EXHIBIT 10.2
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "AGREEMENT") is entered
into as of _______________, 2001, by and between Pinnacle Towers Inc., a
Delaware corporation ("SELLER") and Xxxx X. Xxxxx ("PURCHASER"), upon the terms
and conditions set forth herein.
ARTICLE I.
PURCHASE AND SALE
1.1 PROPERTY. For and in consideration of the premises,
undertakings and mutual covenants set forth herein, Seller hereby agrees to
sell, transfer, assign and/or convey unto Purchaser and Purchaser hereby agrees
to accept, buy and pay for the following properties, rights, interests and
assets (collectively "PROPERTY"):
(a) all of the real property described in EXHIBIT A
attached hereto and by this reference incorporated herein for
all purposes (the land, or interests in the land, described in
each such exhibit is herein called "LAND"), together with all
buildings and other improvements located thereon (the
"IMPROVEMENTS"), subject to the Permitted Exceptions (as
hereinafter defined);
(b) all tangible personal property and fixtures of
any kind owned by Seller and attached to or located within the
Improvements and used in connection with the ownership,
maintenance or operation of the Land or the Improvements
("PERSONAL PROPERTY");
(c) all of the landlord's interest in any leases,
licenses, occupancy agreements, or other agreements demising
space in, providing for the use of and/or occupancy of the
Improvements or the Land (collectively, the "LEASES"); and
(d) to the extent only the same are assignable by
Seller to Purchaser, all of Seller's right, title, and
interest in and to any and all of the following with respect
to the Land, the Improvements, the Personal Property and/or
the Leases, (i) agreements, such as maintenance, service or
utility contracts relating to ownership, maintenance and
operation, (ii) warranties currently in force and effect,
(iii) all licenses, permits or similar documents, (iv) plans,
drawings, specifications, surveys and engineering reports, and
(v) Seller's right, if any, to the use of the name "Xxxxxxx"
as the name of the building located on the Land (collectively,
the "INTANGIBLE PROPERTY").
The Property shall exclude, and Seller shall retain (a) all of
Seller's right, title and interest in and to all rights to the tradename,
assumed names, or business names or similar names by which the Property are
currently operated and the goodwill and other intangible assets associated with
the operation of the Property by Seller including "Pinnacle", any tradenames,
symbols, or marks relating thereto and all derivations thereof, (b) any cash,
bank accounts, prepaid obligations, accounts receivable, claims, causes of
action, and rights to receive insurance
proceeds and condemnation awards, subject to the proration provisions of Article
VII and Article VIII, (c) minute books and records, (d) accounting journals and
books of account (except for such journals and books of account that relate
solely to the Leases), and (e) tax refunds.
ARTICLE II.
PURCHASE PRICE
2.1 PURCHASE PRICE. The purchase price for the Properties
shall be an amount equal to the sum of Three Hundred Seventy-five Thousand
Dollars ($375,000) (the "PURCHASE PRICE"), subject to adjustment as set forth
below in Section 2.3.
2.2 METHOD OF PAYMENT. The Purchase Price shall be payable as
follows:
(a) "EFFECTIVE DATE" means the date a fully executed
Agreement is delivered to Port Xxxxxx Abstract, Port Xxxxxx,
Texas, (the "TITLE COMPANY"), as indicated by the execution by
the Title Company of the Receipt and Acknowledgment attached
hereto. On or before the Effective Date, an xxxxxxx money
deposit (the "XXXXXXX MONEY DEPOSIT") in the amount of Ten
Thousand Dollars ($10,000) in good funds being immediately
collectible by the Title Company shall be deposited by
Purchaser into an interest bearing escrow account at the Title
Company. If the Xxxxxxx Money Deposit is not timely paid by
Purchaser, then this Agreement shall terminate and the parties
shall have no further rights or liabilities hereunder. Any
income or interest earned on the Xxxxxxx Money Deposit prior
to Closing shall be held in the account and shall be deemed a
part of the Xxxxxxx Money Deposit for all purposes of this
Agreement. Except as hereinafter provided, the Xxxxxxx Money
Deposit shall be delivered to Seller at Closing as a credit to
reduce the Purchase Price at the Closing.
(b) The balance of the Purchase Price, after reducing
the Purchase Price by the amount of the Xxxxxxx Money Deposit,
shall be paid by Purchaser in same day funds immediately
available to the Title Company at the Closing.
2.3 INDEPENDENT CONSIDERATION. In consideration of the rights
granted to Purchaser under Section 3.3, Purchaser has on or before the Effective
Date paid to Seller the sum of One Hundred Dollars ($100), the receipt and
sufficiency of which are acknowledged by Sellers.
ARTICLE III.
DELIVERIES AND INSPECTIONS
3.1 DELIVERIES. As soon as reasonably possible after the
execution of this Agreement but in any event no later than 10 days after the
Effective Date, Seller shall use commercially reasonable efforts to furnish, or
cause to be furnished, to Purchaser, at Seller's sole cost and expense, legible,
true, correct and complete copies of the following material (the "DELIVERED
DOCUMENTS") for the Property:
(a) the Survey as required by Section 4.1;
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(b) a list of material contracts or agreements
(including copies of the Leases) affecting the Property to
which Seller is a party (the "SERVICE CONTRACTS");
(c) a list of all plans and specifications,
engineering drawings, blue prints and other architectural or
engineering data in the possession of Seller which relate to
the Property; and
(d) a copy of Seller's most current rent roll
applicable to the Leases.
EXCEPT AS PROVIDED IN SECTION 5.2, PURCHASER ACKNOWLEDGES AND
AGREES THAT SELLER DELIVERS THE MATERIAL AND INFORMATION DESCRIBED IN THIS
SECTION 3.1 WITHOUT REPRESENTATION OR WARRANTY AS TO THE ACCURACY THEREOF, AND
PURCHASER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SELLER SHALL HAVE NO
LIABILITY OR RESPONSIBILITY FOR ANY INACCURACY THEREOF.
3.2 DISCLAIMER OF WARRANTIES. PURCHASER IS ACQUIRING THE
PROPERTY "AS IS" AND "WHERE IS", WITHOUT REPRESENTATION OR WARRANTY EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT. EXCEPT AS SPECIFICALLY STATED IN THIS
AGREEMENT, SELLER HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY,
ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO THOSE CONCERNING (I) THE NATURE
AND CONDITION OF THE PROPERTY AND THE SUITABILITY OF THE PROPERTY FOR ANY AND
ALL ACTIVITIES AND USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON, (II) THE
MANNER, CONSTRUCTION, CONDITION AND STATE OF REPAIR OR LACK OF REPAIR OF ANY
IMPROVEMENTS LOCATED ON THE PROPERTY, (III) EXCEPT FOR ANY WARRANTIES CONTAINED
IN THE DEED, THE NATURE AND EXTENT OF ANY RIGHT-OF-WAY, LEASE, POSSESSION, LIEN,
ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHERWISE, AND (IV) THE
COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES, OR
REGULATIONS OF ANY GOVERNMENT OR OTHER BODY, IT BEING SPECIFICALLY UNDERSTOOD
THAT PURCHASER HAS HAD FULL OPPORTUNITY TO DETERMINE FOR ITSELF THE CONDITION OF
THE PROPERTY. THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS
IS" AND "WHERE IS" BASIS, AND PURCHASER EXPRESSLY ACKNOWLEDGES THAT, IN
CONSIDERATION OF THE AGREEMENTS OF SELLER HEREIN, EXCEPT AS OTHERWISE SPECIFIED
HEREIN, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR
ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY
OF QUANTITY, QUALITY, CONDITION, HABITABILITY, MERCHANTABILITY, SUITABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, ANY IMPROVEMENTS, THE PERSONAL
PROPERTY, OR SOIL, WATER, AIR OR ENVIRONMENTAL CONDITIONS. PURCHASER
ACKNOWLEDGES THAT PURCHASER IS PURCHASING THE PROPERTY BASED SOLELY ON
PURCHASER'S OWN INDEPENDENT INVESTIGATIONS AND FINDINGS AND NOT IN RELIANCE UPON
ANY INFORMATION PROVIDED BY SELLER OR SELLER'S AGENTS OR CONTRACTORS. SELLER HAS
MADE NO AGREEMENT TO ALTER, REPAIR OR IMPROVE ANY OF THE PROPERTY.
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3.3 DTPA WAIVER. Purchaser's rights and remedies with respect
to this transaction and with respect to all acts or practices of Seller, past,
present or future, in connection with this transaction shall be governed by
legal principles other than the Texas Deceptive Trade Practices - Consumer
Protection Act (the "DTPA"). Accordingly, PURCHASER HEREBY WAIVES THE
APPLICABILITY OF THE DTPA TO THIS TRANSACTION AND ANY AND ALL DUTIES, RIGHTS OR
REMEDIES THAT MIGHT BE IMPOSED BY THE DTPA; provided, however, Purchaser does
not waive Section 17.555 of the DTPA. Purchaser acknowledges, represents and
warrants that Purchaser is not in a significantly disparate bargaining position
with respect to Seller in connection with this transaction; that Purchaser
freely and fairly agreed to this waiver as a part of the negotiations for this
transaction; that Purchaser is represented by legal counsel in connection with
this transaction and Purchaser has conferred with Purchaser's counsel concerning
this waiver; that the Property will not be occupied by Purchaser as Purchaser's
family residence, and that the DTPA does not apply to Purchaser. Purchaser
further recognizes that Seller, in determining to proceed with the entering into
of this Agreement, has expressly relied on this waiver and the inapplicability
of the DTPA.
3.4 CONTRACTS TO BE ASSUMED BY PURCHASER. All Service
Contracts under Section 3.1(b) shall be assigned to and assumed by Purchaser at
Closing. Purchaser shall pay all costs, expenses, fees, and/or charges
applicable to terminate any such Service Contract or lease.
ARTICLE IV.
SURVEY AND TITLE
4.1 SURVEY. No later than 10 days after the Effective Date,
Seller shall provide Purchaser with a copy of the most recent survey of the
Property in Seller's possession (the "SURVEY") prepared by a land surveyor.
Purchaser shall be responsible for, and shall pay the costs of obtaining a new
or updated Survey.
4.2 TITLE COMMITMENT.
(a) No later than 10 days after the Effective Date,
Purchaser shall, at its own expense, cause to be issued and
delivered to Purchaser and Seller (i) an owner's title
insurance policy commitment (the "TITLE COMMITMENT") from the
Title Company setting forth the status of the title to the
Land and the Improvements owned by Seller, and (ii) copies of
all documents referred to in the Title Commitment, including
but not limited to, deeds, lien instruments, plats,
reservations, restrictions and easements.
(b) In the event any exceptions appear in the Title
Commitment, other than the standard printed exceptions that
are unacceptable to Purchaser ("OBJECTIONABLE EXCEPTIONS"),
then Purchaser shall, on or before 10 days after the Effective
Date, notify Seller in writing of such fact, setting forth any
Objectionable Exceptions. If (i) Purchaser fails to give such
notice timely, Purchaser shall be deemed to have accepted all
title exceptions that are reported in
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the Title Commitment; or (ii) Purchaser does give such notice,
Purchaser shall be deemed to have accepted all title
exceptions reported in the Title Commitment other than the
Objectionable Exceptions expressly set forth in the notice. If
Seller fails to cure any Objectionable Exceptions (without
having any obligation to do so) on or prior to the end of 45
days after receipt of written notice thereof from Purchaser
(the "CURE PERIOD"), then Purchaser may terminate this
Agreement by delivering written notice to Seller on or before
the end of 5 days after expiration of the Cure Period, and
upon such termination Purchaser shall be entitled to return of
the Xxxxxxx Money Deposit, as Purchaser's sole and exclusive
remedy for the failure to eliminate or modify any
Objectionable Exceptions. If Purchaser fails to give written
notice of termination within 5 days after expiration of the
Cure Period, then Purchaser shall be deemed to have waived its
right to terminate this Agreement pursuant to this Section
4.2, and shall be deemed to have accepted the Property subject
to the uncured Objectionable Exceptions, and Purchaser shall
accept such title as Seller can deliver. The lien for current
taxes and all liens, encumbrances, easements, restrictions or
other conditions or exceptions to title which are shown on the
Title Commitment or survey and which are not timely objected
to by Purchaser as Objectionable Exceptions or, if objected to
(unless this Agreement is terminated as provided herein), and
not cured by Seller as described above are "PERMITTED
EXCEPTIONS".
4.3 TITLE POLICY. At Closing, Purchaser, at its expense
(except as provided below), may purchase an Owner Policy of Title Insurance for
the Property issued by the Title Company in Purchaser's favor, in the amount of
the Purchase Price, insuring Purchaser's title to the Property (the "Title
Policy").
4.4 TITLE. At the Closing, Seller shall convey to Purchaser,
by special warranty deed (the "DEED") in form attached hereto as EXHIBIT B,
indefeasible title in fee simple to the Land and the Improvements, free of any
liens, encumbrances, conditions, easements, assessments, restrictions and other
conditions, except for the following:
(a) all Leases covering the Land and/or the
Improvements;
(b) the lien for general real estate taxes for the
calendar year during which the Closing shall occur and
subsequent years and subsequent assessments for prior years
due to change in land usage or ownership; and
(c) the Permitted Exceptions.
4.5 XXXX OF SALE. At the Closing, Seller shall convey to
Purchaser, by xxxx of sale and assignment executed by Seller and Purchaser (the
"XXXX OF SALE") in the form attached hereto as EXHIBIT C, all of the landlord's
interest in and to all of the Leases and all of Seller's rights, title and
interest in and to the Personal Property and the Intangible Property, free and
clear of any and all liens, security interests, encumbrances, conditions,
easements, assessments and restrictions, except for the matters described in
Section 4.4 hereof.
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ARTICLE V.
COVENANTS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES
5.1 SELLER'S REPRESENTATIONS. Seller hereby represents and
warrants to Purchaser the following:
(a) Seller is a corporation duly organized and
validly existing under the laws of the State of Delaware and
Seller has full power and authority to perform all of its
obligations under this Agreement and the party executing this
Agreement on behalf of Seller has been duly authorized and
empowered to bind Seller to this Agreement;
(b) Seller has no knowledge of any litigation or
proceeding, pending or threatened, against or relating to the
Property, other than (i) suits for collection in which Seller
is a plaintiff, and (ii) claims in which the Seller's insurer
has undertaken the defense and acknowledged liability for the
full amount of the claim;
(c) Seller is not a "foreign person" within the
meaning of Section 1445 of the Internal Revenue Code of 1986,
as amended; and
(d) to Seller's knowledge, this Agreement constitutes
the legal, valid and binding obligation of Seller enforceable
in accordance with its terms, subject to the laws applicable
generally to creditors' rights.
As used in this Section 5.2, "SELLER'S KNOWLEDGE" or a similar
phrase means the current, actual knowledge of the Designated Persons (defined
below), without any independent investigation or inquiry by such persons.
"DESIGNATED PERSONS" means Xxxxxx Xxxx, the Acquisition Coordinator of Seller.
The representations and warranties contained in this Section 5.2 are (1) made as
of the Effective Date, and (2) made again as of Closing. However, Seller shall
have the right to notify (the "REPRESENTATION AND WARRANTY NOTICE") Purchaser of
any inaccuracies in said representations and warranties by delivering written
notice to Purchaser at any time or times selected by Seller on or before
Closing.
5.2 PURCHASER'S REPRESENTATIONS. Purchaser hereby represents
and warrants to Seller that:
(a) Purchaser is an individual and has the legal
capacity to enter into this Agreement;
(b) this Agreement constitutes the legal, valid and
binding obligations of Purchaser enforceable in accordance
with its terms, subject to the laws applicable generally to
creditors' rights;
(c) the execution and delivery of this Agreement does
not contravene, result in a breach of or constitute a default
under any deed of trust, loan agreement, indenture or other
contract or agreement to which Purchaser is a party or by
which Purchaser or any of its properties may be bound (nor
would such
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execution and delivery constitute such a default with the
passage of time or the giving of notice or both);
(d) to Purchaser's knowledge, there are no pending or
threatened actions, suits or proceedings before or by any
court or administrative agency (i) which question the validity
of this Agreement or any instrument or agreement executed in
connection herewith and (ii) which seek to restrain or
prohibit, or to obtain damages or a discovery order with
respect to, this Agreement or the consummation of the
transactions contemplated hereby; and
(e) no consent or approval of any governmental
authority is required with respect to the execution and
delivery of this Agreement by the Purchaser or the
consummation by the Purchaser of the transactions contemplated
hereby or the performance by Purchaser of its obligations
hereunder.
5.3 BANKRUPTCY.
(a) Neither Purchaser nor its general partners/
members/shareholders, if any, (i) is in receivership or
dissolution, (ii) has made an assignment for the benefit of
creditors or admitted in writing its inability to pay its
debts as they mature, (iii) has been adjudicated a bankrupt or
filed a petition in voluntary bankruptcy or a petition or
answer seeking reorganization or an arrangement with creditors
under the Federal bankruptcy law or any other similar law or
statute of the United States or any jurisdiction and no such
Petition has been filed against Purchaser or any of its
general partner(s), if any, or (iv) to the best of its
knowledge, none of the foregoing are pending or threatened.
(b) Neither Seller nor its general partners/
members/shareholders, if any, (i) is in receivership or
dissolution, (ii) has made an assignment for the benefit of
creditors or admitted in writing its inability to pay its
debts as they mature, (iii) has been adjudicated a bankrupt or
filed a petition in voluntary bankruptcy or a petition or
answer seeking reorganization or an arrangement with creditors
under the Federal bankruptcy law or any other similar law or
statute of the United States or any jurisdiction and no such
Petition has been filed against Seller or any of its general
partner(s), if any, or (iv) to the best of its knowledge, none
of the foregoing are pending or threatened.
ARTICLE VI.
CONDITIONS
6.1 CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. In addition
to the conditions provided in other provisions of this Agreement, Seller's
obligations to perform its undertakings provided in this Agreement (including
its obligation to sell the Property) are conditioned on the following:
(a) The due performance by Purchaser of each and
every undertaking and agreement to be performed by it
hereunder in all material respects (including the delivery of
the items specified to be delivered by Purchaser in Section
7.2)
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and the truth of each representation and warranty made by
Purchaser in this Agreement in all material respects at the
time as of which the same is made and as of the Closing Date
as if made on and as of the Closing Date.
(b) That at no time on or before the Closing Date
shall any Bankruptcy/Dissolution Event (as defined below) have
occurred with respect to Purchaser, and if Purchaser is a
partnership or limited liability company, any general partner
or managing member of Purchaser.
(c) Seller shall have obtained the consent of any
lenders of Seller that have a security interest(s) in the
Property to the sale of the Property (or that consent is
otherwise requested from) to Purchaser and the release of all
such lenders' security interests in the Property.
6.2 PURCHASER'S CONDITIONS TO CLOSING. In addition to the
conditions provided in other provisions of this Agreement, Purchaser's
obligations to perform its undertakings provided in this Agreement (including
its obligation to purchase the Property) are conditioned on the following:
(a) The due performance by Seller of each and every
undertaking and agreement to be performed by it hereunder in
all material respects (including the delivery to Purchaser of
the items specified to be delivered by Seller in Section 7.2),
and the truth of each representation and warranty made by
Seller in this Agreement in all material respects at the time
as of which the same is made and as of the Closing Date as if
made on and as of the Closing Date.
(b) That at no time on or before the Closing Date
shall a Bankruptcy/Dissolution Event have occurred with
respect to Seller.
ARTICLE VII.
CLOSING
7.1 CLOSING DATE. The consummation of the purchase and sale
contemplated hereby (the "CLOSING") shall be held at the offices of the Title
Company in Port Xxxxxx, Texas, on a date mutually acceptable to Seller and
Purchaser no later than fifteen (15) days after the Effective Date, unless
extended by Seller pursuant to the cure period provisions of Section 4.2(b)
hereof or as reasonably necessary to allow Seller to obtain the lenders'
releases referenced in Section 6.1(c) hereof. So that neither Seller nor
Purchaser will be required to be physically present at Closing, on or before the
Closing Date, Seller and Purchaser may deliver the executed closing documents
and funds required by the respective parties pursuant to this Agreement to Title
Company with escrow instructions for disbursement of such documents and funds.
The date of the Closing is herein referred to as the "CLOSING DATE".
7.2 CLOSING.
(a) At Closing, Seller shall deliver or cause to be
delivered each of the following items to the Title Company:
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(1) the duly executed and acknowledged Deed,
conveying the Land and the Improvements to Purchaser, as
provided in Section 4.4;
(2) the duly executed and acknowledged Xxxx
of Sale, conveying the Personal Property, as provided in
Section 4.5;
(3) an executed affidavit in accordance with
the provisions of Section 1445 of the Internal Revenue Code of
1986, as amended; and
(4) evidence acceptable to the Title Company
authorizing consummation by Seller of the purchase and sale
transaction contemplated hereby and the execution and delivery
of the closing documents on behalf of Seller;
Seller and Purchaser will execute letters in the form attached hereto as EXHIBIT
D (the "TENANT LETTERS"), addressed to each tenant for which Purchaser receives
from Seller the tenant's security deposit or credit for the tenant's security
deposit, informing each tenant that the Property has been conveyed to Purchaser,
that Purchaser has received and is responsible for such tenant's deposit and
that all future payments and correspondence with the landlord under the lease
are to be made to Purchaser, or as Purchaser shall direct.
(b) At Closing, Purchaser shall deliver or cause to
be delivered each of the following items to the Title Company:
(1) evidence acceptable to the Title Company
and Seller authorizing consummation by Purchaser of the
purchase and sale transaction contemplated hereby and the
execution and delivery of the closing documents on behalf of
Purchaser;
(2) an executed and acknowledged Xxxx of
Sale as provided in Section 4.5 hereof;
(3) all additional documents and instruments
as in the opinion of the Title Company are necessary to the
proper consummation of this transaction.
The Title Company shall hold all of the foregoing items
delivered to it by Seller and Purchaser until Purchaser delivers the funds
required of it under subparagraph (c) of this Section 6.2.
(c) At Closing, Purchaser shall deliver to the Title
Company for disbursement to Seller the Purchase Price, as well
as the sums provided for elsewhere in this Agreement. When
such sums have been received by the Title Company, then:
(1) the Title Company shall deliver to
Purchaser the documents described in subparagraph (a) of this
Section 7.2, together with any Title Policy provided pursuant
to Section 4.3;
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(2) Seller shall deliver to Purchaser all
master keys and regular keys in Seller's possession to all
locks on the Property, and the original copies of all Leases
which are in Seller's possession;
(3) the Title Company shall deliver to
Seller the documents described in subparagraph (b) of this
Section 7.2;
(4) Seller shall deliver possession of the
Property to Purchaser, subject only to the Permitted
Exceptions, and rights of tenants in possession under the
Leases;
(5) Purchaser shall mail or deliver all of
the Tenant Letters; and
(6) the Title Company shall deliver to
Seller the Purchase Price, including the Xxxxxxx Money
Deposit.
7.3 CLOSING PRORATIONS AND COSTS.
The items in subparagraphs (a) through (h) of this Section 7.3
shall be apportioned or prorated as to each Property between Seller and
Purchaser as of 11:59 p.m., local time for the Property, on the day preceding
the Closing Date:
(a) TAXES AND ASSESSMENTS. Real estate taxes and
assessments imposed by governmental authority ("TAXES") and
any assessments by private covenant constituting a lien or
charge on the Property for the then-current calendar year or
other current tax period not yet due and payable. If the
Closing occurs prior to the receipt by Seller of the tax xxxx
for the calendar year or other applicable tax period in which
the Closing occurs, Purchaser and Seller shall prorate Taxes
for such calendar year or other applicable tax period based
upon the most recent ascertainable assessed values and tax
rates. If the proration provided for in this subparagraph (a)
is not based upon the actual Taxes for the calendar year in
which the Closing occurs, the parties shall adjust such
proration when the actual Taxes are known.
(b) COLLECTED RENT. All collected rent and other
income under the Leases in effect at the Closing. Seller shall
be charged with any rentals collected by Seller before Closing
but applicable to any period of time after the day preceding
the Closing. Uncollected rent and other income shall not be
prorated. If Purchaser collects any delinquencies after
Closing, Purchaser shall apply such rent to the obligations
owing to Purchaser for its period of ownership and to the
reasonable costs of collection, remitting the balance, if any,
to Seller. Purchaser shall xxxx and attempt to collect such
delinquent rent in the ordinary course of business, but shall
not be obligated to engage a collection agency or take legal
action to collect any delinquencies. Seller shall have the
right to seek by legal action or otherwise collect any rents
delinquent for any period prior to the Closing, but shall not
seek to evict a tenant or terminate the Lease of such tenant
unless the tenant has vacated the premises under the Lease.
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(c) UTILITIES. To the extent such expenses are billed
to and paid directly by Seller and not tenants under the
Leases, utilities, including water, sewer, electric, and gas,
based upon the last reading of meters prior to the Closing.
Seller shall pay at Closing the bills therefor for the period
to and including the Closing, and Purchaser shall pay the
bills therefor for the period subsequent thereto. If the
utility company will not issue separate bills, Purchaser will
receive a credit against the Purchase Price for Seller's
portion and will pay the entire xxxx prior to delinquency
after Closing and Purchaser shall be charged its portion of
such payment at Closing. No proration shall be made for
utility expenses that are separately metered to and paid
directly by tenants and for which Seller has no obligation to
pay.
(d) FEES AND CHARGES UNDER SERVICE CONTRACTS. Fees
and charges under the Service Contracts.
(e) CAM CHARGES. Where the Leases contain tenant
obligations for taxes, common area expenses, operating
expenses or additional charges of any other nature ("CAM
CHARGES"), and where Seller shall have collected any portion
thereof in excess of amounts incurred by Seller for such items
for the period prior to the Closing Date, then there shall be
an adjustment and credit given to Purchaser on the Closing
Date for such excess amounts collected. Purchaser shall apply
all such excess amounts to the charges owed by Purchaser for
such items for the period after the Closing Date and, if
required by the Leases, shall rebate or credit tenants with
any remainder. If it is determined at any time after Closing
that the amount collected during Seller's ownership period
exceeded expenses incurred during the same period by more than
the amount previously credited to Purchaser at Closing, then
Seller shall promptly pay to Purchaser the deficiency. If it
is determined after Closing that the amount collected during
Seller's ownership period exceeded expenses incurred during
the same period by less than the amount previously credited to
Purchaser at Closing, then Purchaser shall promptly pay to
Seller the deficiency. Also, if it is determined after Closing
that the amount collected during Seller's ownership period is
less than the expenses incurred during the same period, then
Purchaser shall promptly pay to Seller the deficiency.
(f) OTHER EXPENSES. Any and all transfer taxes,
intangible taxes, documentary fees, transaction privilege
taxes, stamp taxes, gross receipts and other similar taxes,
charges, or fees with respect to the transfer of the Property
shall be paid by Purchaser. All other expenses related to the
ownership or operation of the Property shall be prorated in
the manner customary for Jefferson County, Texas.
(g) OTHER CLOSING COSTS. Each party shall pay
one-half of any escrow fees charged by the Title Company and
each party shall pay all of the fees and expenses of its own
counsel in entering into and consummating the transactions
described in this Agreement. Except as otherwise expressly
provided in this Agreement, all other Closing costs,
including, without limitation, recording and
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escrow fees, shall be assessed to the respective parties as is
customary in the purchase of improved real property in
Jefferson County, Texas, as of the Closing Date.
(h) SECURITY DEPOSITS. Seller shall retain all tenant
security deposits under the Leases and Purchaser shall receive
a credit at Closing against the Purchase Price equal to the
sum of all such deposits for which the landlord (including any
prior landlord) is liable under the Leases.
7.4 CLOSING ESTIMATES AND FINAL ADJUSTMENTS.
Seller and Purchaser shall comply with the following:
(a) Seller shall prepare a schedule of tentative
adjustments required by Section 7.3 and provide such schedule
to Purchaser prior to the Closing Date for review and approval
by Purchaser and its representatives or accountants. Seller
will provide to Purchaser and its representatives and
accountants reasonable access during normal business hours to
the personnel and accounting and other records of Seller to
the extent necessary to review the information contained in
such schedule of tentative adjustments. Such adjustments, if
and to the extent known or estimated and agreed upon as of
such Closing Date, shall be paid by Purchaser to the Seller
(if the prorations result in a net credit to Seller), or by
the Seller to Purchaser (if the prorations result in a net
credit to Purchaser), by adjusting the Purchase Price payable
on the Closing Date.
(b) Any such adjustments not finally determined or
agreed upon as of such Closing Date shall be paid by Purchaser
to Seller, or by Seller to Purchaser, as the case may be, in
cash as soon as practicable following the receipt or
determination of the information necessary to make the
adjustments after the Closing Date.
(c) Purchaser agrees to perform and shall assume and
indemnify and hold harmless Seller from all obligations and
liabilities with respect to the Property that relate to
periods of time after the Closing Date, including those to
tenants for refunds of tenant security deposits required to be
made subsequent to the Closing Date.
ARTICLE VIII.
CASUALTY
8.1 CASUALTY. If, prior to Closing, the Property is damaged by
fire or other casualty, Sellers will notify Purchaser of such casualty and will
deliver to Purchaser a copy of any of Seller's insurance policies covering the
Property. If the cost of repair of such damage is in excess of One Hundred
Thousand Dollars ($100,000) for such Property, Purchaser may, at its option, (a)
terminate this Agreement by written notice to Seller on or before the earlier to
occur of the last day provided in this Agreement for Closing to occur or 5 days
after the occurrence of such casualty, or (b) elect to acquire the damaged
Property on the Closing Date in its damaged condition and to receive an
assignment of all of Seller's right, title and interest in and to any
12
claims Seller may have under the insurance policies covering the Property. In
all other events, if a portion of the Property is damaged by fire or other cause
whatsoever, this Agreement shall continue in full force and effect and Seller,
at its election, shall either repair such damage in full before the Closing, or
at Closing Seller shall assign to Purchaser all of Seller's right, title, claims
and proceeds under insurance policies covering the damaged premises, and pay to
Purchaser the amount of the applicable deductibles under such insurance
policies.
8.2 CONDEMNATION. If, prior to the Closing Date, all or any
"significant" portion (as hereinafter defined) of the Property is taken by
eminent domain or condemnation (or is the subject of a pending taking which has
not been consummated), Seller shall notify Purchaser of such fact and Purchaser
shall have the option either (i) of proceeding to Closing and accepting the
Property subject to the condemnation or taking and reducing the Purchase Price
by the amount of the condemnation awarded, or (ii) of terminating this Agreement
by giving written notice to Seller not later than 15 days after receiving
written notice from Seller advising of the condemnation or taking. If Purchaser
does not elect to terminate this Agreement, or if an "INSIGNIFICANT" portion
("INSIGNIFICANT" is herein deemed to be any taking which is not "significant",
as such term is herein defined) of the Property is taken by eminent domain or
condemnation, at the Closing Seller shall assign and turnover, and Purchaser
shall be entitled to receive and keep, all awards or other proceeds for such
taking by eminent domain or condemnation. A "SIGNIFICANT" portion of the
Property means any taking where the damage to the owner of the area taken
exceeds One Hundred Thousand Dollars ($100,000).
8.3 WAIVER. Purchaser and Sellers each hereby waive the
Uniform Vendor and Purchaser Risk Act and agree that the provisions of Sections
8.1 and 8.2 shall govern the respective rights and obligations of Purchaser and
Sellers with regard to the subject matter of Sections 8.1 and 8.2.
ARTICLE IX.
REAL ESTATE COMMISSIONS
9.1 INDEMNITY. Purchaser and Sellers shall indemnify and
hereby agree to hold the other party harmless from any brokerage or finder's fee
or commission claimed by any person claiming by, through or under the
indemnifying party for or on account of this Agreement or the transactions
contemplated hereby.
9.2 REPRESENTATIONS REGARDING BROKER'S COMMISSIONS/FINDER'S
FEES. Seller represents and warrants to Purchaser that no brokerage or finder's
fee or commission is payable to any party claiming by, through or under such
Seller with respect to the Property or this Agreement. Purchaser represents and
warrants to Seller that no brokerage or finder's fee or commission is payable to
any party claiming by, through or under Purchaser with respect to the Property
or this Agreement. Purchaser represents and discloses to Seller that Purchaser
is a real estate salesman licensed pursuant to the laws of the State of Texas.
13
ARTICLE X.
TERMINATION AND REMEDIES
10.1 REMEDIES.
(a) If Purchaser defaults in the performance of it
obligations under this Agreement, and if such failure
continues for 10 days after written notice from Seller to
Purchaser specifying such default (provided if such default is
the failure to timely close, then the grace period shall be
one day only), then, Seller shall, as its sole remedy, be
entitled to receive and retain the Xxxxxxx Money Deposit as
liquidated damages and not as a penalty, and Seller hereby
waives the right to pursue any other remedies, including the
right to recover damages.
(b) If Seller defaults in the performance of its
obligations under this Agreement, and if such failure
continues for 10 days after written notice from Purchaser to
Seller specifying such default (provided if such default is
the failure to close, then the grace period shall be one day
only), then Purchaser may either terminate this Agreement and
receive a return of the Xxxxxxx Money Deposit or pursue a
claim against Seller for specific performance of this
Agreement. Purchaser waives all other remedies (including the
right to recover damages) arising from any Seller's breach of
this Agreement.
ARTICLE XI.
ASSIGNMENT OF AGREEMENT
11.1 ASSIGNMENT. Neither Seller nor Purchaser shall assign
their rights or delegate their duties under this Agreement without the written
consent of the other party hereto, except that Purchaser may assign this
Agreement to a limited liability company, limited liability partnership, or
limited partnership controlled by Purchaser, but in connection therewith,
Purchaser shall remain obligated hereon notwithstanding such assignment.
ARTICLE XII.
MISCELLANEOUS
12.1 ENTIRE AGREEMENT. This Agreement embodies the entire
agreement between the parties and cannot be varied except by the written
agreement of the parties. All prior agreements between the parties relating to
the Property are hereby terminated.
12.2 SURVIVAL. All representations, warranties, covenants and
agreements of Purchaser and Seller contained in this Agreement shall merge into
the documents executed at Closing and shall not survive the Closing; provided,
however, the provisions of (a) Sections 7.3, 7.4, 10.1 and 12.14, which
contemplate performance of obligations after the Closing, shall survive the
Closing for a period of one (1) year following the Closing; and (b) Sections
3.2, 9.1, and 9.2, shall survive forever without limitation. A party may bring
suit on account of the breach of a provision of this Agreement which survives
Closing only if written notice of such breach is given to the breaching party
during the period of survival and suit is commenced within one hundred eighty
(180) days after the expiration of the period of survival, if applicable.
12.3 TIME OF ESSENCE. Time is of the essence in this
Agreement.
12.4 NOTICES. Any notice required or permitted to be delivered
hereunder shall be deemed to be delivered (a) when received by the addressee if
delivered by courier service, or (b) if mailed, two (2) days after deposit in
the United States mail, postage prepaid, certified mail,
14
return receipt requested, in each such case addressed to Seller or Purchaser, as
the case may be, at the address or telecopy number set below the signature of
such party hereto. Any party shall have the right to change its address by
giving 5 days' prior written notice to the other parties.
12.5 GENDER; NUMBERS. Words of any gender used in this
Agreement shall be held and construed to include any other gender, and words in
the singular number shall be held to include the plural and vice versa unless
the context requires otherwise.
12.6 HEADINGS. The captions used in connection with the
articles and sections of this Agreement are for convenience only and shall not
be deemed to construe or limit the meaning of the language of this Agreement.
12.7 DAYS. Except where business days are expressly referred
to, references in this Agreement to days are to calendar days, not business
days. Business day means any calendar day except a Saturday, Sunday or national
banking holiday.
12.8 GOVERNING LAW. EXCEPT WHERE THE LAWS OF ANOTHER
JURISDICTION ARE MANDATORILY APPLICABLE, THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS.
12.9 HOLIDAYS. If the final date of any period provided for
herein for the performance of an obligation or for the taking of any action
falls on a Saturday, Sunday or banking holiday, then the time of such period
shall be deemed extended to the next day which is not a Saturday, Sunday or
national banking holiday.
12.10 ATTORNEYS' FEES. In the event that a legal action is
brought to enforce the terms of this Agreement, the prevailing party shall be
entitled to collect its costs of court, including reasonable attorneys fees.
12.11 INTERPRETATION. The parties acknowledge that each party
and its counsel have reviewed this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments or exhibits hereto.
12.12 SEVERABILITY. If any provisions of this Agreement are
held to be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable, and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and not be affected by the
illegal, invalid or unenforceable provision or by its severance from this
Agreement, provided that both parties may still effectively realize the complete
benefit of the transaction contemplated hereby.
12.13 AMENDMENTS. No modification or amendment of this
Agreement shall be effective unless made in writing and executed by all Seller
and Purchaser. In the event any approval or consent is required pursuant to any
provision of this Agreement, such approval or consent shall be deemed given only
if it is in writing, executed by the party whose approval or consent is
required.
15
12.14 FURTHER ASSURANCES. In addition to the acts and deeds
recited herein and contemplated to be performed, executed and/or delivered by
Seller to Purchaser at Closing, Seller and Purchaser agree to perform, execute
and/or deliver or cause to be delivered, executed and/or delivered, but without
any obligation to incur any additional liability or expense, on or after the
Closing any and all further acts, deeds and assurances as may be reasonably
necessary to consummate the transactions contemplated hereby and/or to further
perfect and deliver to Purchaser the conveyance, transfer and assignment of the
Property and all rights related thereto.
12.15 NO RECORDATION. Neither Seller nor Purchaser shall be
entitled to record this Agreement or a memorandum or other notice hereof among
the land records or other public records of any jurisdiction, and this Section
12.16 shall be deemed to be a specific directive to the recorder of deeds and
other officials of the applicable jurisdiction not to accept this Agreement or a
memorandum or other notice of this Agreement for recordation in any form
whatsoever.
12.16 BULK TRANSFER. Purchaser hereby waives compliance by
Seller with all applicable bulk transfer, bulk sales and similar laws and
requirements of all jurisdictions in connection with the transactions
contemplated hereby.
EXECUTED by Seller on the ____ day of __________, 2001.
WITNESSES: SELLERS:
PINNACLE TOWERS INC.,
-------------------------------- a Delaware corporation
By:
-----------------------------------------
-------------------------------- Name:
----------------------------------------
Title:
--------------------------------------
with copies to:
Address:
Xxxx Xxxxx
Xxxxxxx & Xxxxxx LLP 000 Xxxxx Xxxxxxxxx Xxxx,
000 Xxxxx Xxxxxx Xxxxx Xxxxx 000
Xxxxx 0000 Xxxxxxxx, Xxxxxxx 00000
Xxxxx, Xxxxxxx 00000 Attention: Xxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
16
EXECUTED by Purchaser on the ___ day of _________, 2001.
WITNESSES: PURCHASER:
--------------------------------- -----------------------------------------
Name: Xxxx X. Xxxxx
Address:
--------------------------------
000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Attachments
Receipt and Acknowledgment
Exhibit A - Land
Exhibit B - Special Warranty Deed
Exhibit C - Xxxx of Sale and Assignment of Leases and Service Contracts
Exhibit D Tenant Letter Form
17
RECEIPT AND ACKNOWLEDGMENT
The undersigned Title Company named in the foregoing Agreement
hereby acknowledges receipt of a fully executed copy of said Agreement as of the
date set forth below and agrees to hold and disburse the Xxxxxxx Money Deposit
in accordance with the terms of the Agreement. While the Title Company holds the
Xxxxxxx Money Deposit in escrow, the Title Company hereby agrees to invest the
Xxxxxxx Money Deposit in an interest-bearing account.
PORT XXXXXX ABSTRACT
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Date of Receipt: _______________, 2001
EXHIBIT A
LAND
A-1
EXHIBIT B
This instrument was prepared by:
Xxxx Xxxxx
Xxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
SPECIAL WARRANTY DEED
Pinnacle Towers Inc. (hereinafter called "Grantor"), for and
in consideration of the sum of Ten Dollars ($10.00) cash and other good and
valuable considerations to it in hand paid by _____________________ (hereinafter
called "Grantee"), whose address is _____________________________,
_____________, the receipt and sufficiency of which are hereby acknowledged and
confessed, has GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents does
GRANT, BARGAIN, SELL and CONVEY unto Grantee the land described in Exhibit A
attached hereto and made a part hereof for all purposes, together with (i) all
buildings and other improvements located thereon, (ii) all right, title and
estate of Seller in and to all and singular the rights, benefits, privileges,
easements, tenements, hereditaments, and appurtenances thereon or in anywise
appertaining to such real property, and (iii) all right, title, and estate of
Seller in and to the bed of any street, road or alley, open or proposed,
adjoining such real property (collectively, the "Property").
TO HAVE AND TO HOLD the Property, together with all and
singular the rights and appurtenances thereto in anywise belonging unto the said
Grantee, its successors and assigns, forever; and Grantor does hereby bind
itself, its successors and assigns, to WARRANT AND FOREVER DEFEND all and
singular the said Property unto the said Grantee, its successors and assigns,
against every person whomsoever lawfully claiming or to claim the same or any
part thereof by, through, or under Grantor, but not otherwise.
Notwithstanding anything to the contrary set forth herein,
this conveyance is made subject to the Permitted Exceptions set forth on Exhibit
B attached hereto and made a part hereof.
EXECUTED as of the ____ day of ___________, 2001.
Witnesses: PINNACLE TOWERS INC.
a Delaware corporation
-------------------------------------
By:
-----------------------------------
------------------------------------- Name:
----------------------------------
Title:
---------------------------------
B-1
STATE OF _______________________
COUNTY OF _______________________
The foregoing instrument was acknowledged before me this _____ day of
___________________, 2001, by _______________________, _________________________
of _______________________________, a ________ corporation, on behalf of the
corporation. ____has produced __________________________________ as
identification.
(SEAL)
---------------------------------
---------------------------------
Notary Public-State of__________
Commission Number: __________
B-2
EXHIBIT C
XXXX OF SALE AND ASSIGNMENT OF LEASES
AND SERVICE CONTRACTS
That Pinnacle Towers Inc. ("Grantor"), for and in
consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and
valuable consideration to it in hand paid by Pinnacle Tower Inc. ("Grantee"),
the receipt and sufficiency of which are hereby acknowledged and confessed, has
GRANTED, SOLD, ASSIGNED, TRANSFERRED, CONVEYED and DELIVERED and does by these
presents GRANT, SELL, ASSIGN, TRANSFER, CONVEY and DELIVER unto Grantee, all of
Grantor's right, title and interest in and to the following described properties
located on, and/or affixed to, and used in connection with, the buildings (the
"Improvements") situated on those certain lands in Beaumont, Texas, more
particularly described on Exhibit "A" attached hereto and made a part hereof for
all purposes (the "Subject Property," which together with the Improvements is
sometimes hereinafter called the "Property"), which Subject Property has been
conveyed by Grantor to Grantee by Special Warranty Deed of even date herewith:
(a) All tangible personal property and fixtures of any kind
owned by Grantor and attached to or located within the Improvements and used in
connection with the ownership, maintenance, or operation of the Property (the
"Personalty").
(b) All of Grantor's right, title, and interest in any leases,
licenses, occupancy agreements, or other agreements demising space in, providing
for the use of and/or occupancy of the Property (collectively the "Leases").
(c) To the extent only the same are assignable by Grantor to
Grantee, all of Grantor's right, title, and interest in and to any and all (i)
contracts or agreements, such as management, maintenance, service or utility
contracts, relating to the ownership, maintenance and operation of the Property
("Service Contracts"), (ii) warranties currently in force and effect with
respect to the Property, the Personalty and the Leases, (iii) all licenses,
permits or similar documents relating to the Property, the Personalty and/or the
Leases, and (iv) plans, drawings, specifications, surveys, engineering reports
and other technical descriptions of the Property (the "Intangible Property").
TO HAVE AND TO HOLD the Grantor's rights, titles, and
interests in and to the Personalty, Leases and Intangible Property, unto the
said Grantee, its successors and assigns, forever. Grantor agrees to warrant and
defend title in and to the Personalty, the Leases and the Intangible Property
unto Grantee, its successors and assigns, against all persons claiming the same
by, through or under Grantor, but not otherwise.
Except for the title warranty contained in the preceding
paragraph, the Personalty, Leases, and Intangible Property are being conveyed AS
IS, WHERE IS, AND WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR
ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY
OF QUANTITY, QUALITY, CONDITION, HABITABILITY, MERCHANTABILITY, SUITABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
C-1
Grantee hereby assumes, and agrees to indemnify and hold
harmless Grantor from and against all obligations of Grantor under the Leases,
Service Contracts, and all other obligations and liabilities pertaining to the
Subject Property and the above described property, which accrue after the date
hereof.
This assignment and transfer is made subject to those matters
of record affecting the Property to the extent valid and enforceable.
Grantor and Grantee represent that they each have the full
right, power, and authority to execute this Xxxx of Sale and Assignment of
Leases and Service Contracts and to perform their respective obligations
hereunder.
IN WITNESS WHEREOF, Grantor and Grantee have executed this
Xxxx of Sale and Assignment of Leases and Service Contracts, as of the _____ day
of ________________, 2001.
GRANTOR:
PINNACLE TOWERS INC.,
a Delaware corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
GRANTEE:
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
ATTACHMENTS:
Exhibit A - Property Description
C-2
EXHIBIT D
TENANT LETTER FORM
D-1
