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Exhibit 10.3
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the "Agreement") is entered into as of the
Effective Date by and among Buyer, Seller and Escrow Agent. For good and
valuable consideration, the receipt and sufficiency of which is acknowledged,
the parties hereto agree as follows:
1. Defined Terms. As used in this Agreement the terms listed
below shall have the following meanings:
EFFECTIVE DATE: October 23, 1997
SELLER: MSC Valley View, Inc.
c/o AMRESCO Advisors
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxx and Xxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
BUYER: Pacific Gulf Properties Inc.
0000 Xxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
PROPERTY:
(a) that certain real property known as Valley View Industrial
Center located at 0000 X. Xxxxxx Xxxx Xxxxxxxxx, 0000 X. Xxxxxx Xxxxxx and 0000
X. Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx multi-tenant industrial and commercial
buildings containing approximately 300,000 rentable square feet of space (all of
the foregoing is referred to collectively as the "Land" and is more particularly
described in Exhibit A);
(b) all of Seller's right, title and interest in and to all
improvements, fixtures and personal property located on the Land (collectively,
the "Improvements");
(c) all rights, appurtenances, streets, alleys, easements,
rights-of-way in or to all streets or other interests in, on, across, in front
of, abutting, servicing or adjoining the Land, including, without limitation,
all minerals, oil, gas and other hydrocarbon substances, all development rights,
land use entitlements, building permits, licenses, permits and certificates,
utilities commitments, air rights, water, water rights, and other appurtenances
used in connection
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with the beneficial use and enjoyment of the Land (collectively, the
"Appurtenances", which, together with the Land and Improvements is referred to
herein as the "Real Property");
(d) all lease rights (including, without limitation, the
lessor's interest in and to all tenant leases, rental agreements, subleases and
tenancies, including all amendments, modifications, agreements, records,
substantive correspondence, and other documents affecting in any way a right to
occupy any portion of the Real Property (individually and collectively, the
"Leases") and Seller's interest in all security deposits and prepaid rent, if
any, under the Leases and any and all guaranties of the Leases, and, to the
extent approved by Buyer pursuant to this Agreement, all "Service Contracts" (as
hereinafter defined) (collectively, the "Assigned Contracts"), and all
intangible personal property now or hereafter owned by Seller and used in the
ownership, use or operation or development of the Real Property and Improvements
including, without limitation, the right to use the name "Valley View Industrial
Center" and any other trade name (exclusive of the name "AMRESCO" and variations
thereof) now used in connection with the Real Property (collectively, the
"Intangible Property" and together with all tangible personal property owned by
Seller located on or in or used in connection with the Real Property as of the
date hereof, such title to be free of any liens, encumbrances or interests (the
"Tangible Property"). The Intangible Property together with the Tangible
Property is collectively the "Personal Property".
PURCHASE PRICE: Fourteen Million One Hundred Thousand Dollars ($14,100,000).
DEPOSIT: One Hundred Thousand and 00/100 Dollars ($100,000.00),
together with interest accrued thereon (collectively,
the "Deposit").
ESCROW AGENT/
TITLE COMPANY: First American Title Insurance Company
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Manager, National Accounts
Fax: 000.000.0000
2. Agreement to Sell Purchase and Sale Agreement. Seller hereby
agrees to sell and convey the Property to Buyer, and Buyer hereby agrees to
purchase the Property from Seller, subject to the terms and conditions set forth
in this Agreement.
3. Deposit. Three days after receipt by Buyer of a fully
executed copy of this Agreement, Buyer shall deposit the Deposit with Escrow
Agent, as escrow agent for Buyer and Seller. The Deposit will be held in an
interest-bearing account with interest to follow the Deposit. The Deposit shall
either (a) be applied towards the Purchase Price at "Closing" (as hereinafter
defined); (b) be returned to the Buyer if the Closing fails to occur for any
reason other than the Buyer's default; or (c) be disbursed to Seller as
liquidated damages in the event of Buyers default pursuant to the provisions of
this paragraph. Escrow Agent agrees to act as
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\escrow agent for Buyer and Seller hereunder and to administer the Deposit in
accordance with the terms of this Agreement. Escrow Agent may also rely on
instructions jointly given by Buyer and Seller as to the disposition of the
Deposit.
IN THE EVENT THE SALE OF THE PROPERTY IS NOT CONSUMMATED BECAUSE OF THE FAILURE
OF ANY CONDITION OR ANY OTHER REASON EXCEPT A DEFAULT UNDER THIS AGREEMENT
SOLELY ON THE PART OF BUYER, THE DEPOSIT SHALL IMMEDIATELY BE RETURNED TO BUYER.
IF SAID SALE IS NOT CONSUMMATED SOLELY BECAUSE OF A DEFAULT UNDER THIS AGREEMENT
ON THE PART OF BUYER, THE DEPOSIT SHALL BE PAID TO AND RETAINED BY SELLER AS
LIQUIDATED DAMAGES. THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES, IN THE
EVENT OF A DEFAULT BY BUYER, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO
DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE
THAT THE DEPOSIT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES'
REASONABLE ESTIMATE OF SELLER'S DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE
REMEDY AGAINST BUYER, AT LAW OR IN EQUITY, IN THE EVENT OF A DEFAULT UNDER THIS
AGREEMENT ON THE PART OF BUYER.
INITIALS: Seller Buyer [SIG]
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4. Closing. The recordation of the deed and the delivery of
other documents and funds contemplated hereby (the "Closing") shall take place,
unless otherwise agreed upon in writing or extended, on the date which is the
earlier of (i) fifteen (I 5) days after the end of the Inspection Period (as
defined in Section 16) and (ii) November 26, 1997 (the "Closing Date").
(a) At the Closing, which shall occur pursuant to escrow
instructions mutually satisfactory to Buyer and Seller, Seller shall deliver to
Buyer:
(i) A deed in the form attached hereto as Exhibit C (the
"Deed"); an assignment of leases in the form attached
hereto as Exhibit D (the "Assignment of Leases"); an
assignment of contracts designated by Buyer to be
assumed pursuant to this Agreement (the "Assumed
Contracts"), warranties, permits, guaranties and other
intangible property, in the form attached hereto as
Exhibit E (the "Assignment of Contracts and Intangible
Property"); a xxxx of in the form attached hereto as
Exhibit F (the "Xxxx of Sale"), each duly executed by
Seller;
(ii) At Buyer's request, such title affidavits and related
documents as Buyer may reasonably request or as may be
required by the Title Company to issue the Title Policy
to Buyer at Closing in the form required pursuant to
this Agreement;
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(iii) Any and all original documents in the possession of
Seller and/or Seller's property management company
relating to the Property, including, without
limitation, all Leases and tenant files, Assigned
Contracts, evidence of termination of any Service
Contracts and other agreements that are not Assigned
Contracts, originals of the building permits and
certificates of occupancy for the Improvements and all
tenant-occupied space included within the Improvements;
all keys to the Property;
(iv) Tenant Estoppel Certificates from tenants leasing not
less than 75% of the net rentable area of the Property,
dated not earlier than 30 days prior to Closing, in the
form attached hereto as Exhibit G (as modified by Buyer
to address specific reasonable concerns arising as a
result of Buyer's review of the Leases and as delivered
to tenants by Seller) (the "Required Estoppel
Certificates'), and notices to the Tenants of the
occurrence of the sale of the Property in the form
attached hereto as Exhibit H (the "Notice to Tenants");
(v) a duly executed affidavit that Seller is not a "foreign
person" within the meaning of Section 1445(e)(3) of
the Internal Revenue Code of 1986 in the form attached
hereto as Exhibit I;
(vi) a closing statement in form and content reasonably
satisfactory to Buyer and Seller (the "Closing
Statement") duly executed by Seller; and
(vii) any other instruments, records or correspondence
specifically called for hereunder to be delivered by
Seller which have not previously been delivered.
(b) At the Closing, Buyer shall pay the Purchase Price by
federal wire transfer to Escrow Holder. The Deposit shall be credited against
the Purchase Price. Seller may use the Purchase Price or any portion thereof to
clear the title of any or all encumbrances or interests, provided that all
instruments necessary for this purpose are recorded or registered simultaneously
with the Deed, except that where an institutional lender has provided a payoff
letter the actual reconveyance of the lender's deed of trust may be recorded
when received provided that the Seller has provided such bond, indemnity or
other arrangements as shall be necessary to cause the Title Company to insure
title to the Property as vested in Buyer without any exception for such matters.
Except for real estate taxes not yet due or payable, Seller shall cause all
mortgages, deeds of trust and other monetary encumbrances, including without
limitation all mechanics' liens, to be released and reconveyed from the Property
on or prior to the Closing and shall cause the Title Company to insure title to
the Property as vested in Buyer without any exception for such matters.
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5. Adjustments.
(a) The following are to be apportioned as of the Closing Date,
with Buyer receiving credit for or being charged with the entire day of the
Closing, as follows:
(i) Rent. Collected rent under the Leases shall be
apportioned as of the Closing Date. With respect to any rent which is
uncollected as of the Closing Date, after Closing Buyer shall pay to Seller any
rent actually collected which is applicable to the period preceding the Closing
Date, provided, however, that all rent collected by Buyer shall be applied first
to all unpaid rent accruing after the Closing Date, and then to unpaid rent
accruing prior to the Closing Date. Buyer shall not be obligated to take any
steps to recover any rent arrearages. Seller shall be permitted to pursue
collection of any rent arrearages applicable to the period prior to the Closing,
provided that Buyer shall not incur any, and Seller shall indemnify Buyer
against all, cost, expense or liability in connection therewith, and provided
further that Seller shall not commence any legal or equitable proceedings in the
nature of an unlawful detainer, eviction or other proceeding which seek to
terminate any tenant's right of possession of its leased premises or result in a
lien or encumbrance on such leased premises. If any tenants are required to pay
percentage rent, escalation charges for real estate taxes, operating expenses,
CPI adjustments or other charges of a similar nature ("Additional Rent") and any
Additional Rent is collected by Buyer or Seller which is attributable in whole
or in part to any period during which the respective party did not own the
Property, such party shall promptly pay to the other party the other party's
proportionate share thereof, less a proportionate share of any reasonable
attorney's fees, costs and expenses of collection thereof. All Additional Rent
collected by Buyer shall be applied first to unpaid Additional Rent accruing
after the Closing Date, and then to unpaid Additional Rent accruing prior to the
Closing Date. If tenants pay Additional Rent on an estimated basis, then
promptly following the end of the underlying fiscal period Buyer shall reconcile
actual expenses with tenants' estimated payments of Additional Rent and any net
debit or credit to the landlord resulting from such reconciliation shall be
apportioned between Buyer and Seller. Any sums received from the tenant on
account of the termination of the United States Postal Service lease shall be
paid to Seller.
(ii) Leasing Costs. Seller is responsible for leasing
commissions, tenant improvement costs, tenant inducements or other leasing costs
(collectively, "Leasing Costs") payable with respect to the current term of the
presently existing leases (the "Present Leases") listed in Exhibit J attached
hereto (the "Lease Schedule"). To the extent any Leasing Costs of Present Leases
are due and payable at or before Closing they shall be paid from Seller's
proceeds. Seller and Buyer shall pay their respective shares of all Leasing
Costs with respect to any renewal, extension or expansion rights under any
Present Leases which are exercised on or after the date hereof and for any such
Leasing Costs relative to Leases amended or executed (with the approval of Buyer
as set out in Section 18 hereof) on or after the date hereof, with such shares
being based on the proportion of rent paid or payable prior to and following the
Closing Date with respect to such renewal, extension, expansion, amended Lease
or new Lease. To the extent any such Leasing Costs are due and payable as of or
after the Closing Date, but are not
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paid by the responsible party, then such responsible party shall protect and
indemnify the nonresponsible party from and against any such Leasing Costs.
(iii) Security Deposits. Buyer shall be entitled to a credit
against the Purchase Price for the total sum of all security and other deposits
provided for in the Leases which are retained by Seller and not delivered in
kind to Buyer at Closing, and any interest earned thereon which by law or the
terms of the Leases is required to be refunded to tenants.
(iv) Utility Costs. Seller shall cause all the utility
meters to be read or estimated on the Closing Date, and will be responsible for
the cost of all utilities used prior to the Closing Date, except to the extent
such utility charges are billed to and paid by tenants directly. Buyer shall be
responsible for all post-Closing utility charges.
(v) Real Estate Taxes and Special Assessments. Seller shall
pay prior to Closing any and all delinquent real estate taxes and assessments
with respect to the Property. General real estate taxes and assessments payable
for the fiscal year in which the Closing occurs shall be prorated as of the
Closing Date.
(vi) Other Apportionments. Amounts payable under the
Assigned Contracts, annual or periodic permit and/or inspection fees (calculated
on the basis of the period covered), and liability for other Property operation
and maintenance expenses and other recurring costs shall be apportioned as of
the Closing Date.
(b) Preliminary Closing Statement. Seller and Buyer shall
jointly prepare and approve a preliminary Closing Statement on the basis of the
Leases and other sources of income and expenses, and shall deliver such
computation to Escrow Holder prior to Closing.
(c)Post-Closing Reconciliation. If any of the aforesaid
prorations cannot be definitely calculated on the Closing Date, then they shall
be estimated at the Closing and definitely calculated as soon after the Closing
Date as feasible. As soon as the necessary information is available, Buyer shall
conduct a post-Closing audit to determine the accuracy of all prorations made to
the Purchase Price (the "Post-Closing Audit"). Either party owing the other
party a sum of money based on such subsequent proration(s) or the Post-Closing
Audit shall promptly pay said sum to the other party.
6. Closing Costs. Seller shall pay for the Preliminary Report,
the premium for the CLTA portion of the Title Policy, any sales taxes, any
transfer taxes applicable to the sale and recording fees for recording of the
Deed. In addition, Seller shall be liable for any prepayment fee or other charge
payable in connection with any payoff of monetary encumbrances. Buyer shall pay
for the ALTA portion of the Title Policy, the cost of any endorsements to the
Title Policy, the cost of any survey or surveyor's certificate, the cost of its
due diligence examination of the Real Property, and the cost of its counsel and
other professional advisors. Any escrow fees shall be paid fifty percent (50%)
by Buyer and fifty percent (50%) by Seller. All other costs and charges of the
Escrow not otherwise provided for in this Agreement
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shall be allocated in accordance with the closing customs for the County where
the Property is located. Buyer and Seller shall each be responsible for their
respective legal fees to negotiate and execute this Agreement.
The provisions of this Section 6 shall survive the Closing.
7. Reporting Requirernents. The Escrow Holder shall comply with
all applicable federal, state and local reporting and withholding requirements
relating to the close of the transactions contemplated herein. Without limiting
the generality of the foregoing, to the extent the transactions contemplated by
this Agreement involve a real estate transaction within the purview of Section
6045 of the Internal Revenue Code of 1986, as amended (the "Internal Revenue
Code"), Escrow Holder shall have sole responsibility to comply with the
requirements of Section 6045 of the Internal Revenue Code (and any similar
requirements imposed by state or local law). For purposes hereof, Seller's tax
identification number is 00-0000000. Escrow Holder shall hold Buyer, Seller and
their counsel free and harmless from and against any and all liability, claims,
demands, damages and costs, including reasonable attorney's fees and other
litigation expenses, arising or resulting from the failure or refusal of Escrow
Holder to comply with such reporting requirements. The provisions of this
Section 7 shall survive the Closing.
8. INTENTIONALLY OMITTED
9. Title. At the Closing, Seller shall convey to Buyer
marketable and insurable fee simple title to the Real Property and Improvements,
by duly executed and acknowledged grant, bargain and sale deed in the form
attached hereto as Exhibit C. A condition to Buyer's obligations under this
Agreement shall be the issuance by the Title Company to Buyer of an ALTA
extended coverage Owner's Policy of Title Insurance (Form B, rev. 10/17/7O with
Endorsement Form 1 coverage) in the amount of the Purchase Price, insuring fee
simple title to the Real Property and Improvements in Buyer, subject only to
such exceptions as Buyer shall have approved pursuant to Paragraph 16 below (the
"Approved Title Exceptions") and without boundary, encroachment or survey
exceptions, except as Buyer shall have approved pursuant to Paragraph 16 below
(the "Title Policy"). The Title Policy shall provide full coverage against
mechanics' and materialmen's liens (including liens arising out of work done for
tenants) and shall contain, to the extent Buyer has obtained from the Title
Company during the Inspection Period the commitment of the Title Company to
issue such endorsements at Closing, the CLTA 100 (modified for an owner), 101.4,
103.7, 116, 116.1, 116.4, 116.7 and such other special endorsements as Buyer may
reasonably require, including, without limitation, any endorsements required as
a condition to Buyer's approval of any title exceptions pursuant to Paragraph 16
below (the "Endorsements").
10. Possession and Condition. Full possession, subject only to
the rights of tenants under Leases and Approved Title Exceptions shall be
delivered to the Buyer at Closing, the Property to be in the same condition as
it now is, reasonable use and wear thereof excepted. The Property is to be
conveyed "as is" without any representation or warranty except as expressly set
forth herein. Buyer acknowledges that it is a sophisticated real estate
investor, advised by counsel, and that its decision to acquire the Property is
based primarily upon its own investigation of the Property, the Leases and the
market.
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11. Seller Defaults. If Seller shall be unable to convey title,
or to deliver possession of the Property, all as herein stipulated, or if on the
Closing Date the Property does not conform with the provisions hereof, then
Seller shall use reasonable efforts to remove all defects in title, and to
deliver possession as provided herein, and to make the Property conform to the
provisions hereof, as the case may be, and the Closing Date may be extended by
mutual agreement of Seller and Buyer to a date not later than thirty (30) days
after the previously scheduled Closing Date.
If at the expiration of the extended xxxx Xxxxxx shall have
failed so to remove any defects in title (other than monetary liens, which are
covered in paragraph 4(b)), deliver possession, or to make the Property conform,
as the case may be, all as herein agreed, then, at Buyer's option, the Deposit
shall be forthwith refunded and all other obligations of all parties hereto
shall cease and this Agreement shall be void and without recourse to the parties
hereto; provided, however, that if Buyer is satisfied with the Property and the
purchase price, then Buyer shall have the election in its sole and absolute
discretion, at either the original or extended Closing Date, to accept such
title as the Seller can deliver to the Property in its then condition and to pay
therefor the Purchase Price without deduction, except that in the event of such
conveyance:
(a) if the Property shall have been damaged by fire or casualty
insured against, then Seller shall, unless Seller has previously restored the
Property to its former condition, pay over or assign to Buyer, at the Closing
Date, all amounts recovered or recoverable on account of such insurance, less
any amounts reasonably expended by Seller for partial restoration, up to an
amount equal to the Purchase Price; and
(b) if any portion of the Property shall have been taken by
exercise of the power of eminent domain, Seller shall pay over or assign to
Buyer at the Closing Date, all awards recovered or recoverable on account of
such taking, less any amounts reasonably expended by Seller for partial
restoration.
12. Insurance. Until the Closing, Seller shall retain the risk
of loss and shall maintain insurance on the Property against fire and hazards
covered by "All-Risk" insurance coverage in an amount at least equal to the
Purchase Price.
13. Broker. Seller and Buyer mutually represent that CB
Commercial Real Estate Group, Inc. (the "Broker") is the only broker with whom
they have dealt in connection with this Agreement. The commission of the Broker
shall be paid by Seller pursuant to a separate agreement. Seller and Buyer each
agree to indemnify and hold the other harmless from and against any liability,
loss, cost, damage, or expense, including court costs and attorneys' fees,
resulting from a breach of the representation and warranty set forth in this
Paragraph. The provisions of this Paragraph shall survive the Closing or
termination of this Agreement.
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Buyer acknowledges that Broker is acting as Seller's agent and
that Broker makes no, and Seller has not authorized Broker to make any,
representations or warranties of any kind regarding the condition, permitted
use, or value of the Property.
14. Seller's Warranties. Seller represents and warrants:
(a) Seller is the fee owner of the Property and has full power
and authority to sell the Property to the Buyer pursuant to the terms of this
Agreement. Seller is a corporation, duly organized and validly existing and in
good standing under the laws of the State of Delaware; this Agreement and all
documents executed by Seller and delivered to Buyer pursuant to this Agreement
are and will be duly authorized, executed and delivered by Seller, are and will
be legal, valid and binding obligations of Seller enforceable against Seller in
accordance with their respective terms, and do not and will not violate any
provision of any written agreement to which Seller is a party. To Seller's
knowledge, this Agreement and all documents executed by Seller and delivered to
Buyer pursuant to this Agreement do not violate any judicial order to which
Seller or the Property is subject. Seller has obtained all necessary
authorizations, approvals and consents to the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby.
(b) Seller is not a foreign entity subject to withholding under
the Internal Revenue Code.
(c) To Seller's knowledge, all documents delivered by Seller to
Buyer, or made available to Buyer for review, including without limitation the
Due Diligence Materials listed on Exhibit K, are true and complete. To Seller's
knowledge, the books, files and records relating to the Property that were
delivered to or made available to Buyer for Buyer's review do not contain any
deliberate or material omission, exclusive of information relating to the
entities which own the Property, to the relationship between the Seller and its
investors and advisors, and to Seller's financial projections and market
assumptions, whether contained in Seller's internal memoranda, financial
projections, budgets, accounting and tax records or similar proprietary,
confidential or privileged information.
(d) To Seller's knowledge, during the period of Seller's
ownership of the Real Property Seller has not received written notice of any (i)
condemnation, environmental, zoning or other land-use proceedings, instituted or
to be instituted, against the Real Property, (ii) special assessment proceedings
affecting the Real Property (other than as set forth in the Preliminary Report),
or (iii) existing or proposed easements, covenants, restrictions, agreements or
other documents which affect title to the Real Property and which are not
disclosed by the Preliminary Report.
(e) To Seller's knowledge, during the period of Seller's
ownership of the Real Property, and except as disclosed on Schedule 14(e)
attached hereto, Seller has not received
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notice of any litigation, arbitration or reference proceedings pending or
threatened against the Real Property or against Seller with respect to the Real
Property.
(f) The most current Lease Schedule provided to Buyer is a
complete and accurate list of all Leases. To Seller's knowledge, except for free
rent allowed to tenants under their respective Leases, there are no leasing
costs or obligations which will remain unpaid at Closing, including, without
limitation, broker's commissions and costs in connection with tenant
improvements.
(g) To Seller's knowledge, there exists no defaults or events
which, with the giving of notice or passage of time, or both, would constitute a
default by Seller or any of the tenants under any of the Leases. To Seller's
knowledge, there exists no defaults or events which, with the giving of notice
or passage of time, or both, would constitute a default by Seller or any of the
other parties to the Service Contracts under the Service Contracts.
Seller will indemnify, defend with counsel of Buyer's choice,
and hold Buyer its successors and assigns and their respective agents,
employees, officers, directors and partners, and the Real Property harmless from
all expense, loss, damage and claims, including Buyer's attorney's fees, if
necessary, arising out of (i) the breach of any of the Seller's warranties,
covenants and representations, related to the Real Property and arising or
occurring prior to the Closing, or related to or arising from any act, conduct,
omission, contract or commitment of Seller arising or occurring prior to the
Closing, and (ii) the litigation listed on Schedule 14(e), in each case notice
of which is delivered to Seller not later than twelve (12) months following the
Time of Closing, provided, however, that in no event shall Seller's liability
hereunder exceed the sum of Three Hundred Ninety Thousand Dollars ($390,000).
As used herein the term "Seller's knowledge" or any similar
phrase shall mean the actual, not constructive or implied, knowledge of Xxxx X.
Xxxxxx or Xxxx X. Xxxxx after having made reasonable inquiry of current
employee(s) of AMRESCO Advisors, Inc., but without any further obligation on his
part to make any independent investigation of the matters being represented and
warranted, or to make any further inquiry of any other persons, or to search or
examine any files, records, books or correspondence. To the extent any
representation or warranty which is made to "Seller's knowledge" is contravened
by any information contained in the due diligence materials delivered to Buyer
by Seller and Seller's agents during the Inspection Period, then any such
representation or warranty shall be deemed modified by any such information.
15. Assumption of Existing Financing. Buyer shall assume the
existing mortgage financing (the "Existing Loan") on the Property presently held
by Banker's United Life Assurance Company ("Lender"). On or before October 25,
1997, Buyer shall supply to AEGON USA Realty Advisors, Inc. ("AEGON") agent for
Lender, all information necessary for Lender and/or AEGON to agree to the
assignment to and assumption by Buyer of the Existing Loan. Seller shall also
supply AEGON with all information necessary for Lender and/or AEGON to agree to
the assignment of the Existing Loan. Buyer shall have until the expiration of
the
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Inspection Period to negotiate with AEGON and Lender an assumption and
modification agreement acceptable to Lender, Buyer and Seller. Seller agrees
that it will execute the assignment and assumption agreement and such other
documentation as may be reasonably required by AEGON and Lender, including
making representations that (a) no default exists under the Existing Loan and
(b) Seller is not indebted to Lender other than the Existing Loan. As a
condition to Closing, Buyer shall receive from Lender (x) a beneficiary
statement, (y) an estoppel confirming that no default exists under the Existing
Loan and (z) an assignment and assumption agreement, all in form and content
reasonably satisfactory to Buyer (collectively, the "Assumption Documentation").
Seller shall pay (i) the one percent (1%) assumption fee payable to Lender upon
the assignment and assumption of the Existing Loan and (ii) any costs incurred
by Lender or AEGON up to $ 1 0,000.00. Buyer shall pay any of AEGON's costs in
excess of $10,000.00 as well as its own attorneys' fees and other costs in
connection with the assignment and assumption of the Existing Loan.
16. Due Diligence.
(a) From the Effective Date until the date thirty (30) days
after the Effective Date, but not later than the Closing Date (the "Inspection
Period"), Seller shall allow Buyer, its agents and consultants access to the
Real Property upon not more than 24 hours' advance telephonic notice for the
purposes of conducting surveys, tests, and inspections, provided that they shall
be conducted in such a manner as not to unreasonably interfere with normal
business operations on the Real Property. Such inspections may include, without
implied limitation, inspections and investigations relating to the general
building, the sewage disposal system, the water and water distribution systems,
the heating and air conditioning systems, power distribution, roof, foundation,
soils and the presence of radon, asbestos, hydrocarbons or other contaminants.
All inspections and investigations shall be conducted at Buyer's cost. All
inspections and investigations shall be conducted by qualified professionals in
accordance with applicable legal requirements. Unless Buyer acquires the Real
Property, Buyer shall promptly restore the Real Property to its prior condition.
Buyer agrees to indemnify and hold Seller harmless from all liability, loss,
cost, damage or expense arising from the conduct of any such survey, test, or
inspection by Buyer or Buyer's agents or contractors. Buyer (i) shall permit a
representative of Seller to accompany Buyer on any interviews with tenants or
governmental agencies; (ii) shall not permit any inspections, investigations or
other due diligence activities to result in any liens, judgments or other
encumbrances being filed against the Real Property and shall, at its sole cost
and expense, promptly discharge of record any such liens or encumbrances that
are so filed or recorded; (iii) shall not permit any borings, drillings or
samplings to be done without the prior written consent of Seller; (iv) shall
maintain, with insurance companies satisfactory to Seller, a policy of
comprehensive general public liability insurance, with a broad form contractual
liability endorsement covering Buyer's indemnification obligations hereunder,
and with a combined single limit of not less than $1,000,000 per occurrence for
bodily injury and property damage, automobile liability coverage including owned
and hired vehicles with a combined single limit of $1,000,000 per occurrence for
bodily injury and property damage, and an excess umbrella liability policy for
bodily injury and property damage in the amount of $5,000,000, insuring Seller
and its affiliates as additional insureds (certificates of which shall be
-11-
12
given to Seller prior to Buyer's first entry on the Real Property), all of which
insurance shall be written on an "occurrence form"; and (v) shall return to
Seller all materials with respect to the Real Property provided by Seller if
Buyer fails to acquire the Real Property for any reason. The provisions of this
Section shall survive the termination of this Agreement.
(b) Seller has previously provided to Buyer or will, on or
before October 31, 1997, provide to Buyer complete copies of the items listed on
Exhibit K attached hereto and made a part hereof.
(c) Buyer may obtain, at its sole cost, and review a
non-invasive Phase I environmental report prepared by a professional
environmental assessment firm reasonably acceptable to Seller.
(d) Buyer may, at its sole and absolute discretion, terminate
its obligations under this Agreement by giving written notice to Seller on or
prior to the end of the Inspection Period. In that case, (i) Escrow Holder is
instructed to return the Deposit, together with any accrued interest, to Buyer
and (ii) except for obligations that survive termination pursuant to the express
terms of this Agreement, neither party shall have any further rights hereunder
against the other. Failure of Buyer to elect to terminate its obligation will
constitute a waiver of the condition by Buyer. If Buyer does not terminate this
Agreement pursuant to this Paragraph, Buyer shall have agreed to accept the Real
Property subject to all of the conditions disclosed in the items listed on
Exhibit K and to the environmental and physical condition of the Real Property;
provided, however, that, notwithstanding any such election to proceed, Seller
must comply with all of Seller's other obligations and duties under this
Agreement.
(e) Notwithstanding the foregoing Buyer acknowledges that it has
been made aware of the poor condition of the roof at 0000 X. Xxxxxx Xxxx
Xxxxxxxxx and shall not terminate this Agreement as a result thereof.
17. Conditions Precedent to Closing. The following are
conditions precedent to Buyers obligations under this Agreement (the "Buyer
Conditions Precedent"). The Buyer Conditions Precedent are intended solely for
the benefit of Buyer and may be waived only by Buyer in writing. In the event
any Buyer Condition Precedent is not satisfied, Buyer may, in its sole and
absolute discretion, terminate this Agreement and all obligations of Buyer and
Seller hereunder (except provisions of this Agreement which recite that they
survive termination) shall terminate and be of no further force or effect.
(a) Buyer's inspection, review and approval, within the
Inspection Period, of all aspects of the Real Property.
(b) The issuance by the Title Company to Buyer of the Title
Policy subject only to the Approved Title Exceptions and including the
Endorsements.
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13
(c) Buyer's receipt, within the Inspection Period, of an
"as-built", ALTA/ACSM survey (the "Survey") of the Real Property, reflecting all
plottable items referred to in the Preliminary Report, prepared by a surveyor or
civil engineer licensed in the State of California, complying with the
requirements, and containing the certification, set forth in Exhibit L attached
hereto.
(d) All of Seller's representations and warranties contained in
or made pursuant to this Agreement shall have been true and correct when made
and shall be true and correct as of the Closing Date.
(e) Seller shall have fully complied with all of Seller's duties
and obligations contained in this Agreement.
(f) There shall not have first arisen between the end of the
Inspection Period and the Closing Date, any litigation or administrative agency
action or other pending governmental proceeding which, after Closing, would, in
Buyer's reasonable discretion, materially adversely affect the value of the Real
Property or the ability of Buyer to operate the Real Property in the manner in
which it is currently being operated, nor any pending proceedings which would
cause the redesignation or other modification of the zoning classification of,
or of any building or environmental code requirements applicable to, any of the
Real Property. Seller shall notify Buyer promptly upon Seller's having knowledge
of any litigation to which Seller is a party or of any administrative proceeding
specifically relating to the Real Property.
(g) Seller shall have provided Buyer with an updated Lease
Schedule three (3) business days prior to Closing, which updated Lease Schedule
must not indicate any material adverse change from the Lease Schedule last
approved by Buyer. Seller shall specifically identify any changes from the most
recently approved Lease Schedule, and Buyer shall have performed a closing audit
which confirms the Lease Schedule.
(h) Seller shall terminate prior to the Closing, at no cost or
expense to Buyer, any and all Service Contracts or Other Documents affecting the
Real Property that are not Assigned Contracts. Concurrently with the expiration
of the Inspection Period, Buyer shall provide to Seller a list of the Assigned
Contracts.
(i) In Buyer's reasonable determination there shall not have
occurred, between the end of the Inspection Period and the Closing Date, any
material adverse change in or addition to the information or items reviewed and
approved by Buyer during the Inspection Period.
(j) Buyers review of the Required Estoppel Certificates to
confirm that they contain the documentation and/or information reasonably
requested by Seller, that they have not been modified in any material way, and
that they do not contain any assertion of a material default by the Seller.
Notwithstanding the foregoing, Estoppel Certificates will not be considered
non-conforming if the tenant has revised or deleted Paragraph 12 of the estoppel
certificate (which relates to environmental matters) or if the tenant delivers
an estoppel certificate
-13 -
14
substantially in the form required by such tenant's lease; provided, however,
that if the tenant revises Paragraph 12 in a manner that discloses a material
breach of the Seller's legal obligations relative to environmental matters, such
revision will be subject to Buyer's review and approval.
(k) Buyer's receipt of the Assumption Documentation.
18. Operation of Real Property. Seller shall have the right to
operate, manage, lease and maintain the Real Property utilizing the criteria
Seller used prior to execution of this Agreement. Notwithstanding the foregoing,
provided this Agreement is in full force and effect, Buyer shall have the right
to approve any new leases, lease extensions, lease modifications, sublease
agreements, assignments or contracts affecting the Real Property and Seller
shall not execute any new leases, lease extensions or lease modifications
without the prior written approval of Buyer which shall not be unreasonably
withheld. If Buyer does not respond within five (5) business days of Buyer's
receipt of Seller's request for approval, Buyer shall be deemed to have approved
such lease, lease extension or lease modification. Upon the expiration of the
Inspection Period, Seller shall not waive, compromise or settle any rights of
Seller under any contract or Lease, or agree to return any security deposit, or
modify, amend, or terminate any Assigned Contract, without in each case
obtaining Buyer's prior written consent thereto, which Seller agrees not to
unreasonably withhold, condition or delay. Seller shall terminate prior to the
Closing, at no cost or expense to Buyer, any and all Service Contracts that are
not Assigned Contracts. Between Seller's execution of this Agreement and the
Closing, Seller shall maintain the Real Property in good order, condition and
repair, reasonable wear and tear excepted, shall perform all work required to be
performed by the landlord under the terms of any Lease, and shall make all
repairs, maintenance and replacements of the Improvements and any Tangible
Property and otherwise operate the Real Property in substantially the same
manner as before the making of this Agreement, as if Seller were retaining the
Real Property. In the event of the Closing of the purchase of the Real Property,
Buyer shall not retain the existing employees and management agents of Seller
for the Real Property, and, accordingly, on the Closing, Seller shall (i) cause
all employment and management agreements respecting the Real Property to be
terminated, and deliver evidence of such termination to Buyer, and (ii) remove
all employees and management personnel from the Real Property.
19. Confidentiality. Buyer shall hold in strict confidence, and
shall cause its officers, directors and other personnel, representatives and
agents to hold in strict confidence, and not to disclose to any other party
without the express written consent of Seller, any of the information respecting
the Real Property or provided to Buyer by Seller or any of its agents,
representatives or employees. Notwithstanding the foregoing, Buyer's obligation
to keep such information confidential shall expire upon the occurrence of the
Closing, and during the escrow period Buyer may disclose such information on a
need-to-know basis to its professional advisors who are providing assistance in
connection with the acquisition of the Real Property, and to governmental bodies
in order to comply with applicable law. If Buyer acquires the Real Property from
Seller, Seller shall have the right, subsequent to the Closing, to publicize the
transaction in whatever manner it deems appropriate. The provisions of this
Paragraph 19 shall survive the termination of this Agreement.
-14-
15
20. Authority. The execution of this Agreement and the
performance of each party's obligations hereunder have been approved by any
necessary board of directors, members, general partner or other authorizing body
and is not subject to any further approval or contingency other than as set
forth herein.
21. Notices. All notices given hereunder shall be in writing and
shall be deemed received when delivered in hand, delivered by recognized
overnight delivery service, received by facsimile, or 72 hours after the same
have been deposited in the United States mail, postage prepaid, certified or
registered mail, return receipt requested, addressed to Buyer and Seller (and in
the case of Seller, with a copy to Xxxxxx & Xxxxxx, 000 Xxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Fax: (000) 000-0000); and in the case of
Buyer, with a copy to Xxx, Castle & Xxxxxxxxx LLP, 0000 Xxxxxxx Xxxx Xxxx, 00xx
Xxxxx, Xxx Xxxxxxx, XX 00000, Attn: Xxx X. Xxxxx, Esq., Fax: (000) 000-0000, at
their respective addresses appearing on the first page hereof, or to such other
address or addresses as the parties may from time to time specify by notice so
given.
22. Escrow Instructions. If requested by the Escrow Agent,
Seller and Buyer shall simultaneously upon execution of this Agreement execute
standard form printed escrow instructions of Escrow Agent.
23. Attorney's Fees. If litigation evolves between the parties
concerning this Agreement, the unsuccessful party shall pay to the prevailing
party all costs of suit, including reasonable attorneys' fees.
24. Assignment of this Agreement. Buyer may assign this
Agreement to a nominee so long as (a) Seller has given its express written
approval of such nominee, which consent shall not be unreasonably withheld, (b)
such nominee agrees in writing to assume all of Buyer's obligations hereunder
and (c) Buyer acknowledges in writing that an assignment of this Agreement does
not relieve Buyer of any of its obligations under this Agreement.
25. General. Time is of the essence of this Agreement. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto, their successors, personal representatives, and assigns. No member,
officer, director, shareholder, trustee, or beneficiary of a trust, if any,
under which the Seller or Buyer acts in executing this Agreement shall be
personally liable for any obligation, express or implied, hereunder. Any
liability of Seller hereunder is limited to Seller's interest in the Real
Property. If more than one person are named herein as Buyer, their obligations
are joint and several. This Agreement is to be construed as a Nevada contract,
sets forth entire contact between the parties, may not be canceled, amended, or
waived except in writing, is the complete and exclusive expression of the
parties' agreement respecting the Real Property (any and all prior statements,
representations, warranties and/or agreements, if any, being merged into this
Agreement), and no party hereto is relying on any statement, representation or
warranty made by or on behalf of any other party except as expressly
- 15-
16
set forth herein. This Agreement may be executed in one or more counterparts,
and signatures transmitted by facsimile shall be treated as original signatures.
26. WAIVER OF TRIAL BY JURY. BUYER AND SELLER DO EACH HEREBY
KNOWINGLY, VOLUNTARILY, UNCONDITIONALLY, IRREVOCABLY AND INTENTIONALLY FOREVER
WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR CONNECTED WITH, IN ANY MANNER WHATSOEVER, THIS
AGREEMENT.
27. Merger. The occurrence of the Closing shall be deemed to be
a full performance and discharge of every agreement and obligation of Buyer and
Seller hereunder, except as to any agreements which by their terms are to be
performed after the Closing.
-16-
17
Executed under seal as of the Effective Date.
SELLER:
MSC VALLEY VIEW, INC.,
a Delaware corporation
By:_______________________________
Name:__________________________
Title:_________________________
BUYER:
PACIFIC GULF PROPERTIES INC.,
a Maryland corporation
By: /s/ XXXXXX X. XXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxx EVP
-----------------------------------------------
(Print Name and Title)
By: [SIG]
--------------------------------------------
-----------------------------------------------
(Print Name and Title)
__________________________agrees to act as Escrow Agent in accordance with the
terms of this Agreement.
-----------------------------------------------
By:
--------------------------------------------
Name:
Title:
-17-
18
EXHIBIT A LEGAL DESCRIPTION
EXHIBIT B Intentionally Omitted
EXHIBIT C GRANT, BARGAIN, AND SALE DEED
EXHIBIT D ASSIGNMENT OF LEASES
EXHIBIT E ASSIGNMENT OF SERVICE CONTRACTS, WARRANTIES,
GUARANTIES, PERMITS AND OTHER INTANGIBLE PROPERTY
EXHIBIT F XXXX OF SALE
EXHIBIT G ESTOPPEL CERTIFICATE
EXHIBIT H FORM OF NOTICE TO TENANTS
EXHIBIT I TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
EXHIBIT J LEASE SCHEDULE
EXHIBIT K DUE DILIGENCE DELIVERIES
EXHIBIT L SURVEY REQUIREMENTS
SCHEDULE 14(c) LIST OF LITIGATION
-18-
19
EXHIBIT A
LEGAL DESCRIPTION
20
LV-759351C-RD
PRO-FORMA POLICY
SCHEDULE C
THE LAND REFERRED TO IN THIS POLICY IS SITUATED IN THE STATE OF NEVADA, COUNTY
OF XXXXX, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THAT PORTION OF THE SOUTHWEST QUARTER (SW 1/4) OF THE SOUTHEAST QUARTER (SE 1/4)
OF THE NORTHEAST QUARTER (NE 1/4) OF SECTION 19, TOWNSHIP 21 SOUTH, RANGE 61
EAST, M.D.B. & M., SITUATE IN THE COUNTY OF XXXXX, STATE OF NEVADA, DESCRIBED AS
FOLLOWS:
COMMENCING AT THE EAST QUARTER (E 1/4) CORNER OF SAID SECTION 19; THENCE SOUTH
89 DEGREES 36'43" WEST ALONG THE EAST-WEST QUARTER (E-W 1/4) SECTION LINE
1,027.84 FEET; THENCE NORTH 00 DEGREES 59'21" WEST 40.00 FEET TO THE TRUE POINT
OF BEGINNING, SAID POINT ALSO BEING ON THE NORTHERLY RIGHT OF WAY LINE OF XXXXXX
AVENUE;
NOTE: DOCUMENTS OF RECORD INDICATE THAT SAID POINT OF BEGINNING IS LOCATED AS
FOLLOWS: COMMENCING AT THE EAST QUARTER (E 1/4) OF SAID SECTION 19;
THENCE SOUTH 89 DEGREES 36'43" WEST ALONG XXX EAST-WEST QUARTER (E-W 1/4)
SECTION LINE 695.94 FEET; THENCE NORTH 01 DEGREE 09'02" WEST 40.00 FEET
TO A POINT, SAID POINT ALSO BEING ON THE NORTHERLY RIGHT OF WAY LINE OF
XXXXXX AVENUE.
THENCE SOUTH 89 DEGREES 36'43" WEST ALONG SAID NORTHERLY RIGHT OF WAY LINE
331.75 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 89 DEGREES
36'43" WEST ALONG SAID NORTHERLY RIGHT OF WAY LINE 364.09 FEET; THENCE NORTH
00 DEGREES 59'21" WEST 621.62 FEET; THENCE NORTH 89 DEGREES 36'30" EAST,
364.08 FEET; THENCE SOUTH 00 DEGREES 59'21" EAST, 621.65 FEET TO THE TRUE POINT
OF BEGINNING.
"CONTINUED ON NEXT PAGE"
21
LV-759351C-RD
PARCEL 2:
TOGETHER WITH A PERPETUAL EASEMENT FOR RAILROAD SPUR OVER THE FOLLOWING
DESCRIBED PROPERTY, FOR PURPOSES OF A RAILROAD SPUR, AS MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
PARCEL A:
THAT PORTION OF THE FOLLOWING DESCRIBED PROPERTY LYING EAST OF THE EAST BOUNDARY
LINE OF THE ABOVE DESCRIBED PARCEL:
THAT PORTION OF THE SOUTHWEST QUARTER (SW 1/4) OF THE SOUTHEAST QUARTER (SE 1/4)
OF THE NORTHEAST QUARTER (NE 1/4) OF SECTION 19, TOWNSHIP 21 SOUTH, RANGE 61
EAST, M.D.B. & M., SITUATE IN THE COUNTY OF XXXXX, STATE OF NEVADA, BEING A
STRIP OF LAND 20.00 FEET WIDE AND LYING 10.00 FEET ON EACH SIDE OF THE
FOLLOWING DESCRIBED CENTERLINE:
COMMENCING AT THE CENTER QUARTER CORNER OF SAID SECTION 19, THENCE NORTH 89
DEGREES 36'43" EAST ALONG THE EAST-WEST QUARTER SECTION LINE 1,391.93 FEET
(RECORDED 1,391.89 FEET); THENCE NORTH 00 DEGREES 59'21" WEST, 661.62 FEET;
THENCE NORTH 89 DEGREES 36'30" EAST, ALONG THE NORTH LINE OF THE SOUTHWEST
QUARTER (SW 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHEAST QUARTER
(NE 1/4) OF SAID SECTION 19. A DISTANCE OF 386.57 FEET TO THE TRUE POINT OF
BEGINNING; SAID POINT ALSO BEING ON A CURVE CONCAVE TO THE SOUTHEAST HAVING A
RADIUS OF 409.24 FEET; A RADIAL LINE TO SAID POINT BEARS NORTH 64 DEGREES 01'28"
WEST; THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 26
DEGREES 57'53" AN ARC LENGTH OF 192.60 FEET; THENCE SOUTH 00 DEGREES 59'21"
EAST, 37.89 FEET TO THE POINT OF TERMINATION.
PARCEL B:
THAT PORTION OF THE NORTH HALF (N 1/2) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE
NORTHEAST QUARTER (NE 1/4) OF SECTION 19, TOWNSHIP 21 SOUTH, RANGE 61 EAST,
M.D.B. & M., SITUATE IN THE COUNTY OF XXXXX, STATE OF NEVADA, BEING A STRIP OF
LAND 20.00 FEET WIDE AND LYING 10.00 FEET ON EACH SIDE OF THE FOLLOWING
DESCRIBED CENTERLINE:
COMMENCING AT THE CENTER QUARTER CORNER OF SAID SECTION 19, THENCE NORTH
89 DEGREES 36'43" EAST, ALONG THE EAST-WEST QUARTER SECTION LINE, 1391.93 FEET
(RECORDED 1,391.89 FEET); THENCE NORTH 00 DEGREES 59'21" WEST, 661.62 FEET;
THENCE NORTH 89 DEGREES 36'30" EAST ALONG THE NORTH LINE OF THE SOUTHWEST
QUARTER (SW 1/4) OF THE SOUTHEAST QUARTER (SE 1/4)
"CONTINUED ON NEXT PAGE"
22
LV-759351C-RD
OF THE NORTHEAST QUARTER (NE 1/4) OF SAID SECTION 19, A DISTANCE OF 386.57 FEET
TO THE TRUE POINT OF BEGINNING; SAID POINT ALSO BEING ON A CURVE CONCAVE TO THE
SOUTHEAST HAVING A RADIUS OF 409.24 FEET, A RADIAL LINE TO SAID POINT BEARS
NORTH 64 DEGREES 01'28" WEST; THENCE NORTHEASTERLY ALONG AN ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 09 DEGREES 07'46" AN ARC LENGTH OF 65.21 FEET; THENCE
NORTH 35 DEGREES 06'18" EAST, 72.99 FEET TO THE POINT OF TERMINATION.
PARCEL C:
THAT PORTION OF THE FOLLOWING DESCRIBED PARCEL OF LAND EXTENDING FROM AND
COMMENCING AT THE POINT OF THE INTERSECTION WITH PARCEL B ABOVE:
THAT PORTION OF THE NORTH HALF (N 1/2) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE
NORTHEAST QUARTER (NE 1/4) OF SECTION 19, TOWNSHIP 21 SOUTH, RANGE 61 EAST,
M.D.B. & M., SITUATE IN THE COUNTY OF XXXXX, STATE OF NEVADA, BEING A STRIP OF
LAND 20.00 FEET WIDE AND LYING 10.00 FEET ON EACH SIDE OF THE FOLLOWING
DESCRIBED CENTERLINE:
COMMENCING AT THE CENTER QUARTER OF SAID SECTION 19, THENCE NORTH 89 DEGREES
36'43" EAST, ALONG THE EAST-WEST QUARTER SECTION LINE, 1391.93 FEET (RECORDED
1,391.89 FEET); THENCE NORTH 00 DEGREES 59'21" WEST, 661.62 FEET; THENCE NORTH
89 DEGREES 36'30" EAST, ALONG THE NORTH LINE OF THE SOUTHWEST QUARTER (SW 1/4)
OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHEAST QUARTER (NE 1/4) OF SAID
SECTION 19, A DISTANCE OF 405.09 FEET TO THE TRUE POINT OF BEGINNING; SAID POINT
ALSO BEING ON A CURVE CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF 409.24 FEET, A
RADIAL LINE TO SAID POINT BEARS NORTH 72 DEGREES 59'58" WEST; THENCE
NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 61 DEGREES 13'31" AN
ARC LENGTH OF 437.30 FEET; THENCE NORTH 78 DEGREES 13'33" EAST, 245.47 FEET TO A
POINT OF TANGENCY TO A CURVE CONCAVE TO THE SOUTH HAVING A RADIUS OF 461.67
FEET; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 12 DEGREES
26'09" AN ARC LENGTH OF 100.20 FEET TO THE POINT OF TERMINATION.
PARCEL D:
THAT PORTION OF THE NORTH HALF (N 1/2) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE
NORTHEAST QUARTER (NE 1/4) OF SECTION 19, TOWNSHIP 21 SOUTH, RANGE 61 EAST,
M.D.B & M., SITUATE IN THE COUNTY OF XXXXX, STATE OF NEVADA, BEING A STRIP OF
LAND 20.00 FEET WIDE AND LYING 10.00 FEET ON EACH SIDE OF THE FOLLOWING
DESCRIBED CENTERLINE:
"CONTINUED ON NEXT PAGE"
23
LV-759351C-RD
COMMENCING AT THE CENTER QUARTER CORNER OF SECTION 19, THENCE NORTH 89 DEGREES
36'43" EAST ALONG THE EAST-WEST QUARTER SECTION LINE, 1391.93 FEET (RECORDED
1,391.89 FEET); THENCE NORTH 00 DEGREES 59'21" WEST, 661.62 FEET TO THE
NORTHWEST CORNER (NW COR.) OF THE SOUTHWEST QUARTER (SW 1/4) OF THE SOUTHEAST
QUARTER (SE 1/4) OF THE NORTHEAST QUARTER (NE 1/4) OF SAID SECTION 19; THENCE
NORTH 69 DEGREES 42'42" EAST, 569.98 FEET TO THE TRUE POINT OF BEGINNING; THENCE
SOUTH 50 DEGREES 13'33" WEST, 122.86 FEET TO A POINT OF TANGENCY TO A CURVE
CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 466.94 FEET; THENCE SOUTHWESTERLY
ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 15 DEGREES 36'03" AN ARC LENGTH OF
127.14 FEET TO THE POINT OF TERMINATION.
EXCEPTING THEREFROM ANY PORTION OF PARCELS A, B C AND D OF PARCEL 2 WHICH LIE
WITHIN THE BOUNDS OF PARCEL 1 ABOVE.
PARCEL 3:
A NON-EXCLUSIVE EASEMENT FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS AS
CREATED BY THAT CERTAIN RECIPROCAL EASEMENT RECORDED DECEMBER 7, 1989 IN BOOK
891207 OF OFFICIAL RECORDS, XXXXX COUNTY NEVADA, AS DOCUMENT NO. 00078 AND
RE-RECORDED DECEMBER 28, 1989 IN BOOK 891228 OF OFFICIAL RECORDS, XXXXX COUNTY
NEVADA, AS DOCUMENT NO. 00325 AND RE-RECORDED JANUARY 10, 1990 IN BOOK 900110 OF
OFFICIAL RECORDS, XXXXX COUNTY NEVADA, AS DOCUMENT NO. 00509 OVER THE WESTERLY
TWENTY (20') FEET OF THE FOLLOWING:
PARCEL I:
COMMENCING AT THE EAST QUARTER CORNER OF SAID SECTION 19; THENCE SOUTH 89
DEGREES 36'43" WEST ALONG THE EAST-WEST QUARTER SECTION LINE 695.94 FEET; THENCE
NORTH 01 DEGREE 09'02" WEST 40.00 FEET TO THE TRUE POINT OF BEGINNING, SAID
POINT ALSO BEING ON THE NORTHERLY RIGHT-OF-WAY LINE OF XXXXXX AVENUE; THENCE
SOUTH 89 DEGREES 36'43" WEST ALONG SAID NORTHERLY RIGHT-OF-WAY LINE 331.75
FEET;' THENCE NORTH 00 DEGREES 59'21" WEST, 497.69 FEET; THENCE NORTH 89 DEGREES
00'139" EAST, 210.00 FEET; THENCE NORTH 88 DEGREES 50'58" EAST, 120.32 FEET;
THENCE SOUTH 01 DEGREE 09'02" EAST 501.51 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL II:
COMMENCING AT THE EAST QUARTER CORNER OF SAID SECTION 19; THENCE SOUTH 89
DEGREES 36'43" WEST ALONG THE EAST-WEST QUARTER SECTION LINE 695.94 FEET; THENCE
NORTH 01 DEGREE 09'02" WEST, 541.51 FEET TO THE TRUE POINT OF BEGINNING; THENCE
CONTINUING NORTH 01 DEGREE 09'02" WEST 120.18 THENCE SOUTH 89 DEGREES 36'30"
WEST, 330.00 FEET; THENCE SOUTH 00 DEGREES 59'21" EAST, 123.96 FEET; THENCE
NORTH 89 DEGREES 00'39" EAST, 210.00 FEET; THENCE NORTH 88 DEGREES 50'58" EAST,
120.32 FEET TO THE POINT OF BEGINNING.
24
LV-7593SIE-RD
PRO-FORMA POLICY
SCHEDULE C
THE LAND REFERRED TO IN THIS POLICY IS SITUATED IN THE STATE OF NEVADA, COUNTY
OF XXXXX, AND IS DESCRIBED AS FOLLOWS:
LOT TWO (2), AS SHOWN BY MAP THEREOF ON FILE IN FILE 19 OF PARCEL MAPS, PAGE 5,
RECORDED MAY 1, 1978, AS DOCUMENT NO. 839636, IN THE OFFICE OF THE COUNTY
RECORDER OF XXXXX COUNTY, NEVADA.
EXCEPTING AND RESERVING ALSO TO THE UNITED STATES ALL OIL, GAS, AND POTASH AND
SODIUM IN THE LAND SO PATENTED, AND TO IT OR PERSONS AUTHORIZED BY IT, THE RIGHT
TO PROSPECT FOR, MINE, AND REMOVE SUCH DEPOSITS FROM THE SAME UPON COMPLIANCE
WITH THE CONDITIONS AND SUBJECT TO THE PROVISIONS AND LIMITATIONS OF THE ACT OF
JULY 17, 1914 (38 STAT. 509), AS AMENDED BY THE ACT OF MARCH 4, 1933 (47 STAT.
1570), AS RESERVED IN PATENT RECORDED JULY 17, 1964 IN BOOK 555 OF OFFICIAL
RECORDS, XXXXX COUNTY, NEVADA, AS DOCUMENT NO. 446703.
* * * * * * * *
DMJ
25
LV-759351A-RD
PRO-FORMA POLICY
SCHEDULE C
THE LAND REFERRED TO IN THIS POLICY IS SITUATED IN THE STATE OF NEVADA, COUNTY
OF XXXXX, AND IS DESCRIBED AS FOLLOWS:
LOT ONE (1) , AS SHOWN BY MAP THEREOF ON FILE IN FILE 19 OF PARCEL MAPS, PAGE 5,
RECORDED MAY 1, 1978, AS DOCUMENT NO. 839636, IN THE OFFICE OF THE COUNTY
RECORDER OF XXXXX COUNTY, NEVADA.
EXCEPTING AND RESERVING ALSO TO THE UNITED STATES ALL OIL, GAS, AND POTASH AND
SODIUM, IN THE LAND SO PATENTED, AND TO IT OR PERSONS AUTHORIZED BY IT, THE
RIGHT TO PROSPECT FOR, MINE AND REMOVE SUCH DEPOSITS FROM THE SAME UPON
COMPLIANCE WITH THE CONDITIONS AND SUBJECT TO THE PROVISIONS AND LIMITATIONS OF
THE ACT OF JULY 17, 1914 (38 STAT. 509), AS AMENDED BY THE ACT OF MARCH 4, 1933
(47 STAT. 1570), AS RESERVED IN THE PATENT AND RECORDED JULY 17, 1964 IN BOOK
555 OF OFFICIAL RECORDS, XXXXX COUNTY, NEVADA, AS DOCUMENT NO. 446703, XXXXX
COUNTY, NEVADA RECORDS.
DMJ
26
EXHIBIT B
INTENTIONALLY OMITTED
27
EXHIBIT C
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Pacific Gulf Properties Inc.
0000 Xxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xx. Xxxxxx Xxxxx
GRANT BARGAIN AND SALE DEED
THIS INDENTURE WITNESSETH: That MSC VALLEY VIEW, INC., a Delaware corporation,
whose address is c/o AMRESCO Advisors, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, XX 00000, in consideration of Ten Dollars ($10.00), the receipt of
which is hereby acknowledged, does hereby Grant, Bargain, Sell and Convey to
PACIFIC GULF PROPERTIES INC., a Maryland corporation, whose address is 0000 Xxx
Xxxxxx, Xxxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000-0000, all that real property
situate in the County of Xxxxx, State of Nevada, bounded and described on
Schedule 1 attached hereto and incorporated herein by this reference. Current
Assessor's Parcel Numbers: 470-162-19-601-022; 470-162-19-601-021;
470-162-19-601-018.
SUBJECT ONLY TO those items shown on Schedule 2 attached hereto and incorporated
herein.
Together with all and singular the tenements, hereditaments and appurtenances
thereunto belonging or in anywise appertaining.
IN WITNESS WHEREOF, the undersigned has executed this Grant, Bargain
and Sale Deed as of _________, 1997.
MSC VALLEY VIEW, INC.
By:____________________________________________
Name:_______________________________________
Title:______________________________________
28
STATE OF_______________)
) SS.
COUNTY OF______________)
On _____________, 199__, before me, the undersigned, a Notary
Public in and for said County and State, personally appeared_________________
of MSC Valley View, Inc., personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the within
instrument.
WITNESS my hand and official seal.
-------------------------------
Notary Public
29
LEGAL DESCRIPTION
30
EXCEPTIONS TO TITLE
31
EXHIBIT D
ASSIGNMENT OF LEASES
THIS ASSIGNMENT OF LEASES (this "Assignment") dated as of_________, 1997,
is made by MSC VALLEY VIEW, INC., a Delaware corporation ("Assignor"), to
PACIFIC GULF PROPERTIES INC., a Maryland corporation ("Assignee").
WITNESSETH:
WHEREAS, Assignor is the lessor under certain leases executed with
respect to that certain real property located in the City of Las Vegas, County
of Xxxxx, State of Nevada (the "Property") more particularly described on
Schedule 1 attached hereto and incorporated herein by this reference, which
leases are described in Schedule 2 attached hereto and incorporated herein by
this reference (the "Leases").
WHEREAS, Assignor is contemporaneously herewith selling the Property to
Assignee pursuant to that certain Purchase and Sale Agreement and Escrow
Instructions dated as of _________, 1997, by and between Assignor and Assignee
(the "Purchase Agreement").
WHEREAS, Assignor desires to assign its interest in and to the Leases to
Assignee as of the date on which title to the Property is vested in Assignee
(the "Transfer Date").
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereby agree as follows:
1. As of the Transfer Date, Assignor hereby assigns to Assignee all of
its right, title and interest in and to the Leases.
2. As of the Transfer Date, Assignee hereby assumes all of Assignor's
right, title and interest in and to the Leases.
3. Assignor hereby agrees to indemnify, defend and hold harmless
Assignee from and against any and all liabilities, claims, demands, damages and
costs, including, without limitation, attorneys' fees and expenses
(collectively, "Liabilities"), arising out of the lessor's obligations under the
Leases described in Schedule 2 and related to the period prior to or on the
Transfer Date or which arise out of the lessor's obligations under said Leases
after the Transfer Date on account of any fact or circumstance occurring or
existing on or prior to the Transfer Date.
4. Assignee hereby agrees to indemnify, defend and hold harmless
Assignor from and against any and all Liabilities arising out of the lessor's
obligations under the leases described in Schedule 2 and related to the period
after the Transfer Date, except for Liabilities which arise out of the lessor's
obligations under said Leases after the Transfer Date on account of any fact or
circumstance occurring or existing on or prior to the Transfer Date.
32
5. In the event of any litigation between Assignor and Assignee arising
out of the obligations of the parties under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the prevailing party's costs and expenses in such litigation,
including, without limitation, reasonable attorneys' fees and expenses. In
addition to the foregoing award of attorneys' fees to the prevailing party, the
prevailing party in any lawsuit on this Agreement shall be entitled to its
reasonable attorneys' fees incurred in any post judgment proceedings to collect
or enforce the judgment. This provision is separate and several and shall
survive the merger of this Assignment into any judgment on this Assignment.
6. This Assignment shall be binding on and inure to the benefit of the
Assignee and Assignor and their respective heirs, executors, administrators,
successors-in-interest and assigns.
7. This Assignment shall be governed by and construed in accordance with
the laws of the State of Nevada.
8. Nothing contained herein shall be deemed or construed as relieving
the Assignor or Assignee of their respective duties and obligations under the
Purchase Agreement.
IN WITNESS WHEREOF, Assignor has executed this Assignment as of the date
first above written.
ASSIGNOR: MSC VALLEY VIEW, INC.,
a Delaware corporation
By:
-------------------------------------
Name:
-----------------------------
Title:
-----------------------------
ASSIGNEE: PACIFIC GULF PROPERTIES INC.,
a Maryland corporation
By:
-------------------------------------
-------------------------------------------
(Print Name and Title)
By:
-------------------------------------
-------------------------------------------
(Print Name and Title)
33
Schedule 1
LEGAL DESCRIPTION OF REAL PROPERTY
34
Schedule 2
DESCRIPTION OF THE LEASES
35
EXHIBIT E
ASSIGNMENT OF SERVICE CONTRACTS, WARRANTIES,
GUARANTIES, PERMITS AND OTHER INTANGIBLE PROPERTY
THIS ASSIGNMENT OF SERVICE CONTRACTS, WARRANTIES, GUARANTIES AND OTHER
INTANGIBLE PROPERTY (this "Assignment") is made as of ___________, 199__, by
MSC VALLEY VIEW, INC., a Delaware corporation ("Assignor"), to PACIFIC GULF
PROPERTIES INC., a Maryland corporation ("Assignee").
WITNESSETH:
WHEREAS, Assignor is contemporaneously herewith selling pursuant to that
certain Purchase and Sale Agreement and Escrow Instructions dated as of
___________, 199___, by and between Assignor and Assignee (the "Purchase
Agreement") that certain real property and improvements thereon located in the
City of Las Vegas, County of Xxxxx, State of Nevada, the real property of which
is more particularly described on Schedule 1 attached hereto and incorporated
herein by this reference. Terms used in this Assignment and not otherwise
defined shall be given the meanings defined in the Purchase Agreement.
WHEREAS, Assignor desires to assign its interest in and to the following
to Assignee as of the date on which title to the Real Property is vested in
Assignee (the "Transfer Date"):
(a) All service contracts described in Schedule 2 attached
hereto and incorporated herein by this reference (the "Contracts");
(b) All "Warranties and Guaranties" (hereinafter defined);
(c) All "Names and Marks" (hereinafter defined);
(d) All "Intangible Property" (hereinafter defined); and
(e) All "Permits" (hereinafter defined).
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. As of the Transfer Date, Assignor hereby assigns and
transfers unto Assignee all of its right, title, claim and interest in,
to and under the (a) Contracts; (b) Warranties and Guarantees; (c) Names
and Marks; (d) Intangible Property and (e) Permits (collectively the
"Assigned Interests").
2. As of the Transfer Date, Assignee hereby assumes all of
Assignor's right, title and interest in and to the Assigned Interests.
36
3. The following terms shall have the following meanings:
(a) The term "Warranties and Guaranties" as used herein
shall mean and include all warranties and guarantees to the extent assignable,
whether or not written, for all or any portion of the Property, including
without limitation the Improvements and the Tangible Personal Property,
including without limitation construction warranties from contractors and
subcontractors.
(b) The term "Names and Marks" as used herein shall mean
and include all patents, licenses, trademarks, service marks and names used in
connection with the operation of the Property, and all symbols, emblems and
logos used in connection with the ownership or operation of the Property,
whether in black and white or in color, and irrespective of size, and all of
Assignor's right, title and interest in and to all goodwill associated
therewith, including, without limitation the name "Valley View Industrial
Center".
(c) The term "Intangible Property" as used herein shall
mean and include all intangible property relating to or used in connection with
the Property, as defined in the Purchase Agreement.
(d) The term "Permits" as used herein shall mean and
include all governmental permits and approvals relating to the construction,
operation, use or occupancy of the Property.
4. Assignor hereby agrees to indemnify, defend and hold harmless
Assignee from and against any and all liabilities, claims, demands, damages and
costs, including, without limitation, attorneys' fees and expenses
(collectively, "Liabilities"), arising out of the Assigned Interests and related
to the period prior to or on the Transfer Date or which arise out of the
Assigned Interests after the Transfer Date on account of any fact or
circumstance occurring or existing on or prior to the Transfer Date.
5. Assignee hereby agrees to indemnify, defend and hold harmless
Assignor from and against any and all Liabilities arising out of the Assigned
Interests after the Transfer Date, except for Liabilities which arise out of the
Assigned Interests after the Transfer Date on account of any fact or
circumstance occurring or existing on or prior to the Transfer Date.
6. In the event of any litigation between Assignor and Assignee
arising out of the obligations of the parties under this Assignment or
concerning the meaning or interpretation of any provision contained herein, the
losing party shall pay the prevailing party's costs and expenses in such
litigation, including, without limitation, reasonable attorneys' fees and
expenses. In addition to the foregoing award of attorneys' fees to the
prevailing party, the prevailing party in any lawsuit on this Agreement shall be
entitled to its reasonable attorneys' fees incurred in any post judgment
proceedings to collect or enforce the judgment. This provision is separate and
several and shall survive the merger of this Assignment into any judgment on
this Assignment.
37
7. This Assignment shall be binding on and inure to the benefit of
Assignee and Assignor, and their respective heirs, executors, administrators,
successors-in-interest and assigns.
8. This Assignment shall be governed by and construed in accordance
with the laws of the State of Nevada.
9. Nothing contained herein shall be deemed or construed as
relieving the Assignor or Assignee of their respective duties and obligations
under the Purchase Agreement.
IN WITNESS WHEREOF, Assignor has executed this Assignment as of the
date first above written.
ASSIGNOR: MSC VALLEY VIEW, INC.,
a Delaware corporation
By:
-------------------------------------
Name:
-----------------------------
Title:
-----------------------------
ASSIGNEE: PACIFIC GULF PROPERTIES INC.,
a Maryland corporation
By:
-------------------------------------
-------------------------------------------
(Print Name and Title)
By:
-------------------------------------
-------------------------------------------
(Print Name and Title)
38
Schedule 1
LEGAL DESCRIPTION OF REAL PROPERTY
39
Schedule 2
DESCRIPTION OF THE CONTRACTS
40
EXHIBIT F
XXXX OF SALE
FOR VALUE RECEIVED, MSC VALLEY VIEW, INC., a Delaware corporation
"Seller") hereby sells, conveys and assigns to PACIFIC GULF PROPERTIES INC., a
Maryland corporation, all of Seller's right, title and interest in and to all
personal property located upon or used in the ownership, operation, management,
maintenance and/or repair of that certain real property commonly known as
"Valley View Industrial Center" and described in Schedule I attached hereto and
incorporated herein by this reference and the improvements thereon
(collectively, the "Personal Property" which Personal Property shall include,
without limitation, the items described on Schedule 2 attached hereto and
incorporated herein by this reference.
TO HAVE AND TO HOLD the Personal Property unto the grantee and its
successors and assigns forever.
Seller warrants that it owns good and marketable title to the Personal
Property and will defend title to the Personal Property against all persons
claiming a prior right thereto to the extent that such prior right is alleged to
exist on or before the date of this Xxxx of Sale. Seller makes no representation
or warranty, express or implied, of merchantability, fitness for a particular
purpose, or otherwise except as set forth herein.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale on this
_______ day of _____________, 1997.
MSC VALLEY VIEW, INC.,
a Delaware corporation
By:
-------------------------------------
Name:
-----------------------------
Title:
-----------------------------
41
Schedule 1
LEGAL DESCRIPTION OF THE PROPERTY
42
Schedule 2
DESCRIPTION OF ITEMS INCLUDED IN THE PERSONAL PROPERTY
43
EXHIBIT G
ESTOPPEL CERTIFICATE
Tenant:____________________________________
Date:_________________________________199__
Address:___________________________________
___________________________________________
___________________________________________
Lease Date:________________________________
Commencement Date:_________________________
Square Footage:____________________________
Expiration Date:___________________________
Term In Years:_____________________________
Current Monthly Payments:$_________________
Base Rental:$______________________________
Operating Expenses:$_______________________
Rent & OE Pmts Are Due:____________________
Tax Pmts Are Due:__________________________
Taxes:$____________________________________
Security Deposit:__________________________
OPTIONS
Check appropriate box below
__ Extension Option
__ Expansion Option
__ Termination Option
__ Purchase Option
and provide details in Paragraph 7 below
__ None
__ Check here if you have rental escalations and
provide details in Paragraph 4 below.
Tenants Proportionate Share Of Taxes And Operating Expenses ___%
================================================================================
THE UNDERSIGNED, AS TENANT UNDER THE LEASE OF THE ABOVE REFERENCED
PREMISES ("PREMISES") EXECUTED BY __________________("LANDLORD"), AS LANDLORD,
AND TENANT ON THE ABOVE-REFERENCED LEASE DATE, DOES HEREBY STATE, DECLARE,
REPRESENT AND WARRANT TO LANDLORD, PACIFIC
44
GULF PROPERTIES INC. ("BUYER"), THEIR ASSIGNEES AND ANY PARTY PROVIDING
FINANCING ON THE PREMISES AS FOLLOWS:
1. Accuracy. That the information contained in this Tenant's Estoppel
Certificate is true and correct as of the date above written.
2. Lease. That the copy of the Lease attached hereto as Schedule I is a true and
correct copy of the Lease which is in full force and effect and which has not
been amended, supplemented or changed by letter agreement or otherwise, except
as follows [if none, indicate so by writing "NONE" below]:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
3. Completion of Premises/No Disputes. Tenant has accepted possession of the
Premises, and all conditions to be satisfied by Landlord under the Lease have
been completed pursuant to the terms of the Lease, including, but not limited
to, completion of construction of the Premises (and all other improvements
required under the Lease) in accordance with applicable plans and specifications
and within the time periods set forth in the Lease; there are no unreimbursed
expenses (except the annual operating expense and tax expense adjustment)
including, but not limited to, capital expenses reimbursements; and Tenant has
no complaints or disputes with Landlord regarding the overall operation,
maintenance or condition of the Premises or the property within which the
Premises is located (the "Property"), or otherwise.
4. Rental Escalation. Base Rental is subject to the following escalation
adjustments (if none, indicate so by writing "NONE" below):
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. No Defaults/Claims. Neither Tenant nor, to Tenant's knowledge, Landlord under
the Lease is in default under any terms of the Lease nor has any event occurred
which with the passage of time (after notice, if any, required by the Lease)
would become an event of default under the Lease. Tenant has no claims,
counterclaims, defenses or setoffs against Landlord arising from the Lease, the
Premises or the Property, nor is Tenant entitled to any concession, rebate,
allowance or free rent for any period after this certification.
6. No Advance Payments. No rent has been paid more than one (1) month in advance
by Tenant except for the current month's rent, and no security (other than a
security deposit in the amount of $___________ has been deposited with Landlord.
45
7. No Options/Purchase Rights. Tenant has no right of first refusal to purchase
the Property or any interest therein and no right to cancel or terminate the
Lease except as follows [if none, indicate so by writing "NONE" below]:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
8. No Modification of Lease. From the date of this Estoppel Certificate through
_________, 1997, no modification or amendment to the Lease, forgiveness of
payment of rent or other amount due under the Lease, grant of extension or
option, or prepayment of rents may be made except upon the written consent
thereto executed by Buyer, which consent may be unreasonably withheld if not
otherwise provided in the Lease.
9. Parking. The number of parking spaces allotted to Tenant under the terms of
the Lease, for the use of its employees, agents, invitees and licensees is
________; of these spaces, ________ are reserved for Tenant's exclusive use.
10. No Sublease/Assignment. Tenant has not entered into any sublease, assignment
or any other agreement transferring any of its interest in the Lease or the
Premises, except as follows:
--------------------------------------------------------------------------------
11. No Notice. Tenant has not received written notice of any assignment,
hypothecation, mortgage, or pledge of Landlord's interest in the Lease or the
rents or other amounts payable thereunder, except those listed below.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
12. Hazardous Materials. No hazardous or toxic substance (including without
limitation PCB's, petroleum, petroleum products and fractions thereof) has been
used, treated, stored or disposed of on the Premises or Property in violation
of environmental laws by Tenant or, to Tenant's knowledge, any other party. No
underground storage tanks exist or, to Tenant's knowledge, have existed on or
under the Property. Tenant does not have any permits or identification numbers
issued by any environmental or governmental agency with respect to its
operations on the Premises, except those listed below.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
13. Reliance. Tenant recognizes and acknowledges it is making these
representations to Buyer with the intent that Buyer and any assigns of Buyer
will fully rely on Tenant's representations.
14. Binding. The provisions hereof shall be binding upon and inure to the
benefit of the successors, assigns, personal representatives and heirs of Tenant
and Buyer.
46
EXECUTED BY TENANT, IF TENANT IS A SOLE PROPRIETOR OR A GENERAL PARTNERSHIP, OR
BY AN OFFICER OF TENANT, IF TENANT IS A CORPORATION, ON THE DATE FIRST WRITTEN
ABOVE.
BY:
--------------------------------
a
-------------------------
BY:
-------------------------
NAME:
-------------------------
TITLE:
-------------------------
47
Schedule 1 to Estoppel Certificate
LEASE
48
EXHIBIT H
FORM OF NOTICE TO TENANTS
________________ ,1997
To:
-------------------------------
-------------------------------
-------------------------------
RE: Notice of Lease Assignment
This letter is to notify you that the property commonly known as the
_________________ ("Property") has this date been sold and ownership
transferred.
In connection with this sale, all of the interest of the lessor under
your lease of space in the Property has been transferred. You are hereby
notified that, from and after the date hereof and until further notice, all
future payments under your lease should be made payable to "________________"
(the "Property Manager") and mailed to the Property Manager, whose address is
________________ __________________. In addition, all questions or other matters
regarding your lease should be directed to the Property Manager at (___)
__________.
Also in connection with this sale, if you have paid a security deposit
in connection with your lease, it has been transferred to the Property Manager.
The return of any such security deposit will be conditioned upon and subject to
the terms and conditions of the lease and the legal requirements of the State of
____________. All future inquiries regarding security deposits are to be
directed to the Property Manager.
Thank you for your cooperation.
Very truly yours,
-------------------------------------------
-------------------------------------------
-------------------------------------------
49
EXHIBIT I
TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
To inform PACIFIC GULF PROPERTIES INC., a Maryland corporation
("Transferee"), that withholding of tax under Section 1445 of the Internal
Revenue Code of 1986, as amended ("Code"), will not be required upon the
transfer of certain real property to the Transferee by MSC VALLEY VIEW, INC., a
Delaware corporation ("Transferor"), the undersigned hereby certifies the
following on behalf of the Transferor:
1. The Transferor is not a foreign corporation, foreign partnership,
foreign trust, foreign estate or foreign person (as those terms are defined in
the Code and the Income Tax Regulations promulgated thereunder);
2. The Transferor's U.S. employer or tax (social security)
identification number is _________________.
The Transferor understands that this Certification may be disclosed to
the Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
The Transferor understands that the Transferee is relying on this
Certification in determining whether withholding is required upon said transfer.
The Transferor hereby agrees to indemnify, defend and hold the
Transferee harmless from and against any and all obligations, liabilities,
claims, losses, actions, causes of action, rights, demands, damages, costs and
expenses of every kind, nature or character whatsoever (including, without
limitation, reasonable attorneys' fees and court costs) incurred by the
Transferee as a result of: (i) the Transferor's failure to pay U.S. Federal
income tax which the Transferor is required to pay under applicable U.S. law; or
(ii) any false statement contained herein.
Under penalty of perjury I declare that I have examined this Certification
and to the best of my knowledge and belief it is true and correct and complete,
and I further declare that I have authority to sign this document on behalf of
the Transferor.
Date:_____________,1997
MSC VALLEY VIEW, INC.
By:
-------------------------------------
Name:
-----------------------------
Title:
-----------------------------
50
EXHIBIT J
LEASE SCHEDULE
51
RENT ROLL
Valley View Industrial Center
OPERATING BUDGET FOR THE YEAR ENDING: 1998
RENT DATES
SUITE ESCAL. TERM/ ------------------ ANNUAL NOTICE TYPE
TENANT # AREA % OPTIONS BEGIN END RENT-PSF (mos) NNN/GROSS
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
CM Reprographics 1 10,000 3.3% 64 mos 11/1/93 10/31/94 $4.20 NNN
11/1/94 10/31/95 4.41
11/1/95 10/31/96 4.63
11/1/96 10/31/97 4.86
11/1/97 2/28/99 5.11
5 yr option 3/1/99 2/28/04 Market Rate 12
5 yr option 3/1/04 2/28/09 Market Rate 12
------------------------------------------------------------------------------------------------------------------------------
Holmans of Nevada 2 10,000 3.3% 64 mos 11/1/93 10/31/94 $4.20 NNN
11/1/94 10/31/95 4.41
11/1/95 10/31/96 4.63
11/1/96 10/31/97 4.86
11/1/97 2/28/99 5.11
5 yr option 3/1/99 2/28/04 Market Rate 12
5 yr option 3/1/04 2/28/09 Market Rate 12
------------------------------------------------------------------------------------------------------------------------------
Hill Enterprises 3 10,000 3.3% 30 mos 4/15/97 9/30/97 $4.80 NNN
10/1/97 9/30/98 $5.04
10/1/98 9/30/99 $5.28
------------------------------------------------------------------------------------------------------------------------------
Maui Toys 4 10,000 3.3% 36 mos 4/15/97 3/31/98 $5.28 NNN
4/1/98 3/31/99 $5.48
4/1/99 3/31/00 $5.68
------------------------------------------------------------------------------------------------------------------------------
Art & Frame Supply 5 10,000 3.3% 65 mos 2/1/93 2/28/93 $3.72 NNN
3/1/93 6/30/93 $1.98
7/1/93 7/31/93 $3.96
8/1/93 1/31/94 $4.08
2/1/94 1/31/95 $4.28
2/1/95 1/31/96 $4.50
2/1/96 1/31/97 $4.72
2/1/97 6/30/98 $4.96
5 yr. option 7/1/98 6/30/03 Market Rate 6
5 yr. option 7/1/03 6/30/08 Market Rate 6
------------------------------------------------------------------------------------------------------------------------------
Cinema Services 6-8 30,000 10.0% 3/1/97 10/31/97 $5.04 NNN
------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx 9-10 20,000 6.7% 3 yrs 2/1/95 1/31/96 $4.41
2/1/96 1/31/97 $4.79
2/1/97 1/31/98 $5.03
3 yr renewal 2/1/98 1/31/99 $5.52
2/1/99 1/31/00 $5.76
2/1/00 1/31/01 $6.00
3 yr option 2/1/01 1/31/04 Market Rate 12
3 yr option 2/1/04 1/31/07 Market Rate 12
------------------------------------------------------------------------------------------------------------------------------
EXPENSE SECURITY
TENANT STOP-PSF DEPOSIT OPTIONS/RIGHTS/COMMENTS
------------------------------------------------------------------------------------------------------------------------------
CM Reprographics $4,500.00 Landlord may not enter into a lease with another tenant
that allows sales/services/rental of blue printing, drafting
supplies, xerography, plotting service bureau, color plotter
bureau, scanning service bureau and specifications or quick
printing excluding Holmans of Nevada and the existing tenants
as of July, 1993.
Option rate at market with 5% annual increases
Option rate at market with 5% annual increases
------------------------------------------------------------------------------------------------------------------------------
Holmans of Nevada $4,500.00 Landlord may not enter into a lease with another tenant that
allows sales/service/rental of computers and related printers
or equipment, drafting supplies and surveying systems, except
for CM Reprographics and the existing tenants as of July, 1993
Option rate at market with 5% annual increases
Option rate at market with 5% annual increases
------------------------------------------------------------------------------------------------------------------------------
Hill Enterprises $4,800.00 Lease guaranteed by Xxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------------
Maui Toys $4,400.00 Lease guaranteed by Xxxxx Xxxxxxx
------------------------------------------------------------------------------------------------------------------------------
Art & Frame Supply $3,800.00 Lease guaranteed by Xxxxxxx X. Xxxxxxxx
Option rate at market with 5% annual increases
Option rate at market with 5% annual increases
------------------------------------------------------------------------------------------------------------------------------
Cinema Services 0.00 Lease assigned to Xxxxxx Productions 4/5/96
Lease was extended 3/1/97 Tenant building new building
------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx 4,200.00
Option rate at market with 5% annual increases
Option rate at market with 5% annual increases
------------------------------------------------------------------------------------------------------------------------------
1 of 3
52
RENT ROLL
Valley View Industrial Center
OPERATING BUDGET FOR THE YEAR ENDING: 1998
-----------------------------------------------------------------------------------------------------------------------------------
RENT DATES
SUITE ESCAL. TERM/ ----------- ANNUAL NOTICE TYPE EXPENSE SECURITY OPTIONS/RIGHTS/
TENANT # AREA % OPTIONS BEGIN END RENT-PSF (mos) NNN/GROSS STOP/PSF DEPOSIT COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
3950
Coremark 1-9 90,000 30.0% 76 mos 1/1/94 4/30/94 $1.49 NNN $23,085.00 Tenant has first
International 5/1/94 3/31/95 $3.13 right of refusal
4/1/95 4/30/95 $3.46 on any available
space in 3950
building
5/1/95 4/30/96 $2.84 Tenant leased
5/1/96 4/30/97 $3.20 additional 10,000
5/1/97 4/30/99 $3.28 sq. ft. 2/1/96
5/1/99 4/30/00 $3.36 Received three
months free rent
5 yr option 5/1/00 4/30/05 Lower of 12 Option rate the
Market or lower of market
5% over or 5% increase
last years last years rent,
rent 2% annul
increases
5 yr option 5/1/05 4/30/10 Lower of 12 Option rate the
Maket or lower of market
5% over or 5% increase
last years last years rent,
rent 2% annual
increases
------------------------------------------------------------------------------------------------------------------------------------
Hill Enterprises 10 10,000 3.3% 29 mos 5/1/95 9/30/95 $5.62 NNN $4,500.00
10/1/95 9/30/96 $4.56
10/1/96 9/30/97 $4.79
24 mos 10/1/97 9/30/98 $5.04 Tenant renewed
10/1/98 9/30/99 $5.28 lease for two
years 10/1/97
------------------------------------------------------------------------------------------------------------------------------------
4050.00
Star Nursery 1-2 20,000 6.7% 64 mos 11/22/91 5/31/92 $0.82 $0.00 Tenant has first
6/1/92 3/31/95 $3.72 right of refusal
4/1/95 3/31/96 $3.94 on any available
4/1/96 3/31/97 $4.08 adjacent space
1 yr option 4/1/97 3/31/98 $4.39 6 Option rents were
stated in lease
1 yr option 4/1/98 3/31/99 $4.54 6 Option rents were
stated in lease
------------------------------------------------------------------------------------------------------------------------------------
All American 3,4,6 30,000 10.0% 61 mos 1/1/95 6/30/95 $4.34 $12,000.00 Lease guaranteed
7/1/95 6/30/96 $4.55 by Xxxxx Xxxxxxxx
7/1/96 3/31/97 $4.85 & Xxxxxx Xxxx
4/1/97 3/31/98 $5.12
4/1/98 3/31/99 $5.41
5 yr option 4/1/99 3/31/04 Lower of 12 Option rate the
Market or lower of market
5% over or 5% increase
last last years rent,
years rent 5% annual
increases
5 yr option 4/1/04 3/31/09 Lower of 12 Option rate the
Market or lower of market
5% over or 5% increase
last last years rent,
years rent 5% annual
increases
------------------------------------------------------------------------------------------------------------------------------------
Sho-Aids 5 10,000 3.3% 75 mos 1/1/93 6/30/93 $1.92 $3,500.00
7/1/93 12/31/93 $3.84
1/1/94 12/31/94 $4.01
1/1/95 3/31/96 $4.19
4/1/96 3/31/97 $5.04
4/1/97 3/31/98 $5.27
4/1/98 3/31/99 $5.50
3 yr option 4/1/99 3/31/02 Lower of 12 Option rate the
4/1/02 3/31/05 Market or lower of market
4.5% over or 4.5% increase
last years last years rent,
rent 4.5% annual
Lower of 12 increases
Market or Option rate the
4.5% over lower of market
last years or 4.5% increase
rent last years rent,
4.5% annual
increases
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx 7 10,000 3.3% 3 yrs 2/1/95 1/31/96 $4.56 $0.00
2/1/96 1/31/97 $4.79
2/1/97 1/31/98 $5.03
3 yr option 2/1/98 1/31/01 Lower of 12 Option rate the
Market or lower of market
5% over or 5% increase
last last years rent,
years rent 5% annual
increases
3 yr option 2/1/01 1/31/04 Lower of 12 Option rate the
Market or lower of market
5% over or 5% increase
last last years rent,
years rent 5% annual
increases
53
RENT ROLL
Valley View Industrial Center
OPERATING BUDGET FOR THE YEAR ENDING: 1998
-----------------------------------------------------------------------------------------------------------------------------------
RENT DATES
SUITE ESCAL. TERM ------------ ANNUAL NOTICE TYPE EXPENSE SECURITY
TENANT # AREA % OPTIONS BEGIN END RENT-PSF (mos) NNN/GROSS STOP-PSF DEPOSIT OPTIONS/RIGHTS/COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Reading Tube 8-10 30,000 10% 38 mos. 7/1/93 8/31/94 $4.20 $20,000.00
9/1/94 8/31/95 $4.41
9/1/95 8/31/96 $4.63
36 mos. 9/1/96 8/31/97 $5.04 Tenant exercised option
9/1/97 8/31/98 $5.29 from first lease
9/1/98 8/31/99 $5.56 New lease gave tenant
two new options
3 yr. 9/1/99 8/31/02 Lower of 12 Option rate the lower
option market of market or 5% increase
or 5% last years rent,
over 5% annual increases
last
years
rent
3 year 9/1/02 8/31/05 Lower of 12 Option rate the lower
option market of market or 5% increase
or 5% last years rent,
over 5% annual increases
last
years
rent
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
300,000 100.0% Average Rent
-----------------------------------------------------------------------------------------------------------------------------------
Total Leased SF: 300,000 100.0%
TOTAL VACANT SF: -- 0.0%
-------
300,000 100.0%
=======
54
EXHIBIT K
DUE DILIGENCE DELIVERIES**
Seller shall deliver true, complete and correct copies of each of the following
to Buyer:
1. Current Lease Schedule showing the name of each lessee, the approximate
square footage occupied, and a specific description of the lease (the "Lease
Schedule").
2. Copies of all Leases.
3. A schedule (the "Schedule of Agreements") setting forth a list of all of
the service contracts and other agreements or rights related to the ownership,
use or operation of the Property, including utility contracts, maintenance
contracts, lease brokerage or commission agreements and equipment leases
(collectively, the "Service Contracts"), but excluding any property management
agreements that Seller will have terminated at or before Closing. From this
Schedule of Agreements, Buyer shall designate those contracts that Seller shall
assign to Buyer and that Buyer shall assume as of Closing (such designated
Service Contracts together with the Warranties and any Other Documents
designated by Buyer for assignment are collectively referred to herein as the
"Assigned Contracts").
4. A current ALTA extended coverage preliminary title report on the Real
Property, issued by Title Company, accompanied by copies of all documents
referred to in the report (collectively, the "Preliminary Report").
5. A copy of any survey of the Real Property in Seller's possession.
6. Available governmental permits and approvals relating to the
construction, operation, use or occupancy of the Property, including without
limitation, all building permits, certificates of completion, certificates of
occupancy, environmental permits and licenses (individually and collectively
"Permits").
7. A copy of a year-to-date (through July 30, 1997) operating statement.
Copies of the most recent property tax bills and assessments for the Property. A
copy of the budget for the Property for the current year.
8. Available, presently effective warranties or guaranties from any
contractors, subcontractors, suppliers, servicemen or materialmen in connection
with any of the Tangible Personal Property or any construction, renovation,
repairs or alterations of the Improvements or any tenant improvements
(collectively, the "Warranties").
9. Available reports in Seller's possession relating to the Property,
including environmental reports, environmental audits, soils reports, site
plans, engineering reports and plans, landscape
55
plans, structural calculations, floor plans, construction contracts, and other
reports or documents of significance to the Property.
----------
** All due diligence deliveries shall be only of materials that are in the
possession of Seller and/or Seller's agents.
56
EXHIBIT L
SURVEY REQUIREMENTS
OWNER: PACIFIC GULF PROPERTIES INC.
TITLE COMPANY: ____________________________
1. Certification: Survey to be certified to (i) Owner and (ii) Title
Company by a Registered Land Surveyor or a licensed Civil Engineer using
the attached long-form certification. Survey (a) is to have surveyor's
seal affixed and (b) is to reflect a current date; provided that older
surveys are acceptable if updated and recertified within 90 days of
Closing.
2. Legal Description and Address: The full legal description and street
address must be shown. The legal description must be identical to that
shown in Title Company's most recent title report (the "Title Report")
or discrepancies explained. If the Property is described as being on a
filed map, the survey should contain a legend relating the parcel to the
map on which it is shown. With regard to a metes and bounds description,
a monument or a reference to a nearby monument should establish the
beginning point.
3. Properly Identified: All perimeter property lines must be specifically
identified. Show the location by courses and distances of: (a) the fee
parcel; (b) the relation of the point of beginning of said parcel to the
monument from which it is fixed; (c) all servient easements; (d) the
established building line; (e) all easements appurtenant to said parcel;
and (f) the line of the street or streets abutting the parcel and the
width of said streets.
4. Parcel Size: The number of square feet or acres contained in the parcel
covered by the survey must be specifically identified.
5. Distances and Access: All streets adjacent to the property, R.O.W.
lines, and the distance from the nearest major intersecting streets must
be specifically identified and distances shown. The survey must disclose
that access to the adjacent streets exists.
6. Curb Cuts, Driveways, and Other Matters Identified: All curb cuts,
driveways, fences, and location of major trees and shrubbery to be
protected must be shown.
7. Title Company Exceptions Plotted: All exceptions on the Title Report
must be plotted (or identified on the face of the survey as not
plottable). Indicate reason that any exception (except liens) is not
plottable.
8. Easements: All easements affecting the Property identified by recording
information (Book and Page or document number of instrument creating the
easement) must be
57
shown. All evidence of prescriptive easements or other visible evidence
of possible third-party rights must also be shown.
9. Structures and Distances Shown (Spotted, In-Place Survey): All
structures, foundations, improvements including sidewalks, xxxxxx,
overhangs, fences, and parking areas must be shown. The square footage
of all structures must be listed. Show all structures and improvements
on said parcel with horizontal lengths of all sides and the relation
thereof by distances to: (a) all boundary lines of the parcel; (b)
servient easements; (c) established building lines; (d) street lines;
and (e) square foot area of all structures. Show all improvements on
adjoining property which are within five (5) feet of the property lines
of the Land.
10. Utility Lines: Identify all utility lines as they service the Property
and improvements (sewer, water, gas, electric, and telephone). Indicate
whether the utility line is above or below grade, show the sizes of the
respective service, and indicate the point of installation to the
improvements and to offsite mains.
11. Set-back Lines: Show building restriction lines and applicable yard and
setback requirements and distances.
12. Party Walls and Encroachments: Show and describe all party walls and
encroachments (either onto or from the Land) or make positive statement
that there are no party walls or encroachments.
13. Parking: List parking requirements of applicable zoning ordinances based
on intended use of the parcel. Identify parking and paved areas.
Identify the number of vehicles that may be parked in each parking area.
A total of the parking spaces should be given in the Notes, including
how many are designated for handicapped parking and compact cars.
14. Floodplain Note: State whether or not property appears on any U.S.
Department of HUD Flood Insurance Boundary Map, and if so, further state
map number and whether or not property appears in the "Flood Hazard
Area" shown on the map.
15. Watercourse Flow: Show the location and direction of flow for existing
streams, rivers, or surface drainage system, if applicable.
16. Railroad Tracks: Show the location of railroad tracks and sidings, if
applicable.
17. Adverse Soil Conditions: The location of rubbish fills, sloughs,
springs, any underground tanks, filled-in walls or cisterns and seep
holes should be charted whenever possible.
18. Mineral Rights: Identify mineral rights and if there is right to surface
entry.
58
19. Seismic Hazard Note: Include in Notes a statement that the property is
not in a Special Study Zone as designated under the Xxxxxxx-Xxxxxx
Special Studies Zone Act, California Public Resources Code Section 2621,
et seq.
REQUIRED CERTIFICATION
I hereby certify to PACIFIC GULF PROPERTIES INC. and TITLE COMPANY that:
a) This map or plat and the survey on which it is placed (i) were made in
accordance with the "Minimum Standard Requirements for ALTA/ACSM Land Title
Surveys," jointly established and adopted by ALTA and ACSM in 1992, and includes
items 1 through 4, 6 through 11 and 13 of Table A thereof, (ii) meet the
Accuracy Standards (as adopted by ALTA and ACSM and in effect on the date of
this Certification) of an Urban Survey; and (iii) in all respects meets the
requirements of all applicable law.
b) On the ________ day of 19___, this survey was made on the ground as per
the field notes shown on this survey, and correctly shows (i) the boundaries and
areas of the subject property and the size, location, and type of buildings and
improvements thereon and the distance therefrom to the nearest facing exterior
property lines of the subject property, (ii) the location of all rights-of-way,
easements, and any other matters of record (or of which I have knowledge or have
been advised, whether or not of record) or appearing from careful visual
inspection of the property, affecting or benefiting the subject property, (iii)
the location of the parking areas on the subject property, (iv) all abutting
dedicated public streets providing access to the subject property, together with
the width the name thereof, and (v) all other significant items on the subject
property;
c) The description of the subject property shown hereon corresponds to the
boundaries of the subject property shown on the survey, and such description
closes by engineering calculation;
d) The subject property contains _______ [square feet] ________ [acres]
and a total of ________ striped parking stalls, _________ regular, __________
compact and __________ handicapped;
e) No covenants, restrictions, or easements that are of record,
discoverable upon visual inspection, or otherwise known to me appear to me to
have been violated in any respect except as shown;
f) Except as set forth below (including under the subject property to the
extent known to me or ascertainable upon physical inspection without excavation)
there are no (i) encroachments upon the subject property by improvements on
adjacent property, (ii) encroachments on any easements or on adjacent property,
streets, or alleys by any improvements on the subject property, (iii) party
walls, (iv) conflicts or protrusions. The exceptions to the above statements are
as follows: [if none, so state];
59
g) Adequate ingress to and egress from the subject property is provided by
[name of streets], the same being paved, dedicated public right(s)-of-way
maintained by [name of maintaining authority];
h) All required building set-back lines on the subject property are
located as shown hereon, and there are no violations of the set-back lines by
any improvements on the subject property. The exceptions to the above statements
are as follows: [if none, so state];
i) There are no violations of zoning ordinances, restrictions or other
rules and regulations with reference to the location of said buildings and
improvements, and the number and configuration of parking spaces;
j) All utility services required for the operation of the subject property
enter the subject property through the adjoining public streets, or if they do
not, this survey shows the point of entry and location of any utilities which
pass through or are located on adjoining private land and contains a legal
description of area occupied by such utilities; and
k) No portion of the subject property shown hereon lies within the
100-year flood plain or any area subject to special flood hazards, and the
subject property lies within Flood Zone _________ (defined in Survey Notes), as
shown on the Flood Insurance Rate Map published by the Federal Emergency
Management Agency for the City of __________, Community Panel Number___,
Effective Date___, and this survey shows the location and direction of all storm
drainage systems serving the property.
-------------------------------------------
[Signature of Surveyor]
Registered Public Surveyor
[Name, address, telephone number and job number of Surveyor]
60
SCHEDULE 14(C)
LIST OF LITIGATION
MSC Valley View, Inc. adv. Tech-Mail LLC, Xxxx Xx. X000000, Xxxxxxxx Xxxxx,
Xxxxx Xxxxxx, Xxxxxx
