FORM 8-K - CURRENT REPORT
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 10, 1997
PREFERRED PROPERTIES FUND 80
(Exact name of registrant as specified in its charter)
California 0-9508 94-2599964
(State or other jurisdiction (Commission (I.R.S. Employer
incorporation) File Number) Identification
Number)
One Insignia Financial Plaza
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (864) 239-1000
N/A
(Former name or former address, if changed since last report)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
The Registrant sold Creekside Business Park on September 10, 1997. Creekside
Business Park was sold to DL Creekside Business Park, LLC, an unrelated party,
for $9,200,000.
The Managing General Partner is currently evaluating its cash needs to determine
what portion of the net proceeds can be distributed to its partners in the near
future.
ITEM 5. OTHER EVENTS.
On September 12, 1997, the Registrant entered into definitive settlement
agreements resolving, subject to court approval, the claims asserted in the
litigation entitled Dorothy M. Kaufman, et al. v. Northern Trust Bank of
California, et al., and related claims for indemnity on the terms previously
reported in the Registrant's report on Form 10-QSB for the quarter ended June
30, 1997.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(b) Pro forma financial information.
The required pro forma financial information will be provided in the
Registrant's quarterly report on Form 10-QSB for the quarter ended September 30,
1997.
(c) Exhibits
10.4 Agreement of Purchase and Sale between Registrant and DL Creekside
Business Park, LLC dated July 31, 1997.
10.5 First Amendment to Agreement of Purchase and Sale between
Registrant and DL Creekside Business Park, LLC dated August 15,
1997.
10.6 Second Amendment to Agreement of Purchase and Sale between
Registrant and DL Creekside Business Park, LLC dated August 27,
1997.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PREFERRED PROPERTIES FUND 80
By: MONTGOMERY REALTY COMPANY-80
Its General Partner
By: Fox Realty Investors
Its Managing General Partner
By: NPI EQUITY INVESTMENT II, INC.
Its Managing General Partner
By: /s/ William H. Jarrard, Jr.
President and Director
Date: September 25, 1997
EXHIBIT 10.4
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made and entered
into as of July 31, 1997, by and between CREEKSIDE BUSINESS PARK, LLC, A
DELAWARE LIMITED LIABILITY COMPANY, (the "Buyer") and CREEKSIDE INDUSTRIAL
ASSOCIATES, A CALIFORNIA GENERAL PARTNERSHIP ("Seller") with respect to the sale
by Seller to Buyer of fee simple title to the property (together with items (a)
through (g) below the "Property") commonly known as CREEKSIDE BUSINESS PARK,
located at 1625-1655 and 1701 McCarthy Boulevard, Milpitas, California and which
is more specifically described on Exhibit "A" to this Agreement containing
approximately 5.84 acres of land together with all easements, rights,
privileges, remainders, reversions and appurtenances thereunto belonging or in
any way appertaining, and all of the estate, right, title, interest, claim or
demand whatsoever of the Seller thereon in the streets and ways adjacent thereto
and in the beds thereof, either at law or equity, in possession or expectancy,
now or thereafter acquired (the "Land"), together with (a) the buildings,
structures and improvements on the Land (the "Improvements") including without
limitation, all mechanical systems, fixtures, and equipment; electrical systems,
fixtures and equipment; heating fixtures, systems and equipment; and plumbing
fixtures, systems and equipment; (b) the office complex name and all personal
property ("Personal Property") owned by Seller and used in conjunction with the
operation of the Property; (c) all of Seller's interest in all equipment,
service and supply contracts that Buyer elects to assume by written notice to
Seller prior to the expiration of the Feasibility Period (as defined below) (the
"Contracts"), warranties and guaranties with respect to the Property or
operation thereof; (d) all site plans, surveys, soil and substrata studies,
architectural renderings, plans and specifications, engineering plans and
studies, floor plans, landscape plans and other plans, diagrams or studies of
any kind owned by, and in the actual possession of Seller which relate to the
Land and the Improvements (the "Plans"); (e) all leases presently in force and
effect therefor including all tenant payment records, correspondence files and
credit information files (the "Leases"); (f) all certificates of occupancy,
zoning variances, building, use or other permits, approvals, authorizations,
licenses and consents obtained from any governmental authority and to the extent
assignable in connection with the development, use, operation or management of
the Real Property (the "Permits"); and (g) all trademarks, tradenames, trade
styles, servicemarks, logos and other business identifiers used by Seller in
connection with the Land and the Improvements, including, but not limited to,
the name "Creekside Business Park" (the "Intangible Property").
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants and conditions set forth herein, the parties hereto agree as follows:
ARTICLE 1: PURCHASE AND SALE
1.1 GENERALLY. Seller hereby agrees to sell the Property to Buyer, and
Buyer hereby agrees to purchase the Property from Seller, upon and subject to
all of the terms and conditions contained herein.
1.2 PURCHASE PRICE. The total purchase price (the "Purchase Price") to be
paid by Buyer to Seller for the purchase of the Property shall be Nine Million
Two Hundred Thousand Dollars ($9,200,000).
1.3 DEPOSIT. Within two (2) business days of Seller's acceptance of this
Agreement, Buyer shall deposit the sum of Fifty Thousand Dollars ($50,000) in
immediately available funds as an earnest money deposit (the "Initial Deposit")
with Chicago Title Insurance Company ("Escrow Agent"). Upon Buyer's
satisfactory completion of the Feasibility Period (as defined in Section 1.6),
Buyer shall deliver an additional One Hundred Thousand Dollars ($100,000) as
additional earnest money (the "Second Deposit", the Initial Deposit and Second
Deposit being hereinafter collectively referred to as the "Deposit"). Escrow
Agent shall hold the Deposit in an interest bearing account acceptable to Buyer.
The Deposit shall be either (i) refunded to Buyer, (ii) applied against the
Purchase Price, or (iii) paid to Seller, in accordance with the terms of this
Agreement.
1.4 PAYMENT OF BALANCE PURCHASE PRICE. At the consummation of the
purchase and sale of the Property (the "Closing"), Buyer shall deposit with the
Escrow Agent an amount (the "Closing Payment") equal to the Purchase Price, as
adjusted for transaction expenses and prorations as provided in this Agreement,
less the Deposit and interest earned thereon.
1.5 ACCESS TO PROPERTY AND PROPERTY INFORMATION. Commencing on July 7,
1997 Buyer and Buyer's representatives or agents have been and shall be
permitted, upon prior reasonable notice to Seller, to enter on to the Property
from time to time for physical inspections, investigations, inventories, and
surveys thereof and Seller shall make available to Buyer all books, records and
files of Seller relating to the property, including all tenant records. Seller
shall have the right to disapprove of Buyer's agents and/or the methods of any
proposed tests and inspections on reasonable grounds (e.g., overly invasive
testing means), in which case, Buyer may propose reasonable alternative
consultants and/or testing methods or terminate this Agreement. Buyer hereby
indemnifies, protects, and holds Seller harmless and agrees to defend Seller
from and against any and all claims, demands, losses, damages, and liabilities
(including but not limited to personal injury and property damage claims and
mechanics' or other liens), together with related costs and expenses, including
reasonable attorney fees and litigation costs, caused by Buyer or Buyer's agents
on or to the Property. In addition, Buyer shall keep the Property free from any
liens which could arise as a result of the exercise by Buyer of any of its
rights under this Section 1.5. The provisions of this Section 1.5 shall survive
the Closing or earlier termination of this Agreement.
1.6 FEASIBILITY PERIOD AND DEPOSIT. Buyer shall have until August 15,
1997 (the "Feasibility Period") in which to notify Seller whether it approves or
disapproves of all of its inspections, investigations, inventories, and surveys
of the Property and the status of title thereto and the form and substance of
the Leases. If Buyer notifies Seller within the Feasibility Period that it
disapproves, in its sole and absolute discretion, of any findings or results of
any such inspections, investigations, inventories, or surveys, or of the status
of title to the Property or the form and substance of the Leases, then this
Agreement and all obligations of Buyer and Seller hereunder (except such as
expressly survive this Agreement) shall immediately terminate, in which event
the Deposit shall be refunded to Buyer. If Buyer notifies Seller during the
Feasibility Period of its approval, or if it fails to notify Seller within the
Feasibility Period of its approval or disapproval of the findings and results of
such inspections, inventories, investigations, and surveys, or the status of
title to the Property or the form and substance of the Leases, then the same
shall be deemed approved and the right of termination provided in this Section
1.6 shall automatically terminate. Buyer acknowledges that its underwriting
decision in determining the Purchase Price has taken into consideration: (i) a
possible roof replacement for the I.C. Sensors building; and (ii) that the
Leases do not specifically provide for tenant reimbursement of property
management fees.
1.7 CONFIDENTIALITY. Each party shall keep confidential the results of
all financial statements, reports or other information provided to or generated
by the other party and will not disclose any such information to any person
other than: (i) those employed by Buyer or Seller, respectively; (ii) those who
are actively and directly participating in the evaluation of the Property and
the negotiation and execution of this Agreement or financing of the purchase of
the Property; (iii) governmental, administrative, regulatory or judicial
authorities with respect to the investigation of the compliance of the Property
with applicable legal requirements; and (iv) as required by law or court order;
provided, however, that the party required to disclose by law or court order
shall immediately give the other party notice in order to enable the other party
to seek a protective order from such disclosure. The provisions of this Section
1.7 will survive the termination of this Agreement other than by Closing.
ARTICLE 2: TITLE MATTERS
2.1 TITLE REPORT; SURVEY. Seller has provided Buyer a preliminary title
report (the "Title Report") for the Property prepared by Escrow Agent and copies
of all matters set forth therein as exceptions to the proposed title insurance
coverage and an updated survey prepared by Brian Kangas Foulk. The Title
Report, the underlying documents and the survey shall hereinafter be referred to
as the "Title Documents".
2.2 TITLE REVIEW. Buyer shall have until August 8, 1997 (the "Title
Review Period") within which to review and disapprove of any title exception or
survey matter disclosed by the Title Documents. Buyer shall notify Seller
within the Title Review Period of its disapproval of any exception to Seller's
title to and/or encumbrances against the Property contained in or disclosed by
the Title Documents. In the event Buyer fails to notify Seller within the Title
Review Period of any such disapproval of the matters disclosed by Buyer's review
of the Title Documents, the state of title to the Property shall be deemed
approved. In the event Buyer does so notify Seller of its objection to the
state of title to the Property, Seller shall have five (5) days to determine
whether it is desirable or feasible, in Seller's discretion, to have the
disapproved items removed, modified, or insured against to Buyer's satisfaction.
In the event Seller does not notify Buyer within such five (5) day period that
it intends to remove, modify, or insure against such disapproved items then
Seller shall have no obligation to do so, and Buyer may consider such fact
during the Feasibility Period. If Seller does notify Buyer within such five (5)
day period that it intends to remove, modify, or insure against such disapproved
items, then this Agreement shall continue in full force and effect and Seller
shall, at its cost, remove, modify, or insure against the disapproved items to
Buyer's satisfaction on or prior to the Closing Date. Notwithstanding any other
provision of this Agreement, Seller may not satisfy its obligations under this
Section 2.2 or otherwise under this Agreement by providing insurance against or
over any title exception, unless Buyer expressly consents after full disclosure
of all material facts and conditions relating thereto.
2.3 TITLE POLICY. At the Closing, Seller shall deliver or cause to be
delivered to Buyer at its expense: (i) an A.L.T.A. Policy of Title Insurance, in
such form, and with such endorsements as shall be agreed upon by Buyer, Seller
and Escrow Agent prior to expiration of the Feasibility Period (the "Title
Policy") issued by Escrow Agent dated the date of the Closing and with liability
in the full amount of the Purchase Price, insuring Buyer as owner of fee title
to the Property subject only to the "Permitted Exceptions" (as hereinbelow
defined); and (ii) and A.L.T.A. survey of the Property. Any title endorsements
Buyer chooses to obtain shall be at its expense. As used herein, the term
"Permitted Exceptions" shall mean: (i) exceptions to title to the Property
disclosed in the Title Report to which Buyer does not object as herein provided;
(ii) rights of tenants in possession; and (iii) taxes and assessments with
respect to the Property that are not delinquent. Buyer agrees to take title to
the Property subject to the Permitted Exceptions. Buyer shall have the sole and
absolute right, exercisable in its discretion but deemed to be exercised by
Buyer in all respects upon the Closing, to waive any title exceptions
disapproved by Buyer which Seller does not or is unable to cure under this
Agreement, in which event the Property shall be sold, assigned, and transferred
subject to such exception.
2.4 LEASES AND ESTOPPEL LETTERS. No later than five (5) days prior to the
Closing Date (as defined below), Seller will obtain and deliver to Buyer copies
of the tenant estoppel certificates, dated no earlier than fifteen (15) days
prior to the Closing Date (hereinafter call the "Estoppel Certificates") to be
delivered at Closing, in the form attached hereto as Exhibit "B", from each
tenant of the Property. Buyer acknowledges that the delivery of all Estoppel
Certificates is only a condition precedent to Buyer's obligation to close
hereunder and Seller does not covenant that it will be able to deliver such
tenant estoppel certificates and shall not be in default under this Agreement if
Seller is unable to deliver all such Estoppel Certificates. In the event that
Seller has been unable to obtain Estoppel Certificates from each tenant of the
Property, Buyer shall have the option, in its sole discretion, to: (i) waive
this requirement and proceed to Closing; or (ii) terminate this Agreement.
2.5 LEASE APPROVAL REQUIREMENTS. No new Lease, and no amendment or
modification to a lease shall be made by Seller or its agent for space at or in
the Property subsequent to the execution of this Agreement, without the prior
written approval of Buyer, which Buyer will not unreasonably withhold. In the
event Seller desires to enter into a new Lease or amend or modify a lease,
Seller shall notify Buyer in writing of its intent to do so and Buyer shall
approve or disapprove such request in writing within five (5) business days
thereafter.
ARTICLE 3: CLOSING
3.1 OPENING OF ESCROW. The Closing shall be through an escrow to be
opened with the Escrow Agent (the "Escrow"). Within two (2) business days after
receipt of executed counterparts of this Agreement by both parties, Escrow shall
be opened, and Buyer and Seller shall deliver one (1) fully executed copy of
this Agreement to the Escrow Agent. This Agreement, together with any
supplemental instructions jointly executed or executed in counterparts by Buyer
and Seller and delivered to Escrow agent, shall constitute the escrow
instructions by which the transaction contemplated herein shall be consummated.
In the event of any inconsistency between any such supplemental instructions and
the terms of this Agreement, the terms of this Agreement shall prevail, unless a
contrary intent is expressly indicated in the supplemental instructions.
3.2 CLOSING DATE. The Closing shall occur on or before August 28, 1997
(the "Closing Date"), unless Buyer designates an earlier specific Closing Date
by notice to Seller, said date not to be earlier than five (5) days from the
date of said notice. All interest earned on the Deposit in Escrow shall accrue
for the benefit of Buyer. Such interest shall be credited against the Purchase
Price for the benefit of Buyer at Closing.
3.3 CLOSING. The Closing shall take place (and each party hereto shall
take such actions within its control to ensure that all requirements (including
those contained in this Section 3.3) are timely satisfied on the Closing Date)
when the Escrow Agent is prepared to record Seller's grant deed conveying good
and marketable title to the Property to Buyer, subject only to the Permitted
Exceptions (the "Deed"), as hereinafter set forth. Prior to the Closing Date,
the following actions shall be shall be taken and deliveries shall be made with
respect to the Property: (i) the Deed, duly executed and acknowledged by Seller
shall be delivered to Escrow Agent by Seller; (ii) two (2) identical originals
of an assignment and assumption of the Leases, Contracts and Plans, Permits and
Intangible Property in the form of Exhibit C attached hereto (the "Assignment"),
duly executed by Seller and Buyer, shall be delivered to Escrow Agent; (iii) the
Title Policy shall be delivered to Buyer, or the Escrow Agent shall irrevocably
and unconditionally commit in writing to deliver the same; (iv) Seller will
provide releases of any title exceptions not constituting Permitted Exceptions;
(v) the Estoppel Certificates shall be delivered to Buyer; (vi) a bill of sale
for the Personal Property in the form of Exhibit D attached hereto duly executed
by Seller shall be delivered to Escrow Agent; (vii) letters to the tenants
("Tenant Notification Letters"), executed by Seller, notifying them of the sale
of the Property to Buyer and directing them to pay all future rentals to Buyer
(or Buyer's designated agent) shall be delivered to Escrow Agent; (viii) an
affidavit ("FIRPTA Affidavit") executed by Seller, pursuant to Section
1445(b)(2) of the Internal Revenue Code from Seller that it is not a "foreign
person" in the form of Exhibit E attached hereto shall be delivered to Escrow
Agent; (ix) a California Form 590-RE ("Form 590-RE") executed by Seller
certifying that Seller is exempt from California withholding on grounds set
forth therein shall be delivered to Escrow Agent; (x) Buyer shall cause the
Closing Payment and closing costs to be paid into Escrow in immediately
available funds by wire transfer; and (xi) Buyer and Seller have duly executed a
closing statement itemizing and approving all receipts and disbursements made in
connection with Closing.
3.4 BUYER'S CONDITIONS. The obligation of Buyer to purchase the Property
is subject to the condition (which may be waived in writing by Buyer in its sole
discretion) that a "Seller's Event of Default" (as hereinafter defined in
Article 6) shall not have occurred, and that all items to be delivered by Seller
pursuant to Section 3.3 above shall have been deposited in escrow, and that the
Escrow Agent shall be prepared to deliver the Title Policy at the Closing.
3.5 SELLER'S CONDITIONS. The obligation of Seller to sell the Property is
subject to the condition (which may be waived in writing by Seller in its sole
discretion) that a "Buyer's Event of Default" (as hereinafter defined in Article
6) shall not have occurred, and that all items to be delivered by Seller
pursuant to Section 3.3 above shall have been deposited in escrow.
3.6 DELIVERIES AFTER THE CLOSING. Upon satisfaction of all of the
conditions to the Closing specified in Sections 3.4 and 3.5, and the delivery of
all monies, documents, and instruments required in Section 3.3, Escrow Agent
shall immediately record the Deed, and after taking account of all prorations
and adjustments specified herein, the following actions shall be taken all of
which will be deemed taken simultaneously at the Closing and no one of which
will be deemed completed until all have been completed: (i) any excess funds
deposited by Buyer in Escrow (after payment of all of Buyer's Closing Expenses
as contemplated herein) shall be returned to Buyer, together with the Bill of
Sale, FIRPTA Affidavit, Form 590-RE and Tenant Notification Letters at its
address as set forth herein, (ii) all other funds in Escrow to which Seller is
entitled hereunder (after payment of all of Seller's Closing Expenses as
contemplated herein), shall be paid to Seller; (iii) one (1) original of the
Assignment shall be delivered to each of Seller and Buyer; (iv) Seller shall
deliver possession of the Property to Buyer subject to all tenancy rights to the
Property pursuant to the Leases; and (v) Seller shall deliver to Buyer the
original Leases, Seller's complete tenant files with respect to the current
tenants of the Property (including all correspondence files), the original
Contracts, the Plans, the Permits, keys to the Property and Seller's files and
records with respect to maintenance of the Property (including correspondence
with service providers).
ARTICLE 4: PRORATIONS AND CLOSING EXPENSES
4.1 PRORATIONS. The items in subparagraphs (a) through (d) of this
Paragraph 4.1 shall be prorated between Seller and Buyer as of the close of the
day immediately preceding the Closing Date:
(a) Taxes and Assessments. There shall be no proration of general
real estate taxes and assessments imposed by governmental authority ("Taxes"),
and Seller shall be responsible for payment of all Taxes for fiscal year 1996-
1997, ending June 30, and Buyer shall be responsible for payment of all Taxes
for fiscal year 1997-1998, ending June 30.
(b) Collected Rent. All collected rent and other income (and any
applicable state or local tax on rent) under Leases, but excluding payments for
Operating Costs. Seller shall be charged with any rentals collected by Seller
before closing but applicable to any period of time after Closing. Uncollected
rent and other income shall not be prorated. If Buyer collects delinquencies
after Closing, Buyer shall apply such rent first to the obligations owing Buyer
for its period of ownership and to costs of collection, remitting the balance,
if any, to Seller. Buyer shall bill and attempt to collect such delinquent rent
in the ordinary course of business, but shall not be obligated to engage a
collection agency or take legal action to collect any delinquencies.
(c) Operating Costs. Any amounts Seller, as landlord under the
Leases, is collecting from tenants under the Leases as additional rent to cover
insurance, utilities (to the extent not paid directly by tenants), common area
maintenance and other operating costs and expenses, but not including Taxes
(collectively, "Operating Costs") incurred by Seller in connection with the
ownership, operation, maintenance and management of the Property.
(d) Other Matters. Any other items which are customarily prorated in
connection with the purchase and sale of properties similar to the Property
shall be prorated as of the Closing Date.
4.2 TENANT DEPOSITS. All tenant security deposits (and interest thereon
if required by law or contract to be earned thereon) shall be transferred or
credited to Buyer at Closing. At Closing Purchaser shall assume Seller's
obligations related to tenant security deposits but only to the extent they are
properly credited and transferred to Buyer.
4.3 CLOSING EXPENSES. The expenses of the Closing shall be paid as
follows:
(a) Seller shall pay (i) the premium for the Title Report and the
premium for the Title Policy up to the premium for a standard A.L.T.A. Policy of
Title Insurance; (ii) the cost of any survey; (iii) documentary transfer and/or
stamp taxes; (iv) recording fees; and (v) one-half (1/2) of any Escrow fees
(collectively, "Seller's Closing Expense").
(b) Buyer shall pay: (i) any additional premium amount for the Title
Policy, including the cost of any endorsements requested by Buyer; and (ii) one-
half (1/2) of any Escrow fees (collectively, "Buyer's Closing Expenses").
ARTICLE 5: REPRESENTATIONS AND WARRANTIES
5.1 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer hereby represents and
warrants to Seller, which representations and warranties shall be true and
correct as of the date hereof and as of the Closing:
(a) Buyer is a limited liability company duly organized and existing
under the laws of the State of Delaware;
(b) The execution of this Agreement and the consummation of all
transactions contemplated hereunder: (i) are within the powers of Buyer; (ii)
have been duly authorized by appropriate action; and (iii) will not conflict
with, result in any breach of any of the provisions of, or constitute a default
(or an event which upon the giving of any required notice or lapse of time would
constitute a default) under Buyer's organizational documents or the provisions
of any agreement, court or administrative order, consent decree, or other
instrument to which Buyer is a party;
(c) This Agreement has been duly executed and delivered by Buyer, and
is the legal, valid and binding obligation of Buyer, enforceable against Buyer
in accordance with its terms, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by equitable principles (whether
or not such enforceability is considered in a proceeding at law or in equity);
and
(d) There are not (and, in the event Buyer assigns its rights
hereunder as provided for in this Agreement to any entity, there will not be
against such assignee), any actions, suits, or proceedings, pending or
threatened, against Buyer (or such assignee) in any court or before any
administrative agency which would prevent Buyer (or such assignee) from
completing the transactions provided for herein.
5.2 SELLER'S REPRESENTATION AND WARRANTIES. Seller hereby represents and
warrants the following to Buyer, which representations and warranties shall be
true and correct as of the date hereof and as of the Closing:
(a) Seller is a general partnership duly existing under the laws of
the State of California.
(b) The execution of this Agreement and the consummation of all
transactions contemplated hereunder: (i) are within the powers of Seller; (ii)
have been duly authorized by appropriate action; and (iii) will not conflict
with, result in any breach of any of the provisions of, or constitute a default
(or an event which upon the giving of any required notice or lapse of time would
constitute a default) under Seller's organizational documents or the provisions
of any agreement, court or administrative order, consent decree, or other
instrument to which Seller is a party.
(c) This Agreement has been duly executed and delivered by Seller,
and is the legal, valid and binding obligation of Seller, enforceable against
Seller in accordance with its terms, except as enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by equitable
principles (whether or not such enforceability is considered in a proceeding at
law or in equity).
(d) There are no actions, suits, or proceedings, pending or to the
best of Seller's knowledge, threatened with respect to the Property, against
Seller in any court or before any administrative agency, which would prevent
Seller from completing the transactions for the Property provided for herein.
(e) Seller is not a foreign person within the meaning of Section 1445
of the Internal Revenue Code of 1986, as amended.
(f) To Seller's best knowledge, during the period of Seller's
ownership, no portion of the Property has ever been used by Seller as a landfill
or as a dump to receive garbage, refuse, waste or fill material whether or not
hazardous. To the best of Seller's knowledge, during the period of Seller's
ownership, and except as disclosed in that certain Phase I Environmental
Assessment Report prepared by Chemical Health and Safe Environment dated
December 29, 1994, neither Seller nor any Tenant has not stored, handled,
installed or disposed of any Hazardous Substances (as hereinafter defined) in,
on or about the Property or any other location within the vicinity of the
Property in violation of Hazardous Substances Laws (as defined below); and, to
Seller's knowledge, and except as disclosed in that certain Phase I
Environmental Assessment Report prepared by Chemical Health and Safe Environment
dated December 29, 1994, there are no Hazardous Substances on the Property. As
used in this Agreement, the terms "Hazardous Substances" means asbestos,
petroleum and petroleum products, polychlorinated biphenyl and such materials,
waste, pollutants, contaminants or other substances defined as toxic,
carcinogenic injurious to the environment, dangerous to health or otherwise
hazardous by cumulative reference to the following sources as amended from time
to time (the "Hazardous Substances Laws"): (i) the Resource Conservation and
Recovery act of 1976, 42 USC Section 6901 et. seq. ("RCRA"); (ii) the Hazardous
Materials Transportation Act, 49 USC Section 1801, et. seq.; (iii) the
Comprehensive Environmental Response Compensation and Liability Act of 1980, 42
USC Section 9601 et. seq. ("CERCLA"); (iv) applicable laws of the jurisdiction
where the Property is located; and (v) any federal, state or local statues,
regulations, ordinances, rules or orders issued or promulgated under or pursuant
to any of those laws or otherwise by any department, agency or other
administrative, regulatory or judicial body. The term "Hazardous Substances"
does not include usual and customary cleaning and other supplies necessary for
the normal operations and maintenance of the Property by Seller and/or occupancy
of the Property by the tenants under the Leases.
(g) With respect to the leases, tenancies, and occupancies set forth
on Exhibit "F", Seller represents and warrants that:
(i) Exhibit "F" is a complete list of all tenants,
concessionaires, franchisees, and other persons and entities ("Tenants") having
the right to use space at or in the Property and accurately sets forth the name
of each such tenant, the space occupied, the term of the letting, and the rent
payable thereunder;
(ii) The Leases which are set forth on Exhibit "G" which
Seller will deliver to Buyer pursuant to Section 1.6 above are true, complete,
and correct copies of each Lease (and any amendments) and there are no other
agreements, either written or oral, with any tenants, and no other rights of
occupancy;
(iii) The rents set forth on Exhibit "F" are, unless
otherwise noted on Exhibit "F", the rents currently being collected and were
actually collected for the month immediately preceding the date hereof; that
each Tenant listed on Exhibit "F" is in actual possession and conducting
business in the normal course; and that there are no arrears in excess of one
month except as set forth on Exhibit "F";
(iv) All of the Leases are in full force and effect and
none of them has been modified, amended, or extended except as required by law
or as disclosed to Buyer; Seller has not sent written notice to any Tenant
claiming that such Tenant is in default, which default remains uncured, except
as set forth on Exhibit "F"; no material default on behalf of Seller, as lessor,
exists under any lease, and no event or condition exists that, upon the giving
of notice or lapse of time, or both, would constitute a material default by
Seller under any Lease; and to the best of Seller's knowledge, there is no
outstanding counterclaim or offset against the payment of any rent or other
amount payable thereunder; and to the best of Seller's knowledge, no Tenant has
indicated to Seller or its agents either orally or in writing its present
intention to terminate its Lease prior to the expiration of the term of such
Lease;
(v) Except as approved in writing by Buyer, all work
required to be performed by Landlord under each of the Leases will be performed
and paid for prior to the Closing Date and all allowances and credits due
pursuant to the Leases have been paid by Seller to the Tenants;
(vi) Exhibit "F" is a complete list of the security
deposits, if any, for each Tenant occupying space on the Property. All such
security deposits shall be credited to Buyer at Closing;
(vii) There are no leasing commissions due under the
Leases; and
(viii) No work has been performed or is in progress at and
no materials have been furnished to the Property or any portion thereof on
behalf of Seller which, though not presently the subject of, might give rise to,
mechanic's, materialman's or other liens against the Property or any portion
thereof.
5.3 FURTHER REPRESENTATIONS AND WARRANTIES. Seller further represents
and warrants to Buyer, as of the date hereof and as of the Closing, that to the
best of Seller's knowledge:
(a) No approval, consent, order, or authorization of or
designation, registration, or declaration with, any governmental authority is
required in connection with the valid execution and delivery of and compliance
with this Agreement by Seller.
(b) There is no condemnation proceeding pending with regard to any
part of the Property and no such proceeding contemplated by any governmental
authority.
(c) There are no equipment leases, building service agreements, or
other agreements relating to the operation of the Property to which Seller is a
party except for a contract with Harvest Main Landscaping which shall be
terminated as of the Closing, if requested by Buyer pursuant to the terms of
this Agreement.
(d) Seller has not received any written notice from any insurance
company which has issued a policy with respect to the Property requesting
performance of any structural or other major repairs or alterations to the
Property, which has not been complied with.
(e) Seller, its agents and employees have received no written
notice of a violation of any federal, state, or municipal laws, ordinances,
orders, regulations or requirements, affecting any portion of the Property.
(f) As used in this Agreement, the words "to Seller's knowledge" or
words of similar import shall be deemed to mean and shall be limited to, the
actual (as distinguished from implied, imputed or constructive) knowledge of the
current officers and directors of NPI Equity Investments II, Inc. and Creekside
Industrial Associates, Inc., without such persons having any obligation to make
any independent inquiry or investigation whatsoever, except "due inquiry" as
described below. Nothing in this Agreement shall be deemed to create or impose
any personal liability of any kind whatsoever on any of the officers and
directors of NPI Equity Investments II, Inc. or Creekside Industrial Associates,
Inc.
As used in this Agreement, the words "after due inquiry" or words of
similar import shall be deemed to mean, and shall be limited to mean, that NPI
Equity Investments II, Inc. has confirmed (orally or in writing) the accuracy of
a particular representation or warranty with SSR Realty Advisors who is the
current asset manager for the Property. As noted in immediately preceding
paragraph above, nothing in this Agreement shall be deemed to create or impose
any personal liability of any kind whatsoever on any of the within named
individuals.
The representations and warranties in Sections 5.2 and 5.3 shall be true
and correct in all material respects on the Closing Date as if made as of that
date and shall survive the Closing for a period of one (1) year, except for the
representations and warranties contained in Sections 5.2(a), (b) and (d) which
shall survive the Closing for an indefinite period of time; and, except for the
representations and warranties contained in Sections 5.2(a), (b) and (d), (i)
any claim based upon any alleged breach thereof must be alleged (in writing)
with such one year period; and (ii) any action based upon any alleged breach
thereof must be commenced within fourteen (14) months after Closing. Failure to
give notice or commence an action on any alleged breach within the time periods
specified herein shall constitute a waiver of any such claim. Notwithstanding
anything to the contrary provided herein, Buyer shall have no right to pursue
any action against Seller pursuant to Sections 5.2 and 5.3 as a result of any of
Seller's representations and warranties being untrue, inaccurate or incorrect if
Buyer has actual knowledge at the time of Closing that such representation or
warranty was untrue, inaccurate or incorrect at the time of Closing and Buyer
nevertheless closes the transfer of title hereunder.
5.4 AS-IS. Buyer acknowledges that, except as expressly stated in
Sections 5.2 and 5.3 above, Seller has made no representations or warranties,
written or oral, express or implied, with respect to the Property (including,
without limitation, the Leases). Buyer is relying upon its own expertise and
upon its own investigation of the Property. Except as expressly stated in
Sections 5.2 and 5.3 above, Buyer shall acquire the Property (including without
limitation, the Leases) AS IS; provided, however, that during the period that
this Agreement is in effect, Seller shall maintain the Property in its current
condition, reasonable wear and tear and casualty excepted. Buyer acknowledges
that a material consideration in negotiating the Purchase Price and in entering
into this Agreement has been Buyer's express agreement to rely upon its own
investigation in consummating this transaction.
ARTICLE 6: DEFAULTS
6.1 BUYER'S DEFAULT AND LIQUIDATED DAMAGES. Buyer recognizes that the
Property will be removed from the market during the existence of this Agreement
and that, if this transaction is not consummated because of a Buyer's Event of
Default, Seller should be entitled to compensation for such detriment. However,
it is extremely difficult and impractical to ascertain the extent of such
detriment, and, to avoid this problem, Buyer and Seller have agreed that, in the
event that this Agreement is not terminated by Buyer pursuant to any provision
of this Agreement, and the Closing fails to occur solely because of a Buyer's
Event of Default, Seller, as its sole and exclusive remedy at law hereunder, may
terminate this Agreement upon notice to Buyer and retain the Deposit as
liquidated damages. The Deposit has been agreed upon, after negotiation, as the
best estimate of Seller's damages. Accordingly, if for any reason the Deposit
is held by Escrow Agent at the time of a Buyer's Event of Default, Seller shall
deliver to Escrow Agent and Buyer a written declaration of Buyer's default
("Seller's Declaration of Default"). Upon Escrow Agent's receipt of Seller's
Declaration of Default, Escrow Agent shall proceed as provided in Section 8.19
below and, if Escrow Agent does not receive a conflicting notice as provided in
that Section, shall release the Deposit, with any interest earned thereon, to
Seller. Upon a termination of this Agreement by Seller by reason of a Buyer's
Event of Default, Buyer shall be solely responsible for any cancellation charge
in connection with the Title Report or Title Policy and for all charges in
connection with the Escrow.
_____________ _____________
Seller's initials Buyer's initials
6.2 SELLER'S DEFAULT AND BUYER'S REMEDIES. In the event of a Seller's
Event of Default (as defined below), Buyer shall have the right to either:
(a) declare this Agreement terminated, in which event the Deposit
and all interest thereon shall be returned to Buyer, and, except as provided
below in this paragraph (a), Buyer shall waive its right to damages from Seller.
In addition, in the event of a willful refusal by Seller to consummate this
transaction, provided that all Buyer's conditions required hereunder have been
otherwise satisfied; then, in addition to the return of the Deposit and all
interest thereon, Seller shall pay to Buyer, Buyer's actual out-of-pocket
expenses of Buyer's attorney and third parties conducting due diligence (i.e.,
title, survey, engineers and environmental, based upon paid receipts tendered by
Buyer to Seller for reimbursement) not to exceed Fifty Thousand Dollars
($50,000). If Buyer receives reimbursement from Seller for due diligence
reports, surveys, inspections, etc., contemplated in the prior sentence, then
Buyer shall give copies of such reports to Seller. Thereupon, all further
rights and obligations of the parties hereunder shall cease; or
(b) enforce specific performance of the obligations of Seller
hereunder; provided, however, in exercising its right of specific performance,
Buyer may not require Seller to expend in excess of Fifty Thousand Dollars
($50,000) to correct any matter which Seller did not cause; or
(c) only in the event Buyer shall not be entitled to specific
performance by reason of Seller's conveyance or encumbrance of all or any party
of the Property subsequent to the date of this Agreement, terminate this
Agreement, receive a full refund of the Deposit, and seek damages for the breach
of this Agreement by Seller.
6.3 BUYER'S EVENT OF DEFAULT. As used herein, the term "Buyer's Event
of Default" shall mean the occurrence of any of the following: (i) failure of
Buyer to deposit and make any and all deposits and payments required hereunder
on or before the dates required hereby; (ii) any of the representations and
warranties contained in Section 5.1 hereof is materially false as of the Closing
Date; or (iii) Buyer breaches any other covenant of Buyer contained herein and
such breach remains uncured for two (2) business days after notice of such
breach is delivered by Seller to Buyer.
6.4 SELLER'S EVENT OF DEFAULT. As used herein, the term "Seller's Event
of Default" shall mean the occurrence of any of the following: (i) the failure
of Seller to sell, assign, and transfer the required right, title, and interest
in and to the Property, unless such failure is due to a Buyer's Event of
Default; or to make the deliveries required hereunder on or before the dates
required hereunder; (ii) any of the representations and warranties of Seller
contained in Section 5.2 is materially false of the Closing Date; or (iii)
Seller breaches any other covenant of Seller contained herein and such breach
remains uncured for two (2) business days after notice of such breach is
delivered by Buyer to Seller.
ARTICLE 7: DAMAGE/DESTRUCTION/CONDEMNATION
Seller shall notify Buyer immediately of the occurrence of any damage or
destruction to any portion of the Property, or the institution or maintenance of
any condemnation or similar proceedings with respect to any portion of the
Property. In the event of any damage or destruction to any portion of the
Property for which the cost to repair exceeds $500,000.00, or that is not fully
covered by insurance, or in the event any such condemnation or other proceedings
are threatened, instituted or maintained, Seller shall immediately notify Buyer
of such event in writing. Within ten (10) days after receipt of Seller's
written notice of such event, Buyer at its option either (a) may terminate this
Agreement, in which event the Deposit shall be refunded to Buyer, or (b) may
consummate the purchase evidenced by this Agreement. In all other events, or in
the event that Buyer elects to consummate the purchase pursuant to (b) above,
all insurance or condemnation proceeds, including business interruption and
rental loss proceeds for any period after the Closing Date, collected by Seller
prior to the Closing Date, together with an amount equal to all deductible
amounts under the insurance policies covering such damage or destruction, shall
be credited against the Purchase Price on Buyer's account, and all entitlement
to all other insurance or condemnation proceeds arising out of such damage or
destruction or proceedings and not collected prior to the Closing Date shall be
assigned by Seller to Buyer on the Closing Date, and all such deductible amounts
not credited against the Purchase Price shall be immediately paid by Seller to
Buyer.
ARTICLE 8: MISCELLANEOUS
8.1 NOTICES. All notices, demands, requests, consents, approvals or other
communication (collectively, "Notices") required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in writing
and shall be deemed given and received on the day (or, if such day is not a
business day or such receipt is after 5:00 p.m. on any business day, the next
following business day): (i) when hand delivered to a person of suitable age
and discretion at the address of the receiving party; (ii) when delivered to the
address of the receiving party by Express Mail, Federal Express or other
overnight delivery service or when delivery is attempted and refused by the
receiving party; or (iii) when successfully transmitted by telecopier
transmission with a confirming Notice sent by method (i) or (ii) above, in any
of such cases, delivered, addressed or dispatched as follows:
If to Seller: c/o IFGP Corporation
One Insignia Financial Plaza
Greenville, South Carolina 29602
Attn.: Kenneth Cobler, Asset Management
Fax No.: (864) 239-1066/1084
With a copy to: Post & Heymann, LLP
100 Jericho Quadrangle
Suite 214
Jericho, New York 11753
Attn.: William W. Post, Esquire
Fax No.: (516) 433-2777
If to Buyer: Creekside Business Park, LLC
c/o DRA Advisors, Inc.
1180 Avenue of the Americas, 18th Floor
New York, New York 10036
Attn.: Francis X. Tansey
Fax No.: (212) 764-3210
With a copy to: Landmark Asset Management Group
23422 Mill Creek Drive, Suite 125
Laguna Hills, California 92653
Attn.: A. Corey Hansen
Fax No.: (714) 472-9342
With a copy to: Morrison & Foerster LLP
425 Market Street
San Francisco, California 94105
Attn.: Craig B. Etlin
Fax No. (415) 268-7522
If to Escrow Chicago Title Company
Agent: 388 Market Street, 13th Floor
San Francisco, California 94111
Attn.: Elizabeth Bailey Gates
Fax No.: (415) 434-2176
or to such other address as such party shall have specified most recently by a
Notice given in the manner required hereunder.
8.2 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and all of which, taken together, shall
constitute but one and the same instrument.
8.3 GOVERNING LAW; CHOICE OF FORUM. This Agreement shall be governed by,
interpreted under, and construed and enforced in accordance with the laws of the
State of California applicable to agreements made and to be performed wholly
within the State of California. Each of the parties hereto consents to the
exclusive jurisdiction of and agrees that any and all disputes with respect
hereto shall be adjudicated by the state and federal courts located within
California.
8.4 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior understandings and writings with respect thereto. This Agreement may not
be modified, changed or supplemented, nor may any obligations hereunder be
waived, except by a written instrument signed by the party to be charged or by
its agent duly authorized in writing or as otherwise expressly permitted herein.
This provision shall survive the Closing or earlier termination of this
Agreement.
8.5 NO THIRD PARTY BENEFITS. This Agreement is for the benefit of the
parties hereto and their respective permitted successors and assigns. The
parties neither intend to confer any benefit hereunder on any person, firm or
corporation other than the parties hereto, nor shall any such third party have
any rights hereunder.
8.6 NON-WAIVER OF RIGHTS. No failure or delay of either party in the
exercise of any right given to such party hereunder shall constitute a waiver
thereof unless the time specified herein for exercise of such right has expired,
nor shall any single or partial exercise of any right preclude any other or
further exercise thereof or of any other right. The waiver of any breach
hereunder shall not be deemed to be a waiver of any other or any subsequent
breach hereof.
8.7 TITLES AND HEADINGS. Titles and headings of sections of this
Agreement are for convenience of reference only and shall not affect the
construction of any provisions of this Agreement.
8.8 PRONOUNS, JOINT AND SEVERAL LIABILITY. All pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the identity of the parties require.
8.9 FURTHER ASSURANCES. Seller and Buyer each agree to do such further
acts and things to execute and deliver such additional agreements and
instruments, prior to or subsequent to the Closing, to consummate, evidence or
confirm the purchase and sale contemplated herein and each shall use its
reasonable efforts to accomplish the Closing in accordance with the provisions
hereof. This provision will survive the Closing.
8.10 TIME. Any time period to be computed pursuant to this Agreement shall
be computed by excluding the first day and including the last. If the last day
falls on a Saturday, Sunday or holiday, the last day shall be extended until the
next business day that the Escrow Agent is open for business, but in no case
will the extension be for more than three (3) days.
8.11 SEVERABILITY. The determination that any covenant, agreement,
condition or provision of this Agreement, which is not necessary to the
enjoyment by either party of the benefit contemplated herein, is invalid shall
not affect the enforceability of the remaining covenants, agreements, conditions
or provisions hereof and, in the event of any such determination, this Agreement
shall be construed as if such invalid covenant agreement, condition or provision
were not included herein.
8.12 DRAFTING AMBIGUITIES. Each party to this Agreement and its counsel
have reviewed and revised this Agreement. 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 of any
amendments or exhibits to this Agreement.
8.13 ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon, and shall inure to the benefit of, the successors and assigns of the
parties hereto and shall not be assignable without the prior written consent of
the other party thereto; provided, however, that Buyer may assign this Agreement
without Seller's consent to any partnership or limited liability company in
which Buyer or any entity controlling, controlled by or under common control
with Buyer is a managing partner, general partner or limited liability company
member.
8.14 TIME OF ESSENCE. Time is of the essence with respect to all of
Buyer's and Seller's obligations set forth in this Agreement and each and every
such obligation must be performed fully and punctually.
8.15 EFFECT OF DOCUMENT. Neither the preparation nor the deliver of this
unsigned or partially signed document shall have any force or effect whatsoever
unless on or before July 25, 1997, the Escrow Agent has received this Agreement
(or counterparts of this Agreement) originally executed by both Buyer and
Seller.
8.16 BROKERAGE FEES. Each party represents and warrants to the other that
it has dealt with no real estate salesman, broker, or finder relative to the
transaction contemplated in this Agreement other than representatives of
Colliers Investment Services Group ("Broker"). Seller agrees to pay Broker a
commission pursuant to a separate agreement. Each party (referred to in this
Section 8.16 as the "First Party") agrees to indemnify, defend and hold the
other harmless from any and all claims and liabilities for real estate brokerage
commissions and finders fees of any other party which commissions and fees are
related in any way to the transaction which is the subject of this Agreement and
which are based on any dealings between the claimant and the First Party. The
provisions of this Section 8.16 shall survive the Closing.
8.17 ATTORNEY FEES. If legal action is initiated relative to this
Agreement or the rights or obligations of any party hereunder, the non-
prevailing party in such action shall pay reasonable attorney fees to the
prevailing party, with the amount to be determined by the court in said action.
8.18 SECTION 1031 EXCHANGE. Seller acknowledges that in the event Buyer
determines, in its sole discretion, to purchase the property pursuant to an
exchange under Section 1031 of the Internal Revenue Code, Seller agrees to
cooperate with Buyer in effectuating such exchange at no cost to Seller.
8.19 ESCROW INSTRUCTIONS. The Escrow Agent is hereby authorized by each of
the parties to disburse funds and to deliver and record such documents as may be
appropriate in accordance with the terms of this Agreement. If this Agreement
or any other matter related hereto shall become the subject of any litigation or
controversy, Buyer and Seller agree to jointly and severally hold the Escrow
Agent free and harmless from any loss or expense, including reasonable attorney
fees, that may be suffered by the Escrow Agent by reason hereof, except where
caused by an act or omission of the Escrow Agent. If either Buyer or Seller
gives Escrow Agent any notice of default or any written claim or notice that
this Agreement or the transaction contemplated herein and the Escrow have
terminated, the Escrow Agent shall: (i) provide the other party (Buyer or
Seller) with a copy of the claim, or notice; and (ii) give further notice to
that party that the Escrow Agent shall consider the transaction and Escrow
terminated and shall perform as required by this Agreement, unless that party
gives the Escrow Agent a conflicting notice or claim within five (5) business
days of the date the Escrow Agent's notice is given to that party. Unless
conflicting notice or claim is given to the Escrow Agent by that party within
said five (5) business days, the Escrow Agent may thereupon and shall thereupon
perform as required by this Agreement. If conflicting demands, claims, or
notices are given to the Escrow Agent with respect to this Agreement, the
parties agree that the Escrow Agent shall be entitled to refrain from any
further action until it shall have received further instructions executed by
Buyer and Seller or, in the alternative, the Escrow Agent shall be entitled to
file a suit in interpleader upon twenty (20) days notice to Buyer and Seller of
its intent to do so. Upon filing of any action in interpleader and the deposit
of all documents and funds in its possession with the judicial court in which
the action is commenced or such other depository as may be agreed upon by the
parties, the Escrow Agent shall be fully released and discharged from any
further obligation imposed upon it by this Agreement. Except to the extent
covered by the insurance afforded under the Title Policy, the Escrow Agent shall
not be liable in its capacity as such for any deficiency or correctness as to
format or execution or validity of any instruments deposited with it, nor as to
the identity, authority, or rights of any person executing them, nor for the
failure by any person other than the Escrow Agent to comply with any of the
provisions of any agreement, contract, or any other instrument deposited with
the Escrow Agent or referred to herein. The Escrow Agent's duties hereunder
shall be limited to the safekeeping of all monies, instruments, and other
documents received by it as the Escrow Agent and for disposition in accordance
with the terms of this Agreement or as the Escrow Agent may be further
instructed.
IN WITNESS WHEREOF, Seller and Buyer have duly executed this Agreement as
of the day and year first above written.
SELLER:
CREEKSIDE INDUSTRIAL ASSOCIATES,
a California general partnership
By: Preferred Properties Fund 80,
a California limited partnership,
a general partner
By: Montgomery Realty Company-80,
a California limited partnership,
its general partner
By: Fox Realty Investors,
a California general
partnership,
its general partner
By: NPI Equity Investments
II, Inc.,
a Florida corporation
its general partner
By: /s/ William H. Jarrard, Jr.
Name: William H. Jarrard, Jr.
Title: President
By: Creekside Industrial Associates, Inc.,
a New York corporation,
a general partner
By: /s/ William H. Jarrard, Jr.
Name: William H. Jarrard, Jr.
Title: President
BUYER:
CREEKSIDE BUSINESS PARK, LLC,
a Delaware limited liability company
By: DRA Advisors, Inc.,
a Delaware corporation,
its managing member
By: /s/ Francis X. Tansey
Name: Francis X. Tansey
Title: President
ACKNOWLEDGMENT OF ESCROW AGENT
Chicago Title Company, as Escrow Agent, hereby acknowledges receipt of
the foregoing Agreement of Purchase and Sale and the Deposit and agrees to
perform its duties as Escrow Agent consistently therewith, as set forth in
Articles 3 and 4.
Dated: August 4, 1997 ESCROW AGENT
CHICAGO TITLE COMPANY
By: /s/ E.M. Bailey-Gates
Name: E.M. Bailey-Gates
Title: Sr. Escrow Officer
EXHIBIT A
LEGAL DESCRIPTION
Property situated in the City of Milpitas, County of Santa Clara, State of
California, described as follows:
Parcels E and F as shown on Parcel Map filed for record July
17, 1979 in Book 445 of Maps, at Pages 51 and 52, Santa
Clara County Records.
Assessor's Parcel Numbers: 086-03-010 (Parcel F)
086-03-011 (Parcel E)
EXHIBIT B
TENANT ESTOPPEL CERTIFICATE
TO: __________________ or one or more of its affiliates or designees ("Buyer")
and/or whom else it may concern:
THIS IS TO CERTIFY THAT:
1. The undersigned is the lessee ("Tenant") under that certain lease dated
________, 19__ ("Lease") by and between _____________, as lessor
("Landlord") and _____________, as Tenant, covering those certain premises
commonly known and designated as ___________________ ("Premises"). A TRUE
AND CORRECT COPY OF THE LEASE AND ALL AMENDMENTS THERETO IS ATTACHED
HERETO. No other modifications, changes, amendments, supplements or
assignments of the Lease have been made.
2. This Lease is valid and in full force and effect on the date hereof. The
Lease is the only Lease or agreement between the Tenant and the Landlord
affecting or relating to the Premises. The Lease represents the entire
agreement between the Landlord and the Tenant with respect to the Premises.
3. The Tenant is not entitled to, and has made no agreements(s) with the
Landlord or its agents or employees concerning, free rent, rebate of rent
payments, credit or offset or deduction in rent, unpaid or unearned tenant
improvement allowance, or any other type of rental concession, including,
without limitation, lease support payments or lease buy-outs except as
indicated below (if none, state "none"):
_________________________________________________
4. The Tenant has accepted and now occupies the Premises, and is and has been
open for business since ______, 19__. The Lease term began ______, 19__.
The termination date of the present term of the Lease, excluding
unexercised renewals, is ________, 19__.
5. The Tenant has no renewal options to extend the term of the Lease except as
indicated below (if none, state "none"): ____________.
6. The Tenant has paid rent for the Premises for the period up to and
including ______, 19__. The fixed minimum rent and any additional rent
payable by the Tenant presently is $________ per month. The Tenant's
security deposit is $________. The Tenant is responsible for all real
estate taxes levied or assessed against the Premises.
7. No breach or violation exists of any of the provisions of the Lease
granting exclusive uses or prohibiting or restricting uses.
8. No event has occurred and no condition exists which, with giving of notice
or the lapse of time or both, will constitute a default under the Lease.
The Tenant has no existing defenses, counterclaims or offsets against the
enforcement of this Lease by the Landlord.
9. The Lease contains, and the Tenant has, no options or rights of first
refusal to purchase the Premises or any part thereof or all or any part of
the real property of which the Premises are a part.
10. All work or conditions required to be performed or completed by the
Landlord as of the date hereof have been satisfied, except for
___________________________________________________________________________
_____________________________
11. The Tenant has all governmental permits, licenses and consents required for
its occupancy of the Premises.
12. No actions, whether voluntary or otherwise, are pending against the Tenant
or any general partner of the Tenant under the bankruptcy or insolvency
laws of the United States or any state thereof.
TENANT:
____________________
By:_________________
Name:_______________
Title:______________
EXHIBIT G
SCHEDULE OF LEASES
1.Lease by and between Creekside Industrial Associates, as Landlord, and I.C.
Sensors, as Tenant, dated January 10, 1986, as amended by First Addendum
dated January 31, 1990, Second Addendum dated April 1, 1992 and Third
Addendum dated March 24, 1995
2.Lease by and between Creekside Industrial Associates, as Landlord, and LSI
Logic, as Tenant, dated March 23, 1983, as amended by Addendum dated March
23, 1983, Second Addendum dated August 15, 1983, Third Addendum dated
September 20, 1985, Fourth Addendum dated August 1, 1991 and Fifth Addendum
dated January 15, 1997
EXHIBIT 10.5
FIRST AMENDMENT
TO
AGREEMENT OF PURCHASE AND SALE
THIS FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE is dated effective
August 15, 1997 (the "Amendment") and is by and between Creekside Business Park,
LLC, a Delaware limited liability company, as Buyer, and Creekside Industrial
Associates, a California general partnership, as Seller, on the following terms
and conditions:
R E C I T A L S:
A. Seller and Buyer have entered into an Agreement of Purchase and Sale
dated July 31, 1997 (the "Agreement") for the sale of the property commonly
known as Creekside Business Park, Milpitas, California.
B. The Agreement was modified by certain letters dated August 8 and
August 13, 1997 pertaining to the Title Review Period.
C. Seller and Buyer desire to amend certain terms of the Agreement as
more particularly set forth herein.
D. Terms used in this Amendment and not otherwise defined herein shall
have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
I. The Feasibility Period shall be extended from August 15 to August 20,
1997 solely to enable Buyer to further investigate the facts pertaining to the
installation of the HVAC systems, and the effect of such installation on the
roofs. Except as noted above, Buyer agrees to accept the Property upon Closing
in its "as is" condition, subject to Seller's representations, warranties and
covenants set forth in the Agreement.
II. Section 3.4 of the Agreement is hereby amended to provide that an
additional condition precedent to Buyer's obligation to close shall be the
delivery of the Title Policy by Escrow Agent in the form of the proforma policy
attached hereto as Exhibit A.
III. Except as modified by this Amendment, the Agreement shall remain in
full force and effect.
IV. This Amendment may be executed in counterparts each of which shall be
deemed an original and all of which taken together shall constitute but one in
the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
first day and year written above.
SELLER:
CREEKSIDE INDUSTRIAL ASSOCIATES,
a California general partnership
By: Preferred Properties Fund 80,
a California limited partnership,
a general partner
By: Montgomery Realty Company-80,
a California limited partnership,
its general partner
By: Fox Realty Investors,
a California general
partnership,
its general partner
By: NPI Equity Investments
II, Inc.,
a Florida corporation
its general partner
By: /s/ William H. Jarrard, Jr.
Name: William H. Jarrard, Jr.
Title: President
By: Creekside Industrial Associates, Inc.,
a New York corporation,
a general partner
By: /s/ William H. Jarrard, Jr.
Name: William H. Jarrard, Jr.
Title: President
BUYER:
CREEKSIDE BUSINESS PARK, LLC,
a Delaware limited liability company
By: DRA Advisors, Inc.,
a Delaware corporation,
its managing member
By: /s/ Brian T. Summers
Name: Brian T. Summers
Title:
EXHIBIT 10.6
SECOND AMENDMENT
TO
AGREEMENT OF PURCHASE AND SALE
THIS SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE is dated effective
August 27, 1997 (the "Amendment") and is by and between DL Creekside Business
Park, LLC, a Delaware limited liability company (formerly known as Creekside
Business Park, LLC), as Buyer, and Creekside Industrial Associates, a California
general partnership, as Seller, on the following terms and conditions:
R E C I T A L S:
A. Seller and Buyer have entered into an Agreement of Purchase and Sale
dated July 31, 1997 (the "Agreement") for the sale of the property commonly
known as Creekside Business Park, Milpitas, California.
B. The Agreement was modified by certain letters dated August 8 and
August 13, 1997 pertaining to the Title Review Period and by First Amendment
dated as of August 15, 1997 pertaining to certain condition precedents to
Closing.
C. Seller and Buyer desire to amend certain terms of the Agreement as
more particularly set forth herein.
D. Terms used in this Amendment and not otherwise defined herein shall
have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
I. The Closing Date shall be extended to a date on or before September
10, 1997. In consideration thereof, Seller and Buyer agree to each pay one half
of the $3,500 extension fee charged by Seller's Lender to extend the maturity
date.
II. Except as modified by this Amendment, the Agreement shall remain in
full force and effect.
III. This Amendment may be executed in counterparts each of which shall be
deemed an original and all of which taken together shall constitute but one in
the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
first day and year written above.
SELLER:
CREEKSIDE INDUSTRIAL ASSOCIATES,
a California general partnership
By: Preferred Properties Fund 80,
a California limited partnership,
a general partner
By: Montgomery Realty Company-80,
a California limited partnership,
its general partner
By: Fox Realty Investors,
a California general
partnership,
its general partner
By: NPI Equity Investments
II, Inc.,
a Florida corporation
its general partner
By: /s/ William H. Jarrard, Jr.
Name: William H. Jarrard, Jr.
Title: President
By: Creekside Industrial Associates, Inc.,
a New York corporation,
a general partner
By: /s/ William H. Jarrard, Jr.
Name: William H. Jarrard, Jr.
Title: President
BUYER:
DL CREEKSIDE BUSINESS PARK, LLC,
a Delaware limited liability company
By: DT Creekside, L.P.,
a Delaware limited partnership,
its managing member
By: Mastersonco III, L.L.C.,
a Delaware limited liability company,
its general partner
By: /s/ Francis X. Tansey
Francis X. Tansey
Member
