UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarter ended June 30, 1998
Commission file Number 0-20449
PRICE ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
Maryland 33-0628740
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4649 Morena Boulevard
San Diego, California 92117
(Address of principal executive offices)
(619) 581-4679
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES_X_ NO___
The registrant had 23,758,282 shares of common stock, par value $.0001,
outstanding at July 31, 1998.
<PAGE>
PRICE ENTERPRISES, INC.
INDEX TO FORM 10-Q
PART I - FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS Page
----
Balance Sheets ...................................................... 3
Statements of Income ................................................ 4
Statements of Cash Flows ............................................ 5
Notes to Financial Statements ....................................... 6
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS .............................. 10
ITEM 3 - QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT
MARKET RISK ...................................................... 14
PART II - OTHER INFORMATION
ITEM 1 - LEGAL PROCEEDINGS ................................................ 15
ITEM 2 - CHANGES IN SECURITIES ............................................ 15
ITEM 3 - DEFAULTS UPON SENIOR SECURITIES .................................. 15
ITEM 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITY
HOLDERS .......................................................... 15
ITEM 5 - OTHER INFORMATION ................................................ 15
ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K ................................. 15
2
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS
PRICE ENTERPRISES, INC.
BALANCE SHEETS
(in thousands)
<TABLE>
<CAPTION>
ASSETS
June 30 December 31
1998 1997
--------- ---------
(unaudited) (Note)
<S> <C> <C>
Real estate assets
Land and land improvements $ 210,229 $ 193,881
Building and improvements 247,100 204,184
Fixtures and equipment 369 242
Construction in progress 1,181 946
--------- ---------
458,879 399,253
Less accumulated depreciation (51,289) (46,197)
--------- ---------
407,590 353,056
Cash and cash equivalents 1,442 27,003
Accounts receivable 1,899 2,360
Income tax receivable 7,615 8,117
Deferred rents 13,647 12,400
Leasing costs, net 4,715 4,774
Prepaid expenses and other assets 957 768
--------- ---------
Total assets $ 437,865 $ 408,478
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities
Revolving line of credit and note payable $ 28,943 $ --
Accounts payable and other liabilities 3,716 1,854
--------- ---------
Total liabilities 32,659 1,854
Commitments
Stockholders' equity
Common stock 2 2
Additional paid-in capital 412,041 412,321
Accumulated deficit (6,837) (5,699)
--------- ---------
Total stockholders' equity 405,206 406,624
--------- ---------
Total liabilities and stockholders' equity $ 437,865 $ 408,478
========= =========
</TABLE>
Note: The balance sheet at December 31, 1997 has been derived from the audited
financial statements at that date but does not include all of the information
and footnotes required by generally accepted accounting principles for complete
financial statements.
See accompanying notes.
3
<PAGE>
PRICE ENTERPRISES, INC.
STATEMENTS OF INCOME
(unaudited - amounts in thousands, except per share data)
<TABLE>
<CAPTION>
Second Quarter Year-to-Date
Three Months Ended Six Months Ended
June 30 June 30
-------------------- -------------------
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Rental revenues $ 15,287 $ 14,509 $ 29,773 $ 28,172
Expenses
Operating and maintenance 1,658 2,057 3,503 4,182
Property taxes 2,207 2,125 4,162 3,822
Depreciation and amortization 2,863 2,466 5,352 4,912
General and administrative 723 1,688 1,512 2,693
-------- -------- -------- --------
Total expenses 7,451 8,336 14,529 15,609
-------- -------- -------- --------
Operating income 7,836 6,173 15,244 12,563
Interest and other
Interest (expense) income, net (147) 2,018 240 4,157
Loss on sale of real estate and investments, net -- (401) -- (473)
-------- -------- -------- --------
Total interest and other (147) 1,617 240 3,684
-------- -------- -------- --------
Income before provision for income taxes 7,689 7,790 15,484 16,247
Provision for income taxes -- 3,136 -- 6,663
-------- -------- -------- --------
Income from continuing operations 7,689 4,654 15,484 9,584
Discontinued operations (Note 2):
Net loss from operations of discontinued
merchandising segment -- (650) -- (1,085)
-------- -------- -------- --------
Net income $ 7,689 $ 4,004 $ 15,484 $ 8,499
======== ======== ======== ========
Net income per share from continuing operations -
basic and diluted $ .32 $ .20 $ .65 $ .41
======== ======== ======== ========
Net income per share - basic and diluted $ .32 $ .17 $ .65 $ .36
======== ======== ======== ========
Weighted average number of shares outstanding 23,754 23,351 23,747 23,341
Dividends per share $ .35 $ .30 $ .70 $ .60
</TABLE>
See accompanying notes.
4
<PAGE>
PRICE ENTERPRISES, INC.
STATEMENTS OF CASH FLOWS
(unaudited - amounts in thousands)
<TABLE>
<CAPTION>
Six Months Ended
June 30
--------------------
1998 1997
-------- --------
<S> <C> <C>
Operating activities
Net income $ 15,484 $ 8,499
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization 5,352 4,912
Deferred rents (1,247) (943)
Deferred income taxes -- (743)
Loss on sale of real estate and investments, net -- 473
Changes in operating assets and liabilities:
Accounts receivable and other assets 210 6,387
Leasing costs (187) (83)
Accounts payable and other liabilities 1,862 (2,091)
Net assets of discontinued segment -- 4,203
-------- --------
Net cash flows provided by operating activities 21,474 20,614
Investing activities
Additions to real estate assets (50,683) (1,602)
Proceeds from sale of real estate assets -- 11,801
Payments of notes receivable -- 42,405
Net investing activities of discontinued segment -- (6,605)
-------- --------
Net cash flows (used in) provided by investing activities (50,683) 45,999
Financing activities
Advances to revolving line of credit 20,000 --
Dividends paid (16,622) (14,003)
Proceeds from exercise of stock options including tax benefits 270 620
-------- --------
Net cash flows provided by (used in) financing activities 3,648 (13,383)
-------- --------
Net (decrease) increase in cash (25,561) 53,230
Cash and cash equivalents at beginning of period 27,003 35,831
-------- --------
Cash and cash equivalents at end of period $ 1,442 $ 89,061
======== ========
Supplemental cash flow information:
Cash paid for interest $ 117 $ --
Cash paid for income taxes -- 2,086
Supplemental schedule of noncash operating and financing activities:
Assumption of note payable to acquire real estate assets 8,943 --
Adjustment to special dividend - distribution of PriceSmart 550 --
</TABLE>
See accompanying notes.
5
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)
June 30, 1998
Note 1 - Basis of Presentation and Summary of Significant Accounting Policies
Basis of Presentation
Price Enterprises, Inc. ("PEI" or the "Company") became a publicly-traded
company on December 21, 1994, following an exchange offer in which approximately
23.2 million shares of PriceCostco, Inc. were exchanged for shares of PEI.
However, since August 31, 1994 PEI has operated as a separate company. On August
29, 1997 PEI transferred its merchandising segment and certain other assets to
PriceSmart, Inc. ("PriceSmart") and distributed shares of PriceSmart common
stock to PEI stockholders. Since September 2, 1997 the Company has been
operating as a real estate investment trust ("REIT").
The accompanying unaudited financial statements have been prepared in accordance
with generally accepted accounting principles for interim financial information
and with the instructions to Form 10-Q and Article 10 of Regulation S-X.
Accordingly, they do not include all of the information and footnotes required
by generally accepted accounting principles for complete financial statements.
In the opinion of management, all adjustments (consisting of normal recurring
accruals) considered necessary for a fair presentation have been included.
Operating results for the three months and six months ended June 30, 1998 are
not necessarily indicative of the results that may be expected for the year
ending December 31, 1998. For further information, refer to the financial
statements and footnotes thereto included in PEI's transition report on Form
10-K for the period from September 1, 1997 to December 31, 1997.
The preparation of the financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Fiscal Year
Effective September 1, 1997, the Company changed its fiscal year end from August
31 to December 31 as required by the Internal Revenue Service for REITs.
Real Estate Assets and Depreciation
Real estate assets are recorded at PEI's historical cost, as adjusted for
recognition of impairment losses. Depreciation of real estate assets is computed
on a straight-line basis over their estimated useful lives, as follows:
Land improvements 25 years
Building and improvements 10-25 years
Tenant improvements Term of lease or 10 years
Fixtures and equipment 3-5 years
6
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
Note 1 - Basis of Presentation and Summary of Significant Accounting Policies
(continued)
Rental Revenue Recognition
Rental revenues include: (1) minimum annual rentals, adjusted for the
straight-line method for recognition of fixed future increases; (2) additional
rentals, based on common area maintenance ("CAM") expenses and certain other
expenses, which are accrued in the period in which the related expense is
incurred; and (3) percentage rents which are accrued on the basis of reported
tenant sales.
Cash and Cash Equivalents
The Company considers all highly liquid investments with a maturity of less than
three months when purchased to be cash and cash equivalents.
Deferred Leasing Costs
Costs incurred in connection with leasing space to tenants are deferred and
amortized using the straight-line method over the lives of the related leases.
Financial Instruments
Statement of Financial Accounting Standards No. 107, "Disclosure about Fair
Value of Financial Instruments," requires that the Company disclose estimated
fair values for its financial instruments, as well as the methods and
significant assumptions used to estimate fair values. The Company believes that
the carrying values reflected in the balance sheets at June 30, 1998 and
December 31, 1997 reasonably approximate the fair values for cash and cash
equivalents, receivables and all liabilities. In making such assessments, the
Company used estimates and market rates for similar instruments.
Income Taxes
The Company intends to meet all conditions necessary to qualify as a real estate
investment trust under the Internal Revenue Code. To qualify as a real estate
investment trust, the Company is required to pay dividends of at least 95% of
its "REIT taxable income" each year and meet certain other criteria. As a
qualifying real estate investment trust, the Company will not be taxed on income
distributed to its stockholders. As a result, the accompanying financial
statements contain no provision for income taxes for the six months ended June
30, 1998.
In prior years, income taxes have been provided for in accordance with SFAS No.
109, "Accounting for Income Taxes." That standard requires companies to account
for deferred taxes using the asset and liability method. Accordingly, deferred
income taxes were provided to reflect temporary differences between financial
and tax reporting, including: asset write-downs of real estate and related
assets, deferred gains on sales of real estate, accelerated tax depreciation
methods, and accruals for straight-line rents.
Restatement
In order to conform to the current fiscal reporting periods, 1997 has been
restated to a calendar year with quarters ending March 31, June 30, September
30, and December 31.
7
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
Note 2 - Discontinued Operations
As discussed in Note 1, on August 29, 1997 Price Enterprises completed a
distribution of its merchandising segment and certain other assets. Accordingly,
results of operations and cash flows of the Company's merchandising segment have
been reported as a discontinued segment for the second quarter and year-to-date
period of 1997 presented in the financial statements. The results of operations
and cash flows of other assets and liabilities transferred to PriceSmart that
were not part of the merchandising segment are included in the Company's
continuing operations.
Summarized results of operations of the discontinued merchandising segment for
the second quarter and year-to-date period of 1997 were as follows (amounts in
thousands, except per share data):
<TABLE>
<CAPTION>
Three Months Six Months
Ended Ended
June 30, 1997 June 30, 1997
------------- -------------
<S> <C> <C>
Sales $ 14,466 $ 26,117
Other revenues 1,026 2,730
Cost of sales (13,641) (24,068)
Operating expenses (2,989) (6,545)
Minority interest 36 (73)
Income tax benefit 452 754
-------- --------
$ (650) $ (1,085)
======== ========
Discontinued operations loss per share - basic and diluted $ (.03) $ (.05)
======== ========
</TABLE>
Note 3 - Real Estate Acquisitions and Dispositions
Acquisitions
During the second quarter of 1998, the Company acquired three properties: (1) a
four-building 300,000 square foot office complex in Sacramento/Bradshaw, CA for
$35.6 million from a related party; (2) a 1,550 unit self storage facility with
approximately 242,000 square feet in San Diego/Murphy Canyon, CA for $17.8
million including an $8.9 million existing note payable secured by the property;
and (3) a non-operating property on approximately 11 acres for $3.5 million for
future development. The Company funded these acquisitions through available
cash, advances under its unsecured revolving credit facility, and the assumed
note payable. There were no acquisitions of properties during the prior year.
Dispositions
No properties were sold during the second quarter and year-to-date periods
ending June 30, 1998. For the same period in the prior year, the properties sold
included Houston, TX, Sacramento/65th Expwy, CA, Suitland, MD, Chula
Vista/Oxford St., CA and Sacramento/North Highlands, CA. All properties held for
sale in the prior year were transferred to PriceSmart subsequent to the second
quarter of 1997.
8
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
Note 4 - Net Income Per Share
In 1997, the Financial Accounting Standards Board issued SFAS No. 128, "Earnings
Per Share." SFAS No. 128 replaced the calculation of primary and fully diluted
earnings per share with basic and diluted earnings per share. Unlike primary
earnings per share, basic earnings per share excludes any dilutive effects of
options, warrants and convertible securities. Diluted earnings per share is very
similar to the previous fully diluted earnings per share. All earnings per share
amounts for all periods have been presented, and where appropriate, restated to
conform to the SFAS No. 128 requirements.
<TABLE>
<CAPTION>
Three Months Ended June 30 Six Months Ended June 30
--------------------------- ---------------------------
1998 1997 1998 1997
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Weighted average shares outstanding 23,753,703 23,350,665 23,747,184 23,340,590
Effect of dilutive securities:
Employee stock options 70,448 161,460 89,334 115,873
---------- ---------- ---------- ----------
Weighted average shares
outstanding - assuming dilution 23,824,151 23,512,125 23,836,518 23,456,463
========== ========== ========== ==========
</TABLE>
Note 5 - Line of Credit Facility and Note Payable
The Company maintains an unsecured revolving credit facility with a commercial
bank for up to $75 million in unsecured advances. The facility has a three year
term with an initial interest rate of LIBOR plus 80 basis points. As of June 30,
1998, $20.0 million was outstanding under this credit facility at a weighted
average interest rate of 6.45%. In conjunction with the purchase of the self
storage facility in San Diego/Murphy Canyon, CA, the Company assumed an $8.9
million note secured by the property. The note payable to a financial
institution, matures in July 2004 and bears an interest rate of 9.0%. Prepayment
of the note may not occur prior to July 2001.
Note 6 - Subsequent Events
Subsequent to June 30, 1998 the Company declared a cash dividend of $0.35 per
common share, totaling approximately $8.3 million, payable on August 17, 1998 to
stockholders of record on July 30, 1998.
On July 8, 1998 the Company declared a distribution of 8 3/4% Series A
Cumulative Redeemable Preferred Stock. Stockholders of record on July 30, 1998
will receive one share of 8 3/4% Series A Preferred Stock for each share of
Common Stock held by them.
On July 13, 1998 the Company acquired a retail complex in San Diego/Rancho San
Diego, CA for $11.3 million. The Company funded this acquisition through
available cash and an advance of $10.0 million under its unsecured revolving
credit facility.
On July 29, 1998 the Company acquired approximately 15 acres of land in Fresno,
CA from PriceSmart for $4.0 million. The property was contributed by the Company
to Blackstone Venture I ("Blackstone"), a partnership formed with River Park
Properties to develop a 173,000 square foot retail and commercial center. The
Company funded this acquisition through available cash and an advance of $2.1
million under its unsecured revolving credit facility.
9
<PAGE>
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
This Quarterly Report on Form 10-Q contains certain "forward-looking" statements
within the meaning of the Private Securities Litigation Reform Act of 1995 which
provides a "safe harbor" for these types of statements. To the extent statements
in this Form 10-Q involve, without limitation, the Company's expectations for
growth, estimates of future revenue, expenses, profit, cash flow, balance sheet
items or any other guidance on future periods, these statements are
forward-looking statements. Forward-looking statements contain risks and
uncertainties, which include those identified in the Company's Annual Report on
Form 10-K for the transition period ended December 31, 1997 and other risks
identified from time to time in the Company's filings with the Securities and
Exchange Commission, press releases and other communications. The Company
assumes no obligation to update forward-looking statements.
The following discussion and analysis compares the results of operations for the
second quarter and year-to-date periods of 1998 ended June 30 to the second
quarter and year-to-date periods of 1997, and it should be read in conjunction
with the financial statements and the accompanying notes. Due to the change in
fiscal reporting periods, 1997 has been restated to a calendar year with
quarters ending March 31, June 30, September 30, and December 31. Variations in
quarterly results may not be indicative of results for the full fiscal year
ending December 31, 1998. The analysis below reflects the distribution of
PriceSmart and the presentation of the merchandising segment as discontinued
operations for the second quarter and year-to-date periods of 1997. See Note 1
of the notes to the financial statements. In those instances where changes are
attributed to more than one factor, the factors are presented in descending
order of importance. All dollar amounts are in thousands.
Rental Revenues
Rental Percent
Revenues Change Change
-------- ------ ------
2nd Quarter - 1998 $ 15,287 $ 778 5%
2nd Quarter - 1997 14,509 -- --
Year-to-Date - 1998 29,773 1,601 6%
Year-to-Date - 1997 28,172 -- --
During the second quarter of 1998, revenues increased $1.5 million from
properties acquired subsequent to the second quarter of last year. Prior year
revenues also included $0.7 million of revenues from properties sold or
transferred to PriceSmart prior to the second quarter of 1998. Revenues
generated by the portfolio of properties in place during both periods decreased
$0.3 million or 2%. The decrease was primarily due to the loss of revenue of
approximately $230,000 from the Dallas, TX property due to the bankruptcy of
Homeplace.
The increase in revenue for the six month year-to-date period of 1998 compared
to the prior year was primarily due to properties acquired subsequent to the
second quarter of last year which generated $2.0 million in revenues. This
increase was partially offset by a decrease of $1.5 million from properties sold
or transferred to PriceSmart prior to the second quarter of 1998. Revenues
generated by the portfolio of properties in place during both periods increased
$0.8 million or 3%. This increase was primarily a result of new leases and was
somewhat offset by a decrease in revenues of approximately $230,000 due to the
bankruptcy at Dallas, TX.
10
<PAGE>
Expenses
Percent
Amount Change Change
------ ------ ------
2nd Quarter - 1998 $ 7,451 $ (885) -11%
2nd Quarter - 1997 8,336 -- --
Year-to-Date - 1998 14,529 (1,080) -7%
Year-to-Date - 1997 15,609 -- --
The most significant factor in the decrease in expenses is the decrease in
general and administrative expenses. These expenses decreased for the second
quarter and year-to-date periods of 1998 compared to the prior year primarily
due to a reduction in executive management and related payroll and benefits, of
$600,000 and $840,000 respectively, as well as a reduction in professional fees
of $250,000 and $320,000 respectively, related to the PriceSmart distribution.
The decrease in operating and maintenance expense and property taxes during the
second quarter and year-to-date periods of 1998 was primarily due to properties
sold or transferred to PriceSmart in the distribution, which decreased these
expenses $350,000 and $970,000, respectively. This decrease, plus a slight
reduction in expenses from the portfolio of properties in place during both
periods, were partially offset by an increase in expenses from properties
acquired subsequent to second quarter last year of $330,000 and $350,000 for the
second quarter and year-to-date periods of 1998, respectively.
The increase in depreciation compared to the prior year is primarily due to the
properties acquired subsequent to the second quarter of 1997.
Operating Income
Operating Percent
Income Change Change
------ ------ ------
2nd Quarter - 1998 $ 7,836 $ 1,663 27%
2nd Quarter - 1997 6,173 -- --
Year-to-Date - 1998 15,244 2,681 21%
Year-to-Date - 1997 12,563 -- --
The increase in operating income for the second quarter and year-to-date periods
of 1998 compared to the prior year were primarily a result of the changes in
revenues and expenses discussed above.
11
<PAGE>
Interest (Expense) Income, net
Percent
Amount Change Change
------ ------ ------
2nd Quarter - 1998 $ (147) $ (2,165) -107%
2nd Quarter - 1997 2,018 -- --
Year-to-Date - 1998 240 (3,917) -94%
Year-to-Date - 1997 4,157 -- --
The decrease in net interest for the second quarter and six months ended June
30, 1998 resulted from a decrease in interest income and an increase in interest
expense compared to the same period in 1997. Prior to the second quarter of 1998
the Company had no debt outstanding. During the second quarter of 199 the
Company incurred $351,000 in interest cost related to its unsecured revolving
credit facility and assumed note payable associated with the Company's recently
acquired self storage facility. Of that amount, approximately $27,000 was
capitalized to real estate assets. At the same time, interest income for the
second quarter and six months ended June 30, 1998 decreased compared to the
prior year due to the repayment of a $41 million note receivable and a transfer
of cash and certain notes receivable to PriceSmart in August 1997, as well as
the utilization of cash for property acquisition and development opportunities.
Loss on Sale of Real Estate and Investments, net
During the second quarter of 1997, the loss of $401,000 related primarily to the
sale of property in Houston, TX. The 1997 year-to-date amount also includes a
loss on the sale of property in Suitland, MD as well as a gain related to the
sale of the Company's options to purchase stock in a privately held automobile
broker.
Provision for Income Taxes
Because the Company has been operating as a REIT since September 1, 1997, there
is no income tax expense for the second quarter and six month year-to-date
periods ended June 30, 1998. The provision for income taxes during the prior
year was provided at an effective tax rate of 41%.
Adjusted Funds From Operations
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30 June 30
------------------------ ------------------------
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Income before provision for income taxes $ 7,689 $ 7,790 $ 15,484 $ 16,247
Depreciation and amortization 2,863 2,466 5,352 4,912
Loss on sale of real estate and investments, net -- 401 -- 473
-------- -------- -------- --------
Funds from operations 10,552 10,657 20,836 21,632
Straight-line rents (701) (674) (1,272) (1,036)
-------- -------- -------- --------
Adjusted funds from operations $ 9,851 $ 9,983 $ 19,564 $ 20,596
======== ======== ======== ========
</TABLE>
Total funds from operations ("FFO") during the second quarter of 1998 decreased
$0.1 million, from $10.7 million to $10.6 million. Net interest income decreased
$2.2 million, while FFO excluding net interest income increased $2.1 million or
24% compared to the second quarter of 1997 from $8.6 million to $10.7 million.
This increase was primarily a result of a reduction in general and
administrative expenses as well as additional operating income from existing and
acquired properties. Total FFO for the six month year-to-date period decreased
from $21.6 million to $20.8 million. Net interest income decreased $3.9 million,
while FFO excluding net interest income increased 18% from $17.5 million to
$20.6 million for the year-to-date period.
12
<PAGE>
Real estate industry analysts generally consider FFO to be a supplemental
measure of performance for real estate-oriented companies. In general, FFO
adjusts net income for noncash charges such as depreciation, amortization and
most non-recurring gains and losses. As defined by the National Association for
Real Estate Investment Trusts ("NAREIT"), FFO is net income determined in
accordance with generally accepted accounting principles ("GAAP"), excluding
depreciation and amortization expense, and gains (losses) from sales of
property. The Company has historically excluded provisions for asset impairment
and gains (losses) from sale of investment in determining FFO. In addition, due
to the significance of straight-line rent accruals, which represent noncash
revenues associated with fixed future minimum rent increases, the Company has
adjusted the NAREIT definition to eliminate straight-line rents when computing
its adjusted FFO.
FFO and adjusted FFO do not represent cash flows from operations as defined by
GAAP and should not be considered as an alternative to net income as an
indicator of the Company's operating performance or to cash flows as a measure
of liquidity.
Liquidity and Capital Resources
Cash flow from operations has been the principal source of capital to fund the
Company's ongoing operations and the payment of dividends, while use of the
company's credit facility and mortgage financing have been the principal sources
of capital required to fund its growth. While the Company is positioned to
finance its business activities through a variety of sources, it expects to
satisfy short-term liquidity requirements through net cash provided by
operations and through borrowings.
The Company is currently in various stages of negotiations to purchase
additional commercial properties as well as evaluating various properties for
acquisition. To the extent that investment opportunities exceed available cash
flow from the sources mentioned above, the Company believes that it will raise
additional capital through other bank credit facilities and/or securitized debt
offerings. The Company also may choose to seek additional funds through future
public offerings of debt or equity securities.
The Company has a revolving credit facility with a commercial bank for up to $75
million in unsecured advances. The facility has a three year term with an
initial interest rate of LIBOR plus 80 basis points. The agreement requires that
the Company maintain, at all times, certain financial covenants, pay an annual
administration fee and certain fees based on usage of the facility. The Company
is also restricted from certain transactions involving mergers, sales of assets
and acquisitions of minority interests. As of June 30, 1998, $20.0 million was
outstanding under this credit facility at a weighted average interest rate of
6.45%. In conjunction with the purchase of the self storage facility in San
Diego/Murphy Canyon, CA, the Company assumed an $8.9 million note secured by the
property. The note payable with a financial institution, matures in July 2004
and bears an interest rate of 9.0%. Prepayment of the note may not occur prior
to July 2001.
Operating income from real estate activities increases as properties are
acquired and/or developed and declines as properties are sold. The Company's
liquidity is primarily affected by the timing and magnitude of rental property
acquisition, development and disposition. In addition, the Company's liquidity
will be affected by the anticipated payment of quarterly cash dividends to
stockholders in the future.
13
<PAGE>
Year 2000
The Company is in the process of upgrading its existing computer software and
information technology and recognizes the need to ensure its operations will not
be adversely impacted by Year 2000 software failures. Software failures due to
processing errors potentially arising from calculations using the Year 2000 date
are a known risk. The project cost is approximately $220,000 and is expected to
be completed not later than December 31, 1998, which is prior to any anticipated
impact on the Company's operating systems. The Company believes that with
modifications to existing software and conversions to new software, the Year
2000 issue will not pose significant operational problems for its computer
systems.
Inflation
Because a substantial number of the Company's leases contain provisions for rent
increases based on changes in various consumer price indices, based on fixed
rate increases, or based on percentage rent if tenant sales exceed certain base
amounts, inflation is not expected to have a material impact on future net
income or cash flow from developed and operating properties. In addition,
substantially all leases are "triple net," whereby specific operating expenses
and property taxes are passed through to the tenant.
ITEM 3 - QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not applicable.
14
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PART II - OTHER INFORMATION
ITEM 1 - LEGAL PROCEEDINGS
The Company is not a party to any material legal proceedings.
ITEM 2 - CHANGES IN SECURITIES
None.
ITEM 3 - DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM 5 - OTHER INFORMATION
None.
ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K
(a) The following exhibits are included herein or incorporated by reference:
(3.1) Articles of Incorporation of Price Enterprises, Inc. (incorporated
herein by reference to Exhibit 3.1 to Form 10-K of Price
Enterprises, Inc. filed with the Commission on March 27, 1998 (File
No. 0-20449))
(3.2) Articles Supplementary Classifying 26,000,000 Shares of Capital
Stock as 8 3/4% Series A Cumulative Redeemable Preferred Stock of
Price Enterprises, Inc. (incorporated herein by reference to
Exhibit 3.2 to Form 8-A of Price Enterprises, Inc. filed with the
Commission on August 7, 1998 (File No. 0-20449))
(4.1) Form of Series A Preferred Stock Certificate of Price Enterprises,
Inc. (incorporated herein by reference to Exhibit 4.1 to Form 8-A
of Price Enterprises, Inc. filed with the Commission on August 7,
1998 (File No. 0-20449))
(10.1) Purchase and Sale Agreement as Amended for Sacramento/Bradshaw
Business Park dated April 6, 1998, by and between Price
Enterprises, Inc. and Ivanhoe - Bradshaw, L.L.C.
(27) Financial Data Schedule
(b) Reports on Form 8-K
1. On June 18, 1998, the Company filed a Current Report on Form 8-K,
reporting pursuant to Item 2, the acquisition of an office complex in
Sacramento/Bradshaw, CA, from a related party and the acquisition of a
self storage facility in San Diego/Murphy Canyon, CA. The date of the
earliest event reported was May 1, 1998.
2. On July 23, 1998, the Company filed Amendment No. 1 to the above
referenced Form 8-K. The Form 8-K, as amended, included the pro forma
financial information relating to the acquisitions, as required by
Item 7.
15
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SIGNATURES
Pursuantto 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.
PRICE ENTERPRISES, INC.
Registrant
Date: August 5, 1998 /s/ Jack McGrory
-------------- --------------------------------
Jack McGrory
President & Chief Executive Officer
Date: August 10, 1998 /s/ Gary W. Nielson
--------------- --------------------------------
Gary W. Nielson
Executive Vice President,
Chief Financial Officer
16
AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS
(SACRAMENTO - BRADSHAW BUSINESS PARK)
AGREEMENT made this 6th day of April, 1998, by and between PRICE
ENTERPRISES, INC., a Maryland corporation (referred to herein as "Purchaser")
and IVANHOE-BRADSHAW L.L.C., a California limited liability company (referred to
herein as "Seller").
ARTICLE I
TERMS OF SALE
1.01 Definitions. The following terms are used in this Agreement.
A) "Closing" shall mean the date that a deed is recorded transferring title
to the "Subject Property" from the Seller to the Purchaser or Purchaser's
nominee and the Purchase Price is paid to the Seller.
B) "Closing Date" shall mean the date the Closing occurs.
C) "Condemnation Premises" is defined in Section 7.01(B).
D) "Contracts" are defined in Section 4.01(A)(10).
E) "Deed" shall mean a Grant Deed in the form attached hereto as Exhibit K.
F) "Effective Date" is defined in Section 7.17.
G) "Escrow Agent" shall mean:
Chicago Title Insurance Company
Attn: Ms. Maggie G. Watson
700 South Flower Street, Suite 900
Los Angeles, CA 90017
Phone: (213) 488-4315
Fax: (213) 488-4388
H) "Escrow Deposit" shall mean all amounts deposited by the Purchaser with
the Escrow Agent, plus all interest accumulated thereon.
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I) "Hazardous Materials" is defined in Section 4.01(A)(7)
J) "Improvements" is defined in Section 1.03(A).
K) "Land" is defined in Section 1.03(A).
L) "Law" shall mean any federal, state or municipal statute regulation or
ordinance which has jurisdiction over the Real Property.
M) "Leases" are defined in Section 1.03(D).
N) "Monetary Liens" are defined in Section 1.06(A).
O) "Personal Property" is defined in Section 1.03(C).
P) "Real Property" is defined in Section 1.03(A).
Q) "Subject Property" is defined in Section 1.03.
R) "Tenant(s)" shall mean the Tenants under the Leases.
S) "Title Commitment" is defined in Section 1.07.
T) "Title Company" shall mean Chicago Title Insurance Company.
U) "Title Documents" is defined in Section 1.07.
V) "Title Insurance Policy" shall mean an ALTA Owner's Title Policy
(10/17/92) with extended coverage.
1.02 Agreement of Sale and Purchase. Seller agrees to sell and convey to
Purchaser, and Purchaser agrees to purchase from Seller, in fee simple, under
the terms and conditions hereinafter set forth, all of the Seller's right,
title, and interest in and to the Subject Property.
1.03 Description of Property. The "Subject Property" consists of:
A) "Real Property" comprised of four (4) parcels of land ("Land") and
improvements ("Improvements") as follows:
Approx. Bldg. Approx. Land
1) Subject Property Address: S.F. Acres
------- ------
800 Old Placerville Road, Sacramento, CA 51,635 3.878
750 Goethe Road, Sacramento, CA 88,734 5.651
0000 Goethe Road, Sacramento, CA 126,576 7.995
0030 Goethe Road, Sacramento, CA 30,000 2.544
------- ------
TOTALS: 296,945 20.068
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2) The Real Property is legally described on Exhibit A attached hereto
and shown on the Site Plan attached hereto as Exhibit B.
B) all right title and interest of Seller in and to all strips, gorges and
land lying in the bed of any street road or alley, open or proposed, adjoining
the Land and all improvements, appurtenances, rights, privileges and easements,
benefiting, belonging or pertaining to the Land.
C) all fixtures, furniture, equipment and other personal property, if any
now or hereafter, owned by the Seller and used in connection with the operation
and/or maintenance of the Land or Improvements (the "Personal Property");
D) all leases which presently encumber the Real Property listed on Exhibit
C attached hereto (the "Leases");
E) all intangible personal property owned by Seller, if any, (the
"Intangible Personal Property") now or hereafter used in connection with the
operation, ownership, maintenance, management, or occupancy of the Land or
Improvements, including, without limitation, any and all of the following: trade
names and trade marks associated with the Land and Improvements; the plans and
specifications for the Improvements, including as-built plans; unexpired
warranties, guarantees and indemnities; pending permit or approval applications,
permits, approvals and licenses (to the extent assignable) if any, and books and
records relating to the Land and Improvements.
1.04 Purchase Price.
A) The total purchase price (the "Purchase Price") for the Subject Property
is Thirty Five Million Five Hundred Fifty-One Thousand Dollars ($35,551,000).
1.05 Payment of Purchase Price. The total Purchase Price for the Subject
Property shall be paid by Purchaser as follows:
A) Five Hundred Thousand Dollars ($500,000), payable by wired funds or
check to the order of, and to be held in escrow by the Escrow Agent. Such
payment will be delivered to the Escrow Agent, along with a copy of this
Agreement, within three (3) business days after the Effective Date.
B) The balance of the Purchase Price after credits and adjustments, as
provided herein, shall be paid to the Escrow Agent prior to Closing, by cash or
wire transfer, at Purchaser's option.
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1.06 Title.
A) At Closing, Seller shall deliver through escrow the Deed, conveying to
the Purchaser (or its nominee) title to the Real Property in fee simple, free of
all mortgages, deeds of trust, mechanic's liens and other monetary liens and
encumbrances (referred to herein collectively as "Monetary Liens"), but subject
to:
(i) current real estate taxes and assessments, which are a lien not
yet delinquent;
(ii) the lien of supplemental real estate taxes and special
assessments assessed pursuant to Chapter 3.5 of the California Revenue and
Taxation Code (the "Code") Section 75 Et. Seq., or local statutes and
non-delinquent assessment bonds. Without limiting the generality of the
foregoing, Seller shall have no obligation to remove special taxes or
assessments such as Mello-Roos taxes, lighting and landscape district taxes
or assessments or Owners' Association dues or assessments. The Purchase
Price is "plus bonds" so Purchaser shall receive no credit against the
Purchase Price as a result of the nondeliquent assessments accruing after
the Closing Date; and
(iii) recorded covenants, conditions, restrictions and easements,
subject to Purchaser's approval of such title exceptions as provided in
Section 2.01(A).
B) Except for Monetary Liens, the Seller shall have no obligation to remove
any title exceptions of record which exist on the Effective Date.
C) Unless and until this Agreement is terminated, Seller shall not cause or
permit any liens, covenants, conditions, restrictions, easements or any other
matter to encumber the title to the Real Property by record or otherwise, except
for real estate taxes and assessments which are not delinquent.
1.07 Title Commitment - Survey.
A) Purchaser shall, at its expense, order a title commitment (the "Title
Commitment") with respect to the Real Property, with complete and legible copies
of all exception instruments referred to therein (referred to collectively as
"Title Documents") within three (3) business days after the Effective Date and
cause a copy of same to be delivered to Seller.
B) Purchaser may instruct the Escrow Agent to order a Uniform Commercial
Code Financing Statement Search covering the Real Property, the Seller's name
and any other possible creditors.
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C) Seller has delivered to Purchaser an ALTA survey of the Real Property
dated August 7, 1996, prepared by The Spink Corporation (the "Survey"). If
Purchaser elects to require an ALTA extended coverage title insurance policy,
Purchaser, at Purchaser's sole cost and expense, shall engage a surveyor or
civil engineer within three (3) business days after the Effective Date and
instruct same to update Seller's ALTA survey or perform a new survey.
1.08 Possession. On Closing, Seller shall convey and deliver the Real
Property to Purchaser (or its nominee), free of all leases, tenancies, and
occupancies, other than the Leases, subject to Purchaser's right of approval
thereof as provided in Section 2.01(C).
1.09 Separate Legal Parcel. On Closing, Seller shall convey and deliver the
Real Property to the Purchaser or its nominee as a separate legal parcel or
parcels in full compliance with all applicable subdivision laws.
1.10 Violations. In the event that prior to Closing, Seller becomes aware
of Hazardous Materials on the Real Property or any other matter affecting the
Real Property which violates any applicable Law and which has not previously
been disclosed to Purchaser, Seller shall within forty-eight (48) hours, but in
no event, later than the time of Closing, give Purchaser written notice of such
matter.
1.11 Eminent Domain. In the event that prior to Closing proceedings in
eminent domain are contemplated, threatened or instituted by any governmental
agency, Seller shall give Purchaser written notice of same within forty-eight
(48) hours after Seller becomes aware of same, but no later than the time of
Closing.
1.12 Condition of Real Property. At the time of Closing, Seller shall
convey and deliver the Real Property to the Purchaser in its present condition
as of the date of this Agreement normal wear and tear excepted.
1.13 Right of Entry. Until Closing or termination of this Agreement,
whichever occurs first, Purchaser and its agents and designees shall have the
right to enter upon the Real Property at any time and from time to time to
perform any and all test and studies Purchaser deems appropriate, including, but
not limited to, soils tests. Purchaser hereby agrees to indemnify, defend, and
hold Seller completely harmless against any loss, damage, liability, or expense,
including reasonable attorneys' fees, arising out of the negligent acts or
omissions, or intentionally wrongful acts of the Purchaser or its agents or
independent contractors under this Section, or in enforcing this indemnity. If
Purchaser does not acquire the Real Property, Purchaser agrees to promptly
repair any damage it causes to the Real Property.
1.14 Delivery of Documents. Within three (3) days after the Effective Date,
Seller shall deliver to Purchaser copies of the following documents and
materials pertaining to the Subject Property:
A) Leases. All Leases (including all amendments thereto) and guarantees of
Leases.
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B) Building Plans. A complete set of building plans, including "as builts";
C) Rent Roll. A schedule ("Rent Roll") prepared and represented and
warranted as correct by Seller as of the first day of the month in which this
Agreement is executed, which shall reflect:
1) the name of each of the Tenants under the Leases;
2) the amount of any security deposits and/or prepaid rent received
and held by Seller from each Tenant, the amount of rent and reimbursable
expenses payable by each Tenant, and delinquencies, if any; and
3) the approximate total of square footage occupied by each Tenant.
D) Tax Statements. The most recent real property tax bills for the Real
Property;
E) Schedule of Expenses. A schedule reflecting any and all expenses for the
ownership, operation, maintenance and repair of the Real Property for calendar
years 1994, 1995, 1996, 1997 and for the period January 1998 to March 1998,
which schedule shall include, without limitation, the following:
1) annual insurance premiums for all forms of coverage;
2) real property taxes and assessments;
3) utility charges, management fees, maintenance and repair costs; and
4) any and all other costs and expenses incurred in connection with
the ownership, operation, maintenance and repair of the Real Property.
F) Personal Property List. A detailed list of all Personal Property, if
any, to be assigned to Purchaser at Closing, together with a copy of all
warranties and guaranties applicable thereto;
G) Soils and Engineering Reports. All environmental reports, soils reports
and engineering reports pertaining to the Subject Property or any portion
thereof in the possession of the Seller or its agents; and
H) Maps. Any and all tentative, parcel and/or final maps, certificates of
occupancy or any other governmentally approved or processed documents relative
to the subdivision or occupancy of the Real Property ("Maps").
1.15 Future Leases. After the date of this Agreement, unless and until this
Agreement terminates, Seller will not without Purchaser's consent: (i) enter
into any new leases or options to lease with respect to the Real Property; (ii)
negotiate extensions or modifications of any Leases with respect to the Real
Property; (iii) accept a voluntary cancellation of any Lease; or (iv) consent to
any assignment of a Lease by a Tenant. The foregoing shall not preclude Seller
from entering into leases or licenses to use portions of the Real Property on
the following terms: (a) the terms of such extension, lease or license,
including any option to extend the term, shall expire one day prior to the
Closing; and (b) Seller shall be responsible, at Seller's
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sole cost, to remove any such lessee or licensee from the Real Property at
conclusion of the term of such extension, lease or license, unless Purchaser
agrees in writing to the contrary.
1.16 Operation of Property Prior to Closing. Prior to the Closing, Seller
shall maintain and operate the Real Property as follows:
A) Seller, at its sole cost and expense, shall provide or cause to be
provided all such services with respect to the Leases that are required to be
provided by the Landlord under the Leases.
B) Seller will not make or permit to be made any material alteration to the
Real Property or remove any Personal Property therefrom (unless the Personal
Property so removed is simultaneously replaced with new Personal Property of
similar quality and utility).
C) Seller, at its sole cost and expense, will maintain and keep the Real
Property in the same condition and repair as exists on the date of this
Agreement, reasonable wear and tear excepted.
D) Seller shall not commit any act or omission which would cause any of the
representations or warranties of Seller contained herein, to become inaccurate
or any of the covenants of Seller herein to be breached.
E) Seller shall not amend, terminate, grant concessions, or enter into any
contract that would be an obligation affecting the Subject Property or be
binding on Purchaser after Closing.
ARTICLE II
CONDITIONS OF SALE
2.01 Purchaser's Initial Conditions. Purchaser's obligation to purchase the
Subject Property is subject to all of the following conditions being either
approved or waived by the Purchaser; any approvals, disapprovals or waivers
being made at Purchaser's option, in its sole, absolute and unrestricted
discretion:
A) Title Conditions. Purchaser's obligation to purchase the Subject
Property is subject to Purchaser approving (or waiving) all title exceptions
(other than printed general exceptions) in the Title Commitment obtained by
Purchaser (referred to as "Title Matters") by April 23, 1998 (the "Title
Period"). If Purchaser does not notify Seller of its approval or disapproval of
the Title Matters within the Title Period, this condition shall be deemed not
satisfied, in which case this Agreement shall be deemed terminated. If within
the Title Period Purchaser notifies Seller of objections to one or more title
exceptions (referred to herein as "Objected Exceptions") Seller may, within
thirty (30) days thereafter ("Cure Period") at its option, eliminate some or all
of Objected Exceptions as title defects and give written notice to Purchaser of
those Objected Exceptions which have been eliminated. In the event Seller fails
to eliminate all objected Exceptions and give Purchaser notice of the
elimination of such Objected Exceptions or gives Purchaser notice that one or
more objected Exceptions will not
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be eliminated (the "Defect Notice"), then this Agreement shall be deemed
terminated unless within five (5) days after the Cure Period or receipt of the
Defect Notice by Purchaser, whichever is earlier, Purchaser waives objection to
those Objected Exceptions which Seller fails to eliminate. Notwithstanding
anything herein to the contrary, Seller shall cure all Monetary Liens prior to
Closing.
B) Physical Condition. Purchaser's obligation to purchase the Subject
Property is conditioned upon Purchaser approving (or waiving) the physical
condition of the Subject Property (including, but not limited to environmental
matters). If Purchaser does not notify Seller of its approval or waiver of the
physical condition, or notifies Seller of its disapproval by April 23, 1998,
this condition shall be deemed not satisfied and this Agreement shall be deemed
terminated.
C) Lease Approvals. Purchaser's obligation to purchase the Subject Property
is conditioned upon Purchaser approving all Leases, including, but not limited
to all terms and conditions thereof. If Purchaser does not notify Seller of its
approval of the Leases or notifies Seller of disapproval by April 23, 1998, this
condition shall be deemed not satisfied and this Agreement shall be deemed
terminated.
D) Miscellaneous. Purchaser's obligation to purchase the Subject Property
is conditioned upon the Purchaser being satisfied with respect to all other
matters pertaining to the Subject Property, including, but not limited to, all
documents delivered by Seller to Purchaser pertaining to the Subject Property,
zoning and economics of owning and operating the Subject Property (the
"Miscellaneous Conditions"). If Purchaser does not notify Seller of its approval
or waiver of the Miscellaneous Condition or notifies Seller of its disapproval
by April 23, 1998 (the "Due Diligence Period"), such condition shall be deemed
not satisfied and this Agreement shall be deemed terminated.
2.02 Purchaser's Closing Conditions. Purchaser's obligation to purchase the
Subject Property is subject to the following conditions being satisfied at the
Closing, each of which is for the benefit of Purchaser and any or all of which
may be waived by Purchaser:
A) the Seller is not in breach of any covenants, warranties, or
representations under this Agreement;
B) the Seller has not given Purchaser a Change Notice referred to in
Section 4.01 (B);
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C) at Closing, the Title Company is ready, willing, and able to issue The
Title Insurance Policy, in the amount of the Purchase Price insuring that fee
title to the Real Property is vested in the Purchaser (or its nominee) in such
condition as provided in Section 1.06(A); with the printed general exceptions of
Schedule B being deleted and containing the following endorsements:
(i) An endorsement regarding creditors rights in a form acceptable to
Purchaser;
(ii) CLTA Form 100 (modified for an owner) or its equivalent for the
State in which the Subject Property is located;
(iii) CLTA Form 116 and 116.1 (referred to the ALTA Survey of the
Subject Property) or its equivalent for the State in which the Subject
Property is located;
(iv) CLTA Form 103.7 (referring to access to public street) or its
equivalent for the State in which the Subject Property is located;
(v) CLTA Form 116.4 (referred to contiguous parcels) or its equivalent
for the State in which the Subject Property is located.
(vi) CLTA Form 101.4 (regarding mechanics liens) for work-in-progress.
D) there are no toxic or hazardous waste materials or contaminants on the
Subject Property or any other matter affecting the Subject Property in violation
of any applicable Law, except as identified on the Environmental Reports listed
on Exhibit I;
E) Seller has delivered to Purchaser, at least three (3) business days
prior to the Closing, an original Tenant's Estoppel Certificate in the form
attached hereto as Exhibit D; with all exhibits referred to therein duly
attached; with no changes, additions or modifications thereto and dated no
earlier than thirty (30) days prior to Closing Date for each Lease, duly
executed by the Tenants under the Leases.
2.03 Seller's Closing Condition. Prior to Close of Escrow, the Board of
Directors of Purchaser will review this transaction and a majority of
disinterested directors shall vote on whether to proceed with this Agreement.
Prior to and as a condition of the Closing, Purchaser shall provide Seller with
a certified copy of the minutes of the meeting of the Board of Directors
documenting the adoption of the appropriate resolution(s).
2.04 No Waiver of Seller's Representations and Warranties. Purchaser's
waiver or approval of any conditions under Section 2.01 or 2.02 shall not alter
or diminish Seller's representations and warranties herein, and Purchaser is
nevertheless relying on Seller's representations and warranties contained
herein, unless such representation or warranty is specifically waived in a
written instrument executed by Purchaser.
2.05 Consideration - Satisfaction of Conditions. In consideration of giving
Purchaser the option to (a) approve or waive, or (b) disapprove the conditions
set forth in Section 2.01
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and Section 2.02, Purchaser shall pay to Seller the sum of One Hundred Dollars
($100.00). Such sum shall be paid upon Closing and credited against the Purchase
Price if this transaction closes. If this transaction does not close, such sum
shall be paid to Seller from the Escrow Deposit upon termination of the escrow.
ARTICLE III
ESCROW - CLOSING MATTERS
3.01 Escrow Holder. This Agreement constitutes joint escrow instructions to
the Escrow Agent, instructing it to consummate this sale upon the terms and
conditions set forth in this Agreement.
3.02 Opening of Escrow. Within three (3) business days after the Effective
Date, Seller and Purchaser shall open an escrow with Escrow Agent and shall
deposit with Escrow Agent a fully executed counterpart of this Agreement for use
as escrow instructions. Seller and Purchaser further agree to execute Escrow
Agent's usual form of supplemental escrow instructions for transactions of this
type; provided, however, that such escrow instructions shall be for the purpose
of implementing this Agreement, and such instructions shall incorporate this
Agreement by reference and shall specifically provide that no provision thereof
shall have the effect of modifying this Agreement unless it is so expressly
stated and initialed on behalf of Seller and Purchaser.
3.03 Purchaser's Funds - Interest-Bearing. All Escrow Deposits shall be
held in a federally insured interest-bearing account, with all accrued interest
credited to the account of the Purchaser until Closing or termination of this
Agreement, as the case may be. On any occasion when Escrow Agent is required to
pay funds from the Escrow Deposit to either the Seller or Purchaser, it shall
transmit such funds by check by United States overnight express mail or, if so
instructed by the party entitled to the funds, by federal wire transfer.
3.04 Purchaser's Deliveries to Escrow. Purchaser shall, on or before the
Closing, deliver to Escrow Agent the following:
A) the balance of the Purchase Price pursuant to Section 1.05(B);
B) a signed list of title exceptions which Purchaser approves pursuant to
Section 2.01 (A);
C) a signed statement from Purchaser that the conditions of Section 2.01
have been approved or waived by Purchaser and that the conditions of Section
2.02(A) and (B) have been satisfied or waived by Purchaser;
D) counterpart original of Assignment and Assumption of Leases, duly signed
and acknowledged by Purchaser in a form attached hereto as Exhibit E.
E) counterpart original of Assignment and Assumption of Contracts, duly
signed and acknowledged by Purchaser in a form attached hereto as Exhibit N.
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3.05 Seller's Deliveries to Escrow. Seller shall, on or before the Closing,
deliver to Escrow Agent the following documents:
A) the Deed, executed and duly acknowledged by Seller and acceptable for
recording;
B) the Bill of Sale and Assignment, duly executed by the Seller in the form
attached hereto as Exhibit F conveying all of Seller's right, title and interest
in and to any and all Personal Property and Intangible Personal Property;
C) a counterpart original of Assignment and Assumption of Leases, duly
signed and acknowledged by Seller in a form attached hereto as Exhibit E;
D) a counterpart original of Assignment and Assumption of Contracts, duly
signed and acknowledged by Seller in a form attached hereto as Exhibit N;
E) such evidence or documents as may be reasonably required by the
Purchaser or the title company evidencing the status and capacity of Seller and
the authority of the person or persons who are executing the various documents
on behalf of the Seller in connection with the sale of the Subject Property;
F) a copy of the Non-Foreign Affidavit referred to in Section 7.03 executed
by Seller;
G) written certifications of Seller dated no earlier than one (1) business
day prior to the date of the Closing (with copies simultaneously telecopied to
Purchaser) as to all the following matters:
1) the amount of all security and/or other deposits held by Seller
from the Tenants with respect to the Leases;
2) the date to which rent has been paid for each of the Leases; and
3) all rent and other receivables due from each of the Tenants, if
any.
3.06 Closing.
A) Closing under this Agreement shall take place on May 1, 1998, provided
that all of the conditions of Section 2.01 have been satisfied or waived by
Purchaser, and subject to Purchaser's Closing Conditions of Section 2.02 being
satisfied or waived by Purchaser and subject to the Conditions under Section
2.03 being satisfied.
B) Upon Closing, the Escrow Agent shall:
1) cause the Deed to be recorded in the County where the Subject
Property is located;
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2) deliver to Purchaser the following documents:
(a) Title Insurance Policy.
(b) Assignment and Assumption of Leases.
(c) Bill of Sale and Assignment.
(d) Non-Foreign Affidavit.
(e) Assignment and Assumption Contracts.
3) deliver to Seller:
(a) Assignment and Assumption of Leases.
(b) Balance of Purchase Price due Seller.
(c) Assignment and Assumption of Contracts.
3.07 Prorations.
A) Operating Expenses.
1) Real property taxes and any other items normally apportioned
(including insurance premiums) shall be pro-rated between the parties
outside of escrow and each party agrees to cooperate with the other to
complete the pro-rations as soon as possible. Any expenses such as real
estate taxes which must be paid to close shall be deducted from Seller's
proceeds subject to later pro-ration.
2) Taxes and Utilities. All real estate taxes, charges and interest on
assessments affecting the Property and all charges for water, electricity,
sewer rental, gas, telephone and all other utilities shall be pro-rated on
a per diem basis as of the date of Closing. If any real estate taxes,
charges or assessments have not been finally assessed as of the date of
Closing for the current fiscal year of the taxing authority, then the same
shall be adjusted at Closing based upon the most recently issued bills
therefor, and shall be readjusted when and if final bills are issued.
3) If, at the time of Closing, the Subject Property or any part
thereof shall be or shall have been affected by an assessment or
assessments which are or may be payable in annual or more frequent
installments of which the first installment is then a charge or lien, or
has been paid, then for the purpose of this Agreement, all unpaid
installments of any such assessment, which are to become due and payable
after Closing, shall be the obligation of the Purchaser, subject to
pro-rations under paragraph 2) above for the tax year in which the Closing
Date occurs.
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B) Payments Under Leases.
1) Definitions. - The following definitions shall apply under this
paragraph B.
(a) "Rentals" shall mean fixed monthly or other periodic rent
payments, percentage rent payments, rent increases, operating cost
pass-throughs (including, but not limited to taxes, insurance and
common area expenses) and all other sums and charges payable by a
tenant under a lease.
(b) "Delinquents Rentals" are rentals due prior to the date of
Closing, but not yet paid by Tenant.
(c) "Prepaid Rentals" shall mean Rental payments paid by Tenant
as of the date of Closing to the extent attributable to periods after
the date of Closing.
(d) "Retroactive Rentals" shall mean operating cost
pass-throughs, percentage rent and other charges accrued but not yet
payable by the Tenant to the extent attributable to periods prior to
the date of Closing.
(e) "Security Deposits" shall mean all security deposits held by
Landlord under the Lease.
2) Pro-ration of Rentals.
(a) Seller shall be entitled to all Rentals which accrue up to,
but not including the date of Closing (the "Seller's Share").
Purchaser shall be entitled to all Rentals which accrue as of the date
of Closing and thereafter (the "Purchaser's Share").
(b) Purchaser shall receive a credit, at Closing, for all Prepaid
Rentals
In calculating the prorations under sub-paragraphs (a) and (b)
above, the following shall apply:
(i) If a tenant has paid Seller Rentals for the cost of
insurance which insurance covers a period which includes the
period beginning on the date of Closing and thereafter, the
Purchaser shall be entitled to a credit for the pro-rata portion
of such Rentals computed on a daily basis for the period
beginning on the date of Closing and thereafter.
(ii) If a tenant has paid Seller Rentals for estimated
common area expenses during the year in which the Closing occurs
and such tenant's actual share of such expenses for such year up
to and including the date before the Closing is less than the
Rental payments for estimated common area expenses, then the
Purchaser shall be entitled to a credit in the amount of the
difference. However, if such tenant's actual share of such
expenses for such year up to and including the day before the
Closing is more than the Rental payments for estimated common
area expenses, the Purchaser shall pay the Seller the amount of
such difference, as a Retroactive Rental under subparagraph (e)
below.
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(iii) If a tenant has paid Seller Rentals for real estate
taxes, assessments and similar charges (collectively the
"Taxes"), during the year in which the Closing occurs which Taxes
cover a period which includes the period beginning on the date of
Closing and thereafter, the Purchaser shall be entitled to a
credit for a pro-rata portion of such Rentals computed on a daily
basis for the period beginning on the date of Closing and
thereafter.
(c) Seller shall not receive a credit, at Closing, for Seller's
Share of Delinquent Rentals. However, Purchaser shall pay to Seller,
immediately, Seller's Share of Delinquent Rentals, if and when
collected by the Purchaser. Purchaser shall have no liability or
obligation to Seller with respect to Seller's Share of Delinquent
Rentals, unless same is collected by the Purchaser. Seller is entitled
to collect directly form the delinquent tenant, the Seller's Share of
Delinquent Rentals. Purchaser shall not compromise any of Seller's
rights to collect Seller's Share of Delinquent Rentals. Both Seller
and Purchaser shall cooperate in the collection of Delinquent Rentals.
(d) Seller shall not receive a credit, at Closing, for Seller's
Share of Retroactive Rentals. However, Purchaser shall pay to Seller,
immediately, Seller's share of Retroactive Rentals, if and when
collected by the Purchaser. Purchaser shall have no liability or
obligation to Seller with respect to Seller's Share of Retroactive
Rentals, unless same is collected by the Purchaser. Seller is entitled
to collect directly from the Tenant the Seller's Share of Retroactive
Rentals. Purchaser shall not compromise any of Seller's rights to
collect Seller's share of Retroactive Rentals. Both Seller and
Purchaser shall cooperate in the collection of Retroactive Rentals.
(e) Purchaser shall receive a credit, at Closing, for all
Security Deposits.
C) Utility Expenses. All utility charges for electricity, gas, sewer
and water, not directly metered to a tenant shall be pro-rated as of the
Closing on an accrual basis. Seller shall pay all such expenses which
accrue up to and including the day prior to the Closing and Purchaser shall
pay all such expenses on the day of Closing and thereafter. To the extent
possible, Seller and Purchaser shall obtain billings and meter readings for
the Closing to aid in such pro-rations.
3.08 Seller's Closing Costs. Escrow Agent shall charge the Seller out of
the Purchase Price: (a) one-half (1/2) of all transfer taxes; (b) any amount due
Purchaser resulting from prorations; (c) one-half (1/2) of any escrow fee or
escrow termination charge.
3.09 Purchaser's Closing Costs. Purchaser shall pay for the following: (a)
one-half (1/2) of all transfer taxes; (b) any amount due Seller resulting from
prorations; (c) one-half (1/2) of any escrow fee or escrow termination charge;
(d) cost of title insurance premiums.
3.10 Termination of Escrow. In the event the Agreement is terminated for
any reason, Escrow Agent shall deliver all documents and materials deposited by
Seller, to the Seller, and deliver to Purchaser all documents, materials, and
Escrow Deposit; provided, however, Seller shall be paid out of the Escrow
Deposit any amount due under Section 2.05 captioned, "Consideration-Satisfaction
of Conditions," Section 1.13 captioned, "Right of Entry," and Section 6.01
herein captioned, "Purchaser's Default-Liquidated Damages." In addition,
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Purchaser shall return to Seller forthwith any and all documents, materials,
plans, specifications, maps and drawings received by Purchaser from Seller, and
all copies of same, including copies made by Purchaser. The return of documents,
materials, and funds, as aforementioned, shall not affect the right of either
party to seek such legal or equitable remedies as such party may have with
respect to the enforcement of this Agreement.
3.11 Deliveries of Documents Outside of Escrow. Promptly after the Closing
Date, Seller shall deliver to Purchaser the following documents:
A) Copies of Leases;
B) Copy of Signed Tenant Notification Letters;
C) Copies of Certificates of Occupancy;
D) Any and all other documents or information that Purchaser
reasonably requires pertaining to the management and operation of the
Subject Property.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01 Seller's Representations and Warranties.
(A) As used in this Section 4.01, the phrase "to the best of Seller's
knowledge" shall mean the actual, not constructive or imputed, knowledge of Sol
Price, James Cahill and Mark Daitch, without any obligation on any of their
parts to make any independent investigation of the matters being represented and
warranted, or to make any inquiry of any other persons, or to search or examine
any files, records, books, correspondence and the like. Seller represents that
these individuals are, and have been since Seller's purchase of the Subject
Property, responsible for monitoring the investment in and day-to-day operations
of the Subject Property on behalf of Seller. In consideration of Purchaser's
entering into this Agreement and as an inducement to Purchaser to purchase the
Subject Property, Seller makes the following representations and warranties,
each of which is material and is being relied upon by Purchaser (and the
continued truth and accuracy of which shall constitute a condition precedent to
Purchaser's obligations hereunder):
1) Fee Ownership. Seller is the sole fee owner of the Subject
Property.
2) Authorization. Seller is a limited liability company organized and
existing and is in good standing under the laws of the State of California
and is qualified to do business in the State in which the Subject Property
is located. At Closing, the execution of this Agreement shall have been
ratified pursuant to the terms of Seller's operating agreement and the
Agreement shall be valid and binding on Seller; no other action shall be
requisite to the consummation of the transaction set forth herein; and no
consents or waivers of or by any third party will be necessary to permit
consummation by the Seller of the transactions contemplated herein. All
documents to be delivered by Seller at Closing will be authorized and
properly
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executed and constitute, as appropriate, the valid and binding obligations
of Seller, enforceable in accordance with their terms. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereunder on the part of Seller does not and will not violate
any applicable law, ordinance, statute, rule, regulation, order, decree or
judgment, conflict with or result in the breach of any material terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge, or encumbrance upon any of the assets of
the Seller by reason of the terms of any contract, mortgage, lien, lease,
agreement, indenture, instrument or judgment to which Seller is a party or
which is or purports to be binding upon Seller or which otherwise affects
Seller, which will not be discharged, assumed or released at Closing.
3) Threatened Actions. There are no actions, suits or proceedings
pending against, or, to the best of Seller's knowledge, threatened or
affecting any Leases or the Subject Property, in law or equity.
4) Leases and Rent Roll. The documents constituting the Leases that
will be delivered to Purchaser will be true, correct and complete copies of
all of the Leases affecting the Subject Property, including all amendments
and guarantees, and there are no Leases or Occupancy Agreements affecting
the Property except for the Leases. All information set forth in each Rent
Roll is true, correct, and complete in all material respects as of its
date. Except as set forth in the Rent Roll first delivered hereunder, there
are no leasing or other fees or commissions due, nor will any become due,
in connection with any Lease or any renewal or extension or expansion of
any Lease, and no understanding or agreement with any party exists as to
payment of any leasing commissions or fees regarding future leases or as to
the procuring of tenants. To the best of Seller's knowledge, no tenants
have asserted nor are there any defenses or offsets to rent currently
accruing. Seller has not received any notice of any default or breach on
the part of the landlord under any Lease, nor, to the best of Seller's
knowledge, does there exist any such default or breach on the part of the
landlord. Except as set forth in the Rent Roll, all of the landlord's
obligations to construct tenant improvements or reimburse the tenants for
tenant improvements under the Leases have been paid and performed in full
and all concessions (other than any unexpired rent abatement set forth in
the Leases) from the landlord under the Leases have been paid and performed
in full.
5) Operating Statements. The Operating Statements for the time period
on and after August 15, 1996 to be delivered to Purchaser pursuant to this
Agreement show all items of income and expense (operating and capital)
incurred in connection with Seller's ownership, operation, and management
of the Subject Property for the periods indicated and are true, correct,
and complete in all material respects. As an accommodation to Purchaser
only, Seller is delivering to Purchaser Operating Statements covering
periods of time when Seller did not own the Subject Property. No
representation or warranties are being made with respect to such Operating
Statements dated prior to August 15, 1996.
6) Permits, Legal Compliance, and Notice of Defects. To the best of
Seller's knowledge, Seller has all licenses, permits and certificates
necessary for the use and operation of the Subject Property and believes,
to the best of its knowledge, that all tenants have their required
certificates of occupancy necessary for the occupancy of their premises,
all of which are in full force and effect, and Seller has not taken or
failed to take any action that would result in their revocation, and has
not received any written notice of an intention to
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revoke any of them. To the best of Seller's knowledge, neither the Subject
Property nor the use thereof violates any governmental law or regulation or
any covenants or restrictions encumbering the Subject Property. To the best
of Seller's knowledge there are no material physical defects in the
Improvements. Seller has not received any written notice from any insurance
company or underwriter of any defects that would materially adversely
affect the insurability of the Subject Property or cause an increase in
insurance premiums. Seller has received no written notice from any
governmental authority or other person of, and has no knowledge of: (i) any
violation of zoning, building, fire, health, environmental, or other
statutes, ordinances, regulations or orders; (ii) any special tax or
assessment to be levied against the Subject Property; or (iii) any change
in the tax assessment or zoning of the Subject Property.
7) Environmental. Except as set forth in the Environmental Reports
identified in Exhibit I, to the best of Seller's knowledge, there are no
Hazardous Materials on, in or under the Subject Property except for such
Hazardous Materials as may be routinely used by general office tenants, and
with respect thereto, to the best of Seller's knowledge, no such use is in
violation of any federal, state or local Environmental Laws, regulation or
ordinance. To the best of Seller's knowledge, there are no underground
storage tanks on the Subject Property and none have been removed from the
Subject Property. Seller has not manufactured, introduced, released or
discharged from or onto the Subject Property any Hazardous Materials or any
toxic wastes, substances or materials (including, without limitation,
asbestos) in violation of any Environmental Laws, and Seller has not used
the Subject Property or any part thereof for the generation, treatment,
storage, handling or disposal of any Hazardous Materials in violation of
any Environmental Laws. The term "Environmental Laws" includes without
limitation the Resource Conservation and Recovery Act and the Comprehensive
Environmental Response Compensation and Liability Act and other federal
laws governing the environment as in effect on the Date of this Agreement
together with their implementing regulations and guidelines as of the Date
of this Agreement, and all state, regional, county, municipal and other
local laws, regulations and ordinances that are equivalent or similar to
the federal laws recited above or that purport to regulate Hazardous
Materials. The term "Hazardous Materials" includes petroleum, including
crude oil or any fraction thereof, natural gas, natural gas-liquids,
liquidated natural gas, or synthetic gas usable for fuel (or mixtures of
natural gas or such synthetic gas), and any substance, material waste,
pollutant or contaminant listed or defined as hazardous or toxins under any
Environmental Law.
8) Utilities. To the best of Seller's knowledge, all water, sewer,
gas, electric, telephone, and drainage facilities, and other utilities
required for the normal and proper operation of the Subject Property are
installed and connected to the Subject Property with valid permits, and are
adequate to serve the Subject Property for its current use and to permit
full compliance with all requirements of law and the Leases; all permits
and connection fees are fully paid; all utilities serving the Subject
Property enter it through publicly-dedicated roads or through currently
effective public or private easements; no fact or condition exists which
would result in the termination of such utilities services to the Subject
Property.
9) Condemnation. Except as noted in Section 7.01(B) there are no
pending, or, to the best of Seller's knowledge, threatened proceedings in
eminent domain, which would affect the Subject Property, or any portion
thereof.
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10) Contracts. There are no construction, management, leasing,
service, equipment, supply, maintenance, concession, or other agreements
("Contracts") with respect to the Real Property except for the Contracts as
listed on Exhibit M. All Contracts, if assignable by Seller (collectively,
the "Assigned Contracts"), shall be assigned to and assumed by Purchaser at
Closing.
11) Title. Except as set forth in Exhibit L, to the best of Seller's
knowledge, the Subject Property is free of any easements, licenses or other
rights not disclosed by the public record.
12) Right to Purchase. No party has any right of first offer or right
of first refusal or option with respect to the Purchase of the Subject
Property, except as set forth in the Leases.
13) Special Earthquake Studies Zone. No representation is made as to
whether the Property is situated in a Special Studies Zone as designated
under the Alquist-Priolo Special Earthquake Studies Zone Act, Sections
2621-2630, inclusive of the California Public Resources Code. Purchaser
shall make its own inquiry or investigation.
14) Flood Hazard Area. No representation is made as to whether the
Property is located in a Special Flood Hazard Area. Purchaser is solely
responsible for determining if the Property is in a Special Flood Hazard
Area.
(B) Change in Representations. Except as otherwise specified to the
contrary, the representations of Seller set forth above in paragraph (A) are
made as of the date of execution of this Agreement and are intended to be true
and correct as of the Closing. If, subsequent to the date of this Agreement and
prior to the date of Closing, Seller determines that, as a result of facts or
subsequent events discovered or arising after execution of this Agreement, any
of such representations and warranties are no longer true and correct as of such
subsequent date, Seller shall not be in breach of this Agreement, provided that
Seller shall promptly, and prior to Closing, deliver notice to Purchaser in
writing ("Change Notice") of such facts or subsequent events and the effect on
the applicable representation. Seller shall have the option, but not the
obligation, to take steps to cure or correct the situation so that the affected
representation will be true and correct as of the Closing, and, if Seller
exercises such option, Seller shall identify the corrective action in the Change
Notice. If Seller elects to undertake corrective action such that the affected
representation will be true and correct as of the Closing, the parties shall
proceed with performance under this Agreement and the Closing, provided Seller
completes such corrective action prior to the Closing. If Seller does not elect
in the Change Notice to undertake such corrective action, then, within fifteen
(15) days after Purchaser's receipt of the Change Notice, but in no event later
than the Closing Date, Purchaser shall elect, by delivering written notice to
the Seller either to: (1) proceed with performance of this Agreement and the
Closing; or (2) terminate this Agreement and the Escrow for non-satisfaction of
a condition. In the event of termination pursuant to this Section, the Escrow
Deposit shall be returned to Purchaser and neither party shall have any further
obligation hereunder.
4.02 Purchaser's Representations and Warranties. In consideration of Seller
entering into this Agreement and as an inducement to Seller to sell the Subject
Property to Purchaser,
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Purchaser makes the following representations and warranties, each of which is
material and is being relied upon by Seller (the continued truth and accuracy of
which shall constitute a condition precedent to Seller's obligations hereunder):
A) Purchaser has the legal right, power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby, and
the execution, delivery and performance of this Agreement have been duly
authorized and no other action by Purchaser is requisite to the valid and
binding execution, delivery and performance of this Agreement, except as
otherwise expressly set forth herein.
ARTICLE V
AS IS PURCHASE, PARKING SPACE ISSUE
5.01 As Is: Release.
Purchaser acknowledges and agrees that Purchaser is acquiring the Property
in its "AS IS" condition, WITH ALL FAULTS, IF ANY, AND WITHOUT ANY WARRANTY,
EXPRESS OR IMPLIED except for the express representations and warranties set
forth in this Agreement. Other than as expressly set forth herein, neither
Seller nor any agents, representatives, or employees of Seller have made any
representations or warranties, direct or indirect, oral or written, express or
implied, to Purchaser or any agents, representatives, or employees of Purchaser
with respect to the condition of the Property, its fitness for any particular
purpose, or its compliance with any laws, and Purchaser is not aware of and does
not rely upon any such representation to any other party. Purchaser acknowledges
that the time periods outlined in Section 2.01 will have afforded Purchaser the
opportunity to make such inspections (or have such inspections made by
consultants) as it desires of the Property and all factors relevant to its use,
including, without limitation, the interior, exterior, and structure of all
Improvements, and the condition of soils and sub-surfaces. Purchaser's
opportunity to inspect shall not limit or avoid Seller's liability for breach of
express representations and warranties made in this Agreement; provided that if
Purchaser, at any time prior to the Closing, has knowledge of any information
which would require the qualification of any of the representations or
warranties made by Seller in this Agreement, Purchaser shall immediately notify
Seller in writing of such information, and Seller shall have the right to
qualify the representations and warranties in this Agreement with such
information when they are restated on the Closing. If Seller does so qualify its
representations and warranties, Purchaser may terminate this Agreement unless
the qualifications (i) reflect information disclosed in writing to or discovered
by Purchaser at least five (5) business days prior to, (ii) relate to things or
events caused or approved by Purchaser, or (iii) Seller's covenant to cure or
otherwise correct to the reasonable satisfaction of Purchaser, and such a
termination shall be without further liability to either party except that
Purchaser shall be entitled to the return of the Deposit, and shall continue to
be responsible for performance of obligations which expressly survive
termination.
Without limiting the generality of the foregoing, except for Purchaser's
rights under the express representations and warranties of Seller set forth in
this Agreement, and except as expressly provided below in this paragraph,
Purchaser hereby expressly waives and relinquishes any and all rights and
remedies Purchaser may now or hereafter have against
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Seller, at law, in equity or otherwise, whether known or unknown, with respect
to any past, present or future presence or existence of Hazardous Materials on,
in, under or about the Property or with respect to any past, present or future
violations of any rules, regulations or laws, now or hereafter enacted,
regulating or governing the use, handling, storage or disposal of Hazardous
Materials, including, without limitation, (i) any and all rights Purchaser may
now or hereafter have to seek contribution from Seller under Section 113(f)(i)
of the Comprehensive Environmental Response Compensation and Liability Act of
1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act
of 1986 (42 U.S.C.A. ss.9613), as the same may be further amended or replaced by
any similar law, rule or regulation, (ii) any and all rights Purchaser may now
or hereafter have against Seller under the Carpenter-Presley-Tanner Hazardous
Substance Account Act (California Health and Safety Code, Section 25300, et
seq.), as the same may be further amended or replaced by any similar law, rule
or regulation, and (iii) any and all claims, whether known or unknown, now or
hereafter existing, with respect to the Property under Section 107 of CERCLA (42
U.S.C.A. ss.9607). The foregoing waiver and release shall not apply against a
Seller with respect to Hazardous Materials of which such Seller has actual
knowledge as of the Effective Date other than those disclosed in the reports
listed in Exhibit I, or which were used, handled, stored or disposed of by such
Seller.
PURCHASER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR WITH THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 ("SECTION 1542"), WHICH IS SET
FORTH BELOW:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
BY INITIALING BELOW, PURCHASER HEREBY WAIVES THE PROVISIONS OF SECTION 1542
SOLELY IN CONNECTION WITH THE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING
WAIVERS AND RELEASES.
/s/JM
--------------------
Purchaser's Initials
The waivers and releases by Purchaser herein contained shall survive
Closing and the recordation of the Grant Deed and shall not be deemed merged
into the Grant Deed upon its recordation.
5.02 Seller Reasonable. Purchaser acknowledges and agrees that the sole
inquiry and investigation Seller has conducted in connection with the
environmental condition of the Property is to obtain and/or review the
environmental reports described in Exhibit I attached hereto, and that for
purposes of California Health and Safety Code Section 25359.7, Sellers have
acted reasonably in solely relying upon that inquiry and investigation.
5.03 Parking Space Issue. Seller has disclosed to Purchaser and Purchaser
acknowledges the following matter which is collectively referred to as the
"Parking Space Issue" for the purposes of this Section:
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A) Pursuant to Section 2.9 of that certain Lease Agreement between
Evergreen/ Bradville VII ("Lessor") and McCaw Cellular Communications, Inc.
("Lessee") dated August 23, 1995 (10000 Goethe Road Lease), Lessor has a
certain obligation to provide no less than five hundred thirty-three (533)
parking spaces and that pursuant to the Survey, there currently exists only
five hundred twenty-three (523) spaces. The First Amendment to Lease dated
May 7, 1996 executed by and between Lessee and Lessor contains certain
provisions regarding the possible future addition of parking spaces. With
respect to the Parking Space Issue described in this paragraph, if at any
time during the Lease Term, Lessee requires the addition of parking spaces
pursuant to the terms of the Lease, as amended, Seller agrees to reimburse
Purchaser for actual costs incurred in providing additional parking spaces
up to, and not to exceed, a maximum amount of Seventy-One Thousand Nine
Hundred Dollars ($71,900).
ARTICLE VI
REMEDIES
6.01 Purchaser's Default. LIQUIDATED DAMAGES.
IT IS AGREED BY AND BETWEEN SELLER AND PURCHASER THAT IT WOULD BE EXTREMELY
DIFFICULT AND IMPRACTICAL, IF NOT IMPOSSIBLE, TO ASCERTAIN WITH ANY DEGREE OF
CERTAINTY THE AMOUNT OF DAMAGES WHICH WOULD BE SUFFERED BY SELLER IN THE EVENT
OF PURCHASER'S DEFAULT AND FAILURE TO CLOSE ESCROW UNDER THE TERMS OF THIS
AGREEMENT. ACCORDINGLY, PURCHASER AND SELLER AGREE THAT IN THE EVENT THAT, AFTER
ALL CONDITIONS ARE SATISFIED OR WAIVED, PURCHASER SHOULD DEFAULT AND FAIL TO
CLOSE ESCROW UNDER THE TERMS OF THIS AGREEMENT, PURCHASER SHALL BE LIABLE TO
SELLER FOR LIQUIDATED DAMAGES IN THE AMOUNT OF FIVE HUNDRED THOUSAND DOLLARS
($500,000). PURCHASER AND SELLER AGREE THAT SAID AMOUNT IS REASONABLE UNDER THE
CIRCUMSTANCES OF THIS TRANSACTION.
SELLER SHALL HAVE NO OTHER RIGHTS OR REMEDIES AGAINST PURCHASER EXCEPT AS
PROVIDED IN SECTION 1.13.
PRICE ENTERPRISES, INC., a IVANHOE-BRADSHAW L.L.C., a California
Maryland corporation limited liability company
By: /s/Jack McGrory By: /s/James Cahill
-------------------------- -------------------------------------
Its: President Its: Manager
6.02 Seller's Default. If Seller defaults under this Agreement in addition
to any and all remedies available at law or equity, Purchaser shall be entitled
to the return of the Escrow Deposit.
6.03 Curing Default. In the event of a default by either party, the other
party shall not be entitled to exercise any remedy for such default unless a
notice of default is sent to the
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defaulting party and the defaulting party fails to cure such default within
seven (7) days after receipt of such notice of default.
6.04 Indemnification.
A) Seller hereby agrees to indemnify, defend and hold harmless Purchaser,
from and against any and all obligations, liabilities, claims, liens,
encumbrances, losses, damages, costs and expenses arising and accruing from:
i) breach of Seller's representations, warranties and covenants
contained in this Agreement; and
ii) subject to the "As Is" provisions of Section 5.01 above, the
occurrence of any injury or death of any person or damage to or the
destruction of property attributable to the ownership and management of
same by Seller prior to Close of Escrow.
B) Purchaser hereby agrees to indemnify, defend and hold harmless Seller,
from and against any and all obligations, liabilities, claims, liens,
encumbrances, losses, damages, costs and expenses arising or accruing from:
i) breach of Purchaser's representation, warranties and covenants
under this Agreement; and
ii) any injury or death of any person or damage to or the destruction
of property attributable to the ownership and management of same by
Purchaser after the Close of Escrow.
6.05 Arbitration of Disputes. Any controversy or claim arising out of or
relating to this Agreement or any Agreements or instruments relating hereto or
delivered in connection herewith, including, but not limited to a claim based on
or arising from an alleged tort will, at the request of any party, be determined
by arbitration in accordance with the Federal Arbitration Act (9 U.S.C. Section
1 Et Seq.) under the auspices and rules of the American Arbitration Association
("AAA"). The AAA will be instructed by either or both parties to prepare a list
of three (3) judges who have retired from the Superior Court of the State of
California, a higher California Court or any Federal Court. Within ten (10) days
of receipt of the list, each party may strike one (1) name from the list. The
AAA will then appoint the arbitrator from the name(s) remaining on the list. The
arbitration will be conducted in San Diego or Sacramento, California. Any
controversy in interpretation or enforcement of this provision or whether a
dispute is arbitrable, will be determined by the arbitrator. Judgment upon the
award rendered by the arbitrator may be entered in any court having
jurisdiction. The institution and maintenance of an action for judicial relief
or in pursuit of an ancillary remedy does not constitute a waiver of the right
of any party, including the plaintiff, to submit the controversy or claim to
arbitration.
NOTICE: By initialing in the space below you are agreeing to have any
dispute arising out of the matters included in the foregoing arbitration of
disputes provision decided by neutral arbitration as provided by California law
and you are giving up any rights you might possess to have the dispute litigated
in a court or by jury trial. By initialing in the space below you are giving up
your judicial rights to discovery and appeal unless such rights are specifically
included in the Arbitration of Disputes Provision. If you refuse to submit to
arbitration after
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agreeing to this Provision, you may be compelled to arbitrate under the
authority of the California Code of Civil Procedure. Your agreement to this
arbitration provision is voluntary.
We have read and understand the foregoing and agree to submit disputes
arising out of the matters included in the Arbitration of Disputes Provision to
neutral arbitration.
/s/JM /s/JC
-------------------- -----------------
Purchaser's Initials Seller's Initials
ARTICLE VII
MISCELLANEOUS
7.01 Risk of Loss.
A) Until Closing, the risk of loss or damage to the Subject Property or any
portions thereof by fire, casualty, or any other cause, is assumed by Seller. If
such loss or damage shall occur and the reasonably estimated cost to repair same
does not exceed One Hundred Thousand Dollars ($100,000), then the Seller, at its
sole cost and expense, shall immediately and with due diligence repair such
damage and the Closing shall be postponed until the Subject Property is repaired
to its conditioned prior to the damage. If such loss or damage shall occur,
Purchaser shall have the option to terminate this Agreement and receive the
return of the Escrow Deposit unless Seller agrees at its option to repair such
damage in which case the Closing shall be postponed until such repairs are
complete.
B) Except for the condemnation ("Condemnation Premises")
instituted in connection with the City's desire to put a traffic signal on the
corner of Old Placerville Road and Granby Road as set forth in more detail on
Exhibit J, if, at or prior to the Closing, the Subject Property or any portions
thereof shall be condemned or taken pursuant to any governmental or other power
of eminent domain, or if any written notice of any such taking or condemnation
is issued, or proceeding instituted, then in any such events, the Purchaser
shall have the option to terminate this Agreement and receive the return of the
Escrow Deposit, or in the alternative, Purchaser may elect to proceed to close,
with the Purchaser entitled to receive the entire condemnation award, including
any portion thereof paid to the Seller.
7.02 Notices. All waivers, elections, options, notices, demands, and
consents which either party may be required or may desire to give under this
Agreement ("Notice") shall be in writing and shall be effective when telecopied
to the fax numbers indicated below, when personally delivered, or when deposited
in an official United States Postal Service office or branch or official
depository maintained by the United States Postal Service, by certified or
registered mail, postage prepaid, return receipt requested, addressed as
follows:
To Purchaser at: PRICE ENTERPRISES, INC.
Attn: Jack McGrory
4649 Morena Blvd.
San Diego, CA 92117
FAX (619) 581-4964
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<PAGE>
with a copy to: PRICE ENTERPRISES, INC.
Attn: Bob Siordia
4649 Morena Blvd.
San Diego, CA 92117
FAX (619) 581-4964
To Seller at: IVANHOE-BRADSHAW
Attn: Jim Cahill
7979 Ivanhoe Ave., Suite 520
La Jolla, CA 92037
FAX (619) 551-2314
or such other address as either party may hereafter indicate by written notice
to the other.
Notice also may be given by Fed Ex or other overnight courier service, in which
event such Notice shall be deemed given on delivery to such courier service.
7.03 Certification of Non-Foreign Status. No later than five (5) business
days before Closing, Seller shall deliver to Purchaser a Non-Foreign Affidavit
duly executed in the form attached hereto as Exhibit H.
7.04 Attorneys' Fees. If either party hereto files any action or brings any
proceeding against the other arising out of this Agreement, or is made a party
to any action or proceeding brought by the Escrow Agent, then as between
Purchaser and Seller, the prevailing party shall be entitled to recover as an
element of its costs of suit, and not as damages, reasonable attorneys' fees to
be fixed by the court. The "prevailing party" shall be the party who is entitled
to recover its costs of suit, whether or not suit proceeds to final judgment. A
party not entitled to recover costs shall not be entitled to recover attorneys'
fees.
7.05 Brokers. Seller and Purchaser each represent to the other that neither
has nor shall have any obligation to any broker or finder in connection with
this transaction, and that no fee or commission is due any broker, finder, or
similar person in connection herewith. Seller and Purchaser each indemnifies the
other and agrees to hold the other harmless from and against any and all claims,
demands, liabilities, lawsuits, costs, and expenses (including reasonable
attorneys' fees) for any fee or commission due to any broker, finder, or similar
person in connection with this transaction and arising out of the act of the
indemnifying party.
7.06 Integration. This Agreement and the exhibits attached hereto shall
constitute the entire Agreement between Seller and Purchaser and supersede any
and all prior written or oral agreements, representations, and warranties
between and among the parties and their agents, all of which are merged into or
revoked by this Agreement, with respect to its subject matter.
7.07 Modification. No modification, waiver, amendment, discharge, or change
of this Agreement shall be valid unless the same is in writing and signed by the
party against which the enforcement of such modification, waiver, amendment,
discharge, or change is or may be sought.
-24-
<PAGE>
7.08 Severability. In the event any term, covenant, condition, provision,
or agreement contained herein is held to be invalid, void, or otherwise
unenforceable, by any court of competent jurisdiction, such holding shall in no
way affect the validity or enforceability of any other term, covenant,
condition, provision, or agreement contained herein.
7.09 Governing Law. This Agreement and the obligation of the parties
hereunder shall be interpreted, construed, and enforced in accordance with the
laws of the State of California.
7.10 Terminology. All personal pronouns used in this Agreement, whether
used in the masculine, feminine, or neuter gender, shall include all other
genders; the singular shall include the plural and vice versa. "Business Day"
means other than Saturday, Sunday, or holiday. In the event that the time for
performance of an act under this Agreement falls on a Saturday, Sunday, or
holiday, the date for performance of such act shall be extended to the next
business day.
7.11 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original agreement, and all of which
shall constitute one agreement by each of the parties hereto to be effective as
of the Effective Date.
7.12 Binding Effect. Except as otherwise herein provided, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
7.13 Assignment. Either Seller or the Purchaser may at any time, prior to
Closing, assign its rights and obligations under this Agreement, provided such
assignment shall not relieve the assignor of its obligations herein and no
assignment shall be effective, unless notice is given to the other party herein.
7.14 Survival of Provisions. All of Seller's covenants, representations and
warranties herein are specifically intended to survive Closing.
7.15 Captions. Article and section titles or captions contained herein are
inserted as a matter of convenience and for reference, and in no way define,
limit, extend, or describe the scope of this Agreement or any provisions hereof.
All reference to section numbers herein shall mean the sections of this
Agreement.
7.16 Exhibits. The following exhibits are attached hereto:
Exhibit A - Legal Description of Real Property.
Exhibit B - Site Plan of Real Property.
Exhibit C - List of Leases.
Exhibit D - Form of Tenant Estoppel Certificate.
Exhibit E - Form of Assignment and Assumption of Leases.
Exhibit F - Form of Bill of Sale and Assignment.
Exhibit G - Form of Tenant Notification Letter.
Exhibit H - Form of Non-Foreign Affidavit.
Exhibit I - List of Environmental Reports.
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<PAGE>
Exhibit J - Condemnation Premises.
Exhibit K - Form of Grant Deed.
Exhibit L - List of Easements, Licenses and Other Rights.
Exhibit M - List of Contracts.
Exhibit N - Form of Assumption and Assignment of Contracts.
7.17 Offer and Acceptance. Seller's signature on this instrument
constitutes an offer to sell the Subject Property to the Purchaser on the terms
and conditions set forth herein. Such offer shall be deemed revoked unless
Seller receives a counterpart of this instrument, duly signed by Purchaser, at
4649 Morena Boulevard, San Diego, California 92117, Attn: Jack McGrory, no later
than April 6, 1998 (referred to herein as the "Effective Date").
-26-
<PAGE>
Executed as of the date first written above.
PURCHASER SELLER
PRICE ENTERPRISES, INC., a IVANHOE-BRADSHAW L.L.C., a
Maryland corporation California limited liability company
By: /s/ Jack McGrory By: /s/ James Cahill
-------------------------------- -------------------------------
Jack McGrory James Cahill
Its: President Its: Manager
-27-
<PAGE>
Amendment No. 1 to Purchase and Sale Agreement and Joint Escrow Instructions
This AMENDMENT NO. 1, dated April 21, 1998, is made between Ivanhoe Bradshaw LLC
and Price Enterprises, Inc.
This AMENDMENT NO. 1 is made with respect to that certain AGREEMENT OF PURCHASE
AND SALE AND JOINT ESCROW INSTRUCTIONS (the "Purchase Agreement"), dated April
6, 1998, between the parties hereto.
The Purchase Agreement is hereby amended as follows:
1. The first sentence of section 2.01 A of the Purchase Agreement shall be
amended as follows: Purchaser's obligation to purchase the Subject Property is
subject to Purchaser approving (or waiving) all title exception in the Title
Commitment obtained by Purchaser by April 27, 1998.
2. The second sentence of section 2.01 B of the Purchase Agreement shall be
amended as follows: If Purchaser does not notify Seller of its approval or
waiver of the physical condition, or notifies Seller of its disapproval by April
27, 1998, this condition shall be deemed not satisfied and this Agreement shall
be deemed terminated.
3. The second sentence of section 2.01 C of the Purchase Agreement shall be
amended as follows: If Purchaser does not notify Seller of its approval of the
Leases or notifies Seller of its disapproval by April 27, 1998, this condition
shall be deemed not satisfied and this Agreement shall be deemed terminated.
4. The second sentence of section 2.01 D of the Purchase Agreement shall be
amended as follows: If Purchaser does not notify Seller of its approval or
waiver of the Miscellaneous Condition or notifies Seller of its disapproval by
April 27, 1998, this condition shall be deemed not satisfied and this Agreement
shall be deemed terminated.
-28-
<PAGE>
This Amendment No. 1 may be executed in counterpart. Buyer and Sellers agree
that facsimile transmission copies of signed counterparts shall be binding and
effective when each party has signed a counterpart and transmitted a copy
thereof by facsimile to the other party. As a courtesy, each party shall send an
original, executed counterpart by overnight delivery service. Although not a
condition to the effectiveness of this Amendment No. 1, each party shall
transmit by facsimile to Escrow Agent a copy of the counterpart signed by such
party.
IVANHOE-BRADSHAW, L.L.C.
a California limited liability company
Date: April 21, 1998 /s/ Jim Cahill
--------------------------------------
By: Jim Cahill
Its: Manager
PRICE ENTERPRISES, INC.
a Maryland corporation
Date: April 22, 1998 /s/ Jack McGrory
--------------------------------------
By: Jack McGrory
Its: President
-29-
<PAGE>
Amendment No. 2 to Purchase and Sale Agreement and joint Escrow Instructions
This AMENDMENT NO. 2, dated April 28, 1998, is made by and between Price
Enterprises, Inc., Maryland corporation ("Purchaser") and Ivanhoe-Bradshaw
L.L.C., a California limited liability company ("Seller") with reference to the
following recitals.
A. This AMENDMENT NO. 2 is made with respect to that certain Agreement of
Purchase and Sale and Joint Escrow Instructions ("the Purchase Agreement") dated
April 6, 1998, as amended by AMENDMENT NO. 1, dated April 21, 1998, between the
parties hereto.
B. This Amendment is made with respect to the certain Owner's Declaration
dated April 17, 1998 that Seller has submitted to Chicago Title Company in
connection with the Purchase Agreement, attached hereto as "Exhibit 1".
C. In Paragraph 2.B. of "Exhibit 1", Seller makes reference to "$39,540 in
unpaid bills for tenant improvements at 10000 Goethe Road" (hereinafter "Unpaid
Bills").
D. In connection with the close of escrow under the Purchase Agreement,
Chicago Title has indicated that it is willing to issue an ALTA Owner's Extended
policy to Purchaser, including endorsement 101.4 but subject to the Unpaid
Bills.
Now, therefore, the parties agree as follows:
1. Seller agrees that it is and shall continue to be fully responsible for the
payment of all of the Unpaid Bills and that Purchaser shall have no obligation
for nor liability in connection with the payment of same.
2. Seller agrees to indemnify Purchaser and hold Purchaser harmless from any and
all claims and demands made by any of the parties entitled to payment in
connection with the Unpaid Bills and any damages arising out of such claims and
demands due to the failure of said parties to receive payment due to them under
the Unpaid Bills.
-30-
<PAGE>
This AMENDMENT NO. 2 may be executed in counterpart. Buyers and Sellers
agree that facsimile transmission copies of signed counterparts shall be binding
and effective when each party has signed a counterpart and transmitted a copy
thereof by facsimile to the other party. As a courtesy, each party shall send an
original, executed counterpart by overnight delivery service. Although not a
condition to the effectiveness of AMENDMENT NO. 2, each party shall transmit by
facsimile to escrow agent a copy of the counterpart signed by such party.
IVANHOE-BRADSHAW, L.L.C.
a California limited liability company
Date: April 29, 1998 /s/ Jim Cahill
--------------------------------------
By: Jim Cahill
Its: Manager
PRICE ENTERPRISES, INC.
a Maryland corporation
Date: April 29, 1998 /s/ Jack McGrory
--------------------------------------
By: Jack McGrory
Its: President
-31-
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<FISCAL-YEAR-END> Dec-31-1998
<PERIOD-START> Apr-01-1998
<PERIOD-END> Jun-30-1998
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