EXHIBIT 10(FF)
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
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THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (this "Agreement"), is
made and entered into as of the 10th day of October, 1996, by and between TCI
VALWOOD LIMITED PARTNERSHIP I, a Texas limited partnership (hereinafter referred
to as "Seller"), and FUND VIII AND FUND IX ASSOCIATES, a Georgia joint venture
(hereinafter referred to as "Purchaser").
WITNESSETH:
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property (as hereinafter defined) subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, the mutual
agreements contained herein, the sum of Ten Dollars ($10.00) in hand paid by
Purchaser to Seller at and before the sealing and delivery of these presents and
for other good and valuable consideration, the receipt, adequacy, and
sufficiency which are hereby expressly acknowledged by the parties hereto, the
parties hereto do hereby covenant and agree as follows:
1. Purchase and Sale of Property. Subject to and in accordance with the
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terms and provisions of this Agreement, Seller hereby agrees to sell to
Purchaser and Purchaser hereby agrees to purchase from Seller, the Property,
which term "Property" shall mean and include the following:
(a) all that tract or parcel of land located in Farmers Branch, Dallas
County, Texas containing approximately 4.864 acres, and being more
particularly described on Exhibit "A" attached hereto and by this reference
made a part hereof (herein referred to as the "Land"); and
(b) all rights, privileges, and easements appurtenant to the Land,
including, without limitation, the Easement Estate described in the
Reciprocal Easement Agreement recorded in Volume 96157, page 0000, Xxxx
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and all water rights, mineral rights,
reversions, or other appurtenances to said Land, and all right, title, and
interest of Seller, if any, in and to any land lying in the bed of any
street, road, alley, or right-of-way, open or proposed, adjacent to or
abutting the Land; and
(c) all buildings, structures, and improvements situated on the Land,
and all apparatus, built-in appliances, equipment, pumps, machinery,
plumbing, heating, air conditioning, elevators, electrical and other
fixtures owned by Seller and located on or to be located on the Land (all
of which are herein collectively referred to as the "Improvements"); and
(d) all of Seller's right, title, and interest, as landlord or lessor,
in and to the Lease (as hereinafter defined); and
(e) all of Seller's right, title, and interest, if any, in and to the
plans and specifications with respect to the Improvements and any
guarantees, trademarks, rights of copyright, warranties, or other rights
related to the ownership of or use and operation of the Land or
Improvements, all governmental licenses and permits, personal property, if
any, and all intangibles associated with the Land and Improvements,
including the name of the Improvements and the logo therefor, if any.
2. Purchase Price. Subject to adjustment and credits as otherwise
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specified in this Agreement, the purchase price (the "Purchase Price") to be
paid by Purchaser to Seller for the Property shall be Four Million, Four Hundred
Fifty Thousand Dollars ($4,450,000.00). The Purchase Price shall be paid by
Purchaser to Seller at the Closing (as hereinafter defined) by wire transfer of
immediately available federal funds, subject to prorations, adjustments and
credits as otherwise specified in this Agreement.
3. Title. Seller covenants and agrees that Seller, at its sole cost and
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expense, shall cause Chicago Title Insurance Company, or such other such title
insurance company acceptable to Purchaser (herein referred to as the "Title
Company") to deliver to Purchaser a standard Texas Owner Policy of Title
Insurance (herein referred to as the ("Title Policy") without endorsements
insuring good and indefeasible fee simple record title to the Property to be in
Purchaser with exceptions (herein referred to as the ("Permitted Exceptions") as
set forth by the Title Company. Purchaser, at its sole cost and expense, may
obtain such endorsements and changes to the Title Policy as it desires and can
negotiate with the Title Company.
4. Representations and Warranties of Seller. Seller hereby makes the
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following representations and warranties to Purchaser:
(a) Lease. Attached hereto as Exhibit "B" and by this reference made
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a part hereof are true and accurate copies of (i) that certain Build to
Suit Industrial Lease Agreement dated November 1, 1995, by and between
Industrial Developments International, Inc., as Landlord, and TCI Central,
Inc., as Tenant, (ii) that certain First Amendment to Lease Agreement dated
as of July 16, 1996, and (iii) that certain Second Amendment to Build to
Suit Industrial Lease Agreement dated as of August 29, 1996, which comprise
the only lease in effect relating to the Property (such lease, as modified
and amended, being herein referred to as the "Lease"). Seller is the owner
of the landlord's interest under the Lease and owns unencumbered legal
title to the Lease and the rents and other income thereunder, subject only
to the collateral assignment of the Lease and the rents thereunder in favor
of the holder of any existing mortgage or deed of trust encumbering the
Property, which mortgage or deed of trust shall be canceled and satisfied
by Seller at the Closing.
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(b) Lease - Assignment. To Seller's knowledge, without a duty to
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inquire, the Tenant has not assigned its interest in the Lease or sublet
any portion of the premises leased to the Tenant under the Lease.
(c) Lease - Default. (i) Seller has not received any notice of
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termination or default under the Lease, (ii) to the Seller's knowledge,
without a duty to inquire, there are no existing or uncured defaults by
Seller or by the Tenant under the Lease, (iii) to the Seller's knowledge,
without a duty to inquire, there are no events which with the passage of
time or notice, or both, would constitute a default by Seller or by the
Tenant, and Seller has complied with each and every undertaking, covenant,
and obligation of landlord under the Lease arising during Seller's
ownership of the Property, and (iv) Seller has not received notice that
Tenant has asserted any defense, set-off, or counterclaim with respect to
its tenancy or its obligation to pay rent, additional rent, or other
charges pursuant to the Lease.
(d) Lease - Rents and Special Consideration. Tenant, except as
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evidenced by the express terms of the Lease: (i) has not prepaid rent for
more than one month in advance under the Lease, (ii) is not entitled to
receive any rent concession in connection with its tenancy under the Lease
which has not already been received, (iii) is not entitled to any special
work (not yet performed), or consideration (not yet given) in connection
with its tenancy under the Lease; and (iv) does not have any deed, option,
or other evidence of any right or interest in or to the Property, except as
evidenced by the express terms of the Lease.
(e) Lease - Commissions. Except as set fort in that certain Lease
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Commission Agreement, dated September 15, 1995, by and between X.X. Xxxx &
Associates, Inc. and Industrial Developments International, Inc., a copy of
which Purchaser acknowledges that it has received, no rental, lease, or
other commissions with respect to the Lease is payable to Seller, any
partner of Seller, any party affiliated with or related to Seller or third
party.
(f) No Other Agreements. Other than the Lease and the Permitted
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Exceptions, Seller has not entered into any leases, service contracts,
management agreements, or other agreements or instruments, to which Seller
is a party and that grant to any person whomsoever or any entity whatsoever
any right, title, interest or benefit in or to all or any part of the
Property or any rights relating to the use, operation, management,
maintenance, or repair of all or any part of the Property.
(g) No Litigation. To Seller's knowledge, without a duty to
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investigate, there are no actions, suits, or proceedings pending, or,
threatened by any organization, person, individual, or governmental agency
against Seller with respect to the Property or against the Property, nor
does Seller have any knowledge of any basis for such action. Seller has no
knowledge of any pending
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or threatened application for changes in the zoning applicable to the
Property or any portion thereof.
(h) Condemnation. To Seller's knowledge, without a duty to
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investigate, no condemnation or other taking by eminent domain of the
Property or any portion thereof has been instituted and, there are no
pending or threatened condemnation or eminent domain proceedings (or
proceedings in the nature or in lieu thereof) affecting the Property or any
portion thereof or its use.
(i) Proceedings Affecting Access. To Seller's knowledge, without a
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duty to investigate, the Property will be served by a curb cut for direct
vehicular access to and from Senlac Drive, adjoining the Property, which is
a public road. To Seller's knowledge, without a duty to investigate, there
are no pending or threatened proceedings that could have the effect of
impairing or restricting access between the Property and such adjacent
public road.
(j) No Assessments. To Seller's knowledge, without a duty to
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investigate, except for assessments by the property owner's association
having jurisdiction over the Property which have been paid if due and
owing, no assessments have been made against the Property that are unpaid,
whether or not they have become liens, and there are no pending
assessments.
(k) Violations. Seller has not received written notice of any
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violations of law, municipal or county ordinances, recorded covenants, or
other legal requirements with respect to the Property that remain uncured,
and to Seller's knowledge, without a duty to investigate, the Improvements
thereon comply with all applicable legal requirements with respect to the
use, occupancy and construction thereof, except as set forth on the survey
of the Property and except as set forth in the other documents provided to
Purchaser.
(l) Improvements. To Seller's knowledge, without a duty to
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investigate, (i) there are no structural or other defects, latent or
otherwise, in the Improvements, (ii) the heating, ventilating, air
conditioning, electrical, plumbing, water, roofing, elevators (if any),
storm drainage and sanitary sewer systems at or servicing the Land and
Improvements are in good condition and working order and there are no
defects or deficiencies, latent or otherwise, therein.
(m) Bankruptcy. Seller is solvent and has not made a general
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assignment for the benefit of creditors nor been adjudicated a bankrupt or
insolvent, nor h liquidator, or trustee for any of Seller's properties
(including the Property) been appointed or a petition filed by or to
Seller's knowledge against Seller for bankruptcy, reorganization, or
arrangement pursuant to the Federal Bankruptcy Act or any similar Federal
or state statute, or any proceeding instituted for the dissolution or
liquidation of Seller.
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(n) Pre-existing Right to Acquire. No person or entity has any right
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or option to acquire the Property or any portion thereof which will have
any force or effect after the execution of this Agreement, other than
Purchaser, except as set forth in the Lease.
(o) Effect of Certification. Neither this Agreement nor the
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transactions contemplated herein will constitute a breach or violation of,
or default under, or will be modified, restricted, or precluded by the
Leases or the Permitted Exceptions.
(p) Authorization. Seller is a duly organized and validly existing
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limited partnership under the laws of the State of Texas and has duly
registered in any jurisdiction where it is required to do so. This
Agreement has been duly authorized and executed on behalf of Seller and
constitutes the valid and binding agreement of Seller, enforceable in
accordance with its terms, and all necessary action on the part of Seller
to authorize the transactions herein contemplated has been taken, and no
further action is necessary for such purpose.
(q) Seller Not a Foreign Person. Neither Seller nor the owner of
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beneficial title to the Property is a "foreign person" which would subject
Purchaser to the withholding tax provisions of Section 1445 of the Internal
Revenue Code of 1986, as amended.
5. Seller's Additional Covenants. Seller does hereby further covenant
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and agree as follows:
(a) Tenant Estoppel Certificate. At or prior to Closing, Seller shall
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obtain and deliver to Purchaser a fully completed estoppel certificate with
respect to the Lease (herein referred to as the "Tenant Estoppel
Certificate") duly executed by the Tenant thereunder. The Tenant Estoppel
Certificate shall be executed as of a date not more than twenty (20) days
prior to Closing.
6. Closing. The consummation of the sale by Seller and purchase by
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Purchaser of the Property (herein referred to as the "Closing") shall be held on
or October 8, 1996, at the office of the Title Company, which is located at 000
X. Xx. Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, with Xxx Xxxxxxx as the closer.
7. Seller's Closing Documents. For and in consideration of, and as a
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condition precedent to, Purchaser's delivery to Seller of the Purchase Price
described in Paragraph 2 hereof, Seller shall obtain or execute, at Seller's
expense, and deliver to Purchaser at Closing the following documents (all of
which shall be duly executed, acknowledged, and notarized where required):
(a) Deed. A Special Warranty Deed ("Special Warranty Deed") conveying
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to Purchaser indefeasible fee simple title to the Land and
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Improvements, together with all rights, members, easements, and
appurtenances thereto, subject only to the Permitted Exceptions. The legal
description set forth in the Special Warranty Deed shall be as set forth on
Exhibit "A" attached hereto. In the event Purchaser shall obtain a new or
updated survey of the Land and Improvements and the legal description set
forth in Purchaser's survey shall differ from the legal description set
forth on Exhibit "A" hereto, Seller shall execute and deliver to Purchaser
a quitclaim deed containing a legal description based upon such survey
obtained by Purchaser;
(b) Blanket Transfer. A Blanket Transfer and Assignment in the form
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and substance of Exhibit "C" attached hereto and by this reference made a
part hereof;
(c) Assignment and Assumption of Lease. An Assignment and Assumption
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of Lease in the form and substance of Exhibit "D" attached hereto and by
this reference made a part hereof, assigning to Purchaser all of Seller's
right, title, and interest in and to the Lease and the rents thereunder;
(d) FIRPTA Certificate. A FIRPTA Certificate in the form and
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substance of Exhibit "E" attached hereto and by this reference made a part
hereof;
(e) Surveys and Plans. Such surveys, site plans, plans and
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specifications, and other matters relating to the Property as are described
in subparagraph (a) of the Blanket Transfer and Assignment and are in the
possession of Seller or Seller's agents;
(f) Certificates of Occupancy. If in Seller's possession, the
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original certificates of occupancy for all space within the Improvements;
(g) Estoppel Certificate. The estoppel certificate referred to in
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Paragraph 5 hereof;
(h) Keys and Records. All of the keys in Seller's possession to any
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doors or locks on the Property and the original tenant files and other
books and records relating to the Property in Seller's possession;
(i) Tenant Notice. Notice from Seller to the Tenant of the sale of
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the Property to Purchaser in such form as Purchaser shall reasonably
approve;
(j) Settlement Statement. A settlement statement setting forth the
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amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement;
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(k) Lease. If in Seller's possession, an original executed
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counterpart of the Lease and all amendments thereto;
(l) Warranties. If in Seller's possession, original executed
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counterparts of all warranties affecting the Property. If originals are
not available, the a copy of all such warranties.
(m) Other Documents. Such other documents as shall be reasonably
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required by Purchaser's counsel.
8. Purchaser's Closing Documents. Purchaser shall deliver the balance of
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the Purchase Price and shall obtain or execute and deliver to Seller at Closing
the following documents, all of which shall be duly executed and acknowledged
where required and shall survive the Closing:
(a) Blanket Transfer. A Blanket Transfer and Assignment in the form
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and substance of Exhibit "C" attached hereto;
(b) Assignment and Assumption of Lease. The Assignment and Assumption
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of Lease in the form and substance of Exhibit "D" hereto;
(c) Settlement Statement. A settlement statement setting forth the
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amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement;
(d) Other Documents. Such other documents as shall be reasonably
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required by Seller's counsel.
9. Closing Costs. Seller shall pay the cost of the Title Policy, the
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attorneys' fees of Seller, one-half of the escrow fee (not to exceed $400 in
total), and all other costs and expenses incurred by Seller in closing and
consummating the purchase and sale of the Property pursuant hereto. Purchaser
shall pay the costs of all endorsements and modifications to the Title Policy,
one-half of the escrow fee, one-half of the escrow fee (not to exceed $400 in
total), its attorneys' fees and all other costs and expenses incurred by
Purchaser in closing and consummating the purchase and sale of the Property
pursuant hereto.
10. Prorations. The following items shall be prorated and/or credited
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between Seller and Purchaser as of Midnight preceding the date of Closing:
(a) Rent. Rent, additional rents, operating costs, and other income
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of the Property (other than security deposits) collected by Seller from
Tenant for the month of Closing. Purchaser shall also receive a credit
against the Purchase Price payable by Purchaser to Seller at Closing for
any rents or other sums (not including security deposits) prepaid by Tenant
for any period following the month of Closing. Seller hereby acknowledges
that Purchaser shall not be legally
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responsible to Seller for the collection of any uncollected rent or other
income under the Lease that is past due or otherwise due and payable as of
the date of Closing. Purchaser agrees that if (i) Tenant is in arrears on
the date of Closing in the payment of rent or other charges under the
Lease, and (ii) upon Purchaser's receipt of any rental or other payment
from Tenant, Tenant is, or after application of a portion of such payment
will be, current under the Lease in the payment of all accrued rental and
other charges that become due and payable on the date of Closing or
thereafter and in the payment of any other obligations of Tenant to
Purchaser, then Purchaser shall refund to Seller, out of and to the extent
of the portion of such payment remaining after Purchaser deducts therefrom
any and all sums due and owing to Purchaser from Tenant from and after the
date of Closing, an amount up to the full amount of any arrearage existing
on the date of Closing.
(b) Property Taxes. Except for such taxes which are the
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responsibility of Tenant and for which Seller has not received payment,
City, state, county, and school district ad valorem taxes based on the ad
valorem tax bills for the Property, if then available, or if not, then on
the basis of the latest available tax figures and information. Should such
proration be based on such latest available tax figures and information and
prove to be inaccurate upon receipt of the ad valorem tax bills for the
Property for the year of Closing, either Seller or Purchaser, as the case
may be, may demand at any time after Closing a payment from the other
correcting such malapportionment. In addition, if after Closing there is
an adjustment or reassessment by any governmental authority with respect
to, or affecting, any ad valorem taxes for the Property for the year of
Closing or any prior year, any additional tax payment or refund for the
Property required to be paid or refunded with respect to the year of
Closing shall be prorated between Purchaser and Seller and any such
additional tax payment or refund for the Property for any year prior to the
year of Closing shall be paid by or to Seller, as the case may be. This
agreement shall expressly survive the Closing.
(c) Utility Charges. Except for utilities which are the
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responsibility of Tenant and for which Seller has not received payment,
Seller shall pay all utility bills received prior to Closing and shall be
responsible for utilities furnished to the Property prior to Closing.
Purchaser shall be responsible for the payment of all bills for utilities
furnished to the Property subsequent to the Closing. Seller and Purchaser
hereby agree to prorate and pay their respective shares of all utility
bills received subsequent to Closing, which agreement shall survive
Closing.
11. Hazardous Substances. To the Seller's knowledge, without a duty to
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inquire: (a) there are not "hazardous substances" (as defined in Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Sections 9601 et seq. as amended) at the Property that are not being used in
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compliance with applicable regulations; (b) there has been no release or threat
of release of any such hazardous substance; (c) the Property is not subject
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to regulation by any governmental entity as result of the presence of (A)
stored, leaked or spilled petroleum products, (B) underground storage tanks, (C)
an accumulation of rubbish, debris or other solid waste, or because of the
presence, release, threat of release, discharge, storage, treatment, generation
or disposal of any "hazardous waste" (as defined in the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901 et seq., as amended), or "toxic
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substance" (as defined in the Toxic Substance Control Act, 15 U.S.C. Section
2601 et seq., as amended), including without limitation asbestos and items or
equipment containing polychlorinated biphenyls (PCBs) in excess of 50 parts per
million; and (d) no environmental condition exists on the Property that either
(X) requires the owner of the Property to report such condition to any authority
or agency of the State of Texas or (Y) requires the owner of the Property to
make a notation of such condition in any public records or conveyancing
instrument upon the conveyance of the Property.
12. Broker's Commission. Seller has by separate agreement agreed to pay a
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real estate commission to Wardman & Wooden (the "Broker"). Purchaser and Seller
hereby represent each to the other that they have not discussed this Agreement
or the subject matter hereof with any real estate broker or agent other than
Broker so as to create any legal right in any such broker or agent to claim a
real estate commission with respect to the conveyance of the Property
contemplated by this Agreement. Seller shall and does hereby indemnify and hold
harmless Purchaser from and against any claim, whether or not meritorious, for
any real estate sales commission, finder's fees, or like compensation in
connection with the sale contemplated hereby and arising out of any act or
agreement of Seller. Likewise, Purchaser shall and does hereby indemnify and
hold harmless Seller from and against any claim, whether or not meritorious, for
any real estate sales commission, finder's fees, or like compensation in
connection with the sale contemplated hereby and arising out of any act or
agreement of Purchaser, except any such claim asserted by Broker or any broker
or agent claiming under Broker. This Paragraph 12 shall survive the Closing or
any termination of this Agreement.
13. Notices. Wherever any notice or other communication is required or
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permitted hereunder, such notice or other communication shall be in writing and
shall be delivered by overnight courier, by hand, or sent by U.S. registered or
certified mail, return receipt requested, postage prepaid, to the addresses set
out below or at such other addresses as are specified by written notice
delivered in accordance herewith:
PURCHASER: c/x Xxxxx Capital, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxx X. Xxxxx, III
with a copy to: X'Xxxxxxxxx & Xxxxx
0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. X'Xxxxxxxxx, Xx., Esq.
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SELLER: TCI Valwood Limited Partnership I
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Lock Box 100
Dallas, Texas 75205
Attn: Xx. Xxx Xxxxxx
with a copy to: Xxxxxx & Westheimer
25th Floor, NationsBank Center
Xxxxxxx, Xxxxx 00000
Attn: Boots Xxxxxxxx, Esq.
Any notice or other communication given as hereinabove provided shall be deemed
effectively given or received on the date of delivery.
14. Possession. Possession of the Property shall be granted by Seller to
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Purchaser on the date of funding, subject only to the Leases and the Permitted
Exceptions.
15. Time Periods. If the time period by which any right, option, or
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election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day in Dallas, Texas.
16. Survival of Provisions. All covenants, warranties, and agreements set
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forth in this Agreement shall survive the execution or delivery of any and all
deeds and other documents at any time executed or delivered under, pursuant to,
or by reason of this Agreement, and shall survive the payment of all monies made
under, pursuant to, or by reason of this Agreement, for a period of 12 months
following Closing.
17. Severability. This Agreement is intended to be performed in
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accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules, and regulations. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent permitted
by law.
18. Authorization. Purchaser represents to Seller that Agreement has been
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duly authorized and executed on behalf of Purchaser and constitutes the valid
and binding agreement of Purchaser, enforceable in accordance with its terms,
and all necessary action on the part of Purchaser to authorize the transactions
herein contemplated has been taken, and no further action is necessary for such
purpose.
19. General Provisions. No failure of either party to exercise any power
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given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to
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demand exact compliance with the terms hereof. This Agreement contains the
entire agreement of the parties hereto, and no representations, inducements,
promises, or agreements, oral or otherwise, between the parties not embodied
herein shall be of any force or effect. Any amendment to this Agreement shall
not be binding upon the parties hereto unless such amendment is in writing and
executed by all parties hereto. The provisions of this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, legal representatives, successors, and assigns. Time is of the essence
of this Agreement. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original, but all of which taken together
shall constitute one and the same agreement. The headings inserted at the
beginning of each paragraph are for convenience only, and do not add to or
subtract from the meaning of the contents of each paragraph. This Agreement
shall be construed and interpreted under the laws of the State of Texas. Except
as otherwise provided herein, all rights, powers, and privileges conferred
hereunder upon the parties shall be cumulative but not restrictive to those
given by law. All personal pronouns used in this Agreement, whether used in the
masculine, feminine, or neuter gender shall include all genders, and all
references herein to the singular shall include the plural and vice versa.
20. AS IS, WHERE IS.
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(a) PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THOSE
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS AND
GUARANTIES, IF ANY, IN THIS CONTRACT AND THE SPECIAL WARRANTY DEED
CONVEYING THE PROPERTY, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS
OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS,
IMPLIED, OR STATUTORY, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO: (A) THE NATURE, QUALITY OR CONDITION OF THE
PROPERTY OR ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, THE WATER,
SOIL AND GEOLOGY; (B) THE ECONOMIC FEASIBILITY OF THE PROPERTY OR THE
INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY
FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON;
(D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS,
RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY
OR BODY; (E) THE RENTABILITY, HABITABILITY, MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE OF THE PROPERTY; (F) THE PRESENCE OF ANY ENDANGERED OR
THREATENED SPECIES ON THE PROPERTY, AS WELL AS THE SUITABILITY OF THE
PROPERTY AS HABITAT FOR ANY OF THOSE SPECIES; (G) THE PRESENCE OR ABSENCE
OF ANY HAZARDOUS SUBSTANCES (AS HEREINAFTER DEFINED) ON, UNDER OR ABOUT THE
PROPERTY OR THE COMPLIANCE OF THE PROPERTY WITH THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION AND
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LIABILITY ACT, THE SUPERFUND AMENDMENT AND REAUTHORIZATION ACT, THE
RESOURCE CONSERVATION RECOVERY ACT, THE FEDERAL WATER POLLUTION CONTROL
ACT, THE FEDERAL ENVIRONMENTAL PESTICIDES ACT, THE CLEAN WATER ACT, THE
CLEAN AIR ACT, THE TEXAS NATURAL RESOURCES CODE, THE TEXAS WATER CODE, THE
TEXAS SOLID WASTE DISPOSAL ACT, THE TEXAS HAZARDOUS SUBSTANCES SPILL
PREVENTION AND CONTROL ACT, ANY SO CALLED FEDERAL, STATE OR LOCAL
"SUPERFUND" OR "SUPERLIEN" STATUTE, OR ANY OTHER STATUTE, LAW, ORDINANCE,
CODE, RULE, REGULATION, ORDER OR DECREE REGULATING, RELATING TO OR IMPOSING
LIABILITY (INCLUDING STRICT LIABILITY) OR STANDARDS OF CONDUCT CONCERNING
ANY HAZARDOUS SUBSTANCES (HEREIN COLLECTIVELY CALLED THE HAZARDOUS
SUBSTANCE LAWS). FOR PURPOSES OF THIS AGREEMENT, THE TERM "HAZARDOUS
SUBSTANCES" SHALL MEAN AND INCLUDE THOSE ELEMENTS OR COMPOUNDS WHICH ARE
CONTAINED ON THE LIST OF HAZARDOUS SUBSTANCES ADOPTED BY THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY AND THE LIST OF TOXIC POLLUTANTS DESIGNATED
BY CONGRESS OR THE ENVIRONMENTAL PROTECTION AGENCY OR UNDER ANY HAZARDOUS
SUBSTANCE LAWS, OR (H) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY.
(b) The provisions of this Section 20 shall survive closing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective seals to be affixed hereunto as of the day,
month and year first above written.
"SELLER":
TCI Valwood Limited Partnership,
a Texas limited partnership
By: TCI-Valwood, Inc., a Texas corporation, its
general partner
By: /s/Xxx Xxxxxx
---------------------------------
Name: Xxx Xxxxxx
---------------------------
Title: President
--------------------------
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"PURCHASER":
FUND VIII AND FUND IX ASSOCIATES, INC., a Georgia
joint venture
By: Xxxxx Real Estate Fund VIII, L.P., a Georgia
limited partnership
By: Xxxxx Partners, L.P., its general partner
By: /s/ Xxxx X. Xxxx
-----------------------------
Name: Xxxx X. Xxxx
------------------------
Title: Vice President
-----------------------
By: Xxxxx Real Estate Fund IX, L.P., a Georgia
limited partnership
By: Xxxxx Partners, L.P., its general partner
By: /s/ Xxxx X. Xxxx
-----------------------------
Name: Xxxx X. Xxxx
------------------------
Title: Vice President
-----------------------
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Schedule of Exhibits
--------------------
Exhibit "A" - Description of Land
Exhibit "B" - Copy of Lease
Exhibit "C" - Blanket Transfer and Assignment Form
Exhibit "D" - Assignment and Assumption of Lease
Exhibit "E" - FIRPTA Certificate
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