Seller 30 days within which to cure such breach, or, if such breach cannot
reasonably be cured within 30 days, an additional reasonable time period, so
long as such cure has been commenced within such 30 days and thereafter is
diligently pursued to
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completion. If Seller fails to cure such breach after actual written notice and
within such cure period, Buyer's sole remedy shall be an action at law for
damages as a consequence thereof, which must be commenced, if at all, within the
Limitation Period; provided, however, that if within the Limitation Period Buyer
gives Seller written notice of such a breach and Seller refuses to cure or
commences to cure and thereafter terminates such cure effort; Buyer shall have
an additional 30 days from the date Buyer receives written notice from Seller of
such refusal or termination within which to commence an action at law for
damages as a consequence of Seller's failure to cure, in which case any
representation or warranty that is expressly set forth in the notice delivered
pursuant to clause (c) immediately above and is material to such litigation
shall survive until all liabilities arising out of the alleged breach have been
finally determined. The Limitation Period referred to herein shall apply to
known as well as unknown breaches of such warranties or representations. EXCEPT
AS EXPRESSLY SET FORTH IN SECTION 4.1 OF THIS AGREEMENT, BUYER ACKNOWLEDGES THAT
BUYER IS ACQUIRING THE LPIF PORTFOLIO SOLELY IN RELIANCE ON BUYER'S OWN
INVESTIGATION AND "AS IS," "WHERE IS" AND WITH ALL FAULTS AND DEFECTS, LATENT OR
OTHERWISE. BUYER EXPRESSLY ACKNOWLEDGES THAT, IN CONSIDERATION OF THE AGREEMENT
OF SELLER TO PERFORM AS SET FORTH IN THIS AGREEMENT, SELLER MAKES AND HAS MADE
NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF
LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY AS TO TITLE, LAND USE
CLASSIFICATION OR ENTITLEMENT, ENVIRONMENTAL OR OTHER CONDITION, MERCHANTABILITY
OF FITNESS FOR ANY PARTICULAR USE OR PURPOSE, WITH RESPECT TO THE LPIF PORTFOLIO
OR ANY MATTER RELATED THERETO, EXCEPT AS EXPRESSLY OTHERWISE SET FORTH IN
SECTION 4.1 HEREOF. IF BUYER OBTAINS ANY KNOWLEDGE, WHETHER PURSUANT TO THE
PROVISIONS OF THIS AGREEMENT OR OTHERWISE, PRIOR TO THE CLOSING DATE, THAT
REASONABLY INDICATES THAT ANY WARRANTY SET FORTH HEREIN HAS BEEN BREACHED, ANY
REPRESENTATION SET FORTH HEREIN IS NOT ACCURATE, OR THAT THERE ARE ANY PHYSICAL,
TITLE OR OTHER DEFECTS IN OR ADVERSE CONDITIONS RELATING TO ANY PROPERTY, YET
BUYER ELECTS TO CLOSE THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT WITH
RESPECT TO SUCH PROPERTY (NOTWITHSTANDING SUCH KNOWLEDGE), SELLER SHALL HAVE NO
LIABILITY FOR ANY SUCH BREACH, INACCURACY, DEFECT OR ADVERSE CONDITION, AND
BUYER SHALL BE DEEMED TO HAVE WAIVED SUCH BREACH, INACCURACY, DEFECT OR ADVERSE
CONDITION.
Section 4.5 Seller's Certificate. Seller shall deliver to Buyer on the
Closing Date a certificate (the "Seller's Certificate") updating the
representations and warranties of Seller set forth in Section 4.1 through the
Closing Date; provided, however, that if Seller becomes aware during the
Contract Period of any matters which make any of such
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representations or warranties untrue, Seller shall disclose such matters in the
Seller's Certificate. In the event the Seller's Certificate discloses any
matters which make any of Seller's representations or warranties untrue as of
the date of such Certificate in any respect or in the event that Buyer otherwise
becomes aware during the Contract Period of any matters which make any of
Seller's representations or warranties materially untrue in any material
respect, Seller shall bear no liability for such matters (provided that Seller
has not breached an express covenant set forth in this Agreement), but Buyer
shall have the right to elect in writing on or before the Closing Date, (a) to
waive such matters and complete the purchase of the LPIF Portfolio in accordance
with the terms of this Agreement or (b) as to any matters disclosed or
discovered following the expiration of the Inspection Period, to terminate this
Agreement. Buyer's delivery of the Inspection Letter shall constitute Buyers
conclusive agreement to accept or waive any such matters disclosed to Buyer in
writing prior to the close of the Inspection Period.
Section 4.6. Indemnifications. Subject to the foregoing limitations and
the provisions of Sections 6.3, 6.4 and 7.12:
(A) Seller shall indemnify and defend Buyer against and hold Buyer
harmless from any and all claims, liabilities, losses, damage, costs and
expenses, including, without limitation, all reasonable attorneys' fees,
asserted against or suffered by Buyer resulting from (a) any breach by Seller of
this Agreement, (b) the untruth, inaccuracy or breach of any of the
representations and warranties made by Seller pursuant to this Agreement and (c)
any liability or obligation arising in connection with the LPIF Portfolio
accruing prior to the Closing Date.
(b) Buyer shall indemnify and defend Seller against and hold Seller
harmless from any claim, loss, damage, or expense, including any reasonable
attorneys' fees, asserted against or suffered by Seller resulting from (a) any
breach by Buyer of this Agreement, (b) the untruth, inaccuracy or breach of any
of the representations or warranties made by Buyer pursuant to this Agreement,
and (c) any liability or obligation arising in connection with the LPIF
Portfolio accruing following the Closing Date. Buyer's obligations under this
Section 4.6(b) shall survive the Closing Date for a period of twelve (12)
months, but not thereafter.
ARTICLE V
DEPOSIT
Upon execution of this Agreement, Buyer shall deliver to Escrow
Company, for deposit into the escrow described in Section 6.1 below, an amount
equal to $350,000 (together with any interest that may accrue thereon in such
escrow, the "Deposit"). In the event that this transaction is consummated as
contemplated by this Agreement, then the entire amount of the Deposit shall be
credited against the Purchase
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Price. The entire amount of the Deposit shall be returned immediately to Buyer
in the event of the failure of any of the conditions precedent set forth in
Section 3.l(a) above or in the event that (a) the conditions precedent set
forth in Section 3.l(b) shall have been satisfied or waived, (b) Buyer shall
have performed fully or tendered performance of its obligations hereunder and
(c) Seller shall be unable or fail to perform its obligations under this
Agreement. IN ALL OTHER EVENTS, THE ENTIRE AMOUNT OF THE DEPOSIT SHALL BE
RETAINED BY SELLER AS LIQUIDATED DAMAGES. BUYER AND SELLER HEREBY ACKNOWLEDGE
AND AGREE THAT SELLER'S DAMAGES IN THE EVENT OF SUCH A BREACH OF THIS AGREEMENT
BY BUYER WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE AMOUNT OF THE
DEPOSIT IS THE PARTIES'BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES SELLER
WOULD SUFFER IN THE EVENT THE TRANSACTION PROVIDED FOR IN THIS AGREEMENT FAILS
TO CLOSE, AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING
ON THE DATE OF THIS AGREEMENT. BUYER AND SELLER AGREE THAT SELLER'S RIGHT TO
RETAIN THE DEPOSIT SHALL BE THE SOLE REMEDY OF SELLER AT LAW IN THE EVENT OF A
BREACH OF THIS AGREEMENT BY BUYER. THE FOREGOING SHALL NOT BE UNDERSTOOD TO
LIMIT BUYER'S OBLIGATIONS TO SELLER UNDER THE PROVISIONS OF SECTION 2.3(c)(v) OF
THIS AGREEMENT OR BUYER'S OBLIGATION TO REIMBURSE SELLER FOR ATTORNEYS' FEES
UNDER THE PROVISIONS OF SECTION 7.9 OF THIS AGREEMENT TO THE EXTENT INCURRED TO
SECURE THE RELEASE OF THE DEPOSIT TO SELLER.
ACCEPTED AND AGREED TO:
[SIG]
----------------------------------- -------------------------------------
Seller Buyer
ARTICLE VI
ESCROW AND CLOSING
Section 6.1 Escrow Arrangements. An escrow for the purchase and sale
contemplated by this Agreement has been opened by Buyer and Seller with Escrow
Company. At least one business day prior to the Closing Date, Seller and Buyer
shall each deliver escrow instructions to Escrow Company consistent with this
Article VI, and designating Escrow Company as the "Reporting Person" for the
transaction pursuant to Section 6045(e) of the Code. In addition, the parties
shall deposit in escrow, at least one business day prior to the Closing Date
(unless otherwise provided below in this Section 6.1) the funds and documents
described below:
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(A) Seller shall deposit (or cause to be deposited):
(i) a duly executed and acknowledged grant deed pertaining to the
Real Property portion of each of the five Properties constituting the LPIF
Portfolio, each in the form attached to this Agreement as Exhibit G
(collectively, the "Deeds");
(ii) a duly executed ▇▇▇▇ of sale pertaining to the Personal
Property portion of each of the five Properties constituting the LPIF Portfolio,
each in the form attached to this Agreement as Exhibit H (collectively, the
"Bills of Sale");
(iii) a duly executed counterpart assignment and assumption
pertaining to the Intangible Property portion of each of the five Properties
constituting the LPIF Portfolio, each in the form attached to this Agreement as
Exhibit I (collectively, the "Assignments and Assumption of Intangible
Property");
(iv) the duly executed Seller's Certificate;
(v) a certificate from Seller certifying the information required
by Sections 18660 of the California Revenue and Taxation Code and the
regulations issued thereunder to establish that the transaction contemplated by
this Agreement is exempt from the tax withholding requirements of such
provisions (the "California Certificate"); and
(vi) a certificate from Seller certifying the information required
by Section 1445 of the Code to establish, for the purposes of avoiding Buyer's
tax withholding obligations, that Seller is not a "foreign person" as defined in
Section 1445(f)(3) of the Code (the "FIRPTA Certificate").
In addition, Seller shall deliver to Buyer on the Closing Date, outside
of escrow, to the extent in Seller's possession or control, the originals of all
Tenant Leases and tenant files and all keys to the Property.
(b) Buyer shall deposit:
(i) at or before 11:30 a.m. (Pacific Time) on the Closing Date,
immediately available funds sufficient to pay the balance of the Purchase Price,
plus sufficient additional cash to pay Buyer's share of all escrow costs and
closing expenses;
(ii) a duly executed counterpart for each of the five Assignments
and Assumption of Intangible Property; and
(iii) a certificate duly executed by Buyer in favor of Seller
confirming the waivers and acknowledgments set forth in Sections 2.3(a) and (b)
above.
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Section 6.2 Closing. Escrow Company shall close escrow on the Closing
Date by:
(a) recording the Deeds;
(b) causing Title Company to issue the Title Policies to Buyer;
(c) delivering to Buyer the Bills of Sale, the Seller's Certificate,
the FIRPTA Certificate, the California Certificate, and a counterpart for each
of the five Assignments and Assumption of Intangible Property executed by
Seller; and
(d) delivering to Seller (i) a counterpart for each of the five
Assignments and Assumption of Intangible Property executed by Buyer, (ii) the
certificate described in Section 6.1(b)(iii) above, and (iii) funds in the
amount of the Purchase Price, as adjusted for credits, prorations and closing
costs in accordance with this Article VI.
Section 6.3 Prorations.
(a) Real estate taxes and assessments, personal property taxes, if any,
rental income and all other items of income and expense with respect to the LPIF
Portfolio shall be prorated between Seller and Buyer as of the Closing Date.
Income and expenses shall be prorated on the basis of a 30-day month and on a
cash basis (except for items of income and expense that are payable less
frequently than monthly, which shall be prorated on an accrual basis). All such
items attributable to the period prior to the Closing Date shall be credited to
Seller; all such items attributable to the period on and following the Closing
Date shall be credited to Buyer. Buyer shall be credited in escrow with (a) any
portion of rental agreement or lease deposits in Seller's possession with
respect to the LPIF Portfolio which are refundable to the tenants and (b) rent
prepaid beyond the Closing Date. Buyer shall not be entitled to any interest on
rental agreement or lease deposits or prepaid rent accrued on or before the
Closing Date, except to the extent any such amount of interest is refundable or
payable to any tenant under a Lease. Seller shall be credited in escrow with any
refundable deposits or bonds held by any utility, governmental agency or service
contractor with respect to the LPIF Portfolio, to the extent such deposits or
bonds are assigned to and accepted by Buyer on the Closing Date. In addition,
Seller shall be credited in escrow with any leasing commissions, free rental
periods or tenant improvement or other allowances paid or endured by Seller
during the portion of the Contract Period after the expiration of the Inspection
Period to the extent such relate to Tenant Leases executed after the expiration
of the Inspection Period and are equitably allocable to that portion of the
stabilized term (i.e. the term following the tenant's entry into occupancy and
commencement of unabated rental obligations) of any such Tenant Lease of the
LPIF Portfolio following the Closing Date. To the extent approved by Buyer or
applicable under any Tenant Lease with respect to any extension term or
expansion of premises that is exercised after the expiration of the
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Inspection Period, Buyer shall assume all obligations for any such leasing
commissions, free rental periods or tenant improvement or other allowances
payable following the Closing Date. Buyer shall be credited in escrow with any
leasing commissions free rental periods or tenant improvements or other
allowances to be paid or endured by Buyer on or after the Closing Date with
respect to the current term of any Tenant Lease executed or any extension term
or expansion of premises exercised, in each case, prior to the expiration of the
Inspection Period, and Seller shall pay on or before the Closing Date all such
items payable prior to the Closing Date.
(b) Buyer and Seller shall cooperate to produce prior to the Closing
Date a schedule of prorations to be made on and after the Closing Date as
complete and accurate as reasonably possible. With respect to taxes or other
expenses payable or reimbursable by the tenants of the LPIF Portfolio, the
amounts prorated between Buyer and Seller shall be the net amounts (if any) not
subject to payment or reimbursement by or to the tenants. All prorations which
can be liquidated accurately or reasonably estimated as of the Closing Date
shall be made in escrow on the Closing Date. All other prorations, and
adjustments to initial estimated prorations, shall be made by the parties with
due diligence and cooperation within 30 days following the Closing Date, or such
later time as may be required to obtain necessary information for proration, by
immediate cash payment to the party yielding a net credit from such prorations
from the other party.
(c) Buyer shall, consistent with reasonable business judgment, exert
its best efforts to collect for Seller following the Closing Date all rental
income which is delinquent on the Closing Date; provided, however, that Buyer
shall not be required to commence legal proceedings to collect such rents.
Notwithstanding the foregoing proviso, Seller reserves the right to pursue any
remedy Seller may have against any tenant with respect to such delinquent rents;
provided, however, that Buyer shall not incur any cost, expense or liability in
connection therewith, and provided further that Seller shall not commence any
legal or equitable proceedings in the nature of an unlawful detainer, eviction
or other proceeding which would have the effect of interfering with any tenant's
quiet enjoyment of its leased premises or result in a lien or encumbrance on
such leased premises. Any sums collected on account of rents after the Closing
Date shall be successively applied to the payment of (i) rent due and payable in
the months succeeding the month in which the closing occurs, (ii) rent due and
payable in the month in which the closing occurs, and (iii) rent due and payable
in the months preceding the month in which the closing occurs.
Section 6.4 Other Closing Costs.
(a) Buyer shall pay (i) any sales or use taxes determined to be payable
in connection with this transaction, (ii) all fees and expenses of Buyer's legal
counsel and other third party consultants engaged by or on behalf of Buyer in
connection with this transaction, (iii) any excess portion of the premium for
any Title Policy beyond that
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which would have been required had the Title Policy been a CLTA standard
coverage policy of title insurance without any endorsements, issued at the
standard premium, and (iv) on a Property by Property, County by County basis,
the county and general law city documentary transfer tax, escrow charges or
other fees or costs charged by or reimbursable to Escrow Company or Title
Company, recording fees and the standard premium for any Title Policy that would
have been charged had such Title Policy been a CLTA standard coverage owners'
policy of title insurance without any endorsements, in each case, that a buyer
would be responsible to pay under the custom of each such County.
(b) Seller shall pay (i) all fees and expenses of Seller's legal
counsel and other third party consultants engaged by or on behalf of Seller in
connection with this transaction, (ii) on a Property by Property, County by
County basis, the County and general law city documentary transfer tax, escrow
charges or other fees or costs charged by or reimbursable to Escrow Company or
Title Company, recording fees and the standard premium for any Title Policy that
would have been charged had such Title Policy been a CLTA standard coverage
owners' policy of title insurance without any endorsements, in each case that a
seller would be responsible to pay under the custom of each such County, and
(iii) any prepayment fee or other charge in connection with the payoff or any
monetary encumbrance.
(c) To the extent that any Property lies within a charter city that
imposes a separate documentary transfer tax, any such charter city documentary
transfer tax shall be shared evenly by Buyer and Seller. Any costs and expenses
of closing that are not expressly identified in subparagraph (a) or (b) above or
in the first sentence of this subparagraph (c) shall be allocated between the
parties in accordance with prevailing custom in the county in which the Property
to which the costs and expenses are attributable is located, or if such costs
and expenses are not attributable to any particular Property, then such costs or
expenses shall be allocated equally between Buyer and Seller.
(d) Buyer and Seller agree that the custom for each of the Counties in
which any Property is located with respect to payment of (1) the standard
premium for any Title Policy that would have been charged had such Title Policy
been a CLTA standard coverage owners' policy of title insurance without any
endorsements, (2) escrow fees and costs and (3) County and general law transfer
tax, is as follows:
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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ITEM NUMBER FROM ALAMEDA LOS ANGELES SAN BERNARDINO SAN
CLAUSE (d) ABOVE DIEGO
(1) Buyer Seller Seller Seller
(2) Buyer 50-50 50-50 50-50
(3) Seller Seller Seller Seller
Section 6.5 Further Documentation. Promptly after the close of escrow,
Buyer and Seller shall deliver to each tenant of the Real Property written
notice advising the tenant of the sale of the Real Property by Seller to Buyer,
and otherwise complying with the provisions of California Civil Code Section
1950.7(d)(1). Each such notice shall be delivered in the manner set forth in
such Section of the Civil Code. At or following the close of escrow, Buyer and
Seller each shall execute any certificate or other instruments required by law
or local custom or otherwise reasonably requested by the other party to effect
the transaction contemplated by this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Damage or Destruction.
(a) Buyer shall be bound to purchase each of the Properties within the
LPIF Portfolio for the Purchase Price as required by the terms of this Agreement
without regard to the occurrence or effect of any damage to or destruction of
any of the Properties or condemnation of any Property by right of eminent
domain, provided that the occurrence of any damage or destruction involves
repair costs of $500,000 or less, and any condemnation does not affect a
material portion for each affected Property. If Buyer is so bound to purchase a
Property notwithstanding the occurrence of damage, destruction or condemnation,
then upon the close of escrow: (A) in the event of damage covered by insurance
or an immaterial condemnation, Buyer shall receive a credit against the Purchase
Price allocated to such Property (as set forth in Exhibit B hereto) in the
amount (net of collection costs and costs of repair reasonably incurred by
Seller and not then reimbursed) of any insurance proceeds or condemnation award
collected and retained by Seller as a result of any such damage or destruction
or condemnation plus (in the case of damage) the amount of the deductible
portion of Seller's insurance policy, and Seller shall assign to Buyer all
rights to such net insurance proceeds or condemnation awards as shall not have
been collected prior to the close of escrow; and (B) in the event of damage not
covered by insurance, Buyer shall receive a credit (not to exceed $500,000 for
each affected Property) in the amount of the estimated cost to repair the
damage.
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(b) In the event that any Property suffers damage or destruction or
condemnation prior to the Closing Date that involves repair costs in excess of
$500,000 or, in the case of condemnation, a material portion of the affected
Property, then either Buyer or Seller may elect to terminate this Agreement with
respect to such Property by giving written notice of such election to the other
party promptly following the event of damage or destruction. In the event of
termination of this Agreement with respect to any Property pursuant to this
Section 7.l(b), the parties shall be bound to consummate the purchase and sale
of the balance of the LPIF Portfolio in accordance with this Agreement and the
Purchase Price shall be reduced by an amount equal to the portion of the
Purchase Price allocated to the excluded Property as provided on Exhibit B
hereto.
Section 7.2 Brokerage Commissions and Finder's Fees.
(a) Each party to this Agreement warrants to the other that, except as
otherwise provided in subparagraph (b) below, no person or entity can properly
claim a right to a real estate commission, real estate finder's fee, real estate
acquisition fee or other real estate brokerage-type compensation (collectively,
"Real Estate Compensation") based upon the acts of that party with respect to
the transaction contemplated by this Agreement. Each party hereby agrees to
indemnify and defend the other against and to hold the other harmless from any
and all loss, cost, liability or expense (including but not limited to
attorneys' fees and returned commissions) resulting from any claim for Real
Estate Compensation by any person or entity based upon such acts.
(b) The parties hereby acknowledge that ▇▇▇▇▇▇▇ & Wakefield "Broker")
has acted as a broker in connection with this transaction. Seller shall be
responsible for paying any commission due to Broker in connection with this
transaction pursuant to their separate written agreement.
Section 7.3 Successors and Assigns. Buyer may not assign any of Buyer's
rights or duties hereunder without the prior written consent of Seller. No
assignment by Buyer shall relieve Buyer of its obligations under this Agreement.
Subject to the limitations on assignment expressed in this Section 7.3, this
Agreement shall be binding upon, and inure to the benefit of Buyer and Seller
and their respective successors and assigns.
Section 7.4 Notices. All notices or other communications required or
provided to be sent by either party shall be in writing and shall be sent by
United States Postal Service, postage prepaid, registered or certified mail,
return receipt requested, by any nationally known overnight delivery service, by
courier, in person or by telecopy, with an electronic confirmation of receipt.
All notices shall be deemed to have been given forty-eight (48) hours following
deposit in the United States Postal Service or upon personal delivery if sent by
overnight delivery service, telecopy, courier or personally delivered; provided,
however, that any notice or other communication delivered other
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than during normal business hours shall be deemed delivered on the next
following business day. AR notices shall be addressed to the party at the
address or telecopier number below:
To Seller: Lincoln Pacific Industrial Fund Limited Partnership
c/o AEW Capital Management, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
AEW Capital Management, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
To Buyer: Pacific Gulf Properties Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇, Castle & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any address, telecopy number or name specified above may be changed by notice
given to the addressee by the other party in accordance with this Section 7.4.
The inability to deliver because of a changed address or telecopy number of
which no notice was given,
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or rejection or other refusal to accept any notice, shall be deemed to be the
receipt of the notice as of the date of such inability to deliver or rejection
or refusal to accept. Any notice to be given by any party hereto may be given by
the counsel for such party.
Section 7.5 Time. Time is of the essence of every provision contained
in this Agreement.
Section 7.6 Possession. The rights of possession of the Real Property
(subject to the Tenant Leases and the Permitted Exceptions) shall be delivered
by Seller to Buyer on the Closing Date.
Section 7.7 Incorporation by Reference. All of the exhibits attached to
this Agreement or referred to herein and all documents in the nature of such
exhibits, when executed, are by this reference incorporated in and made a part
of this Agreement.
Section 7.8 No Deductions or Off-Sets. Buyer acknowledges that the
Purchase Price to be paid for the LPIF Portfolio pursuant to this Agreement is a
net amount and shall not be subject to any off-sets or deductions.
Section 7.9 Attorneys' Fees. In the event any dispute between Buyer and
Seller should result in litigation, the prevailing party shall be reimbursed for
all reasonable costs incurred in connection with such litigation, including,
without limitation, reasonable attorneys' fees, court costs and fees of experts.
Section 7. 10 Construction. The parties acknowledge that each party and
its counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments or exhibits hereto.
Section 7.11 Governing Law. This Agreement shall be construed and
interpreted in accordance with and shall be governed and enforced in all
respects according to the laws of the State of California.
Section 7.12 Damages. Buyer agrees that any liability of Seller under
any claim brought prior to the Closing Date pursuant to this Agreement or any
document or instrument delivered simultaneously or in connection with, or
pursuant to this Agreement, shall be limited solely to its interest in the LPIF
Portfolio, and no other assets of Seller shall be subject to levy or execution.
With respect to any such claim brought following the Closing Date, any liability
of Seller shall be limited solely to the assets of Seller. In no event shall
Buyer seek satisfaction for any such obligation from any of Seller's trustees,
beneficiaries, shareholders, officers, directors, employees, agents, legal
representatives or successors or assigns (or from any of their trustees,
beneficiaries, shareholders, officers, directors, employees, agents, legal
representatives, successors or
-23-
26
assigns), nor shall any such person or entity have any personal liability for
any such obligations of Seller.
Section 7.13 Confidentiality. The parties hereby acknowledge and agree
that, prior to the Closing Date, the existence of this Agreement, the terms and
conditions set forth herein, and any materials delivered in connection with this
transaction are to be kept strictly confidential. Accordingly, except (a)
for the Title and Escrow Companies, (b) in connection with the enforcement of
any rights hereunder, (c) for the delivery and recordation of instruments,
notices or other documents to implement this Agreement, and (d) as may in good
faith be believed to be required by law or court order, neither party shall,
without the prior written consent of the other, release, publish or otherwise
distribute (and shall not authorize or permit any other person or entity to
release, publish or otherwise distribute) any information concerning this
Agreement or the transaction contemplated herein, or any materials so delivered,
to any person or entity other than Buyer's prospective lenders, such party's
legal, accounting and financial advisors, Seller's property managers and Buyer's
due diligence consultants, each of whom shall agree to hold such information or
materials strictly confidential as if such persons were bound by the provisions
of this Section 7.13. Following the Closing Date, either party may make
reasonable and customary announcements and press releases regarding the
transaction.
This Agreement may be executed in one or more counterparts. All
counterparts so executed shall constitute one contract binding on all parties,
even though all parties are not signatory to the same counterpart.
Section 7.15 Entire Agreement. This Agreement and the attached
exhibits, which are by this reference incorporated herein, and all documents in
the nature of such
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-24-
27
exhibits, when executed, contain the entire understanding of the parties and
supersede any and all other written or oral understanding.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of
the day and year first written above.
SELLER:
Lincoln Pacific Industrial Fund Limited Partnership, a Delaware limited
partnership
By: Eastrich No. 106 Corporation, a Massachusetts corporation, General
Partner
By:
--------------------------------
Its:
--------------------------------
BUYER:
Pacific Gulf Properties Inc., a Maryland corporation
BY [SIG]
--------------------------------------------
Its: Pres-CEO
--------------------------------------------
By: [SIG]
--------------------------------------------
Its: S.V.P.
--------------------------------------------
-25-
28
EXHIBIT A
DISCLOSURE STATEMENT
All capitalized terms used herein but not otherwise defined shall have
the meanings given them in the Agreement.
1. Matters disclosed by the environmental reports and audits and the
structural reports and other physical inspection reports delivered to
Buyer prior to the end of the Inspection Period or included in the
materials delivered to or made available to Buyer pursuant to Section
2.3 of the Agreement.
2. The applicable Personal Property and the improvements, located on the
Real Property, and their structural components, the building systems
and other mechanical systems, and the parking and loading areas are,
and have been, subject to normal wear and tear and obsolescence as the
result of the age of such items.
3. With respect to the Property commonly known as Warm Springs Industrial
Park located in the City of Fremont, Alameda County, California, you
are notified of the following litigation, which was tendered to Liberty
Mutual on October 5, 1995: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ v. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, et
al, Alameda County Superior Court Case No. H.-182459-5.
4. With respect to the Property commonly known as Lincoln Business Center,
located in the City of ▇▇▇▇▇▇, Los Angeles County, California, you are
notified that the tenant Suk ▇▇▇ ▇▇▇▇ is in default pursuant to the
terms of its lease and has abandoned the leased premises.
All the matters set forth on this Disclosure Statement are limited to
Seller's Knowledge. Seller does not make any representations or warranties,
other than as expressly set forth in Section 4.1 of the Agreement, regarding the
scope or content of the matters referenced in this Disclosure Statement. Neither
the foregoing list nor the materials referred to therein are intended to be an
exhaustive enumeration of issues relevant to the LPIF Portfolio, nor are they
intended to fully inform you of any particular issue or its ramifications.
Rather this Disclosure Statement is presented to you pursuant to Section 4.1 of
the Agreement and is merely intended to assist you with your investigation of
the LPIF Portfolio by flagging for you those matters which, to Seller's
Knowledge, may affect the LPIF Portfolio or Seller's warranties and
representations set forth in Section 4.1 of the Agreement.
29
EXHIBIT B
LIST OF PROPERTIES
ALLOCATED PORTION
REGION/PARK NAME CITY COUNTY OF PURCHASE PRICE
SOUTHERN CALIFORNIA:
Lincoln Distribution Center Downey Los Angeles $11,500,000
Lincoln Distribution Center Chino San Bernardino 10,600,000
Lincoln Distribution Center Fontana San Bernardino 14,125,000
Lincoln Business Center Rancho ▇▇▇▇▇▇▇▇ San Diego 14,125,000
NORTHERN CALIFORNIA:
Warm Springs Industrial Fremont Alameda 16,900,000
Park
30
EXHIBIT C
INSPECTION LETTER
______,1997
Lincoln Pacific Industrial Fund Limited Partnership
c/o AEW Capital Management L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Re: Agreement for Purchase and Sale of the LPIF Portfolio, dated
May 23, 1997 (the "Purchase Agreement") between Lincoln
Pacific Industrial Fund Limited Partnership ("Seller") and
Pacific Gulf Properties Inc. ("Buyer")
Gentlemen & Ladies:
This letter constitutes the Inspection Letter contemplated by the
above referenced Purchase Agreement and is delivered to confirm the satisfaction
of the conditions precedent described in Sections 3.1(a)(i) and 3.1(a)(ii) of
the Purchase Agreement.
Buyer hereby expressly confirms to Seller (and to its officers,
directors, shareholders, trustees and beneficiaries and their respective agents,
employees, successors and assigns) that Buyer has completed to its satisfaction
the inspection and review contemplated by Sections 2.3 and 2.4 of the Purchase
Agreement. Buyer, moreover, hereby ratifies and affirms all of the
acknowledgments, waivers and releases set forth in Section 2.3.
Accordingly, based on its inspection and review of the LPIF Portfolio,
Buyer is prepared to proceed with the purchase of the LPIF Portfolio in
accordance with the terms of the Purchase Agreement subject only to the
satisfaction of the conditions described in Sections 3.1 (a)(iii) and 3.1
(a)(iv) of the Purchase Agreement.
Very truly yours,
Pacific Gulf Properties Inc.
By,
-----------------------------------
its
-----------------------------------
cc: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
31
EXHIBIT D
LEGAL DESCRIPTION OF LAND
That certain land together with all improvements thereon and
appurtenances thereto located in the County of San Bernardino, State of
California, and described as follows:
Parcel 1 of Parcel Map 10552-5, in the City of Fontana, County of San
Bernardino, State of California, as per map recorded in Book 133, page(s) 64
to 66, inclusive, of Parcel Maps, in the office of the County Recorder of said
County and amended by Certificates of Correction recorded January 11, 1990 as
Instrument Nos. 90-013994 and 90-013997, Official Records.
That certain land together with all improvements thereon and
appurtenances thereto located in the County of Los Angeles, State of California,
and described as follows:
Parcel 4 of Parcel Map No. 18461, in the City of ▇▇▇▇▇▇, County of Los Angeles,
State of California, as per map filed in Book 200 Pages 5 to 8 inclusive of
Parcel Maps, in the office of the County Recorder of said County.
32
That certain land together with all improvements thereon and
appurtenances thereto located in the County of San Bernardino, State of
California, and described as follows:
Parcels 21 and 22 of Parcel Map 1665, in the City of Chino, County of San
Bernardino, State of California, as per map recorded in Book 15, pages 18
through 20, inclusive, of Parcel Maps, in the office of the County Recorder of
said County.
Except the Northerly 40.00 feet of said Parcel 21 as described in Certificate
Approving a Lot Line Adjustment recorded February 11, 1987 as Instrument No.
87-045215, Official Records, and as described in Certificate Approving Lot Line
Adjustment recorded May 19, 1987 as Instrument No. 87-166696, Official Records.
Also except a portion of said Parcel 231, more particularly described as
follows:
Beginning at the Northwesterly corner of said Parcel 21, as amended and as
described in said Certificate; said corner also being the Southwesterly corner
of Parcel 2 of Parcel Map 3522, as also amended and described in said
Certificate; thence South 0 degrees 18' 54", West, along the Westerly line of
said Parcel 2, 98.18 feet; thence South 89 degrees 41' 06" East, 15.00 feet;
thence North 8 degrees 28' 48" East, 99.35 feet to the Northerly line of said
Parcel 21 as amended;
thence along said Northerly line North 89 degrees 59' 53" West,, 29.11 feet to
the point of beginning.
Except the entire mineral estate in the property described lying not less than
500.00 feet beneath the natural surface, for purposes of this reservation, the
mineral estate shall include all substances which have been discovered or which
may in the future be discovered upon or under the property described, which are
now or may in the future be valuable, and which are now or may be in the future
enjoyed through extraction from the property described, without limiting the
generality of the foregoing, the mineral estate shall include all forms of
geothermal energy, all coal, all gases, all hydrocarbon substances, all
fissionable materials, all metallic minerals and all nonmetallic minerals,
without the right to enter upon the surface of the property described for the
purpose of extracting any constituents of the mineral estate, but with the right
(1) to extract the constituents of the mineral estate from the property
described by means of ▇▇▇▇▇, shafts, tunnels or other subsurface accesses which
may be constructed, drilled or dug on or from other land, and which may
penetrate into the property described below a depth of 500.00 feet, and (2) to
excavate, construct, maintain and operate subsurface facilities below a depth of
500.00 feet of the property described for the extraction of the constituents of
the mineral estate so long as the subsurface facilities do not unreasonably
interfere with the use and enjoyment of the surface state in the described land,
as reserved by the Southern Pacific Industrial Development Company, a Texas
Corporation, in Deed dated February 18, 1987, in Deed recorded February 18, 1987
as Instrument No. 87-053150, Official Records.
Said legal description is pursuant to a Certificate Approving a Lot Line
Adjustment, recorded August 15, 1988 as Instrument No. 88-265984, Official
Records.
2
33
That certain land together with all improvements thereon and
appurtenances thereto located in the County of San Diego, State of California
and described as follows:
Parcel 1:
A portion of Lot 6 and a portion of ▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, in the City of San Diego, County of San Diego, State of California,
according to Map thereof No. 10264, filed in the Office of the County Recorder
of San Diego County, November 17, 1981, more particularly described as follows:
Beginning at the Westerly corner of said Lot 6, said corner also being in the
Northerly right of way line of Camino Del Norte as shown on said Map No. 10264;
thence Northeasterly along the Northwesterly property line of said ▇▇▇ ▇, ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇'▇▇" ▇▇▇▇, 584.76 feet to the Northwesterly corner of said Lot 6,
said corner also being in the Southerly right of way line of Technology Place,
as shown on said Map No. 10264, and also being a point on a curve concave
Northerly and having a radius of 104.00 feet, a radial line from said point
bears South 24 degrees 56'18" West; thence Easterly along the Northerly property
line of said Lot 6 and said curve, through a central angle of 38 degrees 33'52",
an arc distance of 70.00 feet; thence leaving said Northerly property line and
curve, South 5 degrees 09'52" East, 14.14 feet; thence South 30 degrees 17'29"
East, 62.67 feet; thence South 53 degrees 32'31" East, 94.03 feet; thence North
36 degrees 27'29" East, 61.28 feet; thence South 53 degrees 32'31" East, 309.51
feet to a point in the Southeasterly property line of said Lot 11; thence
Southwesterly along the Southeasterly property line of said ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇
▇, ▇▇▇▇▇ ▇▇ degrees 43'15" West, 434.26 feet to an angle point in said
Southeasterly property line of said Lot 6; thence Southwesterly along said
Southeasterly property line South 53 degrees 33'56" West 359.73 feet to the
Southerly corner of said Lot 6, said point also being in the Northerly right of
way line of said Camino Del Norte; thence Northwesterly along the Southwesterly
property line of said ▇▇▇ ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇
degrees 26'04" West, 449.19 feet to the point of beginning.
EXCEPTING THEREFROM all mineral, oil and gas rights below the depth of 500 feet
below the surface of said land without the right of surface entry as reserved in
deed recorded June 16, 1989 as File No. 89-316651 of Official Records.
Parcel 2:
A portion of Lot 6 and a portion of ▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ in the City of San Diego, County of San Diego, State of California,
according to Map thereof No. 10264, filed in the Office of the County Recorder
of San Diego County, November 17, 1981, more particularly described as follows:
Commencing at the Westerly corner of said Lot 6, said corner also being in the
Northerly right of way line of Camino Del Norte as shown on said Map No. 10264;
thence Northeasterly along the Northwesterly property line of said ▇▇▇ ▇, ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇'▇▇" ▇▇▇▇, 584.76 feet to the Northwesterly corner of said Lot 6,
said corner also being in the
3
34
Southerly right of way line of Technology Place, as shown on said Map No. 10264,
and also being a point on a curve, concave Northerly and having a radius of
104.00 feet, a radial line from said point bears South 24 degrees 56'18" West;
thence Easterly along the Northerly property line of said Lot 6 and said curve,
through a central angle of 38 degrees 33'52" an arc distance of 70.00 feet to
the True Point of Beginning; thence leaving said Northerly property line and
curve, South 5 degrees 09'52" East, 14.14 feet; thence South 30 degrees 17'29"
East, 62.67 feet; thence South 53 degrees 32'31" East, 94.03 feet; thence North
36 degrees 27'29" East, 61.28 feet; thence South 53 degrees 32'31" East, 309.51
feet to a point in the Southeasterly property line of said Lot 11; thence
Northeasterly along said Southeasterly property line North 35 degrees 43'15"
East, 240.74 feet to the Easterly corner of said Lot 11; thence Northwesterly
along the Northeasterly property line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇ degrees 32'31"
West, 443.16 feet to the Northerly corner of said Lot 11, said corner also being
in the Southeasterly right of way line of Technology Drive as shown on said Map
No. 10264; thence Southwesterly along said Southeasterly right ▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇ degrees 27'45" West, 199.96 feet to a point at the beginning of a
curve, concave Northwesterly and having a radius of 104.00 feet, a radial line
from said point bears South 53 degrees 32'31" East; thence Southwesterly along
said curve and Southeasterly right of way line of said Technology Drive and
Technology Place, through a central angle of 39 degrees 54'57" an arc distance
of 72.45 feet to the True Point of Beginning.
Parcel 3:
A sideyard easement for fire suppression and other emergency vehicles, as set
forth in that certain Sideyard Easement and Agreement recorded November 13, 1989
as File No. 89-613996 of Official Records, and amended on July 5, 1990 as File
No. 90-365468 of Official Records, a strip of land 43.50 feet wide parallel with
and contiguous to the Northwesterly property lines, of ▇▇▇▇ ▇, ▇ ▇▇▇ ▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Technology Park, in the City of San Diego, County of San Diego,
State of California, according to Map thereof No. 10264, filed in the Office of
the County Recorder of San Diego County, November 17, 1981.
Said strip of land shall terminate on the West at the Southwesterly property
line of said Lot 8 and on the East at the Northeasterly property line of said
Lot 10.
Parcel 4:
An easement for vehicular and pedestrian access over and across that portion of
▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇ herein
described, as set forth in that certain Reciprocal Access Agreement recorded
November 13, 1989 as File No. 89-613997 of Official Records, being described as
follows:
Beginning at the Northerly corner of ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
in the City of San Diego, County of San Diego, State of California, according to
Map thereof No. 10264, filed in the Office of the County Recorder of San Diego
County, November 17, 1981; thence Southeasterly along the right of way line of
▇▇▇▇ ▇▇▇▇▇▇▇▇ Drive, South 53 degrees 33'00" East a distance of 18.00 feet to
the True Point of Beginning; thence continuing along said right of way line
South 53 degrees 33'00" East a distance of 24.00 feet; thence leaving
4
35
said right of way line South 35 degrees 43'15" West a distance of 285.01 feet;
thence North 53 degrees 32'31" West a distance of 42.00 feet to a point on the
Northwesterly property line of said Lot 10; thence along said property line
North 35 degrees 43'15" East a distance of 25.00 feet; thence leaving said
property line South 53 degrees 32'31" East a distance of 18.00 feet; thence
North 35 degrees 43'15" East a distance of 260.01 feet to the True Point of
Beginning.
That certain land together with all improvements thereon and
appurtenances thereto located in the County of Alameda, State of California, and
described as follows:
PARCEL A:
Parcel 2, as said parcel is shown on that certain Parcel Map entitled "Parcel
Map No. 2161 filed on May 31, 1977 in Book 97 of Parcel Maps, Page 31, Alameda
County Records.
PARCEL B:
Parcel 3B, as shown on "Parcel Map 2494" as said Map was filed for record in the
office of the Recorder of the County of Alameda, State of California, on March
9, 1978 in Book 101, at Page 55.
Excepting therefrom Parcels A and B, those portions conveyed to the City of
Fremont in instrument dated February 20, 1991, recorded March 25, 1991, as
Instrument No. 91-075827 of Alameda County Records.
PARCEL C:
An easement to construct and maintain a storm drain and related facilities as
granted to Kato Fremont Associates, recorded June 19, 1980 as Instrument No.
80-104969, Official Records, scribed as follows:
A strip of land 15.00 feet in width located on Parcel 3B, Parcel Map 2494
bounded as follows: Beginning at a point on the Southerly property line of
Parcel 3A2, Parcel Map 2749 filed December 15, 1978, Book 107 of Parcel Maps,
Page 43, Alameda County Records, said point being 7.51 feet Easterly of the
Southwest corner of Parcel 3A2, thence from the point of beginning along said
property line North 66 degrees 02'33" East 15.02 feet; thence South 21 degrees
22'50" East 69.43 feet more or less to a point on the Northerly property line of
the parcel of land owned by Alameda County Flood Control and Water Conservation
District; thence along said property line 18.02 feet North 77 degrees 41'26"
West; thence North 21 degrees 22'50" West a distance of approximately 60.44 feet
to the point of beginning.
Assessor's Parcel Number: 519-1010-054-03 and 519-1010-058-03
5
36
EXHIBIT E
LIST OF TENANT LEASES
TENANT LOCATION APPROXIMATE RENTABLE
AREA
--------------------------------------------------------------------------------------
LINCOLN DISTRIBUTION CENTER -
▇▇▇▇▇▇▇
▇▇▇▇▇▇ 1000 Suite 10887-01 22,666
▇▇▇▇▇▇▇ Hausfeld Suite 777B-01 33,971
Motion Industries Suite 887C-01 14,940
Scholls, Inc. Suite 837B-02 165,646
MC Distribution Suite 10727C-01 53,760
Motors & Armatures, Inc. Suite 10727B-02 28,800
Premier Metal Product Suite 887b-02 15,456
MC Distribution Svc. Suite 777A-03 19,090
MC Distribution Svc. Suite 10727A 26,305
LINCOLN DISTRIBUTION CENTER -
CHINO
▇▇▇▇▇▇▇ Distributing Suite 13850B-02 99,246
Pioneer Electronics Suite 13850A-01 164,616
37
TENANT LOCATION APPROXIMATE RENTABLE
AREA
------------------------------------------------------------------------------------------
LINCOLN BUSINESS CENTER -
DOWNEY
Downey Family ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 9,000
Grandlite International Suite 12020A 26,010
▇▇▇▇▇▇▇▇▇ Company Suite 12010A 8,388
Keyline Sales Suite 12010F 10,080
Kuka ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ 10,080
Lumex, Inc. Suite 12020GH 23,040
▇▇▇▇▇▇ Wholesale ▇▇▇▇▇ ▇▇▇▇▇▇ ▇,▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 8,064
Rotatech International Suite 12000D 9,000
Reliable Container Suite 12029 89,760
Reliable Container Suite 12020EF 23,040
Sarnafil Corporation Suite 12010B 10,080
Sulzer Metco (▇▇▇▇▇▇-▇▇▇▇▇ Suite 12000E 7,723
Corp)
▇▇▇▇▇▇▇▇ Valve Suite 12000B 12,870
Suk ▇▇▇ ▇▇▇▇ Suite 12010C 8,064
TriBest, Inc. ▇▇▇▇▇ ▇▇▇▇▇▇ 8,670
-2-
38
TENANT LOCATION APPROXIMATE RENTABLE
AREA
--------------------------------------------------------------------------------------
LPIF - ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 87,654
Tempglass Western Suite 048999 92,000
Continental Technology Suite 48933 29,215
BBG Production Technologies Suite 048937 14,609
▇▇▇▇▇▇ Micro Inc. Suite 048949 58,435
BBG Production Technologies Suite 48939A 14,320
UPS Worldwide Logistics Suite 48921B 48,183
LINCOLN BUSINESS CENTER -
RANCHO ▇▇▇▇▇▇▇▇
▇▇▇. ▇▇▇▇▇▇'▇ Inc. Suite 035-100 25,625
Sony Manufacturing Co. Suite 035-400 6,999
Sony Manufacturing Co. Suite 035-500 6,707
Sony Manufacturing Co. Suite 035-600 9,277
-3-
39
TENANT LOCATION APPROXIMATE RENTABLE
AREA
--------------------------------------------------------------------------------------
Sony Manufacturing Co. Suite 045-100 54,400
Sony Manufacturing Co. Suite 045-200 53,919
Sony Manufacturing Co. Suite 055-100 58,575
-4-
40
EXHIBIT F
LIST OF CONTRACTS
PROPERTY VENDOR SERVICE
-------------------------------------------------------------------------------------------------------
LINCOLN DISTRIBUTION CENTER-
FONTANA
Greater Alarm Company Fire Alarm Monitoring
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇/▇▇▇▇▇
Western FLS Consulting Fire Sprinkler Monitoring
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇▇
Building Comfort Services HVAC Maintenance
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ Landscape Services Landscape Service
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇ ▇▇▇▇▇▇▇
Shopping Center Maintenance Sweeping
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇ ▇▇▇▇▇▇▇
All American Window Cleaning Window Maintenance
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇▇▇
41
PROPERTY VENDOR SERVICE
--------------------------------------------------------------------------------
LINCOLN BUSINESS CENTER -
DOWNEY
Mesa Energy HVAC Maintenance
▇▇▇▇-▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇▇ or ▇▇▇▇
Accurate Landscaping Landscape Service
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇ ▇▇ ▇▇▇
Armor-Vac Parking Lot Sweeping
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇ ▇▇▇▇▇▇▇
Greater Alarm Security System Monitoring
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇▇▇ or ▇▇▇▇▇
South Shore Windows Window Maintenance
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: Ty or ▇▇▇▇▇▇
WARM SPRINGS INDUSTRIAL PARK
Perimeter Security Fire Monitor/Sprinkler
320 Orange Showl Inspections
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Cal-Air HVAC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
-2-
42
PROPERTY VENDOR SERVICE
-------------------------------------------------------------------------------------------------------
WARM SPRINGS INDUSTRIAL PARK
(CONT.)
▇▇▇▇▇▇▇▇ Landscaping Landscape Service
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇ ▇▇▇▇▇▇▇▇/
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sweeping
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
LINCOLN BUSINESS CENTER -
RANCHO ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Enterprises, Inc. Landscaping
▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇
SDA Security Systems Fire Sprinkler Monitoring
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇▇▇▇
Super Vac Parking Lot Sweeping
(▇▇▇) ▇▇▇-▇▇▇▇
All Services Pest Control Pest Control
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇▇
Fire & Ice HVAC Maintenance
(▇▇▇) ▇▇▇-▇▇▇▇
LINCOLN DISTRIBUTION CENTER -
CHINO
Western FLS Consulting, Inc. Fire Sprinkler
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇ (▇▇▇▇▇) Asmos
-3-
43
PROPERTY VENDOR SERVICE
----------------------------------------------------------------------------------------------------
LINCOLN DISTRIBUTION CENTER -
CHINO (CONT.)
API Fire Alarm Monitoring
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Shopping Center Maintenance Maintenance
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇ ▇▇▇▇▇▇▇
Tyler Lighting Electrical
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Slim's Lock & Key Locksmith
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ Lock & Key Locksmith
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇ ▇▇▇▇▇▇
RMS Landscape & Maintenance Landscape Service
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact: ▇▇▇ ▇▇▇▇▇▇▇▇
-4-
44
PROPERTY VENDOR SERVICE
-------------------------------------------------------------------------------------
LINCOLN DISTRIBUTION CENTER -
CHINO (CONT.)
▇▇▇▇▇ Roofing Roofer
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Contact Person: ▇▇▇▇▇▇▇
-5-
45
EXHIBIT G
FORM OF GRANT DEED
Assessor's Parcel No.
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
MAIL TAX STATEMENTS TO:
FORM OF GRANT DEED
In accordance with Section 11932 of the California Revenue and Taxation Code,
the grantor has declared the amount of transfer tax which is due and payable by
a separate statement which is not being recorded with this Grant Deed.
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby
acknowledged, LINCOLN PACIFIC INDUSTRIAL FUND LIMITED PARTNERSHIP, a Delaware
limited partnership, HEREBY GRANTS to Pacific Gulf Properties Inc., a Maryland
corporation, all that real property in the City of________________, County of
__________, State of California, described as follows:
This conveyance is made subject to all liens and encumbrances of record.
Date:______,1997 GRANTOR:
Lincoln Pacific Industrial Fund
Limited Partnership, a Delaware
limited partnership
By: Eastrich No. 106 Corporation,
a Massachusetts corporation,
General Partner
By:
-----------------------------------
Its:
----------------------------------
MAIL TAX STATEMENTS AS DIRECTED ABOVE
46
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
------------
On ___________before me,_________________________(here insert name and
title of the notary public), 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 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.
Signature (SEAL)
---------------------
-2-
47
EXHIBIT H
FORM OF ▇▇▇▇ OF SALE
THIS ▇▇▇▇ OF SALE (this "▇▇▇▇ of Sale") is made this day of __________,
1997 by Lincoln Pacific Industrial Fund Limited Partnership ("Seller") in
favor of Pacific Gulf Properties Inc. ("Buyer").
Seller and Buyer entered into that certain Agreement for Purchase and
Sale of the Lincoln Pacific Industrial Fund Portfolio dated as of May 23, 1997
(the "Agreement") respecting the sale of certain real property, described on
Exhibit D attached to the Agreement (the "Real Property").
Under the Agreement, Seller is obligated to transfer to Buyer any and
all of its right, title and interest in and to any and all equipment,
appliances, tools, machinery, supplies, building materials and other personal
property of every kind and character owned by Seller and attached to,
appurtenant to, located in or used in connection with the operation of the
improvements ("Improvements") located on the Real Property (the "Personal
Property").
NOW, THEREFORE, for good and valuable consideration, the receipt of
which are hereby acknowledged, Seller does hereby absolutely and unconditionally
give, grant, bargain, sell, transfer, set over, assign, convey, release, confirm
and deliver to Buyer all of the Seller's right, title and interest in and to the
Personal Property, WITHOUT WARRANTY, EXPRESS OR IMPLIED, except for the
covenants, representations and warranties of the Seller with respect to the
Personal Property as set forth in the applicable provisions of the Agreement,
all of which are hereby deemed to be incorporated by reference the same as those
set forth in full herein.
Seller hereby covenants that Seller will, at any time and from time to
time upon written request therefor, execute and deliver to Buyer, Buyer's
successors, nominees or assigns, such documents as Buyer or they may reasonably
request in order to fully assign and transfer to and vest in Buyer or Buyer's
successors, nominees and assigns, and protect Buyer's or their right, title and
interest in and to all of the Personal Property and rights of Seller intended to
be transferred and assigned hereby, or to enable Buyer, Buyer's successors,
nominees and assigns to realize upon or otherwise enjoy such rights and
property.
All defined terms used herein shall have the same meaning as set forth
in the Agreement, and are hereby incorporated herein by reference.
48
This ▇▇▇▇ of Sale shall be binding upon and inure to the benefit of the
successors, assigns, personal representatives, heirs and legatees of Buyer and
Seller,
This ▇▇▇▇ of Sale shall be governed by, interpreted under, and
construed and enforceable in accordance with, the laws of the State of
California.
This ▇▇▇▇ of Sale is intended to supplement the terms and provisions of
the Agreement and shall be construed as consistent therewith to the greatest
extent possible. This ▇▇▇▇ of Sale shall not be deemed to modify or amend the
Agreement. In the event of an irreconcilable conflict between the provisions of
the Agreement and this ▇▇▇▇ of Sale, the provisions of the Agreement shall
prevail.
IN WITNESS WHEREOF, Seller has executed this ▇▇▇▇ of Sale as of the
date first set forth above.
SELLER:
Lincoln Pacific Industrial Fund Limited Partnership, a
Delaware limited partnership
By: Eastrich No. 106 Corporation, a Massachusetts
corporation, General Partner
By:
--------------------------------------------
Its:
-------------------------------------------
-2-
49
EXHIBIT I
FORM OF ASSIGNMENT AND ASSUMPTION OF INTANGIBLE PROPERTY
THIS ASSIGNMENT AND ASSUMPTION OF INTANGIBLE PROPERTY (this
"Assignment") is made this 23rd day of May, 1997 by and between Lincoln Pacific
Industrial Fund Limited Partnership ("Assignor") and Pacific Gulf Properties
Inc. ("Assignee").
Assignor and Assignee entered into that certain Agreement for Purchase
and Sale of the Lincoln Pacific Industrial Fund Portfolio dated as of May 23,
1997 ("Agreement") respecting the sale of certain real property described in
Exhibit "D" attached to the Agreement (the "Real Property") and the improvements
located thereon (the "Improvements").
Under the Agreement, Assignor is obligated to assign to Assignee any
and all of its right, title and interest in and to the Intangible Property (as
defined in the Agreement), which Intangible Property includes:
(a) the Tenant Leases (as defined in the Agreement);
(b) certain service agreements, maintenance contracts, warranties,
guarantees, management contracts and bonds, together with all supplements,
amendments and modifications thereto, relating to the Real Property (the
"Service Contracts");
(c) any interest of Seller in the licenses, permits, certificates of
occupancy, approvals, dedications, subdivision maps and entitlement issued,
approved or granted by governmental authorities or otherwise in connection with
the Real Property, trade names, trademarks, and logos used by Assignor in the
operation and identification of the Improvements and/or the Real Property,
including, without limitation, the right to use the name "Lincoln Distribution
Center" and any other trade name now used in connection with the Real Property,
any and all development rights and other intangible rights, titles, interests,
privileges and appurtenances owned by Assignor and in any way related to or used
in connection with the Real Property and its operation, and all licenses,
consents, easements, rights of way and approvals required from private parties
to make use of utilities and to insure vehicular and pedestrian ingress and
egress to the Real Property and the Improvements ("Licenses and Permits"); and
(d) all non-confidential books and records maintained by Seller in
connection with the operation of the Real Property, all preliminary, final and
proposed building plans and specifications (including "as built" drawings)
respecting Improvements, and all structural reviews, architectural drawings and
engineering, soils, seismic, geological and architectural reports, studies and
certificates and other documents pertaining to the Property which are within the
possession of, under the control of or
50
reasonably available to Assignor and such additional books, records, plans,
specifications, reports, studies and other documents maintained or prepared
after the date of the Agreement ("Records and Plans").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor hereby assigns, sells,
transfers, sets over and delivers unto Assignee all of Assignor's estate,
rights, title and interest in and to the Intangible Property and Assignee hereby
accepts such assignment, subject to the covenants, representations and
warranties of Seller (and all limitations thereof) with respect to the
Intangible Property as set forth in the applicable provisions of the Agreement,
all of which are hereby deemed to be incorporated by reference the same as those
set forth in full herein.
Assignor hereby covenants that Assignor will, at any time and from time
to time upon written request therefrom, execute and deliver to Assignee,
Assignee's successors, nominees and assigns, any new or confirmatory instruments
which Assignee, Assignee's successors, nominees, and assigns may reasonably
request in order to fully assign and transfer to and vest in Assignee, or
Assignee's successors, nominees and assigns, and protect Assignee's or
Assignee's successors, nominees and assigns right, title and interest in and to
the Intangible Property or to otherwise realize upon or enjoy such rights in and
to the Intangible Property.
Assignee hereby assumes the performance of all of the terms, covenants
and conditions imposed upon Assignor under the Intangible Property (including
the obligations of the landlord under the Tenant Leases) accruing or arising on
or after the date of this Agreement.
Subject to the limitations on Assignee's liability set forth in the
Agreement, Assignee hereby agrees to indemnify and hold harmless Assignor,
Assignor's agents and their respective successors and assigns from and against
any and all claims, losses, liabilities and expenses, including reasonable
attorneys' fees, suffered or incurred by Assignor by reason of any breach or
alleged breach by Assignee from and after the Closing Date (as defined in the
Agreement) of any of Assignee's obligations under the Tenant Leases, Service
Contracts, Licenses and Permits or Records and Plans.
Subject to the limitations on Assignor's liability set forth in the
Agreement Assignor hereby agrees to indemnify and hold harmless Assignee,
Assignee's agents and their respective successors and assigns from and against
any and all claims, losses, liabilities and expenses, including reasonable
attorneys' fees, suffered or incurred by Assignee by reason of any breach or
alleged breach by Assignor prior to the Closing Date of any of Assignor's
obligations under the Tenant Leases, Service Contracts, Licenses and Permits or
Records and Plans.
In the event of the bringing of any action or suit by a party hereto
against another party hereunder by reason of any breach of any of the covenants,
conditions,
-2-
51
agreements or provisions on the part of the other party arising out of this
Assignment, then in that event the prevailing party shall be entitled to have
and recover of and from the other party all costs and expenses of the action or
suit including reasonable attorneys' fees, court costs and fees of experts.
All defined terms used herein shall have meanings given such terms in
the Agreement, and are hereby incorporated herein by reference.
This Assignment may be executed in counterparts, each of which shall be
deemed an original, but all of which, together, shall constitute on and the same
instrument.
This Assignment shall be binding upon and inure to the benefit of the
successors, assignees, personal representatives, heirs and legatees of all of
the respective parties hereto.
This Assignment shall be governed by, interpreted under, and construed
and enforceable in accordance with, the laws of the State of California.
This Assignment is intended to supplement the terms and provisions of
the Agreement and shall be construed as consistent therewith to the greatest
extent possible. This Assignment shall not be deemed to modify or amend the
Agreement. In the event of an irreconcilable conflict between the provisions of
the Agreement and this Assignment, the provisions of the Agreement shall
prevail.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
and Assumption of Intangible Property as of the date first written above.
ASSIGNOR: Lincoln Pacific Industrial Fund Limited Partnership, a Delaware
limited partnership
By: Eastrich No. 106 Corporation, a Massachusetts corporation,
General Partner
By:
-------------------------------------
Its:
---------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
-3-
52
ASSIGNEE: Pacific Gulf Properties Inc., a Maryland corporation
By:
--------------------------------------
Its:
-------------------------------------
By:
--------------------------------------
Its:
-------------------------------------
-4-
53
EXHIBIT J
QPAM CERTIFICATE
[Date]
AEW Capital Management, L.P. ("AEW")
As Agent for One or More of its Pension Fund Clients
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
State Street Bank and Trust Company ("State Street")
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
In connection with the undersigned's acquisition of the Lincoln Pacific
Industrial Fund Portfolio under that certain Agreement for Purchase and Sale
dated as of May 23, 1997 (the "Transaction"), the undersigned hereby certifies,
warrants and represents that none of the parties described in Schedule I* is an
"affiliate" (as defined on Exhibit A) of the undersigned. The undersigned
acknowledges that AEW, State Street, and their client(s), will be relying upon
the foregoing information in determining the availability of ERISA Prohibited
Transaction Class Exemption 84-14 (the QPAM Exemption) with respect to the
Transaction.
Pacific Gulf Properties Inc.,
Dated: a Maryland corporation
-----------------------------
By:
-------------------------------------
Its:
-------------------------------------
----------------------------------
*Schedule I lists any party that, at the time of the transaction or at
any time during the immediately preceding one year, has the authority to appoint
or to terminate AEW or to negotiate the terms of the management agreement with
AEW (including renewals or modifications thereof) on behalf of any plan involved
in the Transaction.
54
EXHIBIT A
An "affiliate" of a person means:
1. Any person directly or indirectly, through one or more intermediaries,
controlling, controlled by, or under common control with the person;
2. Any corporation, partnership, trust or unincorporated enterprise of
which such person is an officer, director, 5% or more partner, or
employee (but only if the employer of such employee is the plan
sponsor); and,
3. Any director of the person or any employee of the person who is a
highly compensated employee, as defined in Section 4975(e)(2)(H) of the
IRC, (1) or who has direct or indirect authority, responsibility or
control regarding the custody, management or disposition of plan
assets. A named fiduciary (within the meaning of Section 402(a)(2) of
ERISA) of a plan and an employer any of whose employees are covered by
the plan will also be considered affiliates with respect to each other
for this purpose if such employer or an affiliate of such employer has
the authority, alone or shared with others, to appoint or terminate the
named fiduciary or otherwise negotiate the terms of the named
fiduciary's employment agreement.
-----------------------------
(1) Under IRC Section 4975(e)(2)(H), an individual is a highly compensated
employee if he earns 10% or more of the yearly wages of the employer.
Note: For purposes of the above definition of "affiliate," "control" means the
power to exercise a controlling influence over the management or policies of a
person other than an individual.
55
SCHEDULE 1
AT&T Master Pension Trust
Iowa Public Employees Retirement System
Digital Equipment Corporation Pension Trust
AEW - State Street Real Estate Fund II
CIBA Energy
GTE
Mars Inc.
CBS, Inc.
International Paper
World Bank
State Street Bank and Trust Retirement Plan
▇▇ ▇▇▇▇▇▇▇
JPS Textiles
West Point Pepperell, Inc.
Ocean Spray, Inc.
AEW - State Street Real Estate Fund V
GTE
Minnesota State Board
Dow Chemicals
Massachusetts State Teachers Board
TWA, Inc.
Honeywell
General Signal
▇▇▇▇▇ ▇▇▇▇▇▇
Alliant Techsystems
Conrail
State Street Bank and Trust Retirement Plan
Wisconsin Electric
West Publishing
