SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A #1
Pursuant to Section 12 or 15 (d) of the Securities Exchange
Act of 1934
Date of Report (Date of earliest event report) April 23, 1996
PACIFIC GATEWAY PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
NEW YORK 1-8692 04-2816560
(State or other jurisdiction of (Commission (IRS
Employer
incorporation File Number) Identification No.)
ONE RINCON CENTER, 101 SPEAR STREET, SUITE 215, SAN
FRANCISCO,CA 94105
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including are code (415)543-8600
Not Applicable
(Former name or former address and former fiscal year,
if changed since last report)
Not Applicable
(Former name or former address, if changed since last report)
The Purpose of this filing is to add Exhibit 1.3
pursuant to Regulations S-K item 601
(b)(10)(ii)(c)
in electronic format.
Exhibits
1.3 Purchase and Sale Agreement dated March 18,1996
between
Registrant and Metropolitan Life Company filed
pursuant
to Regulation S-K item 601 (b) (10) (ii) (c).
SIGNATURE
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 thereunto duly
authorized.
Dated: April 23, 1996
PACIFIC GATEWAY PROPERTIES, INC.
(Registrant)
Gary W. Furney
Gary W.Furney
Vice President and
Controller
(Principal Financial a Accounting Officer)
CONTRACT OF SALE
between
PACIFIC GATEWAY PROPERTIES, INC.,
Seller,
and
METROPOLITAN LIFE INSURANCE COMPANY,
Purchaser
Dated as of: March 18, 1996
Property:
Village Commons Shopping Center
West Palm Beach, Florida
<PAGE>
INDEX
Section Page
1. Property. . . . . . . . . . . . . . . . . . . . 1
2. Purchase Price. . . . . . . . . . . . . . . . . 1
3. Condition of Property; Title. . . . . . . . . . 3
4. Time and Place of Closing; Due Diligence Period 4
5. Conditions to Closing . . . . . . . . . . . . . 6
6. Seller's Representations and Agreements . . . . 13
7. Purchaser's Representations and Agreements. . . 24
8. Apportionments. . . . . . . . . . . . . . . . . 25
9. Closing Matters . . . . . . . . . . . . . . . . 27
10. Title Examination; Survey; Violations . . . . . 28
11. Risk of Loss. . . . . . . . . . . . . . . . . . 30
12. Brokerage . . . . . . . . . . . . . . . . . . . 31
13. Remedies. . . . . . . . . . . . . . . . . . . . 31
14. Notices . . . . . . . . . . . . . . . . . . . . 31
15. Choice of Law . . . . . . . . . . . . . . . . . 33
16. Miscellaneous . . . . . . . . . . . . . . . . . 33
17. Radon Gas Notification. . . . . . . . . . . . . 34
Exhibit A Escrow Agreement (Section 2(a))
Exhibit B Assignment of Leases, Security Deposits and Prepaid Rents
(Section 5(a)(ii)(4))
Exhibit C General Assignment (Section 5(a)(ii)(5))
Exhibit D Lease Estoppel Form (Section 5(a)(ii)(10))
Exhibit E Contract Estoppel Form (Section 5(a)(ii)(11))
Exhibit F Tenant Letter Form (Section 5(a)(ii)(22))
Exhibit G Contractor Letter Form (Section 5(a)(ii)(23))
Exhibit H FIRPTA Affidavit (Section 6(a)(I)(vi))
<PAGE>
SCHEDULES
1: Legal Description of Land (Section 1)
2: Personal Property (Section 1)
3: Intentionally Omitted
4: Leases (Section 5(a)(ii)(4))
5: Contracts and Agreements (Section 5(a)(ii)(5))
6: Certificates, Licenses and Permits (Section 5(a)(ii)(8))
7: Rent Roll (Section 6(a)III.(I))
8: Insurance Policies (Section 6(a)III.(v))
9: Operating Statements (Section 6(a)II.(xvi))
10: Engineering and Environmental Reports (Section 6(a)II.(iii))
11: Deferred Maintenance Items (Section 6(a)II.(iii))
12: Assessments (Section 6(a)II.(xiv))
<PAGE>
CONTRACT OF SALE
AGREEMENT, made as of the _____ day of March, 1996 by and
between PACIFIC GATEWAY PROPERTIES, INC., a New York corporation,
having an office at One Rincon Center, 101 Spear Street, Suite 215, San
Francisco, California 94105 ("Seller"), and METROPOLITAN LIFE
INSURANCE COMPANY, a New York corporation, having an office at c/o
MetLife Realty Group, Inc., White Plains Plaza, One North Broadway, Suite
500, White Plains, New York 10601 ("Purchaser").
W I T N E S S E T H :
In consideration of the mutual covenants and provisions herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby covenant and
agree as
follows:
1. Property. Seller hereby agrees to sell and Purchaser
hereby agrees to purchase, upon the terms and conditions set forth in this
Agreement, the property (the "Property") consisting of (a) all those certain
plots,pieces or parcels of land located in the City of West Palm Beach,
County of Palm
Beach and the State of Florida more particularly described in Schedule 1 hereto
(the "Land"), (b) all buildings and all other structures, facilities or
improvements
presently located or hereinafter located in or on the Land (the "Improvements"),
all fixtures, systems, equipment and items of personal property of Seller
attached or appurtenant to, located on or used in connection with the ownership,
use, operation or maintenance of the Land or the Improvements, including,
without being limited to, the personal property set forth in Schedule 2 hereto
(collectively, the "Personal Property"), (d) all right, title and interest, if
any, in
and to the land lying in the bed of any street or highway in front of or
adjoining
the Land to the center line thereof, (e) all right, title and interest, if any,
to any
unpaid award for (1) any taking by condemnation or (2) any damage to the Land
or the Improvements by reason of a change of grade of any street or highway and
(f) all easements, licenses, rights and appurtenances relating to any of the
foregoing.
2. Purchase Price. (a) The purchase price for the Property is
Nineteen Million Three Hundred Thousand Dollars ($19,300,000) (the "Purchase
Price").
(b) The Purchase Price shall be payable as follows:
(I) Upon the later of (1) the date of execution and delivery of
this Agreement and (2) March 22, 1996 (as such date may be extended
pursuant to Section 4(d) hereof, the "Purchaser's Decision Date"; the
period from and after the date of said execution and delivery through
Purchaser's Decision Date is hereinafter referred to as the "Due Diligence
Period"), Two Hundred Fifty Thousand Dollars ($250,000) (the
"Downpayment") by check, subject to collection, payable to the order of
Escrow Agent (as defined in Section 2 below) or wire transfer of same
day funds to Chicago Title National Special Account #40549188
maintained at Citibank, N.A., with an address at 399 Park Avenue, New
York, New York, to the attention of Mr. Tom Giallanza. The
Downpayment shall be held in accordance with Sections 2 and (e)
hereof.
(ii) At the Closing (as hereinafter defined), an amount, subject
to adjustment or withholding pursuant to the terms of this Agreement,
equal to Nineteen Million Fifty Thousand Dollars ($19,050,000) shall be
paid by a good, unendorsed cashier's or official bank check payable to the
order of Escrow Agent or by wire transfer of same day funds to Chicago
Title National Special Account #40549188 maintained at Citibank, N.A.,
with an address at 399 Park Avenue, New York, New York, to the
attention of Mr. Tom Giallanza.
Contemporaneously with the execution of this Agreement,
the parties hereto have opened escrow with Chicago Title Insurance Company at
its offices at 1211 Avenue of the Americas, New York, New York 10036,
Attention: Asher Fried, Esq. ("Escrow Agent"), by depositing with Escrow
Agent an executed copy of this Agreement and the check described in Section
2(b)(I) hereof. The terms of this Agreement, together with the escrow agreement
attached hereto as Exhibit A (the "Escrow Agreement"), shall be the instructions
to Escrow Agent with respect to the purchase of the Property. The terms of this
Agreement shall control over any inconsistent provisions of the Escrow
Agreement.
(d) Escrow and title insurance costs, fees and expenses shall be
paid in accordance with Section 9 hereof.
(e) Escrow Agent shall invest and deliver the Downpayment in
accordance with the provisions of the Escrow Agreement.
(f) Prior to the Closing Seller shall deposit with Escrow Agent
the items set forth in Section 5(a)(ii) hereof and Purchaser shall deposit with
Escrow Agent (I) the items set forth in Section 5(b)(ii) hereof and (ii) the
balance
of the Purchase Price for the Property as set forth in Section 2(b)(ii) of this
Agreement subject to adjustment of such amount pursuant to Sections 8 and 9
hereof.
(g) Upon the Closing Date, Escrow Agent shall:
(I) record the Deed and any other documents which Purchaser
requests to be recorded at Closing;
(ii) disburse to Seller the balance of the Purchase Price, subject
to adjustment or withholding pursuant to the terms of this Agreement; and
(iii) cause the Title Company (as hereinafter defined) to issue
the title policies.
3. Condition of Property; Title; Post-Closing Escrow. (a)
Except as expressly set forth in this Agreement, Seller has not made any
representations as to the physical condition or any other matter or thing
affecting
or related to the Property. Purchaser agrees that its decision on or before
Purchaser's Decision Date to proceed with the acquisition of the Property shall
constitute an acknowledgement that (I) Purchaser has concluded (or Seller has
concluded on behalf of Purchaser) whatever studies, tests and investigations it
desires to conduct prior to said date and relating to the Property including,
without limitation, economic reviews and analyses, including those relating to
leasing, occupancy and income of the Property, soil tests, engineering analyses,
environmental analyses and analyses of any applicable records of the planning,
building, public works and any other governmental or quasi-governmental entity
having or asserting jurisdiction over the Property; (ii) Purchaser has reviewed
and read (or has elected not to do so) and has understood all instruments
affecting
the Property and/or its value which Purchaser deems relevant, including, without
limitation, all of the documents referred to in Section 4(d) of this Agreement;
(iii)
except for the representations of Seller set forth in this Agreement, Purchaser
is
relying solely on its own investigation as to the Property and its value and is
assuming the risk that adverse physical, economic or other conditions may not
have been revealed by such investigation and (iv) Seller has given Purchaser
every opportunity to consider, inspect and review to its satisfaction the
physical,
environmental, economic and legal condition of the Property and all files and
information in Seller's possession which Purchaser deems material to the
purchase of the Property. Purchaser, moreover, acknowledges that (A) Seller did
not develop or construct the Property, (B) Purchaser has entered into this
Agreement with the intention of making and relying on its own investigation of
the physical, environmental, economic and legal condition of the Property,except
for the representations of Seller set forth in this Agreement, and Purchaser
is
not relying on any representations and warranties, other than those specifically
set forth in this Agreement, made by Seller or anyone acting or claiming to act
on
Seller's behalf concerning the Property or its value. Purchaser agrees that,
except as otherwise expressly provided in Sections 3, 6, 10 and 11 of this
Agreement, the Property is to be sold to and accepted by Purchaser in its
"AS IS"
condition and WITH ALL FAULTS on the Closing Date and assumes the risk
that adverse physical, environmental, economic or legal conditions may not
have
been revealed by its investigation.
(b) Subject to the provisions of Section 10 hereof, Seller agrees
to convey the Property and Purchaser agrees to purchase the same, free and clear
of all liens and encumbrances other than any Permitted Title Exceptions
identified
in accordance with the procedures described in Section 10 hereof.
To the extent
any of the Permitted Title Exceptions are not of record or, although of record,
are no longer binding against the owner of the Property, nothing contained
herein
shall operate or be construed to be a recognition by Purchaser of the validity
or
binding effect of any such Permitted Title Exception.
4. Time and Place of Closing; Due Diligence Period. (a) The
closing of the transactions contemplated hereby (the "Closing") shall take place
on the later of (I) ten (10) business days after the expiration of the Due
Diligence
Period or (ii) the day immediately succeeding the date upon which an HSR Event
(as hereinafter defined) shall occur or at such other time as the parties hereto
shall mutually agree (the "Closing Date") through the escrow established with
Escrow Agent.
(b) From and after the date hereof through and including the
Closing Date, Purchaser shall have the right, at reasonable times and on
reasonable prior notice to Seller (subject to Section 4 hereof) to enter upon
the
Property to conduct such inspections, investigations, tests and studies as Met
Life
Realty Group, Inc., as investment advisor to Purchaser ("Advisor") shall deem
necessary, including, without limitation, engineering tests and studies,
physical
examinations of the Property, due diligence investigations and feasibility
studies.
Seller acknowledges and agrees that none of Purchaser, Advisor or any affiliate
or agent of Purchaser or Advisor shall incur any liability to Seller as a result
of
the performance of any inspection or investigation pursuant to this Section 4(b)
;
provided that Purchaser shall indemnify, defend and hold Seller harmless from
and against any and all loss, claim, liability and expense (including reasonable
attorneys' fees) arising out of any damage to property or injury to persons
caused
solely by the gross negligence or willful misconduct of Purchaser or Purchaser's
agents, employees or contractors in the course of conducting its investigations
on
the Property, whether before or after the execution of this Agreement.
Purchaser's obligation pursuant to this Section 4(b) shall survive the Closing
or
earlier termination of this Agreement.
Notwithstanding the provisions of Section 4(b) hereof,
Purchaser shall not be permitted to conduct Phase I and Phase II environmental
assessments of the Property. Seller shall arrange for the performance of a
Phase
I environmental assessment of the Property and, if required by Purchaser, a
Phase II environmental assessment of the Property, by a consultant acceptable to
Purchaser, and for the delivery to Purchaser of a Phase I environmental report
and, if applicable, a Phase II environmental report, addressed to both Purchaser
and Seller (the "Environmental Reports") on or before the Real Estate Records
Delivery Date (as hereinafter defined). The cost of the Environmental Reports
shall be borne by Seller (subject to reimbursement in accordance with Section 9
hereof).
(d) Seller shall deliver to Purchaser at least three (3) days
prior to Purchaser's Decision Date (the "Real Estate Records Delivery Date")
the
following documents: (1) the Environmental Reports, (2) copies of all Permits
(as hereinafter defined) not heretofore delivered to Purchaser and (3) a copy
of
the addendum to the Lease (as hereinafter defined) with Naughty Body, Inc.
dated January 6, 1992 (the "Naughty Body Addendum"; the "Real Estate
Records"). In the event that any Real Estate Records are not delivered to
Purchaser on or before the Real Estate Records Delivery Date, the Purchaser's
Decision Date shall be extended by as many days as shall be necessary to allow
Purchaser three (3) days to review such Real Estate Records.
(e) Purchaser may for any reason in its sole and absolute
discretion elect to terminate this Agreement by notice to Seller given on or
before
Purchaser's Decision Date. If Purchaser shall elect to terminate this Agreement
pursuant to this Section 4(e), the parties hereto shall have no further
obligations
under this Agreement, except as otherwise provided in Section 4(b) hereof.
5. Conditions to Closing. (a) Purchaser's Conditions.
Purchaser's obligation to pay the purchase price and to accept title to the
Property
shall be subject to compliance by Seller with the following conditions precedent
on and as of the Closing Date:
(I) Possession of the Property shall be delivered to Purchaser
free and clear of all tenancies and other occupancies except for the Leases
(as defined in clause (ii)(4) below).
(ii) Purchaser shall have received the following on or before
the Closing Date, each of which shall be in form and substance
satisfactory to Purchaser:
(1) a special warranty deed (the "Deed") in proper
statutory form for recording, duly executed and acknowledged by
Seller and with all required documentary and transfer tax stamps
affixed, sufficient to convey to Purchaser good and marketable fee
simple title to the Property free of all liens and encumbrances
other than the Permitted Title Exceptions;
(2) a bill of sale (the "Bill of Sale") containing a
warranty of title, duly executed and acknowledged by Seller,
sufficient to convey to Purchaser good and indefeasible title free of
all liens, encumbrances and security interests in and to all of the
personalty owned by Seller located on, attached to or used in
connection with the operation, maintenance or ownership of the
Property, including, without limitation, the Personal Property;
(3) an affidavit of title and such other affidavits as may
be required by the Title Company (as hereinafter defined in
Section 5(iii) hereof) in connection with the conveyance of the
Property;
(4) an assignment by Seller, in substantially the form
annexed hereto as Exhibit B (the "Lease Assignment"), of all of
Seller's right, title and interest in, to and under the leases and
the
amendments, extensions, modifications and supplements thereto set
forth on Schedule 4 hereto, as updated to the Closing Date (the
"Leases"), the New Leases (as defined in Section 6(a)(IV)(I)(7)
hereof) and of all security deposits not reimbursed to tenants as of
the Closing Date together with interest thereon (the "Security
Deposits") and prepaid rents for any period from and after the
Closing Date (the "Prepaid Rents") made by the tenants or any
other persons having rights under the Leases (the "Tenants");
(5) (A) an assignment by Seller, in substantially the
form annexed hereto as Exhibit C (the "General Assignment"), of
all of Seller's right, title and interest in, to and under:
(I) the contracts and agreements and the
amendments, modifications and supplements thereto set
forth on Schedule 5 annexed hereto (the "Contracts"), other
than the Management Agreement (as hereinafter defined)
and a certain oral brokerage agreement with CB
Commercial Real Estate Group, Inc. (the "CB Commercial
Agreement") if each of such agreements shall have been
terminated as of the Closing Date;
(II) the Permits (as defined in Section 5(a)(ii)(8)
hereof);
(III) the Guaranties (as defined in Section
5(a)(ii)(9) hereof); and
(IV) the name "Village Commons" and any logo
type or other symbol applicable to the Property; and
(B) a consent to the assignment of the Contracts
by each service provider under the Contracts;
(6) a certificate of a duly authorized officer of Seller to
the effect that the warranties and representations of Seller set forth
in this Agreement are true and complete on and as of the Closing
Date and are not misleading in any material respect on and as of
the Closing Date;
(7) original, fully executed counterpart copies of all
Leases (including, without limitation, the Naughty Body
Addendum), New Leases (including, without limitation, the
Restaurant Lease (as hereinafter defined) and the Mediloss Lease
(as hereinafter defined)) and Contracts (or, if any such counterpart
copy is unavailable after diligent effort on the part of Seller to
obtain the same, a photostatic copy thereof, certified by each and
every party thereto as accurate, complete and identical to the
counterpart copy thereof);
(8) to the extent in Seller's possession or at the
management office located at the Property, the original certificate
or certificates of occupancy and fire underwriter certificates for the
Property and the originals of the other certificates, licenses and
permits (including all amendments, modifications, supplements and
extensions thereof) listed on Schedule 6 hereto (collectively, the
"Permits"), except to the extent the same are required to be and
are affixed at the Property, and of variances issued by any
municipal, state or federal agency or authority relating to the
ownership, use, occupancy, operation or maintenance of the
Property, provided that, in any event, copies of such variances and
all Permits shall be delivered to Purchaser;
(9) counterpart copies of all guaranties or warranties
then in effect with respect to the Improvements and the Personal
Property (the "Guaranties");
(10) estoppel letters from 100% of the tenants under the
Leases dated within forty-five (45) days prior to the Closing Date
and substantially in the form annexed hereto as Exhibit D (with the
blanks filled in with the same information as set forth in
Schedules 4 and 7 hereof and otherwise in a manner acceptable to
Purchaser in its sole judgment and discretion);
(11) estoppel and consent letters from each of the parties
(other than Seller) to (A) all of the Contracts not cancelable upon
thirty (30) or fewer days notice and (B) seventy-five percent (75%)
of the remaining Contracts, dated within sixty (60) days prior to
the Closing Date and substantially in the form annexed hereto as
Exhibit E (with the blanks filled in with the same information as
set forth in Schedule 5 hereof and otherwise in a manner
acceptable to Purchaser in its sole judgment and discretion);
(12) all Security Deposits, Prepaid Rents and other sums
held by Seller as landlord under the Leases;
(13) true and complete copies of the books and records
of Seller in respect of the Property for the calendar years 1993
through 1996 to date, insofar as the same may be required by
Purchaser in the ownership, use, occupancy, operation or
maintenance of the Property following the Closing Date, including,
without limiting the foregoing, Seller's books and records in
respect of (A) any proceedings for the reduction of real estate taxes
and assessments, (B) any outstanding insurance claims or claims
against contractors, any outstanding claims by or against utility
companies servicing the Property, (D) payment or performance
under or in respect of the Leases, the Contracts, the Guaranties (as
defined in Section 5(a)(ii)(9) hereof) and all other agreements,
licenses, permits or other instruments to be assigned or transferred
to Purchaser pursuant to this Agreement or otherwise affecting the
Property and (E) any other claims, lawsuits and proceedings
affecting the Property or any interest therein ("Seller's Books and
Records");
(14) a true and complete set of all building plans,
specifications and drawings (and of all documents and other
materials related thereto) maintained by or on behalf of Seller for
the Improvements;
(15) a complete set of keys for the Improvements,
appropriately tagged for identification;
(16) counterpart copies of all engineering reports,
surveys, soil tests, environmental reports, and any other test
results or reports in Seller's possession or under Seller's control
concerning the Property, and, if so requested by Purchaser, Seller
shall instruct those who prepared such reports to divulge any
information they may have concerning the Property, provided that
Purchaser shall bear any additional costs incurred thereby;
(17) the Environmental Reports, in form and substance
satisfactory to Purchaser in its sole discretion;
(18) operating statements of the Property for calendar
years 1993, 1994, 1995 and 1996 to the date hereof, which
statements shall be certified by Seller as true and complete in all
respects;
(19) copies of the articles of incorporation and other
charter documents of Seller and any amendments or modifications
thereto, certified by the Secretary of State of the State of New
York, and the by-laws of Seller and any amendments or
modifications thereto;
(20) a certificate of the Secretary of Seller, dated the
Closing Date, to the effect that (A) Seller is a corporation that has
been duly organized, is validly existing and in good standing under
the laws of the State of New York and is qualified to do business
and is in good standing in the State of Florida, (B) Seller has all
requisite corporate power and authority to perform the terms of
this Agreement, this Agreement has been duly authorized,
executed and delivered by Seller pursuant to all necessary
resolutions or consents of the board of directors of Seller, true and
complete copies of which shall be attached to said certificate, that
said resolutions or consents remain in full force and effect and that
this Agreement is the legal, valid and binding obligation of Seller,
enforceable in accordance with its terms, (D) the Deed, the Bill of
Sale, the Lease Assignment and the General Assignment have been
duly authorized, executed and delivered by, and are the legal, valid
and binding obligations of, Seller, enforceable in accordance with
their respective terms, and shall be effective to transfer to
Purchaser the rights and benefits intended to be transferred
thereby, (E) the Leases and the Contracts to be assigned to
Purchaser pursuant to the Lease Assignment and the General
Assignment have been duly authorized, executed and delivered by,
and are legal, valid and binding obligations of, Seller,
(F) appearing on said certificate are the true signatures of all
officers of Seller who have executed this Agreement and who will
execute all agreements and instruments to be delivered by Seller
hereunder, (G) the executing officers are fully authorized to act on
behalf of Seller, and (H) the copies of the corporate documents of
Seller delivered pursuant to Section 5(a)(ii)(19) hereof are true and
complete, and that, except as specified in said certificate, such
documents have not been amended or modified and that no
proceeding for the amendment or modification thereof is pending;
(21) the Foreign Investment in Real Property Tax Act
affidavit required by Section 6(a)(I)(vi) hereof; Purchaser shall
have the right to file with the Internal Revenue Service (or any
other governmental entities as may be required) the foregoing
affidavit;
(22) a letter by Seller and Purchaser to the Tenants
informing them of the change in ownership of the Property
(Exhibit F);
(23) a letter by Seller and Purchaser to the other parties
to the Contracts informing them of the change in ownership of the
Property (Exhibit G);
(24) (A) an acknowledgment of termination of the CB
Commercial Agreement and the Management Agreement as of the
Closing Date executed by the counterpart to Seller under each such
agreement, or, if Seller shall be unable to obtain such an
acknowledgment from the counterpart to Seller under the
Management Agreement, a copy of a notice of termination of the
Management Agreement executed by Seller stating that the
Management Agreement is deemed terminated no more than thirty
(30) days after such notice is given to the counterpart to the
Management Agreement and that such counterpart shall cease
performance of its obligations under the Management Agreement
as of the Closing Date, together with evidence that such notice of
termination was delivered by Seller to such counterpart no later
than one (1) day after the date of execution and delivery of this
Agreement; and
(25) such additional documentation as Purchaser may
reasonably deem necessary or desirable in connection with the
transactions contemplated by this Agreement.
(iii) Purchaser shall receive from each of Chicago Title
Insurance Company and First American Title Insurance Company or any
other title company or companies approved by Purchaser in its judgment
and discretion (collectively, the "Title Company"), current ALTA type B
owner's forms of title insurance policies, or irrevocable and unconditional
binders to issue the same, in an amount equal to, in the aggregate, the
Purchase Price, dated, or updated to, the Closing Date, insuring, or
committing to insure, at their ordinary premium rates (for a single title
insurance policy insuring an amount equal to the Purchase Price),
Purchaser's good and marketable title in fee simple to the Property subject
only to the Permitted Title Exceptions and with all standard printed
exceptions waived, each of such policies, at Purchaser's option, to contain
(1) an affirmative endorsement insuring Purchaser that there are no
violations of any restrictive covenants or zoning regulations affecting the
Land or the Improvements and (2) such other affirmative insurance
desired by Purchaser. Purchaser shall on the Closing Date pay to the
Title Company the premium and other title fees which are payable to the
Title Company in respect of said title insurance policies.
(iv) Purchaser shall have received a currently dated as-built
ALTA survey of the Property, prepared and certified to Purchaser and the
Title Company by a certified or registered surveyor approved by
Purchaser. Such survey shall: (1) be in form and substance satisfactory
to Purchaser and the Title Company; (2) show the Improvements, the
location of all easements, rights of way, sewer and water lines, building
lines and encroachments, the location of all required building set-back
lines and other dimensional regulations; and (3) also show the location of
all abutting or adjoining streets, alleys, curb cuts and the like.
(v) The representations and warranties contained in this
Agreement shall be true and complete as of the Closing Date and not
misleading in any material respect on and as of the Closing Date and
Seller shall be in full compliance with the terms and provisions of this
Agreement, in each case subject only to exceptions permitted by this
Agreement.
(vi) (1) The waiting period and any extension thereof under the
Hart-Scott-Rodino Antitrust Improvements Act as amended (the "HSR
Act") applicable to any of the transactions contemplated in this Agreement
shall have expired or been terminated or (2) an amendment to the HSR
Act promulgated by the appropriate governmental authorities shall be in
effect which amendment, in the reasonable determination of counsel to
Seller and Purchaser, eliminates the filing requirement under the HSR Act
in connection with the transaction contemplated by this Agreement (each
of the events set forth in clauses (1) and (2) of this Section 5(a)(vi) is
referred to herein as an "HSR Event").
(vii) Purchaser shall have the option to waive the requirement
of Seller to perform any obligation or to deliver or cause to be delivered
any document set forth in this Section 5(a).
(b) Seller's Conditions. Seller's obligation to deliver title to
the Property shall be subject to compliance by Purchaser with the following
conditions precedent on and as of the Closing Date:
(I) Purchaser shall deliver to Escrow Agent on the Closing
Date the remainder of the Purchase Price due pursuant to Section 2(b)
hereof subject to adjustment of such amount pursuant to Sections 8 and 9
hereof.
(ii) Purchaser shall deliver to Escrow Agent on the Closing
Date the following:
(1) a certificate of a duly authorized officer of
Purchaser to the effect that the warranties and representations of
Purchaser set forth in this Agreement are true and complete on and
as of the Closing Date and are not misleading in any material
respect on and as of the Closing Date; and
(2) a certificate of the Secretary or Assistant Secretary
of Purchaser or Advisor, dated the Closing Date, to the effect that
(A) Purchaser is a corporation that has been duly organized, is
validly existing and in good standing under the laws of the State of
New York, (B) Purchaser has all requisite corporate power and
authority to perform the terms of this Agreement, the transaction
contemplated herein is authorized pursuant to all necessary action
of that corporation, (D) this Agreement has been duly authorized,
executed and delivered by Purchaser and is the legal, valid and
binding obligation of Purchaser, enforceable in accordance with its
terms, (E) appearing on said certificate are the true signatures of
all persons who have executed this Agreement and who will
execute all agreements and instruments to be delivered on behalf of
Purchaser hereunder, and (F) the signatories are fully authorized to
act on behalf of Purchaser.
(iii) An HSR Event shall have occurred.
(iv) The representations and warranties contained in Section 7
of this Agreement shall be true and complete and not misleading in any
material respect as of the Closing Date.
Conditions Generally. The foregoing conditions are for the
benefit only of the party for whom they are specified to be conditions precedent
and such party may, in its sole discretion, waive any or all of such conditions
and
close title under this Agreement without any increase in, abatement of or credit
against the Purchase Price.
6. Seller's Representations and Agreements. (a) Seller
represents, warrants and covenants with Purchaser as follows:
I. As to Seller's Organization, Power and Authority.
(I) Seller is a corporation that has been duly organized and is
validly existing in good standing under the laws of the State of New York.
(ii) Seller has full power and right to enter into and perform its
obligations under this Agreement and the other agreements contemplated herein
to be executed and performed by it, including, without being limited to,
conveying the Property as herein provided.
(iii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby (1) have been duly
authorized by all necessary corporate acts, (2) do not, except as to (x) the
transfer
of the Permits so identified on Schedule 6 hereto, (y) the filing, if any,
required
to be made pursuant to the HSR Act and (z) Contracts the assignment of which
requires the consent of the other party thereto, require any governmental or
other
consent and (3) will not result in the breach of any agreement, indenture or
other
instrument to which Seller is a party or is otherwise bound.
(iv) Neither Seller nor the Property is in the hands of a receiver
nor is an application for a receiver pending, Seller has not made an assignment
for the benefit of creditors, nor has Seller filed, or had filed against it, any
petition in bankruptcy.
(v) There is no pending litigation, proceeding or investigation
(by any person, governmental or quasi-governmental agency or authority or
otherwise) to which Seller is a party or, to the best of Seller's knowledge, any
other pending or threatened litigation, proceeding or investigation (by any
person, governmental or quasi-governmental agency or authority or otherwise)
which might materially adversely affect the ownership, use, occupancy, value,
operation or title of the Property.
(vi) Seller is a "non-foreign person" within the meaning of
section 1445 of the United States Internal Revenue Code of 1986, as amended,
and the regulations issued thereunder (the "Code"), and Seller shall deliver to
Purchaser on the Closing Date an affidavit in the form annexed hereto as Exhibit
H.
(vii) To the best of Seller's knowledge, Seller is not a "party
in
interest" (within the meaning of Section 3(14) of the Employee Retirement
Income Security Act of 1974, as amended; "ERISA") or a "disqualified person"
(within the meaning of Section 4975 of the Code) with respect to the
Metropolitan Life Insurance and Retirement Plan ("Met I&R").
(viii) Seller is acting under this Agreement for its own account
and on its own behalf, and will not use any of the proceeds obtained by Seller
under this Agreement to repay any indebtedness to, or otherwise for the benefit
of the Met I&R.
(ix) Intentionally omitted.
(x) No portion of the Property is a "plan asset" within the
meaning of Regulation 29 CFR Section 2510.3-101 issued by the Department of
Labor.
II. As to the Property.
(I) Seller is the sole owner of the Property.
(ii) Seller's title to the Property is not directly or indirectly
derived from any foreclosure proceeding or any proceeding for the sale of land
for the nonpayment of municipal taxes or assessments or from adverse possession
or color of title in any manner which would affect the marketability of its
title
to
the Property.
(iii) Except for (1) any matters explicitly detailed in the
engineering and environmental reports heretofore delivered to Purchaser and
listed on Schedule 10 attached hereto and (2) the items of deferred maintenance
set forth on Schedule 11 attached hereto, to the best of Seller's knowledge, the
Property is in good condition and repair and is free from defect (latent or
patent),
is in good working order and repair and is sufficient for the use and
maintenance
of the Property as it is presently used and maintained and as the use of the
Property is contemplated for the full occupancy of the Improvements.
(iv) All water, sewer, gas, electricity, telephone and other
utilities required for the use, occupancy, operation and maintenance of the
Improvements are connected thereto and in service, are adequate to service the
normal operation of the Property, are supplied directly to the Property by
facilities of public utilities and, to the best of Seller's knowledge, the
cost of
installation and connection of such utilities has been fully paid. To the best
of
Seller's knowledge, all public utilities required for the operation of the
Property
enter the Property through lands as to which valid public or private easements
exist that will inure to the benefit of Purchaser.
(v) There are no oil burners, incinerators, furnaces,
fuel-burning devices or other sources of air pollution at the Property and
there is
no fuel stored upon the Property.
(vi) Except as may be otherwise explicitly detailed in the
engineering and environmental reports heretofore delivered to Seller and listed
on
Schedule 10 attached hereto, to the best of Seller's knowledge, the Improvements
have been constructed, the Personal Property installed and the Property has been
and is presently used and operated in compliance in all material respects with,
and in no material way violates, (1) any applicable statute, law, regulation,
rule,
ordinance or order of any kind whatsoever (including, without being limited to,
any building, fire, health, safety, pollution, environmental (including, without
being limited to, the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections 1801,
et seq.), the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
Section 6921, et seq., and the regulations adopted and publications promulgated
pursuant thereto or any other similar applicable federal, state or local law,
rule,
regulation or ordinance), subdivision and zoning statute, law, code, ordinance,
rule, regulation, approval or order or urban redevelopment plan or other
governmental or quasi-governmental requirement) affecting the Property or any
part thereof ("Applicable Laws"), (2) any building or occupancy permit, or
(3) any condition, easement, right-of-way, covenant, agreement or restriction of
record affecting or otherwise relating to the Property. To the best of Seller's
knowledge, the Improvements have been fully constructed in accordance with the
plans and specifications referred to in Section 5(a)(ii)(14), and tenant
improvements have been constructed in accordance with executed Leases; any
space not leased is an integral unit and is sheet rocked, taped and painted.
(vii) Seller has not generated, stored or disposed of any
hazardous waste on the Property in violation of Applicable Laws, and Seller has
no knowledge of any previous or present generation, storage, disposal or
existence of any hazardous waste on the Property in violation of Applicable
Laws. Seller has not received any notice from any federal, state, county,
municipal or other governmental department, agency or authority concerning nor
does Seller have any knowledge of the existence of any petroleum product or
other hazardous waste discharge or seepage. There are no on-site facilities at
the
Property for the disposal of solid waste. The term "hazardous waste" shall mean
"hazardous waste", "toxic substances" or other similar or related terms as
defined
or used in the statutes cited in Section 6(a)(II)(vi) of this Agreement and
regulations adopted thereunder.
(viii) To the best of Seller's knowledge, the Property is an
independent unit which does not now rely, and on the Closing Date will not rely
on any facilities (other than the facilities of public utility and water
companies
and of access from the public roads) located on any property not included in the
Property (1) to fulfill any Applicable Law or (2) for structural support or for
the
furnishing to the Improvements of any essential building systems or utilities,
including, but not limited to, electrical, plumbing, mechanical and heating,
ventilating and air conditioning systems. To the best of Seller's knowledge, no
building or other improvement not included in any part of the Property relies on
any part of the Property to fulfill any Applicable Law or for structural
support or
the furnishing to such building or improvement of any essential building systems
or utilities.
(ix) To the best of Seller's knowledge, (1) access to and egress
from the Land is available and provided by public streets; (2) all roads
bounding
the Property are public roads; (3) the Deed is the only instrument necessary to
convey to Purchaser full access to and the right to use such roads freely as
well
as all rights appurtenant to the Property in such roads; and (4) Seller has no
knowledge of any federal, state, county, municipal or other governmental plans
to change the highway or road system in the vicinity of the Property or to
restrict
or change access from any such highway or road to the Property.
(x) To the best of Seller's knowledge, there is no pending or
threatened condemnation of all or any part of the Property.
(xi) To the best of Seller's knowledge, the parking facilities at
the Property (the "Parking Facilities") consist of parking areas adjacent to
the
Improvements which contain parking spaces for 889 automobiles, which spaces
are sufficient to (1) comply with (A) the requirements of all Applicable Laws,
(B) the Permitted Title Exceptions and all parking commitments under any
Leases or other documents and (2) provide the anticipated needs of future
tenants
upon their occupancy of the entire portion of the space within the Improvements
which is presently vacant. There are no operating or other agreements (written
or oral) affecting the Parking Facilities, other than as may be set forth in the
Leases or the Permitted Title Exceptions.
(xii) Seller has not received any notice from any governmental
body having jurisdiction over the Property as to any violation of any Applicable
Law, or any notice from any insurance company or inspection or rating bureau
setting forth any requirements as a condition to the continuation of any
insurance
coverage on or with respect to the Property or the continuation thereof at
premium rates existing at present which have not been remedied or satisfied.
(xiii) No services, material or work have been supplied for the
account of Seller and, to the best of Seller's knowledge, for the account of any
Tenant for which payment has not been made in full in a timely manner, other
than work supplied in connection with the lease of space at the Property to (a)
Firstat, Inc. (the "Firstat Lease") and (b) Mediloss Corporation of Florida (the
"Mediloss Lease").
(xiv) To the best of Seller's knowledge, other than the
assessments set forth on Schedule 12 attached hereto, there are no special or
other assessments for public improvements or otherwise now affecting the
Property nor does Seller know of (1) any pending or threatened special
assessments affecting the Property or (2) any contemplated improvements
affecting the Property that may result in special assessments affecting the
Property. To the best of Seller's knowledge, there are no tax abatements or
exemptions affecting the Property.
(xv) To the best of Seller's knowledge, the Property is assessed
as one or more separate tax lots that are separate and distinct from the tax lot
allocated to any other contiguous air right, development right or parcel of
land.
(xvi) The operating statements relating to the Property that have
been delivered to Purchaser and are described in Schedule 9 hereof are true and
correct in all material respects.
(xvii) To the best of Seller's knowledge, there are no impact fees
due or payable with respect to the Property or the Improvements.
III. As to Leases, Contracts, Permits, Policies, etc.
(I) (1) There are no occupancy rights (written or oral), leases
or tenancies presently affecting the Property other than the Leases; (2) Seller
has
heretofore delivered to Purchaser true and complete copies of each of the
Leases;
(3) the Leases are in full force and effect; (4) Seller is not in default in any
material respect under any Lease and knows of no material default on the part of
any Tenant (other than the failure of the Tenant under the PMK, Inc. Lease to
locate its ice cream cart and outdoor tables in accordance with the terms of its
Lease) nor of any material unsatisfied claim, set-off or counterclaim against
Seller by any Tenant; (5) to the best of Seller's knowledge, there are no
actions
or proceedings pending or threatened by or against any Tenant (other than a
threatened suit against Seller by the Tenant under the PMK, Inc. Lease); (6)
each
of the Leases represents the complete agreement between Seller and the
respective Tenant as to all rights, liabilities and obligations of Seller and
said
Tenant in and to the property demised thereunder, and have not been modified or
amended, except as set forth on Schedule 4 hereto; (7) except as set forth in
the
Leases, no renewal, extension or expansion option has been granted to any
Tenant; (8) there is no option to purchase, right of first offer, right of
first refusal
or other provision granting any Tenant or any other person any right to acquire
the Property or to terminate its Lease in the event of a sale of the Property;
(9) all Tenants are in occupancy of their respective property under the Leases
and
all work required to be performed by any party to any of the Leases has been
completed and fully paid for; (10) the information contained in the rent roll
annexed hereto as Schedule 7 and made a part hereof is true and complete in all
material respects and includes all revenues collected in respect of the
Improvements and Parking Facilities; (11) all rents are being paid and are
current, except as otherwise shown on Schedule 7; (12) except as set forth
in the
Leases, no Tenant is entitled to any free rent, abatement of rent or similar
concession; (13) except as set forth on Schedule 7, Seller has not accepted any
prepaid rent or prepayment of any other sum due under the Leases; (14) the
security deposits listed on column 12 of Schedule 7 hereto are all the security
deposits not previously reimbursed to Tenants under their Leases; (15) Seller is
holding all such security deposits and has invested the same if and as
required by
law or pursuant to the terms of the applicable Lease and the amounts of interest
or dividends or other returns on the security deposits is set forth on Schedule
7
hereto; (16) no Tenant has contested any tax, operating cost or other escalation
payments or occupancy charges, or any other amounts payable under its Lease;
(17) there has been no reduction of services at the Property that would
entitle any
Tenant under a Lease to a reduction in or refund of rent; and (18) no steps have
been taken by Seller with respect to any negotiation or appraisal of rent under
any of the Leases, and no such negotiations or appraisals are pending. For
purposes of the representations set forth in this Section 6(a)(III)(I) being
made as
of the Closing Date, the term "Leases" shall include New Leases.
(ii) Except for brokerage commissions which may be payable
by Seller to (1) A. Toroyan of CB Commercial Real Estate Group, Inc. ("CB
Commercial") upon execution by Seller of the Restaurant Lease and the Mediloss
Lease and (2) pursuant to the terms of that certain Management and Leasing
Agreement dated as of August 1, 1994 between Pacific Gateway Properties
Management Corporation and Paragon Group Property Services, Inc. (the
"Management Agreement"), no brokerage commission, fee or other compensation
is payable or claimed to be payable (or will, with the passage of time or
occurrence of any event or both, be payable or claimed to be payable), with
respect to any Lease or New Lease, including, without limitation, upon any
renewal or expansion of an existing Lease pursuant to options set forth
in such
Lease. Except for the commissions which survive termination of the
Management Agreement pursuant to Schedule 1 thereof, there does not exist any
exclusive or continuing brokerage agreements as to any of the space covered by
the Leases or as to any space in the Property, any obligations of which shall
survive the Closing.
(iii) (1) The Contracts are all of the material contracts and
agreements presently affecting the Property; (2) Seller has heretofore
delivered to
Purchaser true and complete copies of each of the Contracts; (3) each of the
Contracts is in full force and effect and has not been modified or amended,
except as indicated on Schedule 5 hereof; (4) Seller is not in default of any of
its
material obligations under any of the Contracts and knows of no material default
on the part of the other parties thereto; and (5) the Contracts represent the
complete agreement between Seller and such other parties as to the services
to be
performed or materials to be provided thereunder and the compensation to be
paid for such services or materials, as applicable, and, to the best of Seller's
knowledge, such other parties possess no unsatisfied claim against Seller.
(iv) To the best of Seller's knowledge, (1) the Permits listed on
Schedule 6 hereto are all of the material certificates, licenses and permits
from
governmental authorities held by Seller in connection with the ownership, use,
occupancy, operation and maintenance of the Property and are all of the
certificates, licenses and permits necessary in connection with the current
ownership, use, occupancy, operation and maintenance thereof; (2) except as
set
forth on Schedule 6, all of the Permits are transferable to Purchaser, subject
to
the receipt of such governmental and quasi-governmental consents as may be
required for such transfer; (3) none of the Permits has been suspended or
revoked; and (4) all of the Permits are in full force and effect, are fully paid
for,
and Seller has made, or will make, application for renewals of any of the
Permits
which will expire before the Closing Date.
(v) All insurance policies held by Seller relating to or affecting
the Property are described in Schedule 8 hereof and all of such policies are
in full
force and effect and shall remain in full force and effect until the Closing.
Seller
has not received any notice of default or notice terminating or threatening to
terminate any insurance policies described in Schedule 8 in respect of any
period
prior to the Closing.
(vi) Except as set forth in the Schedules hereof, Seller is not a
party to any written or oral agreement of any type pertaining specifically to
the
Property or the ownership, use, occupancy, operation or maintenance thereof,
which will be binding on Purchaser following the Closing Date, including,
without being limited to, any (1) distributor, agency or advertising agreement,
(2) agreement with any labor union, (3) continuing agreement for future
purchases, services or employment, (4) profit sharing, bonus, stock option,
welfare, retirement or other employee benefit plan or agreement, (5) lease,
as
lessee or lessor, of any real or personal property, (6) license or franchise
agreement, (7) construction or maintenance agreement, (8) agreement with a
credit organization or any other person regarding any debt (including, without
being limited to, a loan agreement, note, mortgage, deed of trust or other
security
agreement), (9) agreement pertaining to the management or operation of the
Property, or (10) brokerage agreement.
(vii) Seller has no trade names, logotypes, trademarks or
copyrights used in connection with or applicable to the Property, other than
such
rights, if any, Seller may have in the name "Village Commons" as applicable to
the Property and such trade names, trademarks or copyrights as are used in the
general conduct of its business and are unrelated to its ownership of the
Property.
(viii) Except for the representation of Seller set forth in Section
6(a)I.(vii) hereof, all references in this Section 6(a) to "Seller's knowledge"
shall
mean the actual current knowledge of Raymond Marino, President and Chief
Executive Officer (and formerly Chief Financial Officer) of Seller, Andrew
Gorayeb, Vice President of Seller, and Christopher Watson, Executive Vice
President of Seller, without any independent investigation or inquiry. With
respect to the representation set forth in Section 6(a)I.(vii) hereof, the
reference
to Seller's knowledge shall mean to the actual knowledge of the parties
referenced in the preceding sentence after due inquiry and investigation.
Seller
represents and warrants that Raymond Marino, Andrew Gorayeb and Christopher
Watson are the representatives of Seller responsible for the oversight and
disposition of the Property and are the employees of Seller who have the most
knowledge with respect to the Property.
IV. Miscellaneous Agreements.
(I) Seller, during the term of this Agreement, will (1) operate
and maintain the Property in substantially the same manner as it has heretofore
operated and maintained the same, (2) maintain the insurance policies described
in Schedule 8 in full force and effect through the Closing Date, (3) subject to
Section 11 hereof, make or cause to be made all necessary repairs and
replacements thereto and do, or cause to be done, all necessary maintenance
required to keep the Property substantially in the physical condition existing
on
the date hereof, (4) subject to the provisions of Section 4 within forty
- -eight hours
prior to the Closing, permit Purchaser's representatives to inspect the Property
and to examine Seller's books and records relating to the ownership,
construction, use, occupancy, operation and maintenance of the Property, (5) not
enter into any construction, management, maintenance or service contracts which
might become the obligation of Purchaser nor modify, amend, supplement,
cancel, accept the surrender of or renew (except when any such acceptance of
surrender or renewal is non-discretionary) any such contracts which exist at
present without Purchaser's prior written consent, which consent shall not be
unreasonably withheld and Purchaser shall have five (5) business days after
delivery to it of a notice of each proposed action under this clause (5) and all
other material information supplied to Seller as to the proposed action to
determine whether or not to approve such action, (6) not create any manner of
lien or encumbrance upon or affecting title to the Property except Permitted
Title
Exceptions, without Purchaser's prior written consent, (7) not enter into any
leases for all or any portion of the Property nor modify, amend, supplement,
extend, renew or terminate any existing Lease or consent to the surrender or
assignment of any existing Lease or to any subleasing or tenant alterations
under
any existing Lease, in each case without Purchaser's prior consent, which
consent
shall not be unreasonably withheld (any such lease, amendment, supplement,
extension, renewal, termination or consent with Purchaser's consent being
herein
a "New Lease") and Purchaser shall have five (5) business days after delivery to
it of a notice of each proposed action under this clause (7) and all other
material
information supplied to Seller as to the proposed action to determine whether or
not to approve such action and if Purchaser shall consent to a New Lease,
Schedules 4 and 7 hereof shall be amended to include the appropriate
information, (8) not commit to, enter into or make any brokerage agreement,
(9) use all reasonable efforts to collect prior to the Closing all rents due
under the
Leases prior to the Closing Date, provided, however, that Seller shall not bill
tenants under the Leases for common area maintenance charges or other cost
reimbursements for the 1995 and 1996 calendar years without the prior written
consent of Purchaser, (10) not take any action which will or would cause any of
the representations or warranties in this Agreement to become untrue or be
violated, (11) perform all of its obligations in respect of the Property
whether
pursuant to any Contracts, Leases or other agreements or requirements affecting
the Property, (12) promptly inform Purchaser in writing of any material event
adversely affecting the ownership, use, occupancy, operation or maintenance of
the Property, whether or not insured against and (13) not solicit, accept or
provide factual information or negotiate with respect to, any offer to
purchase the
Property from any person or entity other than Purchaser.
(ii) Seller shall, during reasonable hours whether before or
after the Closing Date, allow Purchaser or its representatives access to, and
permit Purchaser or its representatives to prepare copies of, Seller's Books and
Records, and Seller shall keep Purchaser apprised at all times as to the
location of
such books and records. Nothing contained in this clause IV.(ii) shall be
deemed
to limit Seller's obligations pursuant to Section 4 hereof.
(iii) Seller agrees to make an appropriate filing of a
Notification
and Report Form pursuant to the HSR Act with respect to the transactions
contemplated hereby within fifteen (15) business days of the date hereof and
shall
supply promptly any additional information and documentary material that may
be requested pursuant to the HSR Act.
(iv) Seller agrees that it shall not issue any press or other
publicity release or communication regarding the transactions contemplated
hereby without the prior written consent of Purchaser, which consent shall
not be
unreasonably withheld and shall not be required for any disclosures to any
governmental entity required by law.
(v) On or before the Closing Date, Seller shall enter into a
lease with Fandango Grill, Inc., which lease shall be subject to approval by
Purchaser (the "Restaurant Lease"). Purchaser shall approve the Restaurant
Lease if (1) the term of the lease shall be not less than ten (10) years, (2)
not less
than 6,200 square feet shall be demised under the lease, (3) the annual rent
payable under the lease shall be not less than twelve dollars ($12) per
square foot
in the first year, with annual increases of not less than three percent (3%),
(4)
rent under the lease shall commence no later than August 15, 1996, (5) the lease
shall provide for a tenant improvement allowance equal to no more than two
dollars ($2) per square foot, (6) the lease shall provide for a security deposit
of
no less than $11,362.63, which may be returned to tenant no earlier than seven
(7) years after lease commencement provided that no monetary default shall then
exist under the lease, (7) the lease shall be personally guarantied for a
minimum
of eighteen (18) months, (8) leasing commissions incurred in connection with the
lease shall not exceed thirty three thousand dollars ($33,000) (the "Restaurant
Lease Commission Limit"), (9) Purchaser shall determine, in its sole discretion,
that Fandango Grill, Inc. is sufficiently creditworthy to fulfill its
obligations
under the lease and (10) the other terms and conditions of the lease shall be
satisfactory to Purchaser.
(b) The representations, warranties and covenants set forth in
clauses (I)(iv), (I)(v), (I)(vi), (I)(vii), (I)(viii), (I)(x), (II)(ii),
(II)(iii), (II)(iv),
(II)(v), (II)(vi), (II)(vii), (II)(viii), (II)(ix), (II)(x), (II)(xi),
(II)(xii), (II)(xiii),
(II)(xv), (II)(xvi), (II)(xvii), (III)(I), (III)(ii), (III)(iii), (III)(iv),
(III)(vi) and
III(viii) of Section 6(a), as applicable at the Closing Date, shall survive the
Closing for a period of fifteen (15) months. The remaining representations and
warranties contained in Section 6(a) shall not survive the Closing.In addition,
as
and to the extent Purchaser shall receive from Seller conforming estoppel
letters
pursuant to clauses (10) and (11) of Section 5(a)(ii) hereof (at or after the
Closing), Seller's representations and warranties set forth in clauses (III)(I)
and
(III)(iii), respectively, of Section 6(a) hereof shall, as to the matters set
forth in
such estoppel letters, not survive: (I) the Closing, as to estoppel letters
acceptable to Purchaser delivered at the Closing, and (ii) the date of delivery
thereof, as to estoppel letters acceptable to Purchaser delivered after the
Closing.
Without limiting any of the rights of Purchaser provided for
elsewhere in this Agreement, it is agreed that the obligation of Purchaser to
close
title under this Agreement is conditioned upon the truth and completeness in all
material respects of all of Seller's warranties and representations and the due
compliance by Seller with all of its agreements set forth in this Agreement.
If,
on or before the Closing Date, either party shall determine that any
representation or warranty of Seller is incorrect or misleading in any material
respect, such party shall promptly notify the other party. Within three
(3)days
after the material inaccuracy of any representation or warranty becomes known to
Seller, whether through Purchaser or otherwise, Seller shall notify Purchaser in
writing whether Seller intends to remedy the underlying condition causing such
representation or warranty to be inaccurate so as to cause such representation
or
warranty to be true and complete as of the Closing Date. If Seller notifies
Purchaser of its intent to make such representation or warranty true and
complete, Seller shall proceed with diligence to make such representation or
warranty true and complete on or before the Closing Date; provided, however,
if
such representation or warranty can not be made true and complete by the
Closing Date but is capable of being made true and complete, the Closing shall
be delayed for up to an additional seven (7) days to allow Seller to make such
representation true and complete. If Seller notifies Purchaser that it does not
intend to make such representation true and complete, fails to notify Purchaser
within the time period herein specified of its intent to make such
representation or
warranty true and complete or fails to make such representation or warranty true
and complete on or before the Closing Date (as the same may have been extended
as herein provided), then Purchaser may elect, in its sole discretion and
without
limiting its right to close title hereunder, to terminate this Agreement and, if
the
inaccuracy or misleading nature of such representation or warranty resulted from
the willful act or omission of Seller, to be reimbursed by Seller for
Purchaser's
out-of-pocket expenses incurred in connection with the inspection of the
Property
and the negotiation and preparation of this Agreement, including, without
limitation, Purchaser's legal costs in connection with this transaction and the
cost
to Purchaser of examining title to the Property. Upon termination of this
Agreement, Seller shall promptly instruct Escrow Agent to return to Purchaser
the Downpayment and all accrued interest thereon and, thereupon, this
Agreement shall be null and void and of no further force or effect.
(d) Seller agrees to indemnify Purchaser and Purchaser's
shareholders, past, present and future officers, directors, employees and agents
(collectively, "Indemnitees") and hold Indemnitees harmless and defend
Indemnitees from and against any and all loss, cost, claims, liabilities,
damages
and expenses, including, without being limited to, reasonable attorneys' and
paralegals' fees (whether incurred in any administrative or bankruptcy
proceeding, on appeal or otherwise; collectively, "Claims"), arising as the
result
of a breach of any of the representations, warranties and covenants which,
pursuant to Section 6(b) hereof, survive the Closing, provided that such breach
or
all of the facts giving rise to such breach were not actually known to Purchaser
prior to the Closing. Seller's obligations pursuant to the immediately
preceding
sentence shall survive the Closing.
(e) If at any time any Indemnitee shall receive written notice of
any Claim within the scope of the indemnity provided in Section 6(d) hereof,
Purchaser shall give written notice to Seller of such Claim. Purchaser's
failure to
give timely notice of any Claim shall not constitute a waiver of such Claim and
shall reduce the damages to which the Indemnitee is otherwise entitled only to
the
extent Seller is prejudiced by the failure to give timely notice; provided,
however, that Purchaser's failure to give notice of any Claim of which Seller
has
otherwise been notified or has knowledge shall not in any manner reduce the
damages to which the Indemnitee is entitled. Seller shall not be liable for
Claims
for which Purchaser shall deliver written notice to Seller after the expiration
of
any applicable survival period set forth in Section 6(b) hereof. Seller shall
have
the right to control the defense or settlement of any Claim and to take such
action
as it shall reasonably deem necessary or appropriate to mitigate same, provided
that (I) Seller shall first confirm in writing to the applicable Indemnitee that
such
Claim is within the scope of the indemnity provided in Section 6(d) hereof and
that Seller shall pay any and all amounts required to be paid in respect of such
Claim, (ii) Seller shall employ counsel reasonably satisfactory to the
applicable
Indemnitee, and (iii) if the compromise or settlement of any such Claim shall
not
result in the complete release of all Indemnitees from the Claim so compromised
or settled or shall result in the imposition of restrictions on the use,
operation,
financing or enjoyment of the Project that are more burdensome than those which
would otherwise be in effect, the compromise or settlement shall require the
prior
approval of the applicable Indemnitees. The Indemnitees shall cooperate with
Seller in the defense of any such Claim provided Seller agrees to pay the costs
and expenses incurred in connection with such cooperation. The Indemnitees, at
their election and cost, shall have the right, but not the obligation, to
participate
in the defense of any Claim. If, at any time during the pendency of any Claim,
Seller shall disaffirm its responsibility for the Claim involved or shall not
proceed
to defend or settle such Claim in a manner reasonably satisfactory to the
Indemnitees, the Indemnitees shall have the right, but not the obligation, to
assume the exclusive control of the defense and settlement of such Claim insofar
as the Indemnitees are concerned, and all costs and expenses of such defense
shall
be paid by Seller if such Claim is within the scope of the indemnity set
forth in
Section 6(d) hereof. Seller's obligations pursuant to this Section 6(d) shall
survive the Closing.
7. Purchaser's Representations and Agreements. (a)
Purchaser represents, warrants and covenants with Seller as follows:
(I) Purchaser is a corporation that has been duly organized and
is validly existing under the laws of the State of New York and is duly
qualified to do business in the State of Florida;
(ii) Purchaser has full power and right to enter into and
perform its obligations under this Agreement and the other agreements
contemplated herein to be executed and performed by it;
(iii) Purchaser is not in the hands of a receiver nor is
application for a receiver pending, Purchaser has not made an assignment
for the benefit of creditors, nor has Purchaser filed, or had filed against
it,
any petition in bankruptcy; and
(iv) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate acts, do not require any
governmental or other consent, except as to the filing, if any, required
under the HSR Act, and will not result in the breach of any agreement,
indenture or other instrument to which Purchaser is a party or is otherwise
bound.
(b) The representations, warranties and covenants set forth in
this Section 7, as applicable at the Closing Date, shall survive the Closing.
Purchaser shall make an appropriate filing of a Notification
and Report Form pursuant to the HSR Act with respect to the transactions
contemplated hereby within fifteen (15) business days of the date hereof and
shall
supply promptly any additional information and documentary material that may
be requested pursuant to the HSR Act.
(d) Purchaser agrees that it shall not issue any press or other
publicity release or communication regarding the transactions contemplated
hereby without the prior written consent of Seller, which consent shall not be
unreasonably withheld and shall not be required for any disclosures to any
governmental entity required by law.
8. Apportionments. (a) The following items shall be
apportioned at the Closing as of the Closing Date:
(I) Rents and all other charges (including cost reimbursement
payments and amortization of leasehold improvement costs) payable under
the Leases as and when collected; provided, however, that, if any rents
under any of the Leases shall be accrued and unpaid at the Closing Date,
the rents collected by Purchaser on or after the Closing Date shall first
be
applied to all rents due at the time of such collection on or after the
Closing Date with the balance payable to Seller to the extent of rents
accrued and unpaid as of the Closing Date (rent computed as a percentage
of sales under any Lease being deemed accrued and unpaid as of the
Closing Date only if and to the extent that the Tenant has failed to make a
payment in respect of such percentage rents which was actually due and
owing on or before the Closing Date under the applicable Lease);
provided further that Purchaser shall not be required to institute any
proceeding to collect any rents accrued and unpaid on the Closing Date.
Seller shall be entitled to bill and collect directly from C.C. Village
Commons, Inc. (Basil's Neighborhood Cafe), rent arrearages under its
Lease for periods prior to the Closing which such Tenant has agreed to
pay to Seller in installments. In no event shall Seller be entitled to
bring
actions or proceedings against any tenant under Leases for the collection
of rents accrued and unpaid as of the Closing Date, including, without
limitation, rents subject to installment agreements with Seller described n
the immediately preceding sentence.
(ii) Real estate taxes, taxes on Personal Property, assessments,
other than special assessments (as defined in Section 9(a) hereof), and
water, vault and sewer charges and rents, based on the rates and assessed
valuation applicable in the fiscal year for which assessed; provided that
if
the Closing shall occur before the real estate tax rate or personal
property
tax rate is fixed, the apportionment of said taxes shall be based on 110%
of the tax rate for the immediately preceding year applied to the latest
assessed valuation and shall be adjusted retroactively as and when the
valuation is ascertained for the tax year during which the Closing occurs,
provided, however, the amount of real estate taxes assessed for the fiscal
year 1995 and the fiscal year in which the Closing occurs reimbursable to
the Landlord by the Tenants under each of the Jack Eckerd Corporation
and Publix Supermarkets, Inc. Leases shall be allocated to Purchaser and
Purchaser shall be entitled to collect from such tenants the entire amount
of such taxes.
(iii) All charges and payments for utility services which are not
charged directly to tenants; provided that if there is no meter or if the
current bill for any of such utilities has not been issued prior to the
Closing Date, the charges therefor shall be adjusted at the Closing on
the
basis of the charges for the prior period for which bills were issued and
shall be further adjusted when the bills for the current period are issued.
(iv) Subject to Section 9(I) hereof, all charges and payments
under the Contracts.
(v) Each assessment set forth on Schedule 12 hereof.
(vi) All other customary and reasonable operating income from
and expenses of the Property.
If any of the foregoing cannot be apportioned at the Closing because of the
unavailability of the amounts which are to be apportioned, such items shall be
apportioned as soon as practicable after the Closing Date.
(b) (I) If any rents are payable or accruable under the Leases
on the basis of estimates or formulae and are subject to adjustment after the
Closing Date, such rents shall be apportioned at the Closing to the extent
collected on the basis of the then current charges or accruals, as applicable.
All
such rents shall be subject to reapportionment on the basis of the proportion of
the amounts as finally determined to be owing under the Leases billed or
reimbursed to Tenants, provided that the decision (1) whether to bill
Tenants any
additional amounts or to reimburse Tenants for any amounts previously paid,
pursuant to the cost reimbursement provisions of the Leases, in respect of
those
portions of the 1995 and 1996 calendar years for which Tenants were billed at
or
prior to Closing and (2) as to the amounts to be billed to Tenants in respect of
such portions of the 1995 and 1996 calendar years not billed to Tenants at or
prior to Closing, shall be in the sole discretion of Purchaser, provided
further
that, in making such decisions, Purchaser shall reasonably consider any request
by Seller in respect of the cost reimbursement amounts to be billed to Tenants
for
such periods. Seller shall pay to Purchaser within thirty (30) days after
Purchaser shall have reimbursed Tenants, or Purchaser shall pay to Seller within
thirty (30) days of collection, as the case may be, the amount determined to be
due from such party to the other as a result of the reapportionment of rents
pursuant to this Section 8(b).
The obligations of the parties hereto under this Section 8
shall survive the Closing.
9. Closing Matters. The following items shall be provided for
at the Closing:
(a) Except as set forth in Section 8(a)(v) hereof, if, at the time
of the delivery of the Deed, the Property or any part thereof shall be or
shall have been affected by an assessment or assessments levied or
imposed for improvements capital in nature construction of which has
begun prior to the date hereof (any such assessments being herein called
"special assessments"), then, for the purposes of this Agreement, all
unpaid installments of any such special assessment, including those which
are to become due and payable after the delivery of the Deed, shall be
deemed to be due and payable and shall be paid and discharged by Seller
at or prior to delivery of the deed.
(b) No insurance policies of Seller are to be transferred to
Purchaser, and no apportionment of the premiums therefor shall be made.
Purchaser acknowledges that it shall be responsible for securing its own
insurance for the Property.
Seller shall pay to the appropriate governmental authority
(I) all documentary stamp, intangible and other transfer taxes and fees in
connection with the consummation of the transactions contemplated by
this Agreement, (ii) all charges and fees of the surveyor in connection
with the survey to be delivered to Purchaser hereunder and (iii) one-half
(1/2) of the escrow fees (including, without limitation the fees of Escrow
Agent, if any, payable in connection with the Downpayment). Purchaser
shall pay (I) all recording fees in connection with recording the Deed,
(ii)
all charges and fees of the Title Company in connection with the title
policy to be delivered to Purchaser hereunder and (iii) one-half (1/2)
of the
escrow fees (including, without limitation, the fees of Escrow Agent, if
any, payable in connection with the Downpayment and the Post Closing
Escrow Amount). In addition, Purchaser shall reimburse Seller for the
actual amount paid to the consultant in connection with the preparation of
the Environmental Reports up to a maximum amount of Fifteen Thousand
Dollars ($15,000).
(d) Seller shall pay over to Purchaser all Security Deposits and
any Prepaid Rents or other sums held by Landlord under the Leases.
(e) Seller shall be entitled to any deposits made by Seller with
utility companies servicing the Property, and, if the same are not
refundable to Seller without replacement by Purchaser, Purchaser shall
either: (I) deliver the requisite replacement deposit to the utility
company
on or prior to the Closing Date or (ii) pay to Seller at the Closing the
amount of such deposit, against a good and sufficient transfer by Seller to
Purchaser of all interest of Seller in the deposit.
(f) Seller shall pay all brokerage commissions and finders' fees
applicable to the existing terms of the Leases and in respect of New
Leases, other than (I) brokerage commissions due to A. Toroyan of CB
Commercial in respect of the Restaurant Lease up to an amount equal to
the Restaurant Lease Commission Limit and (ii) brokerage commissions
due to A. Toroyan of CB Commercial in respect of the Mediloss Lease.
Seller shall pay all brokerage commissions and finders' fees applicable to
the Restaurant Lease in excess of the Restaurant Lease Commission Limit.
Purchaser shall pay such brokerage commissions applicable to (1) the
Restaurant Lease up to an amount equal to the Restaurant Lease
Commission Limit and (2) the Mediloss Lease.
(g) Seller and Purchaser shall each pay one-half (1/2) of all fees
required to be paid to the Federal Trade Commission in connection with
the filings, if any, made pursuant to the HSR Act.
(h) Seller shall pay and discharge all of the obligations of
landlord, if any, under the Firstat Lease in respect of tenant improvements.
Seller shall be required to pay to Purchaser any tenant
improvement allowance payable by landlord under the
Restaurant Lease in excess of two dollars ($2) per square
foot. Purchaser shall pay the tenant improvement
allowance payable by the landlord under such Lease up to
an amount equal to two dollars ($2) per square foot when
such amounts become due pursuant to the Restaurant Lease.
(i) Seller shall make all payments required to be made to the
managing agent under the Management Agreement in respect of
compensation for tenant finish work and capital improvements for
any Lease or New Lease (including, without limitation, the
Restaurant Lease and the Mediloss Lease).
The obligations of Seller under this Section 9 shall survive the Closing.
10. Title Examination; Survey; Violations. (a) Seller agrees to
cause title to the Property to be promptly examined by the Title Company, and to
cause the Title Company to furnish directly to Purchaser a copy of the
preliminary reports of title, and any updates thereof, together with readable
copies of all documents referred to therein. Seller further agrees to order the
survey required by Section 5(a)(iv) and to cause the surveyor to furnish a copy
thereof directly to Purchaser.
(b) Not later than five (5) days prior to the Closing Date,
(except with respect to updates received within ten (10) days of the Closing
Date), Purchaser shall notify Seller of any exceptions to title shown on such
reports or updates which do not constitute exceptions to title accepted by
Purchaser ("Permitted Title Exceptions"). With respect to updates issued within
ten (10) days of the Closing Date, Purchaser shall promptly bring to Seller's
attention any exceptions to title shown thereon which do not constitute
Permitted
Title Exceptions. Seller shall use its best efforts to remove any such defect
on or
prior to the Closing Date, but shall not be obligated to expend any sums to
remove such defect (other than a defect (i) which is in the nature of a deed
of
trust, mortgage or other encumbrance entered into by Seller or (ii) which may be
removed by payment of a liquidated sum, which sum, when added to amounts
expended by Seller to remove other defects (other than those defects set forth
in
clause (i) hereof) does not exceed a total of Two Hundred Thousand Dollars
($200,000)). For purposes of this Section 10(b), an "encumbrance entered
into
by Seller" shall include, without limitation, mechanic's or materialmen's
liens
encumbering Seller's interest in the Property arising in respect of goods or
services provided to Seller; provided, however, any such lien shall be deemed to
be a Permitted Title Exception if (i) Seller is contesting such lien in good
faith
and (ii) Escrowee shall commit to issue to Purchaser a title policy without an
exception for such lien. If such defect cannot be removed by such best efforts,
Seller shall give Purchaser written notice to such effect, and upon the giving
of
such notice, this Agreement shall terminate and be of no further force and
effect
and neither party shall have any liability to the other hereunder, except that
Seller
shall be obligated to instruct Escrow Agent to return to Purchaser the
Downpayment and all accrued interest thereon (provided that the Downpayment
shall have been delivered to Escrow Agent as of such date); provided, however,
that Purchaser shall have the option, to be exercised within five (5) business
days
after receipt of notice of Seller's inability (after using such best efforts) to
convey
title, to accept as herein provided such title as Seller may convey without
abatement of the purchase price hereunder, in which event this Agreement shall
continue in full force and effect and the defect or defects noticed in
Purchaser's
notice shall be deemed to constitute Permitted Title Exceptions.
(c) All violations of law or municipal ordinances, orders,
requirements or regulations noted in or issued by the departments of buildings,
fire, labor, health or other federal, state, county, municipal and other
governmental departments and agencies having jurisdiction against or affecting
the Property and any outstanding work orders and requirements of any company
insuring the Property against casualty loss, shall be remedied by Seller, at
its
sole
cost and expense, up to a maximum amount of fifty thousand dollars ($50,000),
prior to the Closing Date. Seller shall furnish Purchaser with an authorization
to
make the necessary violation searches and Purchaser and its authorized
representatives shall have the right to enter upon and inspect the Property from
time to time on and before the Closing Date.
11. Risk of Loss. (a) The risk of any loss or damage to the
Property by fire or other casualty before delivery of the Deed hereunder is
assumed by Seller. Seller shall give Purchaser prompt written notice of any
fire
or other casualty, which notice shall include a description thereof in
reasonable
detail and an estimate of the cost of and time to repair. In the event that the
Property shall suffer any fire or other casualty or any injury and Purchaser
does
not elect to cancel this Agreement as hereinafter provided, Seller agrees to
repair
the damage at its sole cost and expense before the date set for delivery of the
Deed hereunder or, in the alternative, (i) make an appropriate reduction in the
Purchase Price based on an approximation of the cost of such repair reasonably
determined by a neutral third-party architect or engineer reasonably acceptable
to
both Seller and Purchaser, and (ii) assign to Purchaser all rental interruption
insurance proceeds payable to Seller under Seller's insurance policies for any
period from and after the Closing Date, to the extent such proceeds are
separately
assignable. Purchaser agrees to provide information, execute documents and
otherwise take actions reasonably requested by Seller to assist Seller in
settling or
adjusting Seller's insurance claims in connection with any casualty giving rise
to
a Purchase Price reduction, at Seller's sole cost and expense. In the event of
any
material damage or destruction of the Property, Purchaser and Seller, at any
time
thereafter, by written notice to the other party, shall have the option to
cancel this
Agreement. For the purposes hereof, "material" damage or destruction shall
include any damage or destruction (i) which would require more than Five
Hundred Thousand Dollars ($500,000) or ninety (90) days to repair or (ii)
which
would permit any Lease marked by an asterisk on Schedule 7
to be cancelled by reason thereof. If Purchaser or Seller so elects to cancel
this
Agreement, this Agreement shall terminate and be of no further force and effect
and neither party shall have any liability to the other hereunder, except
that Seller
shall be obligated to instruct Escrow Agent to return to Purchaser the
Downpayment and all accrued interest thereon.
(b) The risk of any loss or damage to the Property by
condemnation before the delivery of the Deed hereunder is assumed by Seller.
In
the event any condemnation proceeding is commenced or threatened, Seller shall
promptly give Purchaser written notice thereof, together with such reasonable
details with respect thereto as to which Seller may have knowledge. As soon
thereafter as the portion or portions of the Property to be taken is reasonably
determinable, Seller shall give Purchaser written notice thereof ("Seller's
Notice") together with Seller's estimate of the value of the portion or portions
of
the Property to be so taken. Purchaser, by written notice to Seller at any time
thereafter, shall have the option to cancel this Agreement, in which event this
Agreement shall terminate and be of no further force and effect and neither
party
shall have any liability to the other hereunder, except that Seller shall be
obligated to return to Purchaser the Downpayment and all accrued interest
thereon. If Purchaser shall not so elect to cancel this Agreement, then the
sale of
the Property shall be consummated as herein provided at the purchase price
provided for herein (without abatement) and Seller shall assign to Purchaser at
the Closing all of Seller's right, title and interest in and to all awards made
in
respect of such condemnation and shall pay over to Purchaser all amounts
theretofore received by Seller in connection with such taking. Purchaser
shall be
entitled to participate in any such condemnation proceeding, and Seller shall
cooperate with Purchaser in such respect.
(c) The parties' obligations, if any, under this Section 11 shall
survive the Closing.
12. Brokerage. Each of Purchaser and Seller represents and
warrants to the other that it has not dealt with any broker or finder in
connection
with this sale. Seller and Purchaser each covenant and agree to indemnify and
hold harmless the other from and against any and all costs, expenses,
liabilities,
claims, demands, suits, judgments and interest, including, without being limited
to, reasonable attorneys' fees and disbursements, arising out of or in
connection
with any claim by any broker or agent with respect to this Agreement, the
negotiation of this Agreement or the transactions contemplated herein based upon
the acts of the indemnifying party. The provisions of this Section 12 shall
survive the Closing.
13. Remedies. If the sale of the Property was not
consummated because of Purchaser's default under this Agreement, Seller shall
be entitled to retain the Downpayment as Seller's liquidated damages as full
compensation for its damages and as its sole remedy. Subject to the
provisions of
Sections 6(c) and 6(e) hereof, in the event of a default on the part of Seller
hereunder, Purchaser shall be entitled to pursue any or all remedies provided
at
law or in equity, including the rights to damages and specific performance of
this
Agreement.
14. Notices. Any notices or other communications required or
permitted hereby shall be sufficiently given if in writing and (a) mailed by
registered or certified mail, postage prepaid, at a post office regularly
maintained
by the United States Postal Service, (b) delivered to a reputable overnight
courier
service or (c) delivered via facsimile, to the following addresses:
(i) if to Seller:
Pacific Gateway Properties, Inc.
One Rincon Center
101 Spear Street
Suite 215
San Francisco, California 94105
Attention: Mr. Raymond Marino
President, and
Mr. Andrew T. Gorayeb
Vice President
Fax No: (415) 777-3765
with a copy to:
Sheppard, Mullin, Richter & Hampton
Four Embarcadero Center, Suite 1700
San Francisco, California 94111
Attention: Joan H. Story, Esq.
Fax No: (415) 434-3947
(ii) if to Purchaser:
Metropolitan Life Insurance Company
c/o MetLife Realty Group, Inc.
211 Perimeter Center Parkway
Suite 720
Atlanta, Georgia 30346
Attention: Mr. J. Christopher Cobbs
Fax No: (770) 512-0369
with a copy to:
MetLife Realty Group, Inc.
One North Broadway
Suite 500
White Plains, New York 10601
Attention: Steven R. Golden, Esq.
Fax No: (914) 422-6880
and to:
Shearman & Sterling
153 East 53rd Street
New York, New York 10022
Attention: Real Estate Group Notices JLO/9431/3
Fax No: (212) 848-5252
Either party may, by notice given as aforesaid, change the address or addresses,
or designate an additional address or additional addresses, for its notices.
(b) Advisor is authorized to deliver notices hereunder on behalf
of Purchaser and Seller is entitled to rely on any such notice without further
inquiry.
15. Choice of Law. The interpretation, enforcement and
performance of this Agreement shall be governed by the laws of the State of
Florida applicable to agreements made and to be performed wholly within such
State.
16. Miscellaneous. (a) This Agreement constitutes the entire
agreement of the parties hereto and may not be modified or cancelled except
pursuant to the terms hereof or an instrument in writing signed by the parties
hereto. Schedules 1 through 12 and Exhibits A through H annexed hereto are
hereby incorporated herein by reference as fully as though set forth herein.
(b) Neither party to this Agreement nor any other corporation
or entity referred to herein shall be imputed the knowledge of any agent,
officer,
servant or employee thereof unless and until such agent, officer, servant or
employee has actual knowledge of the relevant event, notice, condition,
occurrence, fact or situation or has reasonable cause to know, or should
reasonably be aware thereof and then only if such event, notice, condition,
occurrence, fact or situation is related to matters as to which such agent,
officer,
servant or employee is entrusted and has authority to deal with.
(c) In the event any dispute between the parties hereto results
in litigation, the prevailing party shall be reimbursed for all reasonable
costs,
including, but not limited to, reasonable attorneys' and paralegals' fees
(whether
incurred in any administrative or bankruptcy proceeding or otherwise).
(d) Any certificate required to be delivered to Purchaser
pursuant to this Agreement shall, at the sole option of Purchaser, also be
delivered to any lender which lends funds to Purchaser for any portion of the
Purchase Price and all such certificates will be addressed to Purchaser and such
lender.
(e) This Agreement may be executed in any number of
counterparts with the same effect as if all parties hereto had executed the same
document. All such counterparts shall be construed together and shall
constitute
one instrument.
(f) This Agreement shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto.
(g) The headings of the various Sections of this Agreement
have been inserted only for the purposes of convenience, and are not part of
this
Agreement and shall not be deemed in any manner to modify, explain, qualify or
restrict any of the provisions of this Agreement.
17. Radon Gas Notification. In accordance with the
requirements of Section 404.056(7), Florida Statutes, the following notice is
hereby given:
RADON GAS: Radon is a naturally occurring
radioactive gas that, when it is accumulated in a
building in sufficient quantities, may present health
risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida.
Additional information regarding radon and radon
testing may be obtained from the local County
Public Health Center.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed as of the day and year first above written.
PACIFIC GATEWAY
PROPERTIES, INC., a New
York corporation
By: Raymond V. Marino
Name: Raymond V. Marino
Title: President & CEO
METROPOLITAN LIFE
INSURANCE COMPANY, a
New York corporation
By: MetLife Realty Group,
Inc.,
a Delaware
corporation,
its attorney-in-fact
By: John F. Loehr
Name: John F.Loehr
Title: Authorized Signatory
<PAGE>
Acceptance by Escrow Agent
Escrow Agent acknowledges receipt of the foregoing Agreement
and accepts the instructions contained therein.
Dated: March __, 1996
ESCROWEE:
CHICAGO TITLE
INSURANCE
COMPANY
By: Asher Faro
Name: Asher Faro
Title: Counsel<PAGE>
<PAGE>
Schedule 1
LEGAL DESCRIPTION OF LAND
TRACT "B" AND TRACT "UU", VILLAGES OF PALM BEACH LAKES,
PLAT NO. 2, ACCORDING TO THE PLAT THEREOF, AS RECORDED
IN PLAT BOOK 44, PAGES 1 THROUGH 19, INCLUSIVE, OF THE
PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, LESS THAT
PORTION OF TRACT "B" AS SHOWN ON AND LYING WITHIN THE
PLAT OF VILLAGE COMMERCE CENTER, RECORDED IN PLAT
BOOK 52, PAGES 6 THROUGH 9, INCLUSIVE, OF SAID PUBLIC
RECORDS.
A/K/A
Tract B and Tract UU Village of Palm Beach Lakes, Plat
No. 2, as recorded in Plat Book 44, pages 1 through 19,
Public Records of Palm Beach County, Florida. Less that
portion of Tract B as shown on the Plat of Village
Commerce Center as recorded in Plat Book 52, pages 6
through 9, Public Records of Palm Beach County, Florida
all lying and situate in the City of West Palm Beach,
Palm Beach County, Florida; being more particularly
described as follows:
Beginning at the most northerly point of Tract UU said
point being a point on the westerly line of Section 19,
Township 43 South. Range 43 East, said point also being
on the westerly line of said Plat of Villages of Palm
Beach Lakes, Plat No. 2; thence South 01'14'02" West
along the said westerly line of Tract UU and Tract B
also being the westerly line of said Section 19, a
distance of 1783.63 feet to the west quarter comer of
said Section 19; thence continue South 01'14'02" West
along the aforesaid line, a distance of 299.53 feet to
the northerly line of a Florida Power and Light
Right-of-Way as recorded in Official Records Book 188, Page
369; thence South 88'45'58" East departing from the said
westerly line and along the northerly Florida Power and
Light Right-of-Way, a distance of 150.00 feet; thence
South 01'14'02" West along the westerly line of said
Tract B also being the easterly line of aforesaid
Florida Power and Light Right-of-Way, a distance of
198.30 feet to the southwest comer of said Tract B and
the Northwest comer of Tract 1 of a water management
tract shown on the said Plat of Villages of Palm Beach
Lakes, Plat 2 and a point on a non-tangent curve concave
to the northeast having a radius of 1091.74 feet and a
central angle of 40degrees09'10"; thence easterly along the
arc of said curve, a distance of 765.09 feet to the
northeast comer of said Tract 1; thence North 40 degrees25'42"
West along a radial line of the aforesaid 1091.75 feet
radius curve as shown on the Plat of Village Commerce
Center recorded in Plat Book 52, pages 6 through 9, a
distance of 72.73 feet to the northerly line of an
Access Parcel as shown on the aforesaid plat; thence
North 38 degrees 08'05" East along the northerly line of said
access tract 268.95 feet; thence North 06 degrees 51'55" West
along said access tract, a distance of 35.36 feet to a
point on the northerly Right-of-Way line of Village
Boulevard; thence North 51 degrees 51'55" West along said
Village Boulevard westerly Right-of-Way line, a distance
of 209.95 feet to the point of curvature of a curve
concaved to the northeast having a radius of 1969.86
feet and a central angle of 53 degrees 05'55"; thence northerly
along the said curved westerly right a way, a distance
of 1825.56 feet to a point on the said westerly line of
said Section 19, also being the westerly line of the
aforesaid plat and the Point of Beginning.
TOGETHER WITH that certain non-exclusive easement for
ingress and egress over that certain Access Parcel set
forth in that certain Declaration Of Covenants,
Reservations And Restrictions recorded in Official
Records Book 5816, page 39, Public Records of Palm Beach
County, Florida, and as shown on that certain Plat of
VILLAGE COMMERCE CENTER as recorded in Plat Book 52,
Pages 6, 7, 8 and 9, Public Records of Palm Beach
County, Florida, benefitting Tract B owner and others.
<PAGE>
Schedule 2
PERSONAL PROPERTY
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PERSONAL PROPERTY
i. Two Sharp Calculator, EL-1197G,
EL-1197HII
ii. Rolodex
iii. Two AT&T 2 Line Telephones Model
812
iv. Wire Three Tier In And Out Box
v. Cherry Wood Desk With Middle
Drawer And 3 Drawers On One Side
With A Cherry Wood Extension And
A Cherry Wood Desk With Middle
Drawer And 3 drawers On One Side
And 1 Drawer On The Other Side
vi. Various Desk Accessories.
(Pencil, Paper Clip & Memo
Holders)
vii. Four Waste Baskets
viii. Three Staplers. 2 Swingline 767,
1 Swingline 333
ix. Two Arm Chairs Wood And Cloth
Covered, Dusty Pink
x. Various Computer Books
xi. Certificate of Insurance (White
Binder)
xii. Various Accounting Books (White
Binders)
xiii. Black Metal File
xiv. Various Plain Paper
xv. Coat Rack With Hangers
xvi. Silver Framed Picture of VC
(Skyview)
xvii. Cardboard Site Plan VC
xviii. Metal Easel
xix. Gold Framed Picture of VC for
Perini Land And Development
xx. Silver Framed Sketch Of VC
Fountain Area
xxi. Silver Framed Color Picture Of VC
xxii. Status Drawing Of VC By Suite
Numbers on Bulletin Board
xxiii. Various Files Located In The
Cherry Wood Desk At The Front
Window
xxiv. Hole Puncher. Mutual 450
xxv. Three in And Out Boxes Two Tier
Hard Plastic
xxvi. Various Desk Accessories
xxvii. Green Candy Dish
xxviii. Texas Instrument Calculator TI-1795
xxix. Inside Secretary Desk Various
Administration Supplies
xxx. Boston Pencil Sharpener
xxxi. Kormbo Hole Punch And Binder
IBICO
xxxii. Box of Various Files
xxxiii. Black Step Stool
xxxiv. All Tenant Files and Vendor
Files For VC In Hanging File
Cabinets
xxxv. Various Reports On Top Of
Cabinets
xxxvi. Three Gray Binder Books On
Floor
xxxvii. Four Storage Boxes Of Various
Files On Floor
xxxviii. Two pieces of Glass 1 Smoke. 1
Clear (For Desk)
xxxix. Two Aerial Views of Village Of
Palm Beach Lakes
xl. One Brother Electric Typewriter
AX-425
xli. Huskey Tool Box With Various
Sockets
xlii. Lathem Time Recorder
xliii. Folding Plywood Table
xliv. Key Box. Metal with Keys
xlv. Bulletin Board
xlvi. Numerous Site Plan
xlvii. Wood Door
xlviii. Stainless Steel
xlix. Ten Boxes Of Dead Files
l. One Box VC Plans
li. One Camera (Kodak Cameo)
lii. One Transcriber. Pearlcorder
Model T 1010 with Foot Pedal and
Plug
liii. Three Motorola Two Way Radio
Model P350. Two Of These Have
Stands
liv. Two Tape Dispensers
lv. First Aid Kit
lvi. Black Metal Mail Box
lvii. Everex. Excel Stream 60 With
Plugs
lviii. Extension Cord
lix. WD 40
lx. Ajax Bleach Cleaner
lxi. Pledge Furniture Polish
lxii. Workmen's Compensation
Regulations
lxiii. Box of Metal Poles
lxiv. Courier Supplies
lxv. Tall Box of Site Plans
lxvi. General Office Supplies
MAINTENANCE STORAGE AREA
1. One Large Metal Desk and 3 Chairs
2. One Organizer For Screws. Nails. Washers. etc.
3. Various Irrigation's Heads. Diaphragms. etc.
4. Various Tools. Cordless Drills
5. Various Shelving For Supplies
6. Three Stacks of Ceiling Tiles. For Replacements
7. Various Building Supplies. Roof Tiles, Pavers.
Floor Tile, etc.
8. One Small Work Table
9. One Harnsco Portable Pool Vacuum with All
Attachments For Fountain
10. One Old 3.5 or 4 Ton Trane Package Unit (Air
Conditioner). It Is Unknown Whether Or Not It Is
Operable
11. Four Large Drums Of Cleaning Chemicals
12. Seven Boxes Of Christmas Lights
13. Nine Small Chairs
14. Fire Sprinkler (Emergency Kit)
15. One Filing Cabinet
16. Two Boxes Of Fluorescent Tube Lights
17. Various Sheets Of Plywood And 2 x 4 Studs
18. One Extension Pole
19. One Wood Interior Door
20. One Pressure Cleaning Unit. Not Operable and is
Currently Being Fixed
21. One Work Bench
22. Seven Gallons of Various Paint
23. One Five Gallons of Village Commons (Coral) Paint
24. Four Ladders, 1 Large A Frame and 1-20 Foot
Extension Ladder and Two Small A Frame Ladders
25. Various Hoses
26. Various Tools, Scqueezy, Racer, Brooms etc.
27. One Dolly
28. One Mobile Trash Can
29. One Small Pull Trailer For The Back Of A Golf Cart
30. One Clark America-Lincoln Floor Scrubber
The Personal Property being transferred to Purchaser
expressly excludes the desk located in Space 213, which
has been given to the incoming tenant, Mediloss Weight
Control Management.
<PAGE>
Schedule 3
INTENTIONALLY OMITTED
<PAGE>
Schedule 4
LEASES
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CONTRACTS AND AGREEMENTS
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CONTRACTS AND AGREEMENTS
Management and Leasing Agreement dated August 1, 1994 between Pacific Gateway
Properties Management Corporation and Paragon Group Services, Inc. with respect
to the provision of management services to the Property and said agreement has
not
been amended, modified or supplemented.
Program Service Agreement (Muzak) dated April 1, 1995 between Pacific Gateway
Properties, Inc. and Harmony Music and Sound Systems with respect to the
provision
of Music Service to the Property and said agreement has not been amended,
modified
or supplemented.
Sprinkler System Installation and Service Agreements, dated February 25, 1987
and
July 30, 1987, between Pacific Gateway Properties and Honeywell, Inc., and said
agreements have not been amended, modified or supplemented.
Burglar and Fire Alarm Installation and Service Agreement, dated January 25,
1989,
between Pacific Gateway Properties and Honeywell, Inc., as supplemented by
Riders
dated December 6, 1988 and March 15, 1989.
Landscape Service Agreement dated April 1, 1995 between Pacific Gateway
Properties, Inc. and County Lawnscape, Inc. with respect to the provision of
Landscape Service to the property and said agreement has not been amended,
modified or supplemented.
Security Service Agreement dated February 10, 1995 between Pacific Gateway
Properties, Inc. and On-Guard Security & Investigations with respect to the
provision of Security and Guard Service to the Property and said agreement has
not
been amended, modified or supplemented.
Recycling Agreement dated July 1, 1995 between Pacific Gateway Properties, Inc.
and Browning-Ferris Industries with respect to the provision of Recycling
Service
to the Property and said agreement has not been amended, modified or
supplemented.
Compactor Rental Agreement dated January 11, 1990 between Pacific Gateway
Properties, Inc. (formerly Perini Investment Properties, Inc.) and Southern
Texpak, Inc. (formerly Certified Compactor Rentals, Inc.) with respect to the
provision of Trash Compactors to the Property, as supplemented by Equipment
Schedules dated February 6, 1990 and as amended by letter dated April 28, 1995.
Landscape Management Agreement dated August 23, 1994 between Village Commerce
Center Association and ISS Landscape Management Services, Inc. with respect to
the
provision of Landscape Services to the lakeside park, the cost of which is
shared
by Village Commerce Center Association and Pacific Gateway Properties, and said
agreement has not been amended, modified or supplemented.
Exterminating Service Agreement dated October 23, 1989 between Pacific Gateway
Properties, Inc. (formerly Perini Investment Properties, Inc.) and Palm Beach
Exterminating with respect to the provision of Exterminating Service to the
Property and said agreement has not been amended, modified or supplemented.
Exterminating Service Agreement is on a month to month as needed basis between
Pacific Gateway Properties, Inc. and Pioneer Pest Control with respect to the
provision of Exterminating Service to the Property and said agreement has not
been
amended, modified or supplements.
Parking Lot Sweeping Agreement dated November 15, 1995 between Pacific Gateway
Properties, Inc. and Total Maintenance Building Services, Inc. with respect
to the
provision of Sweeping the Parking Lot Once A Week to the Property and said
agreement has not been amended, modified or supplemented.
Oral listing agreement with CB Commercial Real Estate Group, Inc. on the terms
set
forth in that certain Exclusive Listing Agreement dated April 15, 1993, which
expired by its terms on December 31, 1993.
