REINSTATEMENT OF AND
SECOND AMENDMENT TO AGREEMENT OF SALE AND PURCHASE
THIS REINSTATEMENT OF AND SECOND AMENDMENT TO AGREEMENT OF SALE AND
PURCHASE (this "Amendment") is executed as of this 10/th/ day of September,
2002, by and between ASP TWO CORPORATE PLAZA, L.P., a Delaware limited
partnership ("Seller"), and TRIPLE NET PROPERTIES, LLC, a Virginia limited
liability company ("Buyer").
WITNESSETH
WHEREAS, as of August 14, 2002, Seller and Buyer entered into that
certain Agreement of Sale and Purchase (the "Agreement"), relating to the
purchase and sale of certain property commonly known as Xxx Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxx and more particularly described in the Agreement (the
"Property"); and
WHEREAS, by notice dated August 30, 2002. Buyer elected to terminate
the Agreement pursuant to Section 3.6 thereof; and
WHEREAS, as of September 6, 2002, Seller and Buyer entered into that
certain Reinstatement of and First Amendment to Agreement of Sale and Purchase;
and
WHEREAS, Buyer is deemed to have terminated the Agreement because
Buyer failed to confirm in writing to Seller by 5:00 p.m. CDT on September 6,
2002 that Buyer accepted and approved all matters described in Sections 3.1 and
3.2 of the Agreement; and
WHEREAS, Seller and Buyer desire to reinstate the Agreement and to
amend certain terms and conditions thereof.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt,
adequacy and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Defined Terms. All capitalized terms not otherwise defined herein shall
have the meaning ascribed to such terms in the Agreement.
2. Reinstatement. Buyer and Seller hereby agree that the Agreement is
reinstated in its entirety, as if the termination of the Agreement by Buyer
has never occurred. Buyer and Seller further agree that the Agreement shall
remain in full force and effect, as amended by this Agreement.
3. Due Diligence. Buyer represents and warrants to Seller that Buyer has
completed its Due Diligence, and Buyer hereby waives the right to terminate
the Agreement pursuant to Article III thereof. Accordingly, as set forth in
Section 3.6 of the Agreement, Buyer confirms that Buyer has accepted and
approved all of the matters described in Sections 3.1 and 3.2 of the
Agreement.
4. Closing Date. The Closing Date, as set forth in Section 9.2 of the
Agreement, is hereby extended from September 30, 2002 to October 15, 2002.
Furthermore, Buyer is hereby granted a one time extension right to extend
the Closing Date until November 14, 2002 (the "Extension Right"),
exercisable by written notice to Seller and Escrow Agent on or before
October 10, 2002 at 12:00 noon CDT and by: (i) increasing the Deposit to
Seven Hundred Fifty Thousand and No/100 Dollars ($750,000.00) by depositing
an additional Five Hundred Thousand and No/100 Dollars ($500,000.00) in
immediately available funds with the Escrow Agent via wire transfer with
Escrow Agent by 5:00 p.m. CDT on October 10, 2002, and (ii) in the notice
of Buyer's election to exercise its Extension Right, authorizing and
directing Escrow Agent to immediately release Five Hundred Thousand and
No/100 Dollars of the Deposit to Seller, which such portion of the Deposit
shall be applied to the Purchase Price on the Closing Date and is
non-refundable except as a result of Seller's default under Sections 5.1 of
the Agreement. In the event that Seller has not received Buyer's notice of
its election to exercise its Extension Right by October 10, 2002 at 12:00
noon CDT, Buyer shall be deemed to have waived its Extension Right and the
Extension Right shall be null and void.
5. Effect. Except as specifically set forth above, all terms and conditions of
the Agreement shall remain in full force and effect.
6. Facsimile Execution. For purposes of negotiating and finalizing this
Amendment, any signed document, including this Agreement, transmitted via
facsimile shall be treated in all manners and respects as an original
document and any signature thereon shall be considered an original
signature and shall have the same binding legal effect as if the original
document and signature was delivered to the other party.
7. Counterparts. This Amendment may be executed in any number of counterparts,
each of which shall constitute an original and all of which taken together
shall constitute one and the same instrument.
[Signature Page Follows]
Page 2
IN WITNESS WHEREOF, Seller and Buyer have caused this Reinstatement of
and Second Amendment to Agreement of Purchase and Sale to be executed as of the
date first written above.
SELLER: ASP TWO CORPORATE PLAZA, L.P.,
a Delaware limited partnership
By: ASP TWO CORPORATE PLAZA GP,
L.L.C., a Delaware limited liability
company, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx [STAMP]
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
-----------------------------
Title: Vice-President
----------------------------
BUYER: TRIPLE NET PROPERTIES, LLC, a
Virginia limited liability company
By: _____________________________
Name: ____________________________
Title: ___________________________
Page 3
IN WITNESS WHEREOF, Seller and Buyer have caused this Reinstatement of
and Second Amendment to Agreement of Purchase and Sale to be executed as of the
date first written above.
SELLER: ASP TWO CORPORATE PLAZA, L.P.,
a Delaware limited partnership
By: ASP TWO CORPORATE PLAZA, GP,
L.L.C., a Delaware limited liability
company, its general partner
By: ________________________________
Name:_______________________________
Title:______________________________
BUYER: TRIPLE NET PROPERTIES, LLC, a
Virginia limited liability company
By: ________________________________
Name:_______________________________
Title:______________________________
Page 3
REINSTATEMENT OF AND
FIRST AMENDMENT TO AGREEMENT OF SALE AND PURCHASE
THIS REINSTATEMENT OF AND FIRST AMENDMENT TO AGREEMENT OF SALE AND
PURCHASE (this "Amendment") is executed as of this ____ day of September, 2002,
by and between ASP TWO CORPORATE PLAZA, L.P., a Delaware limited partnership
("Seller"), and TRIPLE NET PROPERTIES, LLC, a Virginia limited liability company
("Buyer").
W I T N E S S E T H:
WHEREAS, as of August 14, 2002, Seller and Buyer entered into that
certain Agreement of Sale and Purchase (the "Agreement"), relating to the
purchase and sale of certain property commonly known as Xxx Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxx and more particularly described in the Agreement (the
"Property"); and
WHEREAS, by notice dated August 30, 2002, Buyer elected to terminate
the Agreement pursuant to Section 3.6 thereof; and
WHEREAS, Seller and Buyer desire to reinstate the Agreement and to
amend certain terms and conditions thereof.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt,
adequacy and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Defined Terms. All capitalized terms not otherwise defined herein shall
have the meaning ascribed to such terms in the Agreement.
2. Reinstatement. Buyer and Seller hereby agree that the Agreement is
reinstated in its entirety, as if the termination of the Agreement by Buyer
had never occurred. Buyer and Seller further agree that the Agreement shall
remain in full force and effect, as amended by this Amendment.
3. Due Diligence. Buyer represents and warrants to Seller that Buyer has
completed its Due Diligence, except with respect to review of that certain
Property Condition Assessment Report by XxXxxx Engineering, Inc. (the
"Report"), and Buyer hereby waives its rights to terminate the Agreement
pursuant to Article III thereof, except with respect to the Report.
Accordingly, as set forth in Section 3.6 of the Agreement, Buyer confirms
that Buyer has accepted and approved all of the matters described in
Sections 3.1 and 3.2 of the Agreement except with respect to the Report.
Solely with respect to the Report, the Due Diligence Period in Section 3.1
of the Sale Agreement shall be extended from August 30, 2002 to September
6, 2002 at 5:00 p.m. CDT.
4. Closing Date. The Closing Date, as set forth in Section 9.2 of the
Agreement, is hereby extended from September 30, 2002 to October 15, 2002.
Furthermore, Buyer is hereby granted a one time extension right to extend
the Closing Date until November 14, 2002
(the "Extension Right"), exercisable by written notice to Seller and Escrow
Agent on or before October 10, 2002 at 12:00 p.m. CDT and by: (i)
increasing the Deposit to Seven Hundred Fifty Thousand and No/100 Dollars
($750,000.00) by depositing an additional Five Hundred Thousand and No/100
Dollars ($500,000.00) in immediately available funds with the Escrow Agent
via wire transfer with Escrow Agent by 5:00 p.m. CDT on October 10, 2002,
and (ii) in the notice of Buyer's election to exercise its Extension Right,
authorizing and directing Escrow Agent to immediately release Five Hundred
Thousand and No/100 Dollars of the Deposit to Seller, which such portion of
the Deposit shall be applied to the Purchase Price on the Closing Date and
is non-refundable except as a result of Seller's default under Sections 5.1
of the Agreement. In the event that Seller has not received Buyer's notice
of its election to exercise its Extension Right by October 10, 2002 at
12:00 p.m. CDT, Buyer shall be deemed to have waived its Extension Right
and the Extension Right shall be null and void.
5. Effect. Except as specifically set forth above, all terms and conditions of
the Agreement shall remain in full force and effect.
6. Facsimile Execution. For purposes of negotiating and finalizing this
Amendment, any signed document, including this Amendment, transmitted via
facsimile shall be treated in all manners and respects as an original
document and any signature thereon shall be considered an original
signature and shall have the same binding legal effect as if the original
document and signature was delivered to the other party.
7. Counterparts. This Amendment may be executed in any number of counterparts,
each of which shall constitute an original and all of which taken together
shall constitute one and the same instrument.
[Signature Page Follows]
Page 2
IN WITNESS WHEREOF, Seller and Buyer have caused this Reinstatement of
and First Amendment to Agreement of Purchase and Sale to be executed as of the
date first written above.
SELLER: ASP TWO CORPORATE PLAZA, L.P., a
Delaware limited partnership
By: _________________________
Name:________________________
Title:_______________________
BUYER: TRIPLE NET PROPERTIES, LLC, a
Virginia limited liability company
By: _________________________
Name: Xxxxxxx X. Xxxxxxxx
-----------------------
Title: President
----------------------
Page 3
AGREEMENT OF SALE AND PURCHASE
between
ASP TWO CORPORATE PLAZA, L.P.,
a Delaware limited partnership
"Seller"
and
TRIPLE NET PROPERTIES, LLC,
a Virginia limited liability company
"Buyer"
with Escrow Instructions for
LandAmerica Title Insurance Company
as Escrow Agent
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (this "Agreement"), dated as of August
14, 2002 (the "Effective Date"), is between ASP TWO CORPORATE PLAZA, L.P., a
Delaware limited partnership ("Seller") and TRIPLE NET PROPERTIES, LLC, a
Virginia limited liability company ("Buyer").
ARTICLE 1 - CERTAIN DEFINITIONS
Section 1.1 Definitions. The parties hereby agree that the following terms
shall have the meanings hereinafter set forth, such definitions to be applicable
equally to the singular and plural forms, and to the masculine and feminine
forms, of such terms:
"Action" shall have the meaning ascribed in Section 10.13.
"Affiliate" shall mean any person or entity that directly or indirectly,
through one or more intermediaries, controls, is controlled by or is under
common control with Buyer or Seller, as the case may be. For the purposes of
this definition, "control" means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have the meanings
correlative to the foregoing.
"Assignment and Assumption of Contracts" shall have the meaning ascribed in
Section 9.3.
"Assignment and Assumption of Leases" shall have the meaning ascribed in
Section 9.3.
"Xxxx of Sale" shall have the meaning ascribed in Section 9.3.
"Broker" shall mean Transwestern Property Company SW GP, L.L.C. d/b/a
Transwestern Commercial Services.
"Broker's Commission" shall have the meaning ascribed in Section 9.6.
"Buyer's Broker" shall mean Triple Net Properties Realty, Inc.
"Buyer's Broker's Commission" shall have the meaning ascribed in Section
9.6.
"Closing" shall have the meaning ascribed in Section 9.2.
"Closing Date" shall mean the date set forth in Section 9.2.
"Closing Statement" shall have the meaning ascribed in Section 9.5.
"Code" shall have the meaning ascribed in Section 5.4.
"Commissions" shall means all commissions, referral fees, payments and
obligations of Seller or the Property Manager to make payments to leasing
agents, leasing brokers or other parties with respect to the leasing of all or
any of the Property, whether such agreements are contained in a Lease or in any
separate Commission Agreement.
"Commission Agreements" shall mean all written agreements and documents
obligating Seller or the Property Manager to pay Commissions that are not
contained in a Lease, together with all amendments thereto or modifications
thereof.
"Contracts" shall mean the service contracts and other contracts
described in Exhibit "C" and all other service contracts entered into by Seller
after the Effective Date with respect to the Property in accordance with Section
8.4.
"Deed" shall have the meaning ascribed in Section 9.3.
"Deposit" shall have the meaning ascribed in Section 2.3.
"Disclosure Items" shall have the meaning ascribed in Section 6.1.
"Due Diligence" shall have the meaning ascribed in Section 3.1.
"Due Diligence Items" shall have the meaning ascribed in Section 3.2.
"Due Diligence Period" shall have the meaning ascribed in Section 3.1.
"Effective Date" shall have the meaning ascribed in the Inroductory
Paragraph.
"Endorsements" shall have the meaning ascribed in Section 4.3.
"Enviromental Laws" means all federal, state and local environmental
laws, rules, statutes, directives, binding written interpretations, binding
written policies, ordinances and regulations issued by any Governmental Entity
and in effect as of the date of this Agreement any portion thereof, the use,
ownership, occupancy or operation of the Real Property or the Improvements, or
any portion thereof, or any owner of the Real Property, and as same have been
amended, modified or supplemented from time to time prior to the date of this
Agreement, including but not limited to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. (S) 9601 et seq.),
the Hazardous Substances Transportation Act (49 U.S.C (S) 1802 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. (S) 6901 et seq.) the Water
Pollution Control Act (33 U.S.C. (S) 1251 et seq.), the Safe Drinking Water Act
(42 U.S.C. (S) 300f et seq.), the Clean Air Act (42 U.S.C. (S) 7401 et seq.),
the Solid Waste Disposal Act (42 U.S.C. (S) 6901 et seq.), the Toxic Substances
Control Act (15 U.S.C. (S) 2601 et seq.), the Emergency Planning and Community
Right-to-Know Act of 1986 (42 U.S.C. (S) 11001 et seq.), the Xxxxxx and Indoor
Air Quality Research Act (42 U.S.C. (S) 7401 note, et seq.), the Superfund
Amendment Reauthorization Act of 1986 (42 U.S.C. (S) 9601 et seq.),
comparable state and local laws, and any and all rules and regulations which
have become effective prior to the date of this Agreement under any and all of
the aforementioned laws.
"Escrow Agent" shall mean LandAmerica Title Insurance Company, 0000
Xxxxxxx Xx., Xxxxx 0000, Xxxxxx, Xxxxx 00000.
"Excluded Property Records" shall have the meaning ascribed in Section
3.2.
"Fixtures" shall mean the fixtures which are located at and affixed to
any of the Improvements as of the Closing Date but specifically excluding any
trade fixtures of the Tenants under the Leases.
"Governmental Entity" means the various governmental and
quasi-governmental bodies or agencies having jurisdiction over Seller, the Real
Property or any portion thereof.
"Hazardous Materials" means any pollutants, contaminants, hazardous or
toxic substances, materials or wastes (including petroleum, petroleum
by-products, radon, asbestos and asbestos containing materials, polychlorinated
biphenyls ("PCBs"), PCB-containing equipment, radioactive elements, infectious
agents, and urea formaldehyde), as such terms are used in any Environmental Laws
(excluding solvents, cleaning fluids and other lawful substances used in the
ordinary operation and maintenance of the Real Property, to the extent in closed
containers).
"Improvements" shall mean the buildings, improvements, and structures
located on the Land.
"Independent Consideration" shall have the meaning ascribed in Section
2.4.
"Land" shall mean that certain parcel of land and appurtenances thereto
more particularly described on Exhibit "A" including Seller's right, title and
interest, if any, in and to all rights-of-way, open or proposed streets (public
or private), alleys, easements, strips or gores of land adjacent thereto.
"Leases" shall mean all unexpired leases, subleases, occupancy
agreements, and any other agreements, including all modifications or amendments
thereto, for the use, possession, or occupancy of any portion of the Land as of
the Closing Date, including any tenant guaranties delivered in connection with
any of the foregoing.
"Licensee Parties" shall mean those authorized agents, contractors,
consultants and representatives of Buyer who shall inspect, investigate, test or
evaluate the Property on behalf of Buyer in accordance with this Agreement.
"Licenses and Permits" shall mean, collectively, to the extent
assignable, all licenses, permits, approvals, certificates of occupancy,
dedications, subdivision maps and entitlements now or hereafter issued, approved
or granted by any Governmental Entity in connection with the Real Property,
together with all renewals and modifications thereof.
"Liens" shall have the meaning ascribed in Section 4.2.
"Major Tenants" shall mean Lockheed Xxxxxx Corporation and United States
of America.
"New Leases" or "New Lease" shall mean, collectively, or singularly, any
Lease for space at the Property entered into between the Effective Date and the
Closing Date.
"Operating Expenses" shall have the meaning ascribed in Section 9.5.
"Permitted Exceptions" shall mean and include all of the following: (a)
such state of facts as would be disclosed by a physical inspection of the
Property; (b) the lien of taxes and assessments not yet due and payable (it
being agreed by Buyer and Seller that if any tax or assessment is levied or
assessed with respect to the Property after the date hereof and the owner of the
Property has the election to pay such tax or assessment either immediately or
under a payment plan with interest, Seller may elect to pay under a payment
plan, which election shall be binding on Buyer); (c) any exclusions from
coverage set forth in the jacket of any Owner's Policy of Title Insurance or any
standard printed exceptions; (d) any exceptions caused by Buyer, its agents,
representatives or employees; (e) such other exceptions as the Title Company
shall commit to insure over in accordance with Section 4, without any additional
cost to Buyer, whether such insurance is made available in consideration of
payment, bonding, indemnity of Seller or otherwise; (f) the rights of the
Tenants under the Leases; and (g) any matters deemed to constitute Permitted
Exceptions under Section 4.2.
"Permitted Outside Parties" shall have the meaning ascribed in Section 3.5.
"Personal Property" shall mean all of the right, title, and interest of
Seller in and to the tangible personal property, which is located at and used in
connection with any of the Improvements or the Land as of the Closing Date, but
specifically excluding (a) any personal property owned, financed or leased by
the Tenants under the Leases, (b) any computer software which either is licensed
to Seller, or Seller deems proprietary, (c) any tangible personal property used
by any affiliated or unaffiliated on-site property manager and (d) any warrants,
stock options or other equity securities related to the Property. Personal
Property shall not include any appraisals, budgets, strategic plans for the Real
Property, internal analyses, marketing information, submissions relating to
Seller's obtaining of corporate authorization, attorney and accountant work
product, attorney-client privileged documents, or other information in the
possession or control of Seller or Seller's Property Manager which Seller deems
proprietary.
"Pre-Effective Date Leases" or "Pre-Effective Date Lease" shall mean,
collectively, or singularly, any Lease for space at the Property in effect as of
the Effective Date.
"Property" shall mean the Real Property, the Personal Property, the Leases,
the Contracts, and to the extent transferable, all of Seller's right, title and
interest in and to all tangible and intangible assets of any nature relating to
the Property, including without limitation, (a) all warranties upon the
Improvements or the Personal Property, (b) rights to any plans,
specifications, engineering studies, reports, drawings, and prints relating to
the construction, reconstruction, modification, and alteration of Improvements,
(c) all works of art, graphic designs, and other intellectual or intangible
property owned and used by Seller in connection with the Property, including any
trade name associated with the Improvements, (d) all claims and causes of action
arising out of or in connection with the Property after the Closing Date, (e)
the Licenses and Permits, and (f) Seller's right, title and interest, if any, in
and to the name "Two Corporate Plaza".
"Property Manager" shall mean those individuals or entities which manage
the Property.
"Proration Items" shall have the meaning ascribed in Section 9.5.
"Proration Time" shall have the meaning ascribed in Section 9.5.
"Purchase Price" shall have the meaning ascribed in Section 2.2.
"Real Property" shall mean the Land, the Improvements, and the Fixtures.
"Reimbursable Lease Expenses" shall mean, collectively, any and all fees
paid by Seller prior to Closing or costs and expenses paid or incurred by Seller
prior to Closing arising out of or in connection with any extensions, renewals
or expansions under any Lease for space at the Property exercised or granted
between the Effective Date and the Closing Date, and any New Lease, Reimbursable
Lease Expenses shall include, without limitation, (a) brokerage commissions and
fees payable pursuant to a Commission Agreement or a Lease or New Lease to
effect any such leasing transaction (including, without limitation, any fees
owed to the Property Manager), (b) expenses incurred for repairs, improvements,
equipment, painting, decorating, partitioning and other items to satisfy the
tenant's requirements with regard to such leasing transaction, (c) legal fees
for services in connection with the preparation of documents and other services
rendered in connection with the effectuation of the leasing transaction, (d) if
there are any rent concessions covering any period that the tenant has the right
to be in possession of the demised space, the rents that would have accrued
during the period of such concession prior to the Closing Date as if such
concession were amortized over (i) with respect to any extension or renewal, the
term of such extension or renewal, (ii) with respect to any expansion, that
protion of the term remaining under the subject Lease after the date of any
expansion, or (iii) with respect to any New Lease, the entire initial term of
any such New Lease, and (e) expenses incurred for the purpose of satisfying or
terminating the obligations of a tenant under a New Lease to the landlord under
another lease (whether or not such other lease covers space in the Property).
"Rent" or "Rents" shall mean and include fixed monthly rentals,
additional rentals, percentage rentals, escalation rentals (which include each
Tenant's proration share of building operation and maintenance costs and
expenses as provided for under the applicable Lease, to the extent the same
exceeds any expense stop specified in such Lease), retroactive rentals, all
administrative charges, utility charges, tenant or real property association
dues, storage rentals, special event proceeds, temporary rents, telephone
receipts, locker rentals, vending machine receipts and other sums and charges
payable by tenants under the Leases or
from other occupants or users of the Property, but excluding amounts received
for Operating Expenses.
"Reporting Person" shall have the meaning ascribed in Section 5.4(a).
"Survey" shall mean that certain existing ALTA survey of the Land and
Improvements more particularly described on Exhibit "I" attached hereto.
"Tenant Deposits" means all advance rents and security deposits
(whether cash or non-cash) paid or deposited by a Tenant to Seller, as landlord,
or any other person on Seller's behalf pursuant to a Lease (together with any
interest which has accrued thereon as required by the terms of such Lease, but
only to the extent such interest has accrued for the account of the respective
Tenant or as required by law).
"Tenant" or "Tenants" shall mean all persons or entities occupying or
entitled to possession of any portion of the Land pursuant to the Leases,
including tenants, subtenants, and licensees.
"Title Commitment" shall have the meaning ascribed in Section 4.1.
"Title Company" shall mean Lawyers Title Insurance Company.
"Title Documents" shall have the meaning ascribed in Section 4.1.
"Title Objections" shall have the meaning ascribed in Section 4.2.
"Title Policy" shall have the meaning ascribed in Section 4.3.
1.2 Rules of Construction. Article and Section captions used in this
Agreement are for convenience only and shall not affect the construction of this
Agreement. All references to "Article" or "Sections" without reference to a
document other than this Agreement, are intended to designate articles and
sections of this Agreement, and the words "herein," "hereof," "hereunder," and
other words of similar import refer to this Agreement as a whole and not to any
particular Article or Section, unless specifically designated otherwise. The use
of the term "including" shall mean in all cases "including but not limited to,"
unless specifically designated otherwise. No rules of construction against the
drafter of this Agreement shall apply in any interpretation or enforcement of
this Agreement, any documents or certificates executed pursuant hereto, or any
provisions of any of the foregoing.
ARTICLE 2
AGREEMENT OF PURCHASE AND SALE; PURCHASE PRICE
Section 2.1 Agreement of Purchase and Sale. Seller agrees to sell,
transfer, assign and convey to Buyer, and Buyer agrees to purchase, accept and
assume subject to the terms and conditions stated herein, all of Seller's right,
title and interest in and to the Property.
Section 2.2 Purchase Price. Buyer shall pay Seller the purchase price
of Thirteen Million Five Hundred Eighty Thousand and No/100 Dollars
($13,580,000.00)("Purchase Price") at the Closing, subject to the adjustments
described in Section 9.5, in immediately available funds.
Section 2.3 Deposit. Upon the execution of this Agreement, Buyer shall
deposit via wire transfer the sum of Two Hundred Fifty Thousand and No/100
Dollars($250,000.00) in immediately available funds as a deposit (the "Deposit")
with Escrow Agent whose address is as indicated in Section 10.3. The Deposit
shall be non-refundable except as provided in Sections 3.6, 4.2, 5.1, 8.1, and
10.2 and shall be held and delivered by Escrow Agent in accordance with the
provisions of Article 5. Interest earned on the Deposit shall be considered part
of the Deposit and shall be deemed to have been earned by, and constitute income
of, Buyer. Except as otherwise expressly set forth herein, the Deposit shall be
applied against the Purchase Price on the Closing Date.
Section 2.4 Independent Consideration. Contemporaneously with the
execution and delivery of this Agreement, buyer has paid to Seller as further
consideration for this Agreement, in cash, the sum of One Hundred Dollars
($100.00)(the "Independent Consideration"), in addition to the Deposit and the
Purchase Price and independent of any other consideration provided hereunder,
which Independent Consideration is fully earned by Seller and is non-refundable
under any circumstances.
Section 2.5 Indivisible Economic Package. Buyer has no right to
purchase, and Seller has no obligation to sell, less than all of the Property,
it being the express agreement and understanding of Buyer and Seller that, as a
material inducement to Seller and Buyer to enter into this Agreement, Buyer has
agreed to purchase, and Seller has agreed to sell, all of the Property, subject
to and in accordance with the terms and conditions hereof.
Section 2.6 Assumption of Obligations. As additional consideration for
the purchase and sale of the Property, at Closing Buyer will: (a) assume and
perform (i) all of the covenants and obligations of Seller, Seller's
predecessors in title and Seller's Affiliates pursuant to the Leases and
Contracts (including, without limitation, those relating to any tenant deposits)
which arise on or after the Closing Date and (ii) all obligations under the
Leases and Contracts relating to the physical and environmental condition of the
Property regardless of whether such obligations arise before, on or after the
Closing Date; (b) assume and agree to discharge, perform and comply with each
and every liability, duty, covenant, debt or obligation of Seller or any of its
Affiliates (i) resulting from, arising out of, or in any way related to the
Disclosure Items set forth in Exhibit "B", past, present or future, known or
unknown, and (ii) resulting from, arising out of, or in any way related to any
Licenses and Permits and arising on or after the Closing Date; and (c) assume
Seller's obligations to pay, when due (whether on a stated due date or
accelerated) any Reimbursable Lease Expenses in accordance with Section 8.2.
Buyer hereby indemnifies and holds Seller harmless from and against any and all
claims, liens, damages, demands, causes of action, liabilities, lawsuits,
judgments, losses, costs and expenses (including but not limited to attorneys'
fees and expenses) asserted against or incurred by Seller and arising out of the
failure of Buyer to perform its obligations pursuant to this Section 2.6. The
provisions of this Section 2.6 shall survive the Closing without limitation.
ARTICLE 3 - BUYER'S DUE
DILIGENCE/CONDITION OF THE PROPERTY
Section 3.1 Buyers's Inspections and Due Diligence. Buyer acknowledges
that prior to the date hereof has conducted and continuing for a period which
will expire at 5:00 p.m. Eastern Time on August 30, 2002 (the "Due Diligence
Period"), the Buyer shall continue to conduct its examinations, inspections,
testing, studies and investigations of the Property, information regarding the
Property and such documents applicable to the Property, including, without
limitation, the Rent Roll and the Due Diligence Items and all other documents
and items Seller makes available to Buyer in accordance with or pursuant to
Section 3.2 (collectively, the "Due Diligence"). Except for any limitations
imposed by Section 3.4, Buyer has conducted and may conduct such due diligence
activities, inspections, and studies of the Property as it deems necessary or
appropriate, and examine and investigate to its full satisfaction all facts,
circumstances, and matters relating to the Property (including the physical
condition and use, availability and adequacy of utilities, access, zoning,
compliance with applicable laws, environmental conditions, engineering and
structural matters), title and survey matters, and any other matters it deems
necessary or appropriate for purposes of consummating this transaction. The Due
Diligence shall be at Buyer's sole cost and expense.
Section 3.2 Delivery Period. (a) Prior to the Effective Date, Seller has
delivered to Buyer, or made available to Buyer for inspection at the Property or
at the office of the Property Manager and Buyer acknowledges receipt of or
access to, the following: (i) the most recent rent roll statement (the "Rent
Roll") with respect to the Property prepared by Seller, in the form and
containing such information as maintained by Seller from time to time, together
with copies of all Leases referenced on the Rent Roll and copies of any
subleases or amendments relating thereto and Tenant correspondence in Seller's
possession; (ii) the most recent aging receivables report with respect to the
Property prepared by Seller, in the form and containing such information as
maintained by Seller from time to time; (iii) the Survey; (iv) copies of all
Contracts (including any Commission Agreement); (v) copies of any of the
following items pertaining to the Property to the extent they exist and are in
Seller's possession, monthly cashflow reports for the current year to date,
operating statements for the Property for calendar year 2000 and calendar year
2001, real and personal property tax bills for the Property, copies of existing
engineering studies and existing environmental audits prepared by third parties
in connection with the Property, the Licenses and Permits, and any lists of
personal property owned by Seller and located on Real Property; and (vi) a copy
of Seller's existing policy of title insurance (collectively, the Due Diligence
Items").
(b) All documents, materials, and information furnished to or made
available to Buyer pursuant to this Section 3.2 are being furnished or made
available to Buyer for information purposes only and without any representation
or warranty by Seller with respect thereto, express or implied, except as may
otherwise be expressly set forth in Section 6.1 and as limited by Section 6.2
and Section 7.2, and all such documents, materials, and information are
expressly understood by Buyer to be subject to the confidentiality provisions of
Section 3.5.
(c) Notwithstanding any terms to the contrary in this Agreement, (i)
Seller shall not be obligated or otherwise required to furnish of make available
to Buyer any of the following (collectively, "Excluded Property Records"): (A)
any appraisals or other economic evaluations of, or projections with respect to,
all or any portion of the property, including, without limitation, 2002 budgets,
prepared by or on behalf of Seller or any Affiliate of Seller, (B) any
documents, materials or information which are subject to attorney/client, work
product or similar privilege, which constitute attorney communications with
respect to the purchase of the Property by Seller, or which are subject to a
confidentially agreement, and (C) those documents listed on Schedule 3.2
attached hereto; (ii) Due Diligence Items Shall not include any Excluded
Property Records; and (iii) Seller shall have no obligation or liability of any
kind to Buyer as a result of Seller not furnishing or making available to Buyer
the Excluded Property Records.
Section 3.3 Site Visits. During the Due Diligence Period, Buyer and its
Licensee Parties shall have reasonable access to the Real Property at agreed
upon times for agreed upon purposes on at least one (1) business day prior
notice to Seller. Such notice shall describe the scope of the Due Diligence
Buyer intends to conduct during Buyer's access to the Real Property. Seller
shall make reasonable efforts to have an agent available to accompany Buyer or
any Licensee Parties, and in all events Seller shall have the right to have a
representative present during any visits to or inspections of any Real Property
or any meetings or discussions with any Tenant by Buyer or any Licensee Parties.
Buyer will conduct its Due Diligence in a manner so as to minimize, to the
extent reasonably possible to do so, any interference with the operations and
occupancy of the Property and to minimize, to the extent reasonably possible to
do so, and disturbance to Tenants. Buyer will not enter the Real Property or
contact any leasing agents or the Property Manager of Real Property or any
Governmental Entity without Seller's prior written constant, which consent shall
not be unreasonably withheld or delayed. Neither Buyer nor any Licensee Parties
may contact any Tenants at the Real Property or make any inquiries of such
Tenants which in any way relate to the Real Property, any of the tenant estoppel
certificates, or to Seller without Seller's Prior written consent, which consent
shall not be unreasonably withheld. In the event Buyer desires to conduct any
physically intrusive Due Diligence, such as sampling of soils, other media,
building materials, or the like, Buyer will identify in writing exactly what
procedures Buyer desires to perform and request Seller's express written
consent. Seller may withhold or condition consent to any physically intrusive
Due Diligence in Seller's sole and absolute discretion (other than with respect
to core samples of roofs and asphalt on parking lots for which Seller's consent
shall not be unreasonably withheld or delayed) Seller's consent to samples of
roofs and asphalt parking lots shall be deemed to have been given if Seller does
not disapprove such sampling on or prior to two(2) business days after Seller's
receipt of Buyer's reasonably detailed sampling plan therefor. Upon receipt of
Seller's written consent, Buyer and all Licensee Parties shall, in performing
such Due Diligence, comply with the agreed upon procedures and with any and all
laws, ordinances, rules, and regulations applicable to the Property and will not
engage in any activities which would violate any permit, license, or
environmental law or regulation. Buyer and any Licensee Parties will: (a)
maintain comprehensive general liability (occurrence) insurance in an amount of
not less than $2,000,000 per occurrence covering any accident arising in
connection with the presence of Buyer or the other Licensee Parties on the Real
Property or Improvements, and deliver a certificate of insurance, which names
the Seller and the Property Manager as additional
insureds thereunder verifying such coverage to Seller prior to entry upon the
Real Property or Improvements; (b) promptly pay when due the costs of all entry
and inspections and examinations done with regard to the Property; and (c)
restore the Real Property and Improvements to the condition in which the same
were found before any such entry upon the Real Property and inspection or
examination was undertaken.
Section 3.4 Due Diligence Indemnity. Buyer shall defend, indemnify,
and hold harmless Seller, Seller's partners, shareholders or members, as
applicable, and the Property Manager from and against all losses, costs,
damages, claims, and liabilities (whether arising out of injury or death to
persons or damage to the Property or otherwise) including, but not limited to,
costs of remediation, restoration and other similar activities, mechanic's and
materialmen's liens and attorneys' fees, arising out of or in connection with
Buyer's Due Diligence, Buyer's breach of its obligations under Section 3.5 or
Buyer's or any Licensee Parties' entry upon the Real Property, unless any of the
same are caused solely by the gross negligence or willful misconduct of Seller,
Seller's partners, shareholders or members, as applicable, and/or the Property
Manager. The provisions of this Section 3.4 shall survive the Closing or, if the
purchase and sale is not consummated, any termination of this Agreement, and
shall not be subject to the twelve month limitation set forth in Section 6.2.
Section 3.5 Confidentiality. Buyer agrees that any information
obtained by Buyer or its attorneys, partners, accountants, lenders or investors
(collectively, for purposes of this Section 3.5, the "Permitted Outside
Parties") in the conduct of its Due Diligence shall be treated as confidential
pursuant to Section 10.11 and shall be used only to evaluate the acquisition of
the Property from Seller. Buyer further agrees that within its organization,
or as to the Permitted Outside Parties, the Due Diligence Items will be
disclosed and exhibited only to those persons within Buyer's organization or to
those Permitted Outside Parties who are involved in determining the feasibility
of Buyer's acquisition of the Property. Buyer further acknowledges that the Due
Diligence Items and other information relating to the leasing arrangements
between Seller and any tenants or prospective tenants are proprietary and
confidential in nature. Buyer agrees not to divulge the contents of such Due
Diligence Items or any other information except in strict accordance with
Section 3.5 and Section 10.11 of this Agreement. In permitting Buyer and the
Permitted Outside Parties to review the Due Diligence Items and other
information to assist Buyer, Seller has not waived any privilege or claim of
confidentiality with respect thereto, and no third party benefits or
relationships of any kind, either express or implied, have been offered,
intended or created by Seller and any such claims are expressly rejected by
Seller and waived by Buyer and the Permitted Outside Parties, for whom, by its
execution of this Agreement, Buyer is acting as an agent with regard to such
waiver. The provisions of this Section 3.5 shall survive the Closing without
limitation.
Section 3.6 Termination Right. Buyer, by giving Seller and Escrow
Agent written notice on or before the end of Due Diligence Period, may terminate
its obligations hereunder without further liability except as described in this
Section 3.6 and in Sections 3.4, 3.5, 9.6 and 10.11. If before the end of the
Due Diligence Period, Buyer fails to give Seller and Escrow Agent such written
notice, then Buyer shall be deemed to have elected to terminate this Agreement.
If Buyer timely elects to or is deemed to have elected to terminate its
obligations hereunder as described above, Buyer shall provide to Seller,
promptly after receipt of a request
from Seller, originals of all third party reports, studies and appraisals
relating to the Property in its possession, without representation or warranty
and at no cost to Seller. The foregoing obligation shall survive any termination
of this Agreement. Subject to the terms of this Agreement, Buyer, after the
expiration of the Due Diligence Period, may continue to conduct further physical
Due Diligence or other examinations, inspections, tests, studies and
investigations regarding the Property; provided, however, that except as
otherwise expressly provided in Section 5.1 and Section 10.2(b), in no event
shall Buyer have any right to terminate or otherwise modify its obligations
hereunder after the end of the Due Diligence Period as a result of any such
further physical Due Diligence or other examinations, inspections, tests,
studies or investigations regarding the Property, and the provisions of this
Article 3, including, without limitation, the indemnification provisions, shall
continue to apply.
Section 3.7 Estoppel Certificates. (a) Seller shall use reasonable efforts
to obtain and deliver to Buyer estoppel certificates from the Tenants of the
Property whose Leases will continue after the Closing. Such certificates either
shall be in the form of Exhibit "H" attached hereto or, with respect to the
Lease with the United States of America in the "statement of fact" form
typically provided by the United States of America or such other form that a
Tenant is obligated to sign under or pursuant to its Lease. A copy of each
estoppel certificate received by Seller from a Tenant shall be delivered by
Seller to Buyer promptly after Seller receives such certificate from the Tenant.
(b) It shall be a condition precedent to the Closing that (i) an estoppel
certificate from Lockheed Xxxxxx Corporation be obtained prior to the date that
is five (5) business days prior to the Closing Date with no material
modifications from the estoppel certificate forms attached hereto as Exhibit
"H", provided, however, (A) to the extent the form requires information not
required of Lockheed Xxxxxx Corporation under the provisions of its Lease,
Seller will use reasonable efforts to obtain an estoppel certificate in the form
or in a form as close thereto as possible, but in any event an estoppel
certificate executed by Lockheed Xxxxxx Corporation in the form prescribed by
its Lease shall satisfy the requirement of this Section 3.7(b) or (B) Buyer will
not unreasonably withhold approval of any estoppel certificate as modified by
Lockheed Xxxxxx Corporation and delivered by Seller to Buyer provided that the
Information in such estoppel is not inconsistent with the information included
in the estoppel form completed for Lockheed Xxxxxx Corporation (ii) a statement
of fact United States of America be obtained prior to the date that is five (5)
business days prior to the Closing Date. If the estoppel certificate from
Lockheed Xxxxxx Corporation delivered by Seller to Buyer is unacceptable to
Buyer as set forth above or if a Major Tenant fails to provide Buyer an estoppel
certificate, or statement of fact, as applicable, Buyer's sole remedy is, by
giving Seller and Escrow Agent written notice on or before the Closing, to
terminate its obligations hereunder without further liability except as
described in Sections 3.4, 3.5, 3.6, 9.6 and 10.11.
(c) If the estoppel certificates, other than the estoppel certificates
from the Major Tenants, delivered by Seller to Buyer are unacceptable to Buyer
for any reason, Buyer's sole remedy is, by giving Seller and Escrow Agent
written notice on or before the end of the Due Diligence Period, to terminate
its obligations hereunder without further liability except as described in
Sections 34., 3.5, 3.6, 9.6 and 10.11. If, before the end of the Due Diligence
Period, Buyer fails to give Seller such written notice, then Buyer shall be
deemed to have elected to
waive its right to terminate this Agreement pursuant to this Section 3.7(c).
After the expiration of the Due Diligence Period, provided Buyer has not
terminated this Agreement, Seller shall continue to use reasonable efforts to
obtain and deliver to Buyer estoppel certificates from the Tenants of the
Property whose Leases will continue after the Closing to the extent Seller has
not previously delivered to Buyer estoppel certificates from such Tenants;
provided, however, except as set forth in Section 3.7(b) above, in no event
shall Buyer have any right to terminate its obligations hereunder after the end
of the Due Diligence Period as a result of any estoppel certificates received or
not received by Buyer after the end of the Due Diligence Period.
ARTICLE 4 - TITLE AND SURVEY
Section 4.1 Title to Real Property. Seller shall make available to
Buyer not later than five (5) business days after the Effective Date (a) a
commitment to issue an owner's policy of title insurance with respect to the
Property issued by the Title Company (the "Title Commitment"), (b) copies of all
recorded documents referred to on Schedule B of the Title Commitment as
exceptions to coverage (the "Title Documents"), and (c) the Survey.
Section 4.2 Certain Exceptions to Title. Buyer shall have the right
to object in writing to any title matters that are not Permitted Exceptions
which are disclosed in the Title Commitment or Survey (herein collectively
called "Liens") within fifteen (15) days after receipt of the Title Commitment,
the Title Documents and the Survey. Unless Buyer shall timely object to the
Liens, all such Liens and any other encumbrances which are set forth in the
Title Commitment and any such supplemental reports or updates shall be deemed to
constitute additional Permitted Exceptions. Any exceptions which are timely
objected to by Buyer shall be herein collectively called the "Title Objections."
Seller may elect (but shall not be obligated) to remove or cause to be removed,
or insured over, at its expense, any Title Objections, and shall be entitled to
a reasonable adjournment of the Closing (not to exceed ninety (90) days) for the
purpose of such removal, which removal will be deemed effected by the issuance
of title insurance eliminating or insuring against the effect of the Title
Objections, in form acceptable to Buyer in its reasonable discretion. Seller
shall notify Buyer in writing within five (5) business days after receipt of
Buyer's notice of Title Objections whether Seller elects to remove the same. If
Seller is unable to remove or endorse over any Title Objections in form
acceptable to Buyer (in its reasonable discretion) prior to the Closing, or if
Seller elects not to remove one or more Title Objections, Buyer may elect, as
its sole and exclusive remedy therefore, to either (a) terminate this Agreement
by giving written notice to Seller and Escrow Agent on or before the end of the
Due Diligence Period, in which event the Deposit shall be paid to Buyer and,
thereafter, the parties shall have no further rights or obligations hereunder
except for those obligations which expressly survive the termination of this
Agreement as set forth in Sections 3.4, 3.5, 3.6, 9.6, and 10.11, or (b) waive
such Title Objections, in which event such Title Objections shall be deemed
additional "Permitted Exceptions" and the Closing shall occur as herein provided
without any reduction of or credit against the Purchase Price. If before the end
of the Due Diligence Period, Buyer fails to give Seller and Escrow Agent such
written notice, then Buyer shall be deemed to have elected to waive such Title
Objections and its right to terminate this Agreement pursuant to this Section
4.2. Notwithstanding the foregoing, Seller shall be obligated at Closing to
cause the release of the liens of any financing obtained by Seller which is
secured by the Property or provide for affirmative coverage over any monetary
liens
created or caused by Seller and filed against the Property, in form reasonably
acceptable to Buyer.
Section 4.3 Title Insurance. At Closing, the Title Company shall issue to
Buyer or be irrevocably committed to issue to Buyer an extended coverage ALTA
owner's form title policy (the "Title Policy"), in the amount of the Purchase
Price, insuring that fee simple title to the Real Property is vested in Buyer
subject only to the Permitted Exceptions. Buyer shall be entitled to request
that the Title Company provide such endorsements (or amendments) to the Title
Policy as Buyer may reasonably require (the "Endorsements"), provided that (a)
such endorsements (or amendments) shall be at no cost to, and shall impose no
additional liability on, Seller, (b) Buyer's obligations under this Agreement
shall not be conditioned upon Buyer's ability to obtain such endorsements and,
if Buyer is unable to obtain such endorsements, Buyer shall nevertheless be
obligated to proceed to close the transaction contemplated by this Agreement
without reduction of or set off against the Purchase Price, and (c) the Closing
shall not be delayed as a result of Buyer's request.
ARTICLE 5 - REMEDIES AND DEPOSIT INSTRUCTIONS
Section 5.1 Permitted Termination; Seller Default. If the sale of the
Property is not consummated due to the permitted termination of this Agreement
by Buyer as herein expressly provided, the Deposit shall be returned to Buyer
and Buyer will have no liability hereunder except as set forth in Sections 3.4,
3.5, 3.6, 9.6 and 10.11. If the sale of the Property is not consummated due to
Seller's default hereunder, Buyer shall be entitled, as its sole and exclusive
remedy, either (a) to receive the return of the Deposit, or (b) to enforce
specific performance of this Agreement. Buyer expressly waives its rights to
seek any damages in the event of Seller's default hereunder. Buyer shall be
deemed to have elected to terminate this Agreement and receive back the Deposit
if Buyer fails to file suit for specific performance against Seller in a court
prescribed by Section 10.5, on or before twenty (20) days following the date
upon which Closing was to have occurred.
Section 5.2 Buyer Default; Liquidated Damages. IF THE SALE IS NOT
CONSUMMATED DUE TO ANY DEFAULT BY BUYER HEREUNDER, THEN SELLER SHALL RETAIN THE
DEPOSIT AS LIQUIDATED DAMAGES, WHICH RETENTION SHALL OPERATE TO TERMINATE THIS
AGREEMENT AND RELEASE BUYER FROM ANY AND ALL LIABILITY HEREUNDER, EXCEPT AS
PROVIDED IN SECTIONS 3.4, 3.5, 3.6, 9.6 AND 10.11. THE PARTIES HAVE AGREED THAT
SELLER'S ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO CONSUMMATE THIS SALE DUE
TO BUYER'S DEFAULT, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE.
AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE
CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE DEPOSIT
IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT.
BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY
OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY
COUNSEL WHO EXPLAINED, AT THE TIME THIS
AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THE
FOREGOING IS NOT INTENDED TO LIMIT BUYER'S SURVIVING OBLIGATIONS UNDER SECTIONS
3.4, 3.5, 3.6, 9.6, AND 10.11.
Initials: Seller 87 Buyer
Section 5.3 Deposit Instructions. The Escrow Agent joins
herein below to evidence its agreement to hold such funds in accordance with the
terms and conditions of this Agreement. Further, the following provisions shall
control with respect to the rights, duties and liabilities of the Escrow Agent.
(a) The Escrow Agent acts hereunder as a depository only and is
not responsible or liable in any manner whatsoever for the (i) sufficiency,
correctness, genuineness or validity of any written instrument, notice or
evidence of a party's receipt of any instruction or notice which is received by
the Escrow Agent, or (ii) identity or authority of any person executing such
instruction notice or evidence.
(b) The Escrow Agent shall have no responsibility hereunder
except for the performance by it in good faith of the acts to be performed by it
hereunder, and the Escrow Agent shall have no liability except for its own
willful misconduct or gross negligence.
(c) The Escrow Agent shall be reimbursed on an equal basis by
Buyer and Seller for any reasonable expenses incurred by the Escrow Agent
arising from a dispute with respect to the amount held in escrow, including the
cost of any legal expenses and court costs incurred by the Escrow Agent, should
the Escrow Agent deem it necessary to retain an attorney with respect to the
disposition of the amount held in escrow.
(d) In the event of a dispute between the parties hereto with
respect to the disposition of the amount held in escrow, the Escrow Agent shall
be entitled, at its own discretion, to deliver such amount to an appropriate
court of law pending resolution of the dispute.
(e) The Escrow agent shall invest the amount in escrow in
accounts which are federally insured or which invest solely in government
securities and shall be applied in accordance with the terms of this Agreement.
Interest earned thereon shall be added to the funds deposited by Buyer.
Section 5.4 Designation of Reporting Person. In order to
assure compliance with the requirements of Section 6045 of the Internal Revenue
Code of 1986, as amended (the "Code"), and any related reporting requirements of
the Code, the parties hereto agree as follows:
(a) Provided the Escrow Agent shall execute a statement in
writing (in form and substance reasonably acceptable to the parties hereunder)
pursuant to which it agrees to assume all responsibilities for information
reporting required under Section 6045(e) of the Code, Seller and Buyer shall
designate the Escrow Agent as the person to be responsible for all
information reporting under Section 6045(e) of the Code (the "Reporting
Person"). If the Escrow Agent refuses to execute a statement pursuant to which
it agrees to be the Reporting Person, Seller and Buyer shall agree to appoint
another third party as the Reporting Person.
(b) Seller and Buyer hereby agree:
(i) to provide to the Reporting Person all information and
certifications regarding such party, as reasonably requested by the Reporting
Person or otherwise required to be provided by a party to the transaction
described herein under Section 6045 of the Code; and
(ii) to provide to the Reporting Person such party's taxpaper
identification number and a statement (on Internal Revenue Service Form W-9 or
an acceptable substitute form, or any other form the applicable current or
future Code sections and regulations might require and/or any form requested by
the Reporting Person), signed under penalties of perjury, stating that the
taxpaper identification number supplied by such party to the Reporting Person is
correct.
(c) Each party hereto agrees to retain this Agreement for not less than
four years from the end of the calendar year in which the Closing occurred, and
to produce it to the Internal Revenue Service upon a valid request therefor.
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF SELLER
Section 6.1 Representations and Warranties of Seller. Subject to the
provisions of Sections 6.2 and 7.4 and except for those matters described in
Exhibit "B" (the "Disclosure Items") for which Seller makes no representations
or warranties of any kind and for which Seller shall have no liability or
obligation to Buyer of any kind whatsoever, Seller makes the following
representations and warranties with respect to the Property:
(a) Status. Seller is a limited partnership duly organized or formed,
validly existing and in good standing under the laws of the State of Delaware
and is qualified to transact busines in the State of Texas.
(b) Authority. The execution and delivery of this Agreement and the
performance of Seller's obligations hereunder have been or will be duly
authorized by all necessary action on the part of Seller, and this Agreement
constitutes the legal, valid and binding obligations of Seller, subject to
equitable principles and principles governing creditors' rights generally.
(c) Non-Contravention. The execution and delivery of this Agreement by
Seller and the consummation by Seller of the transactions contemplated hereby
will not, to Seller's knowledge (i) violate any judgment, order, injunction,
decree, regulation or ruling of any court or Governmental Entity or (ii)
conflict with, result in a breach of, or constitute a default under the organic
documents of Seller, any note or other evidence of indebtedness, any mortgage,
deed of trust or indenture, or any lease or other material agreement or
instrument to which Seller is a party or by which Seller may be bound.
(d) Suits and Proceedings. To Seller's Knowledge, there are no legal
actions, suits or similar proceedings pending and served, or threatened against
(i) Seller which (A) are not adequately covered by existing insurance or (B) if
adversely determined, would adversely affect Seller's ability to consummate the
transactions contemplated hereby or (ii) the Property.
(e) Non-Foreign Entity. Seller is not a "foreign person" or "foreign
corporation" as those terms are defined in the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
(f) Consents. No consent, waiver, approval or authorization is
required from any person or entity (that has not already been obtained) in
connection with the execution and delivery of this Agreement by Seller or the
performance by Seller of the transactions contemplated hereby.
(g) Condemnation. To Seller's knowledge, Seller has not received any
written condemnation notice from any Governmental Entity with respect to all or
part of the Property.
(h) Bankruptcy. Seller has not (i) commenced a voluntary case, or
had entered against it a petition, for relief under any federal bankruptcy act
or any similar petition, order or decree under any federal or state law or
statute relative to bankruptcy, insolvency or other relief for debtors, (ii)
caused, suffered or consented to the appointment of a receiver,
trustee, administrator, conservator, liquidator or similar official in any
federal, state or foreign judicial or non-judicial proceedings, to hold,
administer and/or liquidate all or substantially all of its property, or (iii)
made an assignment for the benefit of creditors.
(i) Employees. Seller has no employees with respect to the Property.
(j) Environmental. To Seller's knowledge, Seller has or will deliver
to Buyer, pursuant, to Section 3.2, true, correct and complete copies of all
third party environmental audits with respect to the Property in Seller's
possession.
(k) Notices. To Seller's knowledge, Seller has not received any
written notice from any Governmental Entity asserting that the Property has not
been and is not currently in compliance with all applicable laws, ordinance,
requirements and regulations which have not been corrected.
(l) Tenants. The list of Tenants attached hereto as Exhibit "J" is a
true and complete list of all Tenants under the Leases as of the Effective Date.
(m) Contracts. The list of Contracts attached hereto as Exhibit "C"
is a true and complete list of all Contracts in effect as of the Effective Date.
Section 6.2 Limited Liability. The representations and warranties of
Seller set forth in Section 6.1, together with Seller's liability for any breach
before Closing of any of
Seller's interim operating covenants under Article 8, will survive the Closing
for a period of twelve (12) months. Buyer will not have any right to bring any
action against Seller as a result of any untruth or inaccuracy of such
representations and warranties, or any such breach, unless and until the
aggregate amount of all liability and losses arising out of any such untruth or
inaccuracy, or any such breach, exceeds $50,000.00, and then only to the extent
of such excess. In addition, in no event will Seller's liability for all such
breaches exceed, in the aggregate, $500,000. Seller shall have no liability with
respect to any of Seller's representations, warranties and covenants herein if,
prior to the Closing, Buyer has actual knowledge of any breach of a
representation, warranty or covenant of Seller herein, or Buyer obtains
knowledge (from whatever source, including, without limitation, any tenant
estoppel certificates or any of the Due Diligence Items, as a result of Buyer's
Due Diligence, the inclusion of any information in or written disclosure by
Seller or Seller's agents and employees) that contradicts any of Seller's
representations and warranties herein, and Buyer nevertheless consummates the
transaction contemplated by this Agreement. Sections 3.4, 3.5, 3.6, 9.6, and
10.11 will survive Closing without limitation unless a specified period is
otherwise provided in this Agreement. All other representations, warranties,
covenants and agreements made or undertaken by Seller under this Agreement,
unless otherwise specifically provided herein, will not survive the Closing Date
but will be merged into the Deed and other Closing documents delivered at the
Closing.
Section 6.3 Seller's Knowledge. For purposes of this Agreement
and any document delivered at Closing, whenever the phrase "to Seller's
knowledge," or the "knowledge" of Seller or words of similar import are used,
they shall be deemed to refer to facts within the actual knowledge only of Xxxxx
Xxxxxxxxxx, Xxxxx Xxx, and Xxxxxxx Xxxxxxx and no others, at the times indicated
only, without duty of inquiry whatsoever. In no event shall Seller have or be
deemed to have knowledge on any matter solely by reason of notice thereof being
imputed by operation of law or otherwise to Xxxxxxx Xxxxxxx as a result of
Xxxxxxx Xxxxxxx having been an officer of Allstate Insurance Company, an
affiliate of the predecessor in interest of Seller of the Property.
Section 6.4 Liability of Representations and Warranties. Buyer
acknowledges that the individuals named above are named solely for the purpose
of defining and narrowing the scope of Seller's knowledge and not for the
purpose of imposing any liability on or creating any duties running from such
individuals to Buyer. Buyer covenants that it will bring no action of any kind
against such individuals, any shareholder, partner or member of Seller, as
applicable, or related to or arising out of these representations and
warranties.
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES OF BUYER
Section 7.1 Buyer's Representations and Warranties. Buyer
represents and warrants to Seller the following:
(a) Status. Buyer is a limited liability company duly organized
and validly existing under the laws of the Commonwealth of Virginia.
(b) Authority. The execution and delivery of this Agreement and
the performance of Buyer's obligations hereunder have been or will be duly
authorized by all
necessary action on the part of Buyer and this Agreement constitutes the legal,
valid and binding obligation of Buyer, subject to equitable principles and
principles governing creditors' rights generally.
(c) Non-Contravention. The execution and delivery of this Agreement by
Buyer and the consummation by Buyer of the transactions contemplated hereby will
not violate any judgment, order, injunction, decree, regulation or ruling of any
court or Governmental Entity or conflict with, result in a breach of, or
constitute a default under the organic documents of Buyer, any note or other
evidence of indebtedness, any mortgage, deed of trust or indenture, or any lease
or other material agreement or instrument to which Buyer is a party or by which
it is bound.
(d) Consents. No consent, waiver, approval or authorization is
required from any person or entity (that has not already been obtained) in
connection with the execution and delivery of this Agreement by Buyer or the
performance by Buyer of the transactions contemplated hereby.
(e) Bankruptcy. Buyer has not (i) commenced a voluntary case, or had
entered against it a pettion, for relief under any federal bankruptcy act or
any similar petition, order or decree under any federal or state law or statute
relative to bankruptcy, insolvency or other relief for debtors, (ii) caused,
suffered or consented to the appointment of a receiver, trustee, administrator,
conservator, liquidator or similar official in any federal, state or foreign
judicial or non-judicial proceeding, to hold, administer and/or liquidate all or
substantially all of its property, or (iii) made an assignment for the benefit
of creditors.
(f) Solvency. Buyer will not be rendered insolvent in connection with,
or as a result of, the performance by Buyer of its obligations hereunder or the
consummation of the transactions contemplated hereby.
The representations and warranties of Buyer set forth in this Section 7.1 will
survive the Closing for a period of twelve (12) months. Seller will not have any
right to bring any action against Buyer as a result of any untruth or inaccuracy
of such representations and warranties, or any such breach, unless and until the
aggregate amount of all liability and losses arising out of any such untruth or
inaccuracy, or any such breach, exceeds $50,000.00, and then only to the extent
of such excess. In addition, in no event will Buyer's liability for all such
breaches exceed, in the aggregate, $250,000. Buyer shall have no liability with
respect to any Buyer's representations, warranties and covenants herein if,
prior to the Closing, Seller has actual knowledge of any breach of a
representation or warranty, or Seller obtains knowledge (from whatever source,
including, without limitation, the inclusion of any information in or written
disclosure by Buyer or Buyer's agents and employees) that contradicts any of
Buyer's representations and warranties herein, and Seller nevertheless
consummates the transaction contemplated by this Agreement. Sections 3.4, 3.5,
3.6, 9.6, and 10.11 will survive Closing without limitation unless a specified
period is otherwise provided in this Agreement. All other representations,
warranties, covenants and agreements made or undertaken by Buyer under this
Agreement, unless otherwise specifically provided herein, will not survive the
Closing Date but will be merged into the Deed and other Closing documents
delivered at the Closing.
Section 7.2 Buyer's Independent Investigation. (a) Buyer has been given,
or will be given before the end of the Due Diligence Period, a full opportunity
to inspect and investigate each and every aspect of the Property, either
independently or through agents of Buyer's choosing, including, without
limitation:
(i) All matters relating to title, together with all governmental and
other legal requirements such as taxes, assessments, zoning, use permit
requirements, and building codes;
(ii) The physical condition and aspects of the Property, including,
without limitation, the interior, the exterior, the square footage within the
improvements on the Real Property and within each tenant space therein, the
structure, the paving, the utilities, and all other physical and functional
aspects of the Property, including, without limitation, an examination for the
presence or absence of Hazardous Materials, which shall be performed or arranged
by Buyer at Buyer's sole expense;
(iii) Any easements and/or access rights affecting the Property;
(iv) The Leases and all matters in connection therewith, including,
without limitation, the ability of the Tenants to pay Rent;
(v) The Contracts, the Licenses and Permits, the Commission Agreements
and any other documents or agreements of significance affecting the Property;
and
(vi) All other matters of material significance affecting the Property
or delivered to Buyer by Seller in accordance with Article 3 of this Agreement.
(b) THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED
BETWEEN SELLER AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER
AND BUYER, AND BUYER HAS CONDUCTED, OR WILL CONDUCT, ITS OWN INDEPENDENT
EXAMINATION OF THE PROPERTY. OTHER THAN THE MATTERS REPRESENTED IN SECTION 6.1
AS SUCH MAY BE LIMITED BY SECTION 6.2, BUYER HAS NOT RELIED UPON AND WILL NOT
RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF
SELLER OR ANY OF SELLER'S AGENTS OR REPRESENTATIVES, AND BUYER HEREBY
ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. SELLER SPECIFICALLY
DISCLAIMS, AND NEITHER IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION,
WARRANTY OR ASSURANCE WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS
OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR
RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE,
REPAIR, CONDITION, DESIGN OR MARKET ABILITY OF THE PROPERTY, OR ANY PORTION
THEREOF, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED OR EXPRESS WARRANTY OF
MERCHANTABILITY, (ii) ANY IMPLIED OR EXPRESS WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE, (iii) ANY IMPLIED OR EXPRESS WARRANTY OF
CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (iv) ANY RIGHTS OF BUYER UNDER
APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (v) ANY CLAIM BY
BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO
THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (vi) THE FINANCIAL CONDITION OR
PROSPECTS OF THE PROPERTY AND (vii) THE COMPLIANCE OR LACK THEREOF OF THE REAL
PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS
INTENTION OF SELLER AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO BUYER IN ITS PRESENT
CONDITION AND STATE OF REPAIR, "AS IS" AND "WHERE IS", WITH ALL FAULTS. Buyer
represents that it is a knowledgeable, experienced and sophisticated buyer of
real estate, and that it is relying solely on its own expertise and that of
Buyer's consultants in purchasing the Property and that it is receiving
reasonably equivalent value in consummating the transactions contemplated
hereby. Buyer acknowledges and agrees that it will have the opportunity to
conduct such inspections, investigations and other independent examinations of
the Property and related matters, including but not limited to the physical and
environmental conditions thereof, during the Due Diligence Period and, except as
set forth in Section 6.1 (as limited by Section 6.2), Buyer will rely upon same
and not upon any statements of Seller or of any officer, director, employee,
agent or attorney of Seller. Buyer acknowledges that all information obtained by
Buyer will be obtained from a variety of sources and Seller will not be deemed
to have represented or warranted the completeness, truth or accuracy of any of
the Due Diligence Items or other such information heretofore or hereafter
furnished to Buyer. Upon Closing, Buyer will assume the risk that adverse,
matters, including, but not limited to, adverse physical and environmental
conditions, may not have been revealed by Buyer's inspections and
investigations. Buyer acknowledges and agrees that upon Closing, Seller will
sell and convey to Buyer, and Buyer will accept the Property, "AS IS, WHERE IS,"
with all faults. Buyer further acknowledges and agrees that there are no oral
agreements, warranties or representations, collateral to or affecting the
Property, by Seller, any agent of Seller or any third party. Seller is not
liable or bound in any manner by any oral or written statements, representations
or information pertaining to the Property furnished by any real estate broker,
agent, employee, servant or other person, unless the same are specifically set
forth or referred to herein. Buyer acknowledges that the Purchase Price reflects
the "as is, where is" nature of this sale and any faults, liabilities, defects
or other adverse matters that may be associated with the Property. BUYER, WITH
BUYER'S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN
THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. BUYER
ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH
HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE
AGREED TO SELL THE PROPERTY TO BUYER FOR THE PURCHASE PRICE WITHOUT THE
DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND
CONDITIONS OF THIS SUBSECTION 7.2(b) WILL EXPRESSLY SURVIVE THE CLOSING, WILL
NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND WILL BE INCORPORATED
INTO THE DEED.
Section 7.3 Buyer's Release of Seller.
(a) Seller Released From Liability. Seller is hereby released
from all responsibility and liability to Buyer regarding the condition
(including its physical condition and its compliance with applicable laws, and
the presence in the soil, air, structures and surface and subsurface waters, of
Hazardous Materials or substances that have been or may in the future be
determined to be toxic, hazardous, undesirable or subject to regulation and that
may need to be specially treated, handled and/or removed from the Property under
current or future federal, state and local laws, regulations or guidelines),
valuation, salability or utility of the Property, or its suitability for any
purpose whatsoever except to the extent that such responsibility or liability is
the result of the material inaccuracy (if any) of Seller's representations under
Section 6.1.
(b) Buyer's Waiver of Objections. Buyer acknowledges that it has
inspected the Property, observed its physical characteristics and existing
conditions and had, or will have, the opportunity to conduct such investigation
and study on and of said Property and adjacent areas as it deemed necessary, and
subject to Seller's responsibility for any breach of the warranties and
representations contained in Section 6.1, hereby waives any and all objections
to or complaints (including but not limited to actions based on federal, state
or common law and any private right of action under CERCLA, RCRA or any other
state and federal law to which the Property is or may be subject) regarding
physical characteristics and existing conditions, including without limitation
structural and geologic conditions, subsurface soil and water conditions and
solid and hazardous waste and Hazardous Materials on, under, adjacent to or
otherwise affecting the Property. Buyer further hereby assumes the risk of
changes in applicable laws and regulations relating to past, present and future
environmental conditions on the Property, and the risk that adverse physical
characteristics and conditions, including without limitation the presence of
Hazardous Materials of other contaminants, may not be revealed by its
investigation.
(c) Survival. The foregoing waivers and releases by Buyer shall
survive either (i) the Closing and the recordation of the Deed, and shall not be
deemed merged into the Deed upon its recordation, or (ii) any termination of
this Agreement.
Section 7.4 Discharge. Notwithstanding any other provisions
contained herein, or in any document or instrument delivered in connection with
the transfer contemplated hereby, to the contrary (including, without
limitation, any language providing for survival of certain provisions hereof or
thereof), Buyer hereby acknowledges and agrees that (a) prior to Closing,
Buyer's sole recourse in the event of a breach by Seller shall be as set forth
in Section 5.1, and (b) Seller shall, upon consummation of Closing, be deemed to
have satisfied and fulfilled all of Seller's covenants, indemnities, and
obligations contained in this Agreement and the documents delivered pursuant
hereto, and Seller shall have no further liability to Buyer or otherwise with
respect to this Agreement, the transfers contemplated hereby, or any documents
delivered pursuant hereto, except to the extent of any obligation or liability
Seller may have under Section 6.1 as to which Seller's liability, if any, shall
be limited as provided in Section 6.2.
ARTICLE 8 - LEASES; MAINTENANCE OF PROPERTY
From the date hereof until the Closing, and except as otherwise
consented to or approved by Buyer, Seller covenants and agrees with Buyer as
follows:
Section 8.1 New Leases; Lease Modifications. After the Effective Date
and prior to the end of the Due Diligence Period, Seller, in its sole
discretion, and without Buyer's consent shall have the right to enter into any
New Lease it deems advisable; provided, however, that Seller shall provide Buyer
with an executed copy of any such New Lease promptly after the execution and
delivery thereof but in no event later the last day of the Due Diligence Period.
Buyer's sole remedy in the event any New Lease is executed by Seller after the
Effective Date and prior to the end of the Due Diligence Period shall be to
terminate this Agreement on or before the end of the Due Diligence Period in
accordance with Section 3.6. After the end of the Due Diligence Period, Seller
shall not, without Buyer's prior written consent in each instance, which consent
shall not be unreasonably withheld and shall be given or denied in good faith,
with the reasons for such denial specified in reasonable detail within three (3)
business days after receipt by Buyer of the information referred to in the next
sentence, enter into a New Lease; modify, terminate, accept a surrender of, or
amend any Pre-Effective Date Lease or any New Lease entered into prior to the
end of the Due Diligence Period (except pursuant to the exercise by a Tenant of
a renewal, extension or expansion option or other right contained in such
Tenant's lease); consent to any assignment or sublease in connection with any
Pre-Effective Date Lease or New Lease; or remove any tenant under any
Pre-Effective Date Lease or New Lease, whether by summary proceedings or
otherwise, except by reason of a default of the tenant under the subject
Pre-Effective Lease or New Lease. Seller shall furnish Buyer with a written
notice of the proposed action which shall contain information regarding the
proposed action that Seller believes is reasonably necessary to enable Buyer to
make informed decisions with respect to the advisability of the proposed action.
If Buyer fails to object in writing to any such proposed action within three (3)
business days after receipt of the aforementioned information, Buyer shall be
deemed to have approved the proposed action. If any Lease requires that the
landlords's consent be given under the applicable circumstances (or not be
unreasonably withheld), then Buyer shall be deemed ipso facto to have approved
such action. Any notice from Buyer rejecting the proposed action shall include a
description of reasons for Buyer's rejection.
Section 8.2 Lease Expenses. At Closing, Buyer shall reimburse Seller
for any and all Reimbursable Lease Expenses to the extent that the same have
been paid by Seller prior to Closing. In addition, at Closing, Buyer shall
assume Seller's obligations to pay, when due (whether on a stated due date or by
acceleration) any Reimbursable Lease Expenses unpaid as of the Closing, and
Buyer hereby agrees to indemnify and hold Seller harmless from and against any
and all claims for such Reimbursable Lease Expenses which remain unpaid for any
reason at the time of Closing, which obligations of Buyer shall survive the
Closing and shall not be merged therein. Each party shall make available to the
other all records, bills, vouchers and other data in such party's control
verifying Reimbursable Lease Expenses and the payment thereof.
Section 8.3 Lease Enforcement. Subject to the provisions of Section
8.1, prior to the Closing Date, Seller shall have the right, but not the
obligation (except to the extent that Seller's failure to act shall constitute a
waiver of such rights or remedies), to enforce the
rights and remedies of the landlord under any Pre-Effective Date Lease or New
Lease, by summary proceedings or otherwise (including, without limitation, the
right to remove any tenant) and the exercise of any such rights or remedies
shall not affect the obligations of Buyer under this Agreement in any manner or
entitle Buyer to a reduction in, or credit or allowance against, the Purchase
Price or give rise to any other claim on the part of Buyer; provided, however,
Seller shall not have the right to apply all or any portion of any Tenant
Deposits then held by Seller toward any loss or damage incurred by Seller by
reason of any defaults by Tenants unless such defaults exist as of the Effective
Date and are disclosed on the Rent Roll.
Section 8.4 Certain Interim Operating Covenants. Seller covenants to
Buyer that Seller will: (a) from the Effective Date until Closing or earlier
termination of this Agreement, continue to operate, manage and maintain the
Improvements in the ordinary course of Seller's business and substantially in
accordance with Seller's present practice, subject to ordinary wear and tear and
further subject to Section 10.2; (b) from the Effective Date until Closing or
earlier termination of this Agreement, maintain fire and extended coverage
insurance on the Property which is at least equivalent in all material respects
to the insurance policies covering the Land and the Improvements as of the
Effective Date; (c) from and after the end of the Due Diligence Period until
Closing or earlier termination of this Agreement, not enter into any new
contract for the provision of goods or services to or with respect to such the
Property other than in the ordinary course of business, or renew, extend, modify
or replace any of the Contracts unless in each instance such contract is
terminable as of the Closing Date without payment of any fees or penalty or
unless Buyer consents thereto in writing, which approval shall not be
unreasonably withheld, delayed or conditioned; (d) from the Effective Date until
Closing or earlier termination of this Agreement, deliver to Buyer copies of any
notices received or given pursuant to a Lease alleging a default by Seller or
any Tenant thereunder; and (e) from the Effective Date until Closing or earlier
termination of this Agreement, on or before the 10/th/ day of each calendar
month, provide Buyer a rent roll current as of the first day of such calendar
month. In addition, Seller shall terminate any leasing and/or management
agreement with the Property Manager with respect to the Property effective as of
the Closing Date and pay any and all costs and expenses of termination thereof.
ARTICLE 9 - CLOSING AND CONDITIONS
Section 9.1 Escrow Instructions. Upon execution of this Agreement,
the parties hereto shall deposit an executed counterpart of this Agreement with
the Escrow Agent, and this Agreement shall serve as escrow instructions to the
Escrow Agent as the escrow holder for consummation of the purchase and sale
contemplated hereby. Seller and Buyer agree to execute such reasonable
additional and supplementary escrow instructions as may be appropriate to enable
the Escrow Agent to comply with the terms of this Agreement; provided, however,
that in the event of any conflict between the provisions of this Agreement and
any supplementary escrow instructions, the terms of this Agreement shall
control.
Section 9.2 Closing. (a) The closing hereunder ("Closing") shall be
held and delivery of all items to be made at the Closing under the terms of this
Agreement shall be made through Escrow Agent's office on September 30, 2002 or
such other date and time as Buyer and Seller may mutually agree upon in writing
(the "Closing Date"). Such date may not
be extended without the prior written approval of both Seller and Buyer. No
later than 12:00 p.m. Eastern Time on the Closing Date, Buyer shall deposit in
escrow with the Escrow Agent the Purchase Price, together with all other costs
and amounts to be paid by Buyer at the Closing pursuant to the terms of this
Agreement, by Federal Reserve wire transfer of immediately available funds to an
account to be designated by the Escrow Agent. No later than 1:00 p.m. Eastern
Time on the Closing Date, (i) Buyer will direct the Escrow Agent to (A) pay to
Seller by Federal Reserve wire transfer of immediately available funds to an
account designated by Seller, the Purchase Price, less any costs or other
amounts to be paid by Seller at Closing pursuant to the terms of this Agreement
and (B) pay all appropriate payees the other costs and amounts to be paid by
Buyer at Closing pursuant to the terms of this Agreement and (ii) Seller will
direct the Escrow Agent to pay to the appropriate payees out of the proceeds of
Closing payable to Seller, all costs and amounts to be paid by Seller at Closing
pursuant to the terms of this Agreement.
(b) It shall constitute a condition precedent to Seller's
obligations to consummate the Closing hereunder that all of the material
representations, warranties, covenants, and agreements of Buyer contained herein
shall be true and correct and/or shall have been performed, as the case may be,
in all material respects. It shall constitute a condition precedent to Buyer's
obligations to consummate the Closing hereunder that all of the material
representations, warranties, covenants, and agreements of Seller contained
herein shall be true and correct and/or shall have been performed, as the case
may be, in all material respects.
Section 9.3 Seller's Closing Documents and Other Items. (a) At or
before Closing, Seller shall deposit with the Escrow Agent into escrow the
following items:
(i) A duly executed and acknowledged Special Warranty Deed in
the form attached hereto as Exhibit "D" for the Real Property (the "Deed");
(ii) Two duly executed counterparts of a Xxxx of Sale in the
form attached hereto as Exhibit "E" (the "Xxxx of Sale");
(iii) Two (2) duly executed counterparts of an Assignment and
Assumption of Leases in the form attached hereto as Exhibit "F" (the "Assignment
and Assumption of Contracts");
(v) An affidavit pursuant to Section 1445(b)(2) of the Code,
and on which Buyer is entitled to rely, stating that Seller is not a "foreign
person" within the meaning of Section 1445(f)(3) of the Code;
(vi) Notices to each Tenant, signed by Seller, that shall
disclose that the Property has been sold to Buyer and that, after the Closing,
all rents should be paid to the Buyer or Buyer's designee;
(vii) If applicable, duly completed and signed real estate transfer
tax declarations;
(viii) If applicable, with respect to any security deposits which are
letters of credit, if the same are assignable, (A) deliver such letters of
credit, (B) execute and deliver such other instruments as the issuers of such
letters of credit shall reasonably require, and (C) cooperate with Buyer to
change the named beneficiary under such letters of credit to Buyer;
(ix) Two (2) duly executed counterparts of the Closing Statement;
and
(x) To the extent not previously delivered by Seller to Buyer, all
of the estoppel certificates received by Seller.
(b) Seller shall deliver to Buyer a set of keys to the Property on
the Closing Date.
Section 9.4 Buyer's Closing Documents and Other Items. At or before
Closing, Buyer shall deposit with the Escrow Agent into escrow the following
items:
(a) The Purchase Price and such additional funds as are necessary
to close this transaction;
(b) Two (2) duly executed counterparts of the Xxxx of Sale;
(c) Two (2) duly executed counterparts of the Assignment and
Assumption of Leases;
(d) Two (2) duly executed counterparts of the Assignment and
Assumption of Contracts;
(e) Documentation to establish to Seller's reasonable satisfaction
the due authority of Buyer's acquisition of the Property and Buyer's delivery of
the documents required to be delivered by Buyer pursuant to this Agreement
including, but not limited to, the organizational documents of Buyer, as they
may have been amended from time to time, resolutions of Buyer and incumbency
certificates of Buyer;
(f) If applicable, duly completed and signed real estate transfer
tax declarations;
(g) Such other documents as may be reasonably required by the Title
Company or as may be agreed upon by Seller and Buyer to consummate the purchase
of the Property as contemplated by this Agreement; and
(b) Two (2) duly executed counterparts of the Closing Statement.
Section 9.5. Prorations and Closing Costs. (a) (i) Seller and Buyer
agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing
Date (the "Proration Time"), the following (collectively, the "Proration
Items"): real estate and personal property taxes and assessments (subject to the
terms of Section 9.5(b)), utility bills (except as hereinafter provided),
collected Rents (subject to the terms of Section 9.5(b)) and Operating Expenses
(subject to the terms of Section 9.5(c)) payable by the owner of the Property.
Seller will be charged and credited for the amounts of all the Proration Items
relating to the period up to and including the Proration Time, and Buyer will be
charged and credited for all of the Proration Items relating to the period after
the Proration Time. Such preliminary estimated Closing prorations shall be set
forth on a preliminary closing statement to be prepared by Seller and submitted
to Buyer for Buyer's approval prior to the Closing Date (the "Closing
Statement"). The Closing Statement, once agreed upon, shall be signed by Buyer
and Seller and delivered to the Escrow Agent for purposes of making the
preliminary proration adjustment at Closing subject to the final cash settlement
provided for below. The preliminary proration shall be paid at Closing by Buyer
to Seller (if the preliminary prorations result in a net credit to Seller) or by
Seller to Buyer (if the preliminary prorations result in a net credit to Buyer)
by increasing or reducing the cash to be delivered by Buyer in payment of the
Purchase Price at the Closing. If the actual amounts of the Proration Items are
not known as of the Proration Time, the prorations will be made at Closing on
the basis of the best evidence then available; thereafter, when actual figures
are received (not to exceed 120 days after closing), re-prorations will be made
on the basis of the actual figures, and a final cash settlement will be made
between Seller and Buyer. No prorations will be made in relation to insurance
premiums, and Seller's insurance policies will not be assigned to Buyer. Final
readings and final xxxxxxxx for utilities will be made if possible as of the
Proration Time, in which event no proration will be made at Closing with respect
to utility bills. Seller will be entitled to all deposits presently in effect
with the utility providers, and Buyer will be obligated to make its own
arrangements for deposits with the utility providers.
(ii) Buyer will receive a credit on the Closing Statement for the
prorated amount (as of the Proration Time) of all Rent previously paid to or
collected by Seller and attributable to any period following the Proration Time.
Rents are "Delinquent" when they were due prior to the Closing Date, and payment
thereof has not been made on or before the Closing Date. Delinquent Rents will
not be prorated. All sums collected by Buyer or Seller from and after Closing
from each Tenant will be applied first to current amounts owed by such Tenant to
Buyer, then to Delinquent Rent owed by such Tenant to Buyer, and then to
Delinquent Rent owed by such Tenant to Seller. Any sums due Seller will be
promptly remitted to Seller. Buyer shall not have an exclusive right to collect
any sums due Seller from Tenants under the Leases and Seller hereby retains the
right to pursue any Tenant under the Leases for any sums due Seller for periods
attributable to Seller's ownership of the Property; provided, however, Seller
(A) shall be required to notify Buyer in writing of Seller's intention to
commence or pursue any legal proceedings; (B) shall only be permitted to
commence or pursue legal proceedings after the date which is three (3) months
after Closing; and (C) shall not be permitted to commence or pursue any legal
proceedings against any Tenant seeking eviction of such Tenant or the
termination of the underlying Lease.
(iii) Seller shall prepare a reconciliation as of the Closing Date
of the amounts of all xxxxxxxx and charges for operating expenses and tax
escalations (collectively, "Operating Expenses"). If more amounts have been
expended for Operating Expenses than have been collected from Tenants for
Operating Expenses, Buyer shall xxxx Tenants and upon collection remit to Seller
promptly. If more amounts have been collected from Tenants for Operating
Expenses than have been expended for Operating Expenses, Seller will pay to
Buyer at Closing, as a credit against the Purchase Price, such excess collected
amount. Buyer and Seller agree that such proration of Operating Expenses shall
be reprorated up to 120 days after Closing. In this regard, Buyer will be solely
responsible, from and after Closing, for (A) collecting from Tenants the amount
of any outstanding Operating Expenses for periods before and after the Closing
and (B) where appropriate, reimbursing Tenants for amounts attributable to
Operating Expenses, as may be necessary based on annual reconciliations for
Operating Expenses.
(iv) All ad valorem real estate and personal property taxes with
respect to the Property (to the extent not prorated in (iii) above) shall be
prorated as of the Proration Time on a accrual basis for the calender year in
which the Closing occurs, regardless of the year for which such taxes are
assessed.
(v) Buyer shall receive a credit against Purchase Price at Closing
for all Tenant Deposits then outstanding under the Leases and for all Rent paid
in advance (to the extent not prorated as set forth in (ii) above).
(vi) Buyer shall receive a credit against the Purchase Price at
Closing for all payments due or owing under any Contracts for periods prior to
the Closing Date, which amounts shall be prorated as of the Proration Time. If
Seller has paid any amounts under any Contracts for periods after the Proration
Time, Buyer shall pay such amounts to Seller at Closing in addition to the
Purchase Price.
(vii) Seller shall receive a credit for any and all Reimbursable
Lease Expenses as set forth in Section 8.2. Each party shall make available to
the other all records, bills, vouchers and other data in such party's control
verifying Reimbursable Lease Expenses and the payment thereof.
(viii) The provisions of this Section 9.5(a) will survive the Closing
for a period of twelve (12) months.
(b) (i) Seller shall pay (A) one-half of the Escrow Agent's escrow
fee, (B) all of the costs associated with the issuance of the Title Commitment
and the Title Policy, and (C) any additional costs and charges customarily
charged to sellers in accordance with common escrow practices in the county in
which the Property is located, other than those costs and charges specifically
required to be paid by Buyer hereunder.
(ii) Buyer shall pay (A) one-half of the Escrow Agent's escrow fee,
(B) all of the costs associated with the issuance of the Endorsements (other
than the costs associated with the issuance of endorsements to cure any Title
Objections), (C) the recording fees required in connection with the transfer of
the Property to Buyer and (D) any additional costs and charges
customarily charged to buyers in accordance with common escrow practices in the
county in which the Property is located, other than those costs and charges
specifically required to be paid by Seller hereunder. In addition to the
foregoing, Buyer shall be responsible for any costs of updating the Survey of
the Property or otherwise conforming the Survey to the requirements for issuance
of the Title Policy or for any new survey that may be required for issuance of
the Title Policy.
Section 9.6 Broker. Buyer hereby represents and warrants to Seller
that, except for Buyer's Broker, Buyer did not employ or use any broker or
finder to arrange or bring about this transaction and that there are no claims
or rights for brokerage commissions or finder's fees in connection with the
transactions contemplated by this Agreement, other than (a) the commission
("Broker's Commission") required to be paid by Seller to Broker pursuant to a
separate agreement between Seller and Broker and (b) the commission required to
be paid by Seller to Buyer's Broker pursuant to this provision. Seller hereby
represents and warrants to Buyer that Seller has not employed any broker with
respect to this transaction, other than Broker. Seller hereby agrees to pay to
Buyer's Broker, at the Closing, provided the Closing occurs, a commission in the
amount of $380,000.00 (the "Buyer's Broker's Commission"). If the Closing fails
to occur for any reason or for no reason, Seller shall have no obligation to pay
the Buyer's Broker Commission. If any person brings a claim for a commission or
finder's fee based upon any contact, dealings, or communication with Buyer in
connection with the transactions contemplated by this Agreement, other than
Broker and Buyer's Broker, or if Buyer's Broker brings a claim for a commission
or finder's fee based upon any contact, dealings or communication with Buyer in
connection with the transactions contemplated in excess of the Buyer's Broker
Commission, then Buyer shall defend Seller from such claim, and shall indemnify
Seller and hold Seller harmless from any all costs, damages, claims,
liabilities, or expenses (including, without limitation, reasonable attorneys'
fees and disbursements) incurred by Seller with respect to the claim. The
provisions of this Section 9.6 shall survive the Closing or, if the purchase and
sale is not consummated, any termination of this Agreement and shall not be
subject to the twelve month limitation set forth in Section 6.2.
Section 9.7 Expenses. Except as provided in Section 9.5 and in
Section 9.6, each party hereto shall pay its own expenses incurred in connection
with this Agreement and the transactions contemplated hereby, including, without
limitation, in the case of Buyer, all third-party engineering and environmental
review costs and all other Due Diligence costs.
ARTICLE 10 - MISCELLANEOUS
Section 10.1 Amendment and Modification. Subject to applicable law,
this Agreement may be amended, modified, or supplemented only by a written
agreement signed by Buyer and Seller.
Section 10.2 Risk of Loss and Insurance Proceeds.
(a) Minor Loss. Buyer shall be bound to purchase the Property for
the full Purchase Price as required by the terms hereof, without regard to the
occurrence or effect of any damage to the Property or destruction of any
improvements thereon or condemnation of any
portion of the Property, provided that: (i) the cost to repair any such damage
or destruction, or the diminution in the value of the remaining Property
as a result of a partial condemnation, equals ten percent (10%) of the Purchase
Price or less, (ii) no Major Tenant exercises any right it may have pursuant to
its Lease, if any, to terminate the Lease on account of such damage or
destruction, and (iii) upon the Closing, there shall be a credit against the
Purchase Price due hereunder equal to the amount of any insurance proceeds or
condemnation awards collected by Seller as a result of any such damage or
destruction or condemnation, plus any amount of any insurance deductible and any
uninsured loss, less any sums expended by Seller toward the restoration or
repair of the Property or in collecting such insurance proceeds or condemnation
awards. If the proceeds or awards have not been collected as of the Closing,
then such proceeds or awards shall be assigned to Buyer, except to the extent
needed to reimburse Seller for sums expended prior to the Closing to repair
or restore the Property or to collect any such proceeds or awards.
(b) Major Loss. If the amount of the damage or destruction or
condemnation as specified above exceeds ten percent (10%) of the Purchase Price
or any Major Tenant exercises a right to terminate its Lease in accordance with
the terms of its Lease, then Buyer or Seller may at its option, to be exercised
by written notice to the other within ten (10) business days of Seller's notice
of the occurrence of the damage or destruction of the commencement of
condemnation proceedings, terminate this Agreement. A party's failure to elect
to terminate this Agreement within said ten business day period shall be deemed
an election by such party to consummate this purchase and sale transaction. If
the Buyer or Seller elects to terminate this Agreement within such ten business
day period, the Deposit shall be returned to Buyer and neither party shall have
any further rights or obligations hereunder except as provided in Sections 3.4,
3.5, 3.6, 9.6 and 10.11. If both Seller and Buyer elect or are deemed to have
elected to proceed with the purchase, then upon the Closing, there shall be a
credit against the Purchase Price due hereunder equal to the amount of any
insurance proceeds or condemnation awards collected by Seller as a result of any
such damage or destruction or condemnation, plus the amount of any insurance
deductible and any uninsured loss, less any sums expended by Seller toward the
restoration or repair of the Property or in collecting such insurance proceeds
or condemnation awards. If the proceeds or awards have not been collected as of
the Closing, then such proceeds or awards shall be assigned to Buyer, except to
the extent needed to reimburse Seller for sums expended prior to the Closing to
repair or restore the Property or to collect any such proceeds or awards.
Section 10.3 Notices. All notices required or permitted hereunder
shall be in writing and shall be served on the parties at the following address:
If to Seller: ASP XXX XXXXXXXXX XXXXX, X.X.
x/x Xxxxxxxxx Xxxx Xxxxxx Partners, L.L.C.
00000 Xxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
With Copies to: Xxxxxxxxx Real Estate Partners, L.L.C.
00000 Xxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxx, Esq.
Fascimile: (000) 000-0000
and to: Xxxxx, Day, Xxxxxx & Xxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxx, Esq.
Facsimile: (000) 000-0000
If to Buyer: Triple Net Properties, LLC
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx and Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
with Copies to: Hirchler Xxxxxxxxx
The Federal Reserve Bank Building
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to Escrow Agent: LandAmerica Title Insurance Company
0000 Xxxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
Any such notices may be sent by (a) certified mail, return receipt requested, in
which case notice shall be deemed delivered five (5) business days after
deposit, postage prepaid in the U.S. mail, (b) a nationally recognized overnight
courier, in which case notice shall be deemed delivered one (1) business day
after deposit for next business day delivery with such courier, or (c) facsimile
transmission, in which case notice shall be deemed delivered upon electronic
verification that transmission to recipient was completed. The above addresses
and facsimile numbers may be changed by written notice to the other party;
provided that no notice of a change of address or facsimile number shall be
effective until actual receipt of such notice. Copies of notices are for
informational purposes only, and a failure to give or receive copies of any
notice shall not be deemed a failure to give notice.
Section 10.4 Assignment. Buyer and Seller shall not have the right to
assign this Agreement, without the prior written consent of the other party.
Notwithstanding the foregoing, Buyer and Seller may each assign, upon written
notice to the non-assigning party (a) their interest herein to an Affiliate of
such assigning party and (b) their rights (but not obligations) herein to any
party which is not an Affiliate for the purposes of effectuating an exchange of
properties under Section 1031 of the Code, provided that any such assignment
does not relieve the assigning party of its obligations hereunder. This
Agreement will be binding upon and inure to the benefit of Seller and Buyer and
their respective successors and permited assigns, and no other party will be
conferred any rights by viture of this Agreement or be entitled to enforce any
of the provisions hereof. Whenever a reference is made in this Agreement to
Seller or Buyer, such reference will include the successors and permitted
assigns of such party under this Agreement.
Section 10.5 Governing Law and Consent to Jurisdiction. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF
LAWS. ANY ACTION ARISING OUT OF THIS AGREEMENT MUST BE COMMENCED BY BUYER OR
SELLER IN THE STATE COURTS OF THE STATE OF NEW YORK OR IN U.S. FEDERAL COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK AND EACH PARTY HEREBY CONSENTS TO THE
JURISDICTION OF THE ABOVE COURTS IN ANY SUCH ACTION AND TO THE LAYING OF VENUE
IN THE STATE OF NEW YORK. ANY PROCESS IN ANY SUCH ACTION SHALL BE DULY SERVED IF
MAILED BY REGISTERED MAIL, POSTAGE PREPAID, TO THE PARTIES AT THEIR RESPECTIVE
ADDRESS DESCRIBED IN SECTION 10.3 HEREOF.
Section 10.6 Counterparts. This Agreement may be executed in two or
more fully or partially executed counterparts, each of which will be deemed an
original binding the signer thereof against the other signing parties, by all
counterparts together will constitute one and the same instrument.
Section 10.7 Entire Agreement. This Agreement and any other document
to be furnished pursuant to the provisions hereof embody the entire agreement
and understanding of representations, warranties, covenants, or undertakings
other than those expressly set forth or referred to in such documents. This
Agreement and such documents supersede all prior agreements and understandings
among the parties with respect to the subject matter hereof.
Section 10.8 Severability. Any term or provision of this Agreement
that is invalid or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement, or affecting the validity or enforceability of
any of the term or provisions of this Agreement.
Section 10.9 Attorney Fees. If any action is brought by any party to
this Agreement to enforce or interpret its terms or provisions, the prevailing
Party will be entitled to
reasonable attorney fees and costs incurred in connection with such action prior
to and at trial and on any appeal therefrom.
Section 10.10 Payment of Fees and Express. Each party to this
Agreement will be responsible for, and will pay, all of its own fees and
expenses, including those of its counsel and accountants, incurred in the
negotiation, preparation, and consummation of this Agreement and the transaction
contemplated hereunder.
Section 10.11 Confidential Information. The parties acknowledge that
the transaction described herein is of a confidential nature and shall not be
disclosed except to Permitted Outside Parties or as required by law. No party
shall make any public disclosure of the specific terms of this Agreement, except
as required by law (including SEC regulations and NYSE requirements). In
connection with the negotiation of this Agreement and the preparation for the
consummation of the transactions contemplated hereby, each party acknowledges
that it will have access to confidential information relating to the other
party. Each party shall treat such information as confidential, preserve the
confidentially thereof, and not duplicate or use such information, except to
Permitted Outside Parties in connection with the transactions contemplated
hereby. In the event of the termination of this Agreement for any reason
whatsoever, Buyer shall return to Seller, all documents, work papers,
engineering and environmental studies and reports and all other materials
(including all copies thereof obtained from Seller in connection with the
transactions contemplated hereby), and each party shall use its best efforts,
including instructing its employees and others who have had access to such
information, to keep confidential and not to use any such information. Except
required by applicable law, neither party shall issue any press release or make
any statement to the media without the other party's consent, which consent
shall not be unreasonably withheld. The provisions of this Section 10.11 shall
survive the Closing or, if the purchase and sale is not consummated, any
termination of this Agreement and shall not be subject to the twelve (12) month
limitation set forth in Section 6.2.
Section 10.12 No Joint Venture. Nothing set forth in this Agreement
shall be construed to create a joint venture between Buyer and Seller.
Section 10.13 Waiver of Jury Trial. Each party to this Agreement
hereby expressly waives any right to trial by jury of any claim, demand, action
or cause of action (each, an "Action") (a) arising out of this Agreement,
including any present or future amendment thereof or (b) in any way connected
with or related or incidental to the dealings of the parties or any of them with
respect to this Agreement (as hereafter amended) or any other instrument,
document or agreement executed or delivered in connection herewith, or the
transactions related hereto or thereto, in each case whether such Action is now
existing or hereafter arising, and whether sounding in contract or tort or
otherwise and regardless of which party asserts such Action; and each party
hereby agrees and consents that any such Action shall be decided by court trial
without a jury, and that any party to this Agreement may file an original
counterpart or a copy of this Section 10.13 with any court as written evidence
of the consent of the parties to the waiver of any right they might otherwise
have to trial by jury.
Section 10.14 Limited Liability. Neither the members, managers,
employees or agents of Seller, nor the shareholders, officers, directors,
employees or agents of any of them shall be liable under this Agreement and all
parties hereto shall look solely to the assets of Seller for the payment of any
claim or the performance of any obligation by Seller.
Section 10.15 Time of Essence. Time is of the essence of this
Agreement.
Section 10.16 No Waiver. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver, nor shall a waiver in any instance constitute a waiver in any subsequent
instance. No waiver shall be binding unless executed in writing by the party
making the waiver.
Section 10.17 Audit Rights. Upon receipt by Seller of Buyer's
reasonable written request at any time and from time to time within a period of
twelve (12) months after the Closing (but in no event more than twice during
such twelve (12) month period), Seller shall make available (or cause its asset
manager, as applicable, to make available) to Buyer and its accountants,
auditors, and designees, for inspection and copying during normal business hours
and at Buyer's sole cost and expense, all accounting records in Seller's control
relating to the Property for the calendar year period ended December 31, 2001,
and for the period from January 1, 2002, through the Closing Date, including,
without limitation, all general ledgers, cash receipts, canceled checks and
other accounting documents or information in Seller's control reasonably
requested by Buyer and related to the Property.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
SELLER: ASP TWO CORPORATE PLAZA, L.P.,
a Delaware limited partnership
By: ASP TWO CORPORATE PLAZA GP,
L.L.C., a Delaware limited liability
company, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
-----------------------------
Title: Vice-President
----------------------------
BUYER: TRIPLE NET PROPERTIES, LLC, [STAMP]
a Virginia limited liability company
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ESCROW AGENT:
The Escrow Agent is executing this Agreement to evidence its
agreement to hold the Deposit and act as escrow agent in accordance with the
terms and conditions of this Agreement.
LANDAMERICA TITLE INSURANCE
COMPANY
By: /s/ [ILLEGIBLE]
--------------------------------
Name: /s/ [ILLEGIBLE]
--------------------------------
Title: VP/counsel
--------------------------------
