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EXHIBIT 10.5
REAL ESTATE PURCHASE CONTRACT
AND DEPOSIT RECEIPT
1. OFFER TO PURCHASE: Purchaser hereby offers to purchase the Property
described below, for the price and upon the terms and conditions set
forth herein.
2. PARTIES:
JPI XI, L.P., a California limited partnership, is referred to herein as
"Seller." Pacific Gulf Properties Inc. is referred to herein as
"Purchaser."
3. PROPERTY DESCRIPTION: That certain property located in the County of
Sacramento, and State of California, described as follows: approximately
221,300 square feet of industrial buildings with addresses of ▇▇▇▇ -
▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
APN Number: ▇▇▇-▇▇▇▇-▇▇▇/53/54/55/55/57/63/64/65/66/67/68
The above described property, including all rights, title and interest,
remainder easements, development rights, rights of way and other rights
appurtenant and/or of benefit thereto, is described herein as the
"Property."
The "Property" shall also include (a) all tangible personal property
owned by Seller located on or in or used in connection with the Property
as of the date hereof and as of closing (the "Tangible Personal
Property"); (b) all intangible personal property now or hereafter owned
by Seller in connection with the Property, including, without
limitation, the right use the name "Horn Road Business Complex" and any
other trade name now used in connection with the Property (the
"Intangible Personal Property"); (c) all leases, rental agreements and
other agreements for the use or occupancy of the Property or any portion
thereof (the "Leases"); and (d) to the extent approved by Purchaser all
service, utility and other agreements and contracts relating to the use
and operation of the Property (the "Assigned Contracts"). The Tangible
Personal Property, Intangible Personal Property, Leases and Assigned
Contracts are collectively referred to as the "Personal Property".
4. PURCHASE PRICE: The Purchase Price shall equal the difference between
Nine Million Five Hundred Thousand and No/100 Dollars ($9,500,000) and
the outstanding principal balance of the Existing Loan (as that term is
defined in Section 6 of this Contract).
5. INITIAL DEPOSIT: This Contract is expressly contingent upon receipt of
the Initial Deposit from Purchaser, in the form of a check made payable
to First American Title, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
(hereinafter referred to as "Escrow Holder") in the amount of One
Hundred Thousand ($100,000)Dollars, as follows:
_________ hereby received from Purchaser [or]
X shall be delivered to Escrow Holder no later than 5:00 PM three
-------- (3) business days from mutual execution of the Contract; and
if the deposit is not so delivered, this Contract shall become null and
void.
The deposit shall be held by First American Title Insurance Company in
an interest bearing account pursuant to separate written instructions
from Purchaser. All interest accrued on the deposit shall be for the
Purchaser's account alone. The deposit (and such interest thereon as
Purchaser may direct), shall be applied toward the purchase price at
close of escrow.
6. EXISTING LOAN: This Purchase Contract is expressly conditioned upon
Purchaser's assumption of the existing note and the first Deed of Trust
and Assignment of Rents in favor of Ameritas Life Insurance Company
("Lender"), the outstanding balance being approximately $2,890,000.00,
payable in monthly installments of $25,000.00, including interest at the
rate of 7.95% (fixed), all due and payable February 1, 2006 (the
"Existing Loan"). Within five (5) days of mutual execution of this
Contract, Purchaser shall submit to Lender and/or its loan servicing
agent (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Financial Corporation), the information required
by ▇▇▇▇▇▇ to obtain ▇▇▇▇▇▇'s consent. Any fees or costs associated with
the loan assumption shall be Purchaser's obligation.
7. TITLE REPORT AND ESCROW INSTRUCTIONS: Upon mutual execution hereof and
delivery of the initial Deposit as set forth herein, Broker shall order
a Preliminary Title Report regarding the Property from Escrow Holder and
shall establish escrow with Escrow Holder. Upon receipt of the
Preliminary Title Report, including full copies of all exceptions set
forth therein including but not limited to covenants, conditions and
restrictions (CC&Rs), reservations, easements, rights and rights of way
of record, liens, and other matters of record, and a current Alta Survey
on the Property in a form acceptable to Purchaser, Purchaser shall have
thirty (30) calendar days in which to approve or disapprove of said
Report and secure a commitment from the title company in a form required
by Section 10 of the Contract, including any endorsements reasonably
required by Purchaser, provided, that if Purchaser fails to disapprove
said Report in writing within such time, then Purchaser shall be
conclusively deemed to have approved thereof. The provisions of this
Contract shall constitute joint escrow instructions to the escrow
holder; provided, that the parties shall execute such further or
additional escrow instructions as requested by ▇▇▇▇▇▇ Holder not in
conflict with this Contract except as agreed to by Seller and Purchaser.
8. CLOSE OF ESCROW AND DELIVERY OF POSSESSIONS: Closing shall occur within
fifteen (15) days after the end of the Due Diligence Period. Time is of
the essence of this Contract. Possession of the Property shall be
delivered to Purchaser on the date of close of escrow unless otherwise
provided herein. On or before close of escrow Seller shall supply to
Purchaser keys to all lockable doors, compartments, systems, closets,
and alarms on the Property in Seller's possession and to the extent that
they are in the Seller's possession, the following: original leases and
tenant files and the original of any assigned contract, originals of all
licenses, permits and variances, and certificates of occupancy for all
occupied space within the property, notices to the tenants of the
occurrence of the sale of the property in the form approved by
Purchaser. A closing statement as provided by the escrow holder shall
also be provided by the escrow holder, which closing statement shall be
approved by Seller and Purchaser.
9. ESTOPPEL CERTIFICATES: Not later than five (5) calendar days before
close of escrow, Seller shall deliver to Purchaser an executed estoppel
certificate in the form attached from the tenants representing a minimum
of eighty percent (80%) of the square footage of the improvements, and
Seller will provide its own estoppels from any missing tenant estoppel.
Purchaser shall have three (3) calendar days after receipt of said
tenants' and landlord's estoppels in which to disapprove, in writing,
the estoppel certificate; which right may be exercised in Purchaser's
reasonable discretion, but only if, the certificate(s) reflect a
discrepancy materially affecting the economics of the transaction or a
previously undisclosed material breach of the lease(s). Upon such
disapproval, this Contract shall be immediately terminated. In the event
that Purchaser terminates this Contract pursuant to these terms,
Purchaser's deposit(s) shall, upon demand and without further agreement
of Seller, be returned to Purchaser in full.
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10. TITLE INSURANCE: The Policy of Title Insurance shall be a California
Land Title Association (CLTA) Standard Coverage Policy with a liability
not exceeding the total purchase price; provided the Purchaser may, at
Purchase's option, elect (at Purchaser's own additional cost) an
American Land Title Association (ALTA) Policy.
11. COSTS AND FEES:
A. Title Insurance: CLTA title insurance fees shall be paid by Seller,
provided that if Purchaser elects an ALTA policy, then the cost
difference between an ALTA policy and a CLTA policy shall be paid by
Purchaser. Seller shall order and pay for a chain of title search and
pay any personal property sales taxes applicable to the sale.
B. Escrow Fees and Recording Costs shall be paid equally by Seller and
Purchaser. C. Documentary transfer taxes required by any lawful
authority shall be paid by Seller to Purchaser.
12. ASSUMPTION OF BONDS AND ASSESSMENTS: All bonds and assessments which are
a lien as of the date of mutual execution of this Contract shall be
assumed by Purchaser, to the extent that they are reflected on current
tax bills as direct levies.
13. DUE DILIGENCE CONTINGENCY: Purchaser shall have a period of thirty (30)
days from mutual execution of this Contract and the delivery of the
items to be supplied by Seller under this Paragraph 13, in which to
conduct its due diligence investigation of the information provided by
Seller and of the Property (which period shall be considered the Due
Diligence Period). At any time during the Due Diligence Period,
Purchaser may elect to terminate this Contract in the sole and absolute
discretion, by delivering written notice thereof to Seller.
Not later than five (5) business days from the date of mutual execution
of this Contract, Seller shall deliver to Purchaser the following listed
items if existing. If Seller does not have in its possession any of the
listed items, or if such item(s) does not exist or is not reasonably
obtainable, then Seller shall so notify Purchaser in writing of its
unavailability in lieu of production thereof:
A. Any notes and/or security agreements which will or may affect or
encumber the Property at close of escrow.
B. All rental agreements, leases, and other written contracts or
agreements which will or may affect the Property at close of escrow.
C. All accounting ledgers and operating statements for the prior twelve
(12) months to date of mutual execution of this Contract, including all
property tax bills (paid or unpaid) for said period.
D. Most recent operating expense invoices and/or ▇▇▇▇▇▇▇▇.
E. Any existing plat maps, surveys, certificates of occupancy,
construction plans, tentative or final maps, and other like plans, maps
or documentation concerning the Property that is currently existing and
in Seller's possession.
F. A form of Estoppel Certificate reasonably acceptable to Purchaser to
be executed by the tenant(s) pursuant to paragraph 9 above.
G. Any existing inspection reports, test results, soils and engineering
reports, environmental assessments, Phase I or Phase II reports, or like
documents or information in any form or nature currently existing and in
Seller's possession, which reflect upon the condition of the Property
including, without limitation, the existence or nonexistence of
asbestos, PCB transformers, residential lead paint hazards, or other
toxic, hazardous or contaminated substances or underground storage tanks
in, on, or about the Property (all collectively referred to herein as
"Reports").
H. All contracts relating to the operation, maintenance, or management
of the Property.
I. True, complete and correct copies of all documents evidencing or
securing the Loan.
J. Copies of whatever documents Seller may have regarding the financial
condition, business prospects or prospective continued occupancy of any
tenant (including, but not limited to, financial statements, credit
reports, etc.).
K. All presently effective warranties or guaranties relating to the
Property or any portion thereof.
L. Reports of insurance carriers respecting the claims history of the
Property. Copies of maintenance records for the Property for 1995, 1996
and year to date 1997 if available.
M. A list of all Personal Property included within the Property.
N. A copy of the Property budget for the current year.
O. A current rent roll certified by the Seller to be accurate and
complete in form and content reasonably satisfactory to Purchaser, and
copies of all lease files.
P. All licenses, permits, variances and other governmental
authorizations relating to the use or occupancy of the Property, and
copies of all building and improvement plans relating to the Property.
Q. Annual statements of operations for the Property for 1995, 1996, and
year to date 1997. Purchaser shall have the right to audit Seller's
records for these periods.
R. A current ALTA/ACSM survey of the Property if one is in existence.
14. PROPERTY INSPECTION: Purchaser shall have the right to inspect books and
records concerning the Property including, but not limited to, records
of income and expenses; and to conduct, at any time before the
expiration of the Due Diligence Period as described above, at its sole
cost and expense, inspections, tests, surveys, and other studies, for
the purpose of identifying the existence in, on, or about the Property
of asbestos, PCB transformers, other hazardous or contaminated
substances, underground storage tanks, residential lead paint hazards,
flooding issues, ADA, earthquake standards and other matters concerning
any and all aspects of the Property. Seller hereby grants permission for
Purchaser to talk with Seller's contractors, tenants, and governmental
agencies regarding the Property. Contacts with tenants shall be in the
presence of Seller's Property Manager. Seller shall allow Purchaser and
Purchaser's agents the right to enter upon the Property at all
reasonable times for the purpose of conducting such inspections, tests,
surveys and studies; provided, however, that Purchaser shall protect,
defend, indemnify and hold Seller harmless from and against any and all
expenses and liabilities that may result from such inspections, and
shall take no action which may result in the imposition of any liens
against the Property. Any claim for indemnity shall be made within six
(6) months from the date of said inspections, tests, surveys, or studies
and Purchaser's indemnity shall be not to exceed Two Hundred Fifty
Thousand Dollars ($250,000).
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15. MATERIAL DAMAGE AND TAKING BY EMINENT DOMAIN: If the improvements on the
Property are destroyed or materially damaged prior to the close of
escrow, or if a material taking by eminent domain occurs prior to close
of escrow, this Contract shall, at Purchaser's election, immediately
terminate. In the event any damage or taking does not result in a
termination of the Contract, Purchaser shall receive a credit toward the
purchase price in an amount equal to the cost of any repairs which are
not covered by insurance (due to deductible or otherwise), or the
deficiency in any condemnation award. A destruction shall be considered
material if the cost of repair or replacement without deduction for
depreciation exceeds Two Hundred Thousand Dollars ($200,000) of the
purchase price, provided that, if applicable building codes or other
laws or regulations require work exceeding the repair or replacement of
the actual damage, the cost shall be considered to include all the work.
A taking by eminent domain is material if the diminution of market value
exceeds Two hundred Thousand Dollars ($200,000) of the purchase price.
This Contract shall be governed by the Uniform Vendor and Purchaser Risk
Act, California Civil Code Section 1662 in effect at the date of this
Contract to the extent said Act is not in conflict with express
provisions of this Contract. If Purchaser elects to accept the Property
in its then condition, all proceeds of insurance payable to Seller by
reason of such damage shall be paid to Purchaser.
16. ATTORNEYS' FEES: In any litigation, arbitration or other legal
proceeding which may arise between or among any of the parties hereto,
including their Brokers or agents, the prevailing party shall be
entitled to recover its costs, including costs of arbitration, and
reasonable attorneys' fees in addition to any other relief to which such
party may be entitled.
17. REPRESENTATIONS TO THE BEST OF SELLER'S ACTUAL KNOWLEDGE:
A. To the best of Seller's actual knowledge, there is no suit, action or
arbitration, proposed bond issuance, proposal for public improvement
assessments; pay-back agreement, paving agreement, road expansion or
improvement agreement, utility, use, or improvement moratorium; or
legal, administrative, or other proceeding or governmental investigation
or requirement, formal or informal, pending or threatened that affects
the Property or which adversely affects Seller's ability to perform
hereunder, or other change or expense upon or related to the Property
which has not been disclosed to Purchaser in writing prior to the date
of this contract. In addition, to the best of Seller's actual knowledge,
there is no suit, action, arbitration, or other proceeding affecting or
involving any tenant with respect to the Property.
B. To the best of Seller's actual knowledge, there are no charges or
other expenses upon or relating to the Property which have not been
disclosed to Purchaser in writing other than those which are reflected
in the items to be delivered to Purchaser during Purchaser's Due
Diligence Period under paragraph 13 above.
C. To the best of Seller's actual knowledge, there is no asbestos, PCB
transformer, residential lead paint hazard, or other toxic, hazardous or
contaminated waste or substance, as defined by applicable state, federal
or local law, statute, ordinance or regulation, released upon or
disposed of onto, stored, or otherwise held on, under or about the
Property, and Seller has received no notice of any violation or claimed
violation of any law, rule or regulation relating to such hazardous
waste. To the best of Seller's knowledge there is no occurrence or
condition on any other real property that could cause the Property or
any part thereof to be classified as a "Border Zone Property" under the
provisions of California Health and Safety Code Sections 225220, et
seq., or any regulation adopted in accordance therewith. Seller's
knowledge relies upon the Level I Environmental Assessment prepared by
Lush Geosciences dated January 9, 1996.
D. To the best of Seller's actual knowledge, there are no agreements
with any taxing authority respecting the imposition or deferment of any
taxes or assessments respecting the Property and Seller has no knowledge
of any unrecorded taxes, assessments (special,l general or otherwise) or
bonds of any nature affecting the Property, except as disclosed on the
tax bill.
E. To the best of Seller's actual knowledge, the Property and all
components thereof (including, but not limited to, parking lots,
electrical systems, roofs, heating, ventilating and air conditioning
systems) are, and at close of escrow shall be, in good condition and
working order and shall perform the work or function for which they were
intended. To the best of Seller's actual knowledge the improvements, and
all component parts thereof, were constructed in substantial conformance
with the plans and specifications as well as documents approved by
appropriate public officials and are free of material construction,
design and/or structural defects.
F. To the best of Seller's actual knowledge, Seller has not received,
nor is aware of any notification from any building department, health
department, or such other City, County or State authority having
jurisdiction, requiring any work to be done on or affecting the
Property. ▇▇▇▇▇▇ agrees that in the event such notice is received by
Seller prior to the close of escrow and ▇▇▇▇▇▇ is unable to or elects
not to perform the work required in said notice, at Seller's sole cost
and expense, on or before the close of escrow, said notice shall be
submitted to Purchaser for Purchaser's examination and approval. In the
event such a notice is submitted to Purchaser, Purchaser shall have a
period of five (5) calendar days from delivery in which to disapprove
said notice and thereby elect to terminate this Contract. In the event
that Purchaser terminates this Contract pursuant to these terms,
Purchaser's deposit(s) shall, upon demand and without further agreement
of Seller, be returned to Purchaser in full, and neither party shall
have any further liability under this Contract.
G. To the best of Seller's actual knowledge, the Property, building, and
improvements thereon do not violate any applicable building, zoning,
environmental or other statutes or regulations, and Seller is unaware of
any material defect in the Property or improvements thereon.
H. All documents delivered by Seller to Purchaser or made available to
Purchaser for review, including without limitation the items described
in Paragraph 17 of the Contract as supplemented hereby, are true and
complete copies of all documents relating to the Property in Seller's
possession or control. All of Seller's books, files and records related
to the Property were made available to Purchaser for Purchaser's review
at Seller's offices.
I. At the closing, there will be no outstanding written or oral
contracts made for any improvements to the Property (including without
limitation tenant improvements), or for the offsite improvements related
to the Property, which have not been fully completed and paid for,
except as described herein or by Seller's files and records. Seller
shall cause to be discharged all mechanics' and materialmen's liens
arising from any labor or materials furnished to the property prior to
the close of escrow. (NOTE: LINE ON COPY UNINTELLIGIBLE)
in connection with tenant improvements, remodeling and renovation and
Seller shall cause to be discharged any and all such costs and
obligations with respect to all Leases executed prior to Closing unless
agreed otherwise between Seller and Purchaser. New leases entered into
after the date hereof and before closing shall be agreed upon between
Seller and Purchaser. The responsibility for commissions and tenant
improvements for any such new leases will be the obligation of
Purchaser.
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J. The most current Rent Roll provided to Purchaser is a complete and
accurate list of all Leases. There are no (1) free rent, operating
expense abatements, incomplete tenant improvements, rebates, allowances,
or other unexpired concessions (collectively referred to as "Offsets"),
(2) rights of first refusal or rights to purchase the Property, or (3)
rights of termination, extension, cancellation or expansion, under any
Lease except as specifically set forth on the most current Rent Roll.
Seller has provided to Purchaser complete and accurate copies of all
Leases. To the best of Seller's actual knowledge, there exists no
defaults or events which, with the giving of notice or passage of time,
or both, would constitute a default by Seller or any tenant under any
Leases.
▇. ▇▇▇▇▇▇ has provided to Purchaser complete and accurate copies of all
contracts, bonds and other agreements affecting the Property. To the
best of Seller's actual knowledge, there exists no defaults or events
which, with the giving of notice or passage of time, or both, would
constitute a default by Seller or any of the other parties to such
contracts, bonds or agreements.
L. There is no default or event which, with the giving of notice or
passage of time would constitute a default under the loan ("Loan")
secured by the Property from Ameritas Life Insurance Company ("Lender")
to Seller, as "Borrowers". Seller has delivered to Purchaser true and
complete copies of all documents evidencing or securing the Loan. ▇▇▇▇▇▇
agrees to provide to the Lender all information necessary for the Lender
to agree to the assignment of the Loan and the transfer of the Property,
and agrees to execute such documentation as may be reasonably required
by the Lender in connection with that assignment.
All representations, warranties and covenants contained in this Contract
or made in writing pursuant to this Contract are intended to and shall
be deemed made as of the date of this Contract and again at the close of
escrow and shall survive the execution and delivery of this Contract,
the recording of the grant deed and the close of escrow.
18. LIQUIDATED DAMAGES: IF PURCHASER MATERIALLY BREACHES THIS CONTRACT, THE
PARTIES AGREE THAT THE SUM OF ONE HUNDRED THOUSAND AND NO/100 ($100,000)
DOLLARS WILL CONSTITUTE LIQUIDATED DAMAGES, WHICH SUM THE PARTIES AGREE
IS A REASONABLE SUM CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE
DATE OF THIS CONTRACT, INCLUDING THE RELATIONSHIP OF THE SUM TO THE
RANGE OF HARM TO PURCHASER THAT REASONABLY WOULD BE ANTICIPATED AND THE
ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR
INCONVENIENT. IN PLACING THEIR INITIALS AT THE PLACES PROVIDED, EACH
PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE
AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED
THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS
CONTRACT WAS MADE.
_______ Purchaser's initials _____ Seller's initials
19. FIRPTA: Seller shall execute and deliver to Purchaser at the Closing a
Certificate of NonForeign Status, and a California Real Estate
Withholding Exemption (Form 590) in form approved by Purchaser.
20. SPECIAL EARTHQUAKE STUDIES ZONE: To the best of Seller's knowledge and
according to State of California - Department of Conservation-Division
of Mines and Geology - Special Publication 42 - "Fault Rupture Hazard
Zones", the Property ___ is [or] x is not situated in a Special Studies
Zone as designated under the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Special Earthquake Studies
Zone Act, Sections 2621-2630, inclusive, of the California Public
Resources Code, and Purchaser acknowledges that any such designation may
impact Purchaser's intended use of the Property. Purchaser shall be
solely responsible for confirming the above stated earthquake status of
the Property and for investigation of the impact of such status on
Purchaser's intended use of the Property.
21. FLOOD HAZARD AREA: To the best of Seller's knowledge and according to
Flood Map Panel 060262-0205D Grid E-5 the Property __ is [or] x is not
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situated in a Special Flood Hazard Area. federal law requires that as a
condition for obtaining federally related financing on most properties
located in Special Flood Hazard Areas, banks, savings and loan
associations, and some insurance lenders required flood insurance to be
carried where the property, real or personal, is security for the loan;
this requirement is mandated by the National Flood Insurance Act of 1968
and the Flood Disaster Protection Act of 1973. The purpose of the
program is to provide flood insurance to property owners at a reasonable
cost. Cities or counties participating in the National Flood Insurance
Program may have adopted building or zoning restrictions or other
measures, as part of their participating in the Program. Purchaser
acknowledges that such designation may impact Purchaser's intended use
of the Property.
22. AMERICANS WITH DISABILITIES ACT (ADA): Neither Seller nor CB Commercial
Real Estate Group, Inc. (hereinafter "Broker") makes any representations
concerning the impact or applicability of the Americans with
Disabilities Act (the ADA), a Federal law codified at 42 USC Section
12101 et seq. Purchaser acknowledges that the ADA requires owners of
"Public accommodations" to remove barriers to access by disabled persons
and provide auxiliary aids and services for hearing, vision or speech
impaired persons. Purchaser agrees that any modifications to the
Property, structural or otherwise, required by the ADA shall be at the
sole cost and responsibility of Purchaser.
23. BROKER COMMISSIONS: ▇▇▇▇▇▇ agrees to pay and hereby irrevocably assigns
to CB Commercial ("Broker") a commission equal to three and one-half
(3.5%) percent of the gross purchase price as and for a commission for
▇▇▇▇▇▇'s services rendered in effecting the sale. This commission is
earned as of the close of escrow, and escrow holder is hereby
irrevocably instructed to pay said commission to broker out of ▇▇▇▇▇▇'s
proceeds upon the close of escrow and through escrow. This instruction
shall not be withdrawn or modified without ▇▇▇▇▇▇'s written consent and
Purchaser and Seller agree that broker is a third party beneficiary of
the Contract with respect to such commission. Notwithstanding anything
to the contrary contained herein, this commission agreement shall not
supersede or waive any rights Broker may have under any listing
agreement with Seller. Seller and Purchaser each warrant that they have
dealt with no other real estate broker in connection with this
transaction except CB Commercial Real Estate Group, Inc.
In the event that any other broker or finder claims a commission or
finder's fee based upon any contact, dealings or communication, the
party through whom the broker or finder makes its claim shall be
responsible for said commission or fee and all costs and expenses
(including, without limitation, reasonable attorneys' fees) incurred by
the other party in defending against the same. the party through whom
any other broker or finder makes a claim shall hold harmless, indemnify
and defend the other party hereto, its successors and assigns, agents,
employees, officers and directors, and the Property from and against any
and all liabilities and losses (including, without limitation,
attorneys' fees) arising out of such claim. The provisions of this
Section shall survive the termination of this Agreement.
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24. INTEGRATION; COUNTERPARTS; TELECOPIED SIGNATURES: This Contract shall
constitute the entire Real Estate Purchase Contract between Purchaser
and Seller and supersedes any and all agreements between the parties
hereto regarding the subject Property. This Contract may be executed in
counterpart, each of which shall be deemed an original but all of which
when taken together shall constitute one and the same instrument. In
order to expedite the transaction contemplated herein, the parties
hereto agree that a telecopied signature shall be deemed to constitute
an original signature evidencing the signing party's offer or
acceptance; provided, however, that each party shall thereafter sign a
sufficient number of originals of this Contract, in duplicate, so that
each party shall be provided a fully executed original of this Contract.
The telecopied signature(s) shall be retained as a part of the Contract
in order to establish conclusively the date of mutual execution and
commencement of the Due Diligence Period. The undersigned intends to be
bound by its signature on the telecopied document is aware that parties
will rely on the telecopied signature and hereby waives any defenses to
the enforcement of the terms of this Contract based on the transmission
of signature by telecopy.
25. PURCHASER'S CONDITIONS TO CLOSING: At least three (3) business days
prior to closing, Seller shall execute, where appropriate acknowledge
and deliver into escrow for recording and/or delivery to Purchaser as
appropriate at the close of escrow a grant deed, a bill of sale, an
assignment of intangible property, an assignment of leases and a
certificate of non-foreign status (collectively the "Closing
Documents"). Purchaser shall also execute and deliver to Seller, through
escrow at the closing, the assignment of intangible property and
assignment of leases. The form of the Closing Documents shall be
prepared by Purchaser and approved by Seller during the Due Diligence
Period. In addition, the following are conditions precedent to
Purchaser's obligation to purchase the Property. In the event any
condition precedent is not satisfied, Purchaser may, in its sole and
absolute discretion, terminate this Contract, whereupon escrow holder is
hereby irrevocably instructed to return to Purchaser all funds
previously deposited, and the parties shall have any further rights or
obligations to each other.
A. The issuance by the Title Company to the Purchaser of an ALTA
Extended Coverage Owner's Policy of Title Insurance (Form B, revised
10/17/70, with Endorsement Form 1 Coverage) in the amount of the
Purchase Price insuring fee simple title to the Property in Purchaser,
subject only to such exceptions as Purchaser shall have approved, and
containing such endorsements as Purchaser may specify pursuant to
Section 7 of the Contract.
B. At least three (3) and no more than five (5) business days prior to
closing, Seller shall provide (and Seller hereby covenants to provide)
to Purchaser an updated Rent Roll which updated Rent Roll must not
indicate any material adverse change from the Rent Roll last approved by
Purchaser, and Purchaser shall have performed a closing audit which
confirms the updated Rent Roll. Seller shall certify the Rent Roll as
true and complete and shall identify any events which with the passage
of time and/or the giving of notice would constitute a tenant default.
C. Seller shall have terminated prior to the closing, at no cost or
expense to Purchaser, any and all contracts affecting the Property that
are not approved by Purchaser.
D. In Purchaser's reasonable determination, there shall have been no
material adverse change in or to the Property or the information or
items reviewed and approved by Purchaser during the Due Diligence
Period.
E. Receipt by Purchaser of a certificate from the California Secretary
of State indicating that, as of the closing, there are no filings
against Seller or any of the Personal Property under the California
Uniform Commercial Code which would be a lien on any of the Personal
property following the closing.
F. Receipt by Purchaser of (i) a Beneficiary Statement from Lender; (ii)
an estoppel from Lender confirming that no default exists under the
loan; (iii) a Loan assignment and assumption agreement in form and
content reasonably satisfactory to Purchaser.
26. ACKNOWLEDGEMENT OF RECEIPT: By execution hereof, each signing party
acknowledges receipt of a copy of this Contract.
27. WARRANTY OF AUTHORITY: By execution hereof, each signatory hereto
warrants that he/she has the authority to do so and to bind the party on
whose behalf he or she has executed this Contract.
28. ACCEPTANCE: By execution hereof, each party approves and accepts the
terms of the foregoing Contract and agrees to the transaction described
herein.
29. ACCEPTANCE DEADLINE: Unless both Purchaser and Seller accept this offer
to purchase the subject Property by mutual execution and delivery of
this Contract to the other on or before 5 PM on October 14, 1997, this
offer shall become null and void, and any deposit made herewith shall be
immediately returned to Purchaser.
30. RELEASE OF LIENS: Anything contained herein to the contrary
notwithstanding, and notwithstanding any approval or consent by
Purchaser hereunder, Seller shall cause all mortgages, deeds of trust
and other monetary encumbrances, with the exception of the Deed of
Trust, Security Contracts, and Assignment of Rents in favor of Ameritas
Life Insurance Company including without limitation all mechanics'
liens, to be released and reconveyed from the Property on or prior to
the close of escrow.
31. PRORATIONS: The following are to be apportioned as of the close of
escrow, with Purchaser receiving credit for the entire day of the
closing, as follows:
A. Rent. Rent under the Leases shall be apportioned as of the close of
escrow for the current month, regardless of whether or not such rent has
been received by Seller. With respect to any rent arrearages arising
under the Leases, after closing, Purchaser shall pay to Seller any rent
actually collected which is applicable to the period preceding the close
of escrow; provided, however, that all rent collected by Purchaser shall
be applied first to all unpaid rent accruing after the close of escrow,
and then to unpaid rent accruing prior to the close of escrow. Purchaser
shall not be obligated to take any steps to recover any rent arrearages.
Seller shall take no steps to attempt to collect any delinquent rent
following the closing.
B. LEASING COSTS. Seller shall pay as of the closing of all leasing
commission and tenant improvement costs. If any, in connection with any
Lease executed on or before the date of this contract that are or will
become due and payable as of the closing. Purchaser shall be entitled to
a credit against the Purchase Price of any such unpaid commissions or
costs due after the closing but incurred in connection with any lease
executed on or before the date of this contract.
C. SECURITY DEPOSITS. Purchaser shall be entitled to a credit against
the Purchase Price for the total sum of all security and other deposits
paid to Seller by tenants under any Leases, and any interest earned
thereon which by law or the terms of the Leases could be required to be
refunded to tenants.
D. FREE RENT, ABATEMENTS OR OTHER UNEXPIRED CONCESSIONS. Purchaser shall
be entitled to a credit against the Purchase Price for any free rent,
abatements, or other unexpired concessions under any Leases to the
extent they apply to any period after the closing.
E. UTILITY CHARGES. Seller shall use its best efforts to cause all the
utility meters to be read on the close of escrow, and will be
responsible for the cost of all utilities used prior to the close of
escrow, except to the extent such utility charges are billed to and paid
by tenants directly.
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F. REAL ESTATE TAXES AND SPECIAL ASSESSMENTS. General real estate taxes
payable for the fiscal year in which the closing occurs shall be
prorated between Seller and Purchaser as of the close of escrow by the
Escrow Holder. Seller shall pay on or before closing the full amount of
any bonds or assessments against the Property that are not included in
the yearly tax bills including interest payable therewith, including any
bonds or assessments that may be payable after the close of escrow as a
result of or in relation to the construction or operation of any
improvements or any public improvements that took place or for which any
assessment was levied prior to the close of escrow which levies are not
included in the yearly tax bills as direct levies. Purchaser shall be
responsible for the payment of any bonds or assessments that are
included in the yearly tax bills or incurred after the close of escrow
that are not subject to the immediately preceding sentence.
G. OTHER APPORTIONMENTS. Amounts payable under the Assigned Agreements,
annual or periodic permit and/or inspection feed (calculated on the
basis of the period covered), and liability for other Property operation
and maintenance expenses, amounts payable under the Loan, and other
recurring costs shall be apportioned as of the close of escrow.
H. PRELIMINARY CLOSING STATEMENTS. Seller and Purchaser shall jointly
prepare and approved a preliminary Closing Statement on the basis of the
Leases and other sources of income and expenses, and shall deliver such
computation to Escrow Holder prior to closing.
I. POST-CLOSING RECONCILIATION. If any of the aforesaid prorations
cannot be definitely calculated on the close of escrow, then they shall
be estimated at the closing and definitely calculated as soon after the
close of escrow as feasible. As soon as the necessary information is
available, Purchaser and Seller shall conduct a post-closing audit to
determine the accuracy of all prorations made to the Purchase Price (the
"Post-Closing Audit"). Either party owing the other party a sum of money
based on such subsequent proration(s) or the Post-Closing Audit shall
promptly pay said sum to the other party, together with interest thereon
at the rate of two percent of the "prime rate" (as announced from time
to time in the Wall Street Journal) per annum from the close of escrow
to the date of payment if payment is not made with ten (10) days after
delivery of a bill therefor.
J. EXISTING LOAN. Seller shall pay as of Closing all amounts under the
Existing Loan that have accrued on or prior to the Closing Date.
Purchaser shall pay all amounts under the Existing Loan, and any costs
of assuming the Existing Loan, accruing after the Closing Date.
32. INDEMNITY:
A. Seller shall hold harmless, indemnify and defend Purchase, its
successors and assigns and their respective agents, employees, officers
and directors, and the Property form and against any and all liability,
claims, demands, damages, and costs (including, without limitation,
attorneys' fees and expenses), whether direct, contingent or
nonconsequential, and no matter how arising ("Liabilities"), in any way
(i) related to the Property and arising or occurring prior to the close
of escrow; (ii) related to or arising from any act, conduct, omission,
contract or commitment of Seller, or (iii) resulting from any material
breach of representation or warranty by Seller or resulting from any
material breach or default by Seller under this Contract.
B. Except for Liabilities arising directly or indirectly from a breach
of any of Seller's representations or warranties, or which shall have
arisen out of any of Seller's representations or warranties, or which
shall have arisen out of any aspect of the Property, its management or
operations with respect to the period prior to the close of escrow,
Purchaser shall hold harmless, indemnify and defend Seller, its
successors and assigns and their respective agents, employees, officers,
directors and partners, from and against any and all liabilities in any
way (i) related to the Property and arising or occurring after the close
of escrow and during such time as the Purchaser owns or has any interest
in the Property; (ii) related to or arising from any act, conduct,
omission, contract or commitment of Purchaser; or (iii) resulting from
any material breach of representation or warranty by Purchaser or
resulting from any material breach or default by Purchaser under this
Contract.
33. MAINTENANCE OF THE PROPERTY AND PROPERTY PERSONNEL: Between the date of
this Contract and the close of escrow, Seller shall maintain the
Property in good order, condition and repair, reasonable wear and tear
excepted, shall perform all work required to be performed by the
landlord under the terms of any Lease, and shall make all repairs,
maintenance and replacements of the Property and otherwise operate the
Property in the same manner as before the making of this Contract, as if
Seller were retaining the Property. After full execution of this
Contract and until the close of escrow, Seller shall maintain all
existing personnel on the Property in their current employment positions
at not less than their current rate of compensation. Without limiting
the effectiveness of the foregoing provision or the other provision of
this Contract with respect to such contacts, unless Purchaser
specifically provides Seller with "written notice to the contrary" (as
hereinafter defined), Purchaser shall not retain the existing employees
and management agents of Seller for the Property, and, accordingly, at
the close of escrow, Seller shall cause all employment and management
agreements respecting the Property to be terminated, and deliver
evidence of such termination to Purchaser and remove all employees and
management personnel from the Property. Purchaser's "written notice to
the contrary" pursuant hereto shall be made only by delivery to Seller
of a copy of a written agreement, lease or letter of employment with or
to such employee and/or management agent executed by ▇▇▇▇▇▇▇▇▇.
34. LEASING; PURCHASER'S CONSENT TO NEW CONTRACTS AFFECTING THE PROPERTY;
TERMINATION OF EXISTING CONTRACTS: Seller shall use commercially
reasonable efforts until closing to lease any vacant space, or space
becoming vacant, in the Property. Seller shall not, after the date of
this Contract enter into any lease (other than a lease in accordance
with the immediately preceding sentence) or contract affecting the
Property, or any amendment thereof, or permit any tenant to enter into
any sublease, assignment or agreement pertaining to the Property, or
waive, compromise or settle any rights of Seller under any contract or
Lease, or agree to return any security deposit, or modify, amend, or
terminate any Assigned Contract, without in each case obtaining
Purchaser's prior written consent thereto which consent shall not be
unreasonably withheld or delayed. Seller shall terminate prior to the
closing, at no cost or expense to Purchaser, any and all agreements and
contracts affecting the Property that are not Assigned Contracts.
35. INSURANCE. Through the close of escrow, Seller shall maintain or cause
to be maintained, at Seller's sole cost and expense:
A. The existing policy or policies of insurance now covering the
Property.
B. A policy or policies of workers' compensation and employers'
liability insurance, commercial general liability insurance, and
automobile liability insurance, each in the amount and form maintained
by Seller prior to the date of this Contract.
36. MARKETING. After the end of the Due Diligence Period Seller agrees not
to market or show the Property to, or solicit offers from, any other
prospective purchasers during the remaining term of this Contract.
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37. PUBLICITY AND CONFIDENTIALITY: Seller agrees that the terms of the
transaction contemplated by this Contract, the identity of the Purchaser
and all information made available by Purchaser to Seller or in any way
relating to the Purchaser's interest in this transaction, shall be
maintained in strict confidence and no disclosure of such information
will be made by Seller, whether or not the transaction contemplated by
this Contract shall close, except to such attorneys, accountants,
investment advisors, lenders, and others as are reasonably required to
evaluate and consummate that transaction.
38. ATTORNEYS' FEES: In the event a dispute arises concerning the
performance, meaning or interpretation of any provisions of this
Contract, the defaulting party or the party not prevailing in such
dispute shall pay any and all costs and expenses incurred by the other
party in enforcing or establishing its rights hereunder, including,
without limitation, court costs and attorneys' fees. In addition to the
foregoing award of attorneys' fees to the prevailing party, the
prevailing party in any lawsuit on this Contract shall be entitled to
its attorneys' fees incurred in any post judgment proceedings to collect
or enforce the judgment. This provision is separate and several and
shall survive the merger of this Contract into any judgment on this
Contract.
CB COMMERCIAL REAL ESTATE GROUP, INC. SELLER: JPI XI, L.P.,
LICENSED REAL ESTATE BROKER A CALIFORNIA LIMITED PARTNERSHIP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By: ▇▇▇▇▇▇▇ PROPERTIES, INC.
(▇▇▇) ▇▇▇-▇▇▇▇/phone
(▇▇▇) ▇▇▇-▇▇▇▇/fax By
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., President
By
----------------------------- Title: Managing General Partner
▇▇▇▇ ▇▇▇▇▇▇ ----------------------------------
Date: 10-30-97
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Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, #▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone #: (▇▇▇) ▇▇▇-▇▇▇▇
Fax #: (▇▇▇) ▇▇▇-▇▇▇▇
PURCHASER: PACIFIC GULF PROPERTIES INC.
By
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Print Name:
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Title:
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By:
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Print Name:
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Title:
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Date:
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Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone #: (▇▇▇) ▇▇▇-▇▇▇▇
Fax #: (▇▇▇) ▇▇▇-▇▇▇▇
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CONSULT YOUR ADVISORS. It is recommended that both Purchaser and Seller consult
with their respective advisors. This document has been prepared for approval by
your attorney, and no representation is made by CB Commercial Real Estate Group,
Inc. as to the legal sufficiency or tax consequences of this document, or the
transaction to which it relates. In any real estate transaction, it is
recommended that you consult with a professional, such as a civil engineer,
industrial hygienist or other person, with experience in evaluating the
condition of the property, including the possible presence of asbestos,
hazardous materials and underground storage tanks. No representation is made by
CB Commercial Real Estate Group[, Inc. or its agents or employees, as to the
legal effect, interpretation, or economic consequences of the National Flood
Insurance Program, ▇▇▇▇▇▇▇- ▇▇▇▇▇▇ Special Studies Zone Act, California Public
Resources code, Americans with Disabilities Act, or related legislation. THESE
ARE QUESTIONS YOU SHOULD ADDRESS WITH YOUR LENDER, ATTORNEY, ACCOUNTANT,
ADVISORS, ENGINEERS, AND OTHER QUALIFIED PROFESSIONALS.
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