EXHIBIT 10.38
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
FOR THE CINEMARK BUILDING
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
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Cinemark Building, Plano, Texas
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THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (the "Agreement"), is
made and entered into as of the 21st day of December, 1999, by and between
CNMRK HQ INVESTORS, L.P., a Texas limited partnership ("Seller") and XXXXX
OPERATING PARTNERSHIP, L.P., a Delaware limited partnership ("Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, CARDINAL CAPITAL PARTNERS, INC., a Texas corporation ("Cardinal")
has contracted with Cinemark USA, Inc. ("Cinemark") to acquire the Property (as
defined herein), which contract has been assigned by Cardinal to Seller; and
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property 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 (the "Land") located in Plano,
Collin County, Texas, being more particularly described on Exhibit "A"
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hereto; and
(b) all rights, privileges, and easements appurtenant to the Land,
including any 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,
including, without limitation, that certain five story office building, the
adjacent four
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level parking structure and other amenities located on the Land, and all
apparatus, built-in appliances, equipment, pumps, machinery, plumbing,
heating, air conditioning, electrical and other fixtures located on the
Land and not owned by tenants of the building (all of which are herein
collectively referred to as the "Improvements"); and
(d) all personal property acquired by Seller from Cinemark and
located on or to be located on or in, or used in connection with, the Land
and Improvements ("Personal Property"); and
(e) all of Seller's right, title, and interest, as landlord or
lessor, in and to the Leases (as hereinafter defined); and
(f) all of Seller's right, title, and interest in and to any
intangible property acquired by Seller from Cinemark relating to and
reasonably required for the ownership and operation of the Property (but
excluding any intangible property which relates to the operation of the
business conducted Cinemark, Coke and W.S. [all as hereinafter defined]),
including, without limitation, building plans and specifications with
respect to the Improvements, licenses and entitlements (e.g. certificates
of occupancy), soil reports, surveys, warranties, guarantees, utility
contracts, permits and any other rights acquired by Seller from Cinemark
related to the ownership of or use and operation of the Land, Personal
Property, or Improvements, if any (but not including the name Cinemark,
Coke, Coca Cola or any derivation thereof of logo therefor), all if and to
the extent acquired by Seller from Cinemark (herein, the "Intangible
Property").
2. The Title Company. American Title Company, whose offices are at 3131
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Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (Attn: Xx. Xx Xxxxxx,
phone 000-000-0000; fax 000-000-0000), is referred to herein as the "Escrow
Agent" or the "Title Company."
3. Purchase Price. The purchase price (the "Purchase Price") to be paid
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by Purchaser to Seller for the Property shall be Twenty One Million, Eight
Hundred Thousand and No/100 Dollars ($21,800,000.00). The Purchase Price shall
be paid by Purchaser in cash, by wire transfer, cashier's, certified check or
other evidence of funds acceptable to the Title Company for immediate
disbursement at Closing, subject to adjustment and credits as otherwise
specified in this Agreement.
4. Purchaser's Inspection and Review Rights. Purchaser and its agents,
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engineers, or representatives, has had the privilege of going upon the Property
as needed to inspect,
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examine, test, and survey the Property. Purchaser hereby agrees to hold Seller
and Cinemark harmless from any liens, claims, liabilities, and damages incurred
through the exercise of such privilege, and Purchaser further agrees to repair
any damage to the Property caused by the exercise of such privilege. Such
obligations shall survive any termination of this Agreement. Seller has made
available to Purchaser, or Purchaser's agents and representatives, for review
and copying, all books, records, files and other information in Seller's
possession relating to the ownership and operation of the Property, including,
without limitation, any title matters, surveys, tenant files, service and
maintenance agreements, and other contracts, books, records, operating
statements, and other information relating to the Property obtained from
Cinemark or independently developed by Seller. Seller has provided to Purchaser
prior to the date hereof the most current boundary and "as-built" surveys of the
Land and Improvements, any title insurance commitments, appraisals, building
inspection reports, environmental reports and financial information relating
thereto which is in the possession or under the control of Seller.
5. Special Condition Precedent to Seller's Obligations. Purchaser
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specifically acknowledges that Seller has contracted with Cinemark to acquire
the Property from Cinemark and enter into the Cinemark Lease (hereinafter
defined). In the event that Seller is unable to acquire the Property for any
reason other than Seller's willful default under its purchase agreement with
Cinemark (the "Cinemark Contract"), Purchaser's sole right shall be to terminate
this Agreement whereupon Purchaser and Seller shall thereafter be excused from
all obligations one to the other, except those obligations which expressly
survive any termination. The Closing Date hereunder shall occur simultaneously
with closing under the Cinemark Contract (the "Cinemark Closing"), which is
scheduled for December 21, 1999,and Seller and Purchaser agree to cooperate with
each other to close on such date. If Closing hereunder does not occur
simultaneously with closing under the Cinemark Contract, then Purchaser shall
pay for the premium for the owner's policy of title insurance.
6. General Conditions Precedent to Purchaser's Obligations Regarding the
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Closing. In addition to the conditions to Purchaser's obligations set forth in
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Paragraph 5 above, the obligations and liabilities of Purchaser hereunder shall
in all respects be conditioned upon the satisfaction of each of the following
conditions, any of which may be waived by written notice from Purchaser to
Seller:
(a) Compliance by Seller. Seller shall have complied in all material
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respects with and otherwise performed in all material respects each of the
covenants and obligations of Seller set forth in this Agreement, as of the
date of Closing (as hereinafter defined).
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(b) Seller's Representations. All representations and warranties of
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Seller as set forth in this Agreement shall be true and correct in all
material respects as of the date of Closing.
(c) No Adverse Changes. There shall have been no adverse change to
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the title to the Property which has not been cured and the Title Company
shall have issued the Title Commitment (as hereinafter defined) on the Land
and Improvements without exceptions other than as described in paragraph 7
and the Title Company shall be prepared to issue to Purchaser upon the
Closing a fee simple owner's title insurance policy on the Land and
Improvements pursuant to such Title Commitment.
(d) Tenant Estoppels. Purchaser shall have received Tenant Estoppel
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Certificates duly executed by Coke and Cinemark at or prior to Closing, in
form reasonably acceptable to Purchaser.
(e) Leases. Attached hereto as Exhibit "B-1" is a true and accurate
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copy of that certain lease dated April 27, 1999 between Cinemark and The
Coca Cola Company ("Coke"), as amended by First Amendment dated December
13, 1999 (said lease, as amended, is referred to herein as the "Coke
Lease"). Attached hereto as Exhibit "B-2" is a true and accurate copy of a
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Lease (the "Cinemark Lease") to be entered into by and between Seller and
Cinemark at the Cinemark Closing. That certain lease (the "WS Lease")
dated April 8, 1999 between Cinemark and W.S. Theater Management, L.L.C.
("WS") shall at the Cinemark Closing be recharacterized as a sublease
between Cinemark and WS, with the demised premises thereunder being part of
the demised premises under the Cinemark Lease. The Coke Lease and the
Cinemark Lease are hereinafter defined at the "Leases." As of the Closing,
the Leases shall be in full force and effect, Seller shall be the
"landlord" under the Leases, and Seller shall own unencumbered legal and
beneficial title thereto and the rents and other income thereunder, subject
only to a collateral assignment thereof to the Lender.
(f) Lease - Rents and Special Consideration. The Tenants shall: (i)
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not have prepaid rent for more than the current month under the Leases,
(ii) not have received and shall not be entitled to receive any rent
concession in connection with its tenancy under the Leases other than as
described in the Leases, (iii) not be entitled to any special work (not yet
performed), or consideration (not yet given) (except as to the tenant
finish allowance to be paid by Cinemark to Coke under the Coke Lease) in
connection with its tenancy under the Leases, and (iv) not have any deed,
option, or other evidence of any right or interest in or to the Property,
except for the Tenants' tenancy as evidenced by the express terms of the
Leases.
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(g) Lease - Acceptance of Premises. (i) the Tenants shall have
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accepted their leased premises located within the Property, including any
and all work performed therein or thereon pursuant to the Leases, (ii) the
Tenants shall be in full and complete possession of their respective
premises under the Leases, and (iii) neither Seller nor Cinemark shall have
received notice from a Tenant that such Tenant's premises are not in full
compliance with the terms and provisions of the Tenant's Lease or are not
satisfactory for the Tenant's purposes.
(h) No Other Agreements. Other than the Leases and the Permitted
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Exceptions, there shall be no leases, service contracts, management
agreements, or other agreements or instruments in force and effect, oral or
written, 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,
other than the Cinemark Management Agreement (hereinafter defined) and
service contracts entered into by Cinemark in connection with their
management.
(i) No Litigation. There shall be no actions, suits, or proceedings
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pending, or threatened by any organization, person, individual, or
governmental agency against Seller with respect to the Property or against
the Property and no pending or threatened application for changes in the
zoning applicable to the Property or any portion thereof.
(i) Condemnation. There shall be no pending or threatened
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condemnation or eminent domain proceedings (or proceedings in the nature or
in lieu thereof) affecting the Property or any portion thereof or its use.
(j) Proceedings Affecting Access. There shall be no pending or
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threatened proceedings that could have the effect of impairing or
restricting access between the Property and adjacent public roads.
(k) Management Agreement. Attached hereto as Exhibit "C" and made a
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part hereof is a draft of Management Agreement (the "Cinemark Management
Agreement") pursuant to which Cinemark shall manage the Property after the
Cinemark Closing. The Cinemark Management Agreement shall be in full force
and effect and as of the Closing the Property shall be managed by Cinemark
thereunder.
7. Title and Survey. Seller has caused the Title Company to deliver to
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Purchaser its commitment (herein referred to as the "Title Commitment") to issue
to Purchaser, upon
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the recording of the Deed conveying title to the Property from Seller to
Purchaser, the payment of the Purchase Price, and the payment to the Title
Company of the policy premium therefor, an owner's policy of title insurance, in
the amount of the Purchase Price, insuring good and indefeasible fee simple
record title to the Property to be in Purchaser subject only to the Permitted
Exceptions (as hereinafter defined) and containing the standard printed
exceptions, provided, however, there shall be no exception for mechanics' or
materialmen's liens, the exception for taxes shall refer to the year 2000, and
any exception for parties in possession shall be limited to rights of Tenants,
as tenants only, pursuant to the Leases. The survey exception may be amended to
except only the "shortages in area." Seller has also caused to be delivered to
Purchaser together with such Title Commitment, legible copies of all documents
and instruments referred to therein and a current survey of the Property.
Purchaser has examined the Commitment, the exception documents and the survey.
The matters set forth in the deed from Purchaser to Seller, or set forth on any
final survey or Title Commitment shall be referred to herein as the "Permitted
Exceptions."
8. Representations and Warranties of Seller. Seller hereby makes the
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following representations and warranties to Purchaser, each of which shall be
deemed material:
(a) Lease - Assignment. To the best of Seller's knowledge, no Tenant
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has assigned its interest in a Lease or sublet any portion of the premises
leased to each such Tenant under a Lease (except as regards the
recharacterization of the WS Lease as a sublease between Cinemark and WS).
(b) Lease - Default. (i) Seller has not received any notice of
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termination or default under any Lease and does not know of Cinemark
receiving the same, (ii) Seller knows of no existing or uncured defaults by
Cinemark or by a Tenant under the Leases, (iii) to the best of Seller's
knowledge, no 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 Leases.
(c) Lease - Commissions. No rental, lease, or other commissions with
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respect to the Lease are payable to Seller, any partner of Seller, any
party affiliated with or related to Seller or any partner of Seller or, to
Seller's knowledge, any third party whatsoever. Any commissions payable
under, relating to, or as a result of the Leases shall have been chased out
and paid and satisfied in full as of the Closing.
(d) No Assessments. To the best of Seller's knowledge, no assessments
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have been made against the Property that are unpaid, whether or not they
have become liens.
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(e) Conditions of Improvements. Seller is not aware of any
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structural or other defects in the Improvements.
(f) Violations. Seller has no knowledge of any violations of law,
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municipal or county ordinances, or other legal requirements with respect to
the Property.
(g) Bankruptcy. Seller is "solvent" as said term is defined by
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bankruptcy law and has not made a general assignment for the benefit of
creditors nor been adjudicated a bankrupt or insolvent, nor has a receiver,
liquidator, or trustee for any of Seller's properties (including the
Property) been appointed or a petition filed by or 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.
(h) Pre-existing Right to Acquire. Seller has granted no person or
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entity any right 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.
(i) Authorization. Seller is a duly organized and validly existing
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limited partnership under the laws of the State of Texas. 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.
(j) Seller Not a Foreign Person. Seller is not a "foreign person"
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which would subject Purchaser to the withholding tax provisions of Section
1445 of the Internal Revenue Code of 1986, as amended.
(k) Year 2000 Compliance. To the best of Seller's knowledge, all
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building systems and material computer applications will correctly
recognize and perform date sensitive functions involving certain dates
prior to and after December 31, 1999.
AS A CONDITION PRECEDENT TO SELLER'S UNDERTAKINGS AND AGREEMENTS HEREUNDER,
SELLER EXPRESSLY DISCLAIMS AND PURCHASER ACKNOWLEDGES AND ACCEPTS THAT SELLER
HAS DISCLAIMED MAKING ANY REPRESENTATIONS, WARRANTIES, OR ASSURANCES WITH
RESPECT TO THE PROPERTY OTHER THAN AS SPECIFICALLY SET OUT HEREIN. OTHER THAN
AS SPECIFICALLY SET OUT HEREIN, PURCHASER AGREES THAT WITH RESPECT TO THE
PROPERTY IT WILL RELY UPON ITS INSPECTIONS THEREOF
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OR ITS DETERMINATIONS NOT TO INSPECT THE SAME, AND UPON CLOSING SHALL ACCEPT THE
PROPERTY IN ITS "AS IS" CONDITION, WITH ALL FAULTS, AND WITHOUT REFERENCE TO
MERCHANTABILITY OR FITNESS FOR ANY SPECIFIC PURPOSE.
9. Seller's Additional Covenants. Seller does hereby further covenant
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and agree as follows, if and to the extent that the Closing shall occur after
the execution hereof:
(a) Operation of Property. Seller hereby covenants that, from the
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date of Seller's acquisition of the Property up to and including the date
of Closing or earlier termination of this Agreement, Seller shall: (i) not
modify, amend, or terminate any Lease or enter into any new lease,
contract, or other agreement respecting the Property, (ii) not grant or
otherwise create or consent to the creation of any easement, restriction,
lien, assessment, or encumbrance respecting the Property, and (iii) cause
the Property to be operated, maintained, and repaired in the same manner as
the Property is currently being operated, maintained, and repaired.
(b) Preservation of Lease. Seller shall, from and after the date of
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Seller's acquisition of the Property to the date of Closing, use its good
faith efforts to perform and discharge all of the duties and obligations
and shall otherwise comply with every covenant and agreement of the
landlord under the Lease, at Seller's expense, in the manner and within the
time limits required thereunder. Furthermore, Seller shall, for the same
period of time, use diligent and good faith efforts to cause the Tenants
under the Leases to perform all of their duties and obligations and
otherwise comply with each and every one of its covenants and agreements
under such Leases and shall take such actions as are reasonably necessary
to enforce the terms and provisions of the Leases.
10. Closing. Provided that all of the conditions set forth in this
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Agreement are theretofore fully satisfied or performed, it being fully
understood and agreed, however, that Purchaser may expressly waive in writing,
at or prior to Closing, any conditions that are unsatisfied or unperformed at
such time, the consummation of the sale by Seller and purchase by Purchaser of
the Property (herein referred to as the "Closing") shall be held at 2:00 p.m.,
local time, on or before December 21, 1999.
11. 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 3 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 and
shall survive the Closing):
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(a) Special Warranty Deed. A Special Warranty Deed conveying to
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Purchaser indefeasible fee simple title to the Land and Improvements,
together with all rights, easements, and appurtenances thereto, subject
only to the Permitted Exceptions. The legal description set forth in the
Warranty Deed shall be as set forth on Exhibit "A;"
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(b) Xxxx of Sale. A Xxxx of Sale conveying to Purchaser title to the
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Personal Property, such Xxxx of Sale to be in substantially the same form
and substance as the xxxx of sale to Purchaser from Cinemark;
(c) Assignment of Intangible Property. An Assignment of Intangible
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Property, including all construction warranties and guarantees that Seller
receives from Cinemark, such Assignment of Intangible Property to be in
substantially the same the form and substance as the assignment of
intangible property to Purchaser from Cinemark;
(d) Assignment and Assumption of Leases. An Assignment and Assumption
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of Leases in substantially the same form and substance as the assignment
and assumption of leases between Purchaser and Cinemark, assigning to
Purchaser all of Seller's right, title, and interest in and to the Leases
and the rents thereunder;
(e) Assignment of Management Contract. An assignment of the Cinemark
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Management Agreement.
(f) Seller's Affidavit. A customary seller's affidavit in the form
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required by the Title Company;
(g) FIRPTA Certificate. A FIRPTA Certificate in such form as required
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by the Internal Revenue Service;
(h) Certificates of Occupancy. Any original certificates of occupancy
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that Seller receives from Cinemark;
(i) Keys, Records, Etc. Any keys to doors or locks on the Property,
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any original tenant files, books and records relating to the Property and
any other item which Seller receives from Cinemark;
(j) Tenant Notice. Notice from Seller to the Tenants of the sale of
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the Property to Purchaser in such form as Purchaser shall reasonably
approve;
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(k) 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; and
(l) Evidence of Issuance of Title Commitment. Purchaser shall
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receive reasonable assurance that the Title Company will issue an owner's
title policy in the form required hereby, with an effective date as of the
date and time of recording the Special Warranty Deed, reflecting that
Purchaser is vested with fee simple title to the Property, and to reflect
that all requirements for the issuance of the same have been satisfied.
(m) Other Documents. Such other documents as shall be reasonably
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required in order to close this transaction.
12. Purchaser's Closing Documents. Purchaser shall obtain or execute and
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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) Xxxx of Sale. The Xxxx of Sale;
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(b) Assignment and Assumption of Lease. The Assignment and Assumption
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of Lease;
(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; and
(d) Other Documents. Such other documents as shall be reasonably
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required by Seller's counsel.
(e) Seller Financing Documents. The Seller Financing Documents.
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13. Closing Costs. Seller shall pay the cost of the Title Commitment,
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including the cost of the examination of title to the Property made in
connection therewith, the premium for the owner's policy of title insurance
issued pursuant thereto (except to the extent the same is payable by Purchaser
as provided in Section 5 above), the cost of the as-built survey, the attorneys'
fees of Seller, 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 attorneys' fees of Purchaser, and all other costs and
expenses incurred by Purchaser in closing and consummating the purchase and sale
of the Property pursuant
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hereto, including third-party inspection fees. Each party shall pay one-half of
any escrow fees.
14. 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) Rents. Rents, additional rents, and other income of the Property
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(other than security deposits, which shall be assigned and paid over to
Purchaser) collected by Seller from Tenants 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 Tenants for any period following the month of
Closing, or otherwise.
(b) Property Taxes; Utility Charges and Other Operating Expenses.
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City, state, county, and school district ad valorem taxes, utility charges
and other operating expenses are not being prorated between Seller and
Cinemark, but rather will be adjusted between Cinemark and Seller at such
time as the year's operating expenses are known and it is determined what,
if any, is to be passed on to the tenants based upon their respective
expense stops. If as a result of any such adjustment an amount shall be
owing between Seller and Cinemark, the same shall be adjusted between
Seller and Purchaser, so that Purchaser shall pay any amount owing by
Seller to Cinemark and shall receive any amount due to Seller from
Cinemark. This agreement to adjust shall survive Closing.
15. Purchaser's Default. In the event purchaser fails to close, Seller's
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sole and exclusive remedy shall be to terminate this Agreement and thereafter
the parties hereto shall have no further rights or obligations hereunder
whatsoever, except as to matters expressly surviving termination. Seller shall
not be limited with respect to any matters expressly surviving the closing.
Seller's Initial ______________ Purchaser's Initials ____________
16. Seller's Default. In the event Seller fails to close or otherwise
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defaults with respect to Closing obligations, (i) Purchaser shall have the right
to terminate this Agreement by giving written notice of such termination to
Seller, whereupon Purchaser and Seller shall have no further rights,
obligations, or liabilities hereunder, except as may be expressly provided to
the contrary herein; or (ii) Purchaser shall have the right to accept title to
the Property subject to defects and objections with no reduction in the Purchase
Price (except for monetary encumbrances, other than the First Loan Documents,
arising by, through or under Seller), in which event such defects and objections
shall be deemed "Permitted Exceptions;"
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or (iii) Purchaser may elect to seek specific performance of this Agreement.
Purchaser shall not be limited with respect to any matters expressly surviving
the closing.
17. Condemnation. If, prior to the Closing, all or any part of the
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Property is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or condemnation (or sale
in lieu thereof), or if Seller has received notice that any condemnation action
or proceeding with respect to the Property is contemplated by a body having the
power of eminent domain, Seller shall give Purchaser immediate written notice of
such threatened or contemplated condemnation or of such taking or sale, and
Purchaser may by written notice to Seller given within thirty (30) days of the
receipt of such notice from Seller, elect to cancel this Agreement. If Purchaser
chooses to cancel this Agreement in accordance with this Paragraph 17, then the
rights, duties, obligations, and liabilities of the parties hereunder shall
immediately terminate and be of no further force and effect. If Purchaser does
not elect to cancel this Agreement in accordance herewith, this Agreement shall
remain in full force and effect and the sale of the Property contemplated by
this Agreement, less any interest taken by eminent domain or condemnation, or
sale in lieu thereof, shall be effected with no further adjustment and without
reduction of the Purchase Price, and at the Closing, Seller shall assign,
transfer, and set over to Purchaser all of the right, title, and interest of
Seller in and to any awards that have been or that may thereafter be made for
such taking.
18. Damage or Destruction. If any of the Improvements shall be destroyed
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or damaged prior to the Closing, and the estimated cost of repair or replacement
exceeds Five Hundred Thousand Dollars ($500,000.00) or if a Lease shall
terminate as a result of such damage, Purchaser may, by written notice given to
Seller within twenty (20) days after receipt of written notice from Seller of
such damage or destruction, elect to terminate this Agreement, in which event,
except as expressly provided herein to the contrary, the rights, duties,
obligations, and liabilities of all parties hereunder shall immediately
terminate and be of no further force or effect. If Purchaser does not elect to
terminate this Agreement pursuant to this Paragraph 18, or has no right to
terminate this Agreement (because the damage or destruction does not exceed
$500,000.00 and the Leases remain in full force and effect), and the sale of the
Property is consummated, Purchaser shall be entitled to receive all insurance
proceeds paid or payable to Seller by reason of such destruction or damage under
the insurance maintained by Seller (less amounts of insurance theretofore
received and applied by Seller to restoration). If the amount of said casualty
or rent loss insurance proceeds is not settled by the date of Closing, Seller
shall execute at Closing all proofs of loss, assignments of claim, and other
similar instruments to ensure that Purchaser shall receive all of Seller's
right, title, and interest in and under said insurance proceeds.
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19. Hazardous Substances. Seller hereby warrants and represents, to the
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best of Seller's knowledge that (i) no "hazardous substances," as that term is
defined in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, 42 U.S.C. Section 9601, et. seq., the Resource
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Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et. seq., and
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the rules and regulations promulgated pursuant to these acts, any so-called
"super-fund" or "super-lien" laws or any applicable state or local laws, nor any
other pollutants, toxic materials, or contaminants have been or shall prior to
Closing be discharged, disbursed, released, stored, treated, generated, disposed
of, or allowed to escape on the Property, (ii) no asbestos or asbestos
containing materials have been installed, used, incorporated into, or disposed
of on the Property, (iii) no polychlorinated biphenyls are located on or in the
Property, in the form of electrical transformers, fluorescent light fixtures
with ballasts, cooling oils, or any other device or form, (iv) no underground
storage tanks are located on the Property or were located on the Property and
subsequently removed or filled, (v) no investigation, administrative order,
consent order and agreement, litigation, or settlement with respect to Hazardous
Substances is proposed, threatened, anticipated or in existence with respect to
the Property, and (vi) the Property has not previously been used as a landfill,
cemetery, or as a dump for garbage or refuse.
20. Assignment. Purchaser's rights and duties under this Agreement shall
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not be assignable except to an affiliate of Purchaser without the consent of
Seller which consent shall not be unreasonably withheld. Seller may assign this
Agreement to an affiliate of Seller formed to take title to the Property.
21. Broker's Commission. 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 The Roylston Group
("Broker"), which Seller agrees to pay pursuant to a separate agreement, 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.
This Paragraph 21 shall survive the Closing or any termination of this
Agreement.
22. Notices. Wherever any notice or other communication is required or
-------
permitted hereunder, such notice or other communication shall be in writing and
shall be
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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 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
Fax No. 000-000-0000
with a copy to: X'Xxxxxxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxxxx, X. X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. X'Xxxxxxxxx, Esq.
Fax No. 000-000-0000
SELLER: c/o Cardinal Capital Partners, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax No. 000-000-0000
with a copy to : Xxxxx, Xxxxx & Xxxxxxxx, P.C.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax No. 000-000-0000
Any notice or other communication mailed as hereinabove provided shall be
deemed effectively given or received on the date of delivery, if delivered by
hand or by overnight courier, or otherwise on the third (3rd) business day
following the postmark date of such notice or other communication.
23. Possession. Possession of the Property shall be granted by Seller to
----------
Purchaser on the date of Closing, subject only to the Leases and the Permitted
Exceptions.
24. Time Periods. If the time period by which any right, option, or
------------
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.
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25. Survival of Provisions. All covenants, warranties, and agreements set
----------------------
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 twelve (12)
months from Closing except with respect to paragraph 19 which shall survive for
an unlimited time.
26. Severability. This Agreement is intended to be performed in
------------
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.
27. Authorization. Purchaser represents to Seller that this Agreement has
-------------
been 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.
28. General Provisions. No failure of either party to exercise any power
------------------
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 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 Georgia. 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.
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29. Effective Date. The "effective date" of this Agreement shall be
--------------
deemed to be the date this Agreement is fully executed by both Purchaser and
Seller.
30. Duties as Escrow Agent. In performing its duties hereunder, Escrow
----------------------
Agent shall not incur any liability to anyone for any damages, losses or
expenses, except for its gross negligence or willful misconduct, and it shall
accordingly not incur any such liability with respect to any action taken or
omitted in good faith upon advice of its counsel or in reliance upon any
instrument, including any written notice or instruction provided for in this
Agreement, not only as to its due execution and the validity and effectiveness
of its provision, but also as to the truth and accuracy of any information
contained therein that Escrow Agent shall in good faith believe to be genuine,
to have been signed or presented by a proper person and to conform to the
provisions of this Agreement. Seller and Purchaser hereby agree to indemnify
and hold harmless Escrow Agent against any and all losses, claims, damages,
liabilities and expenses, including reasonable costs of investigation and legal
fees and disbursements, that may be imposed upon Escrow Agent or incurred by
Escrow Agent in connection with its acceptance or performance of its duties
hereunder as escrow agent, including without limitation, any litigation arising
out of this Agreement. If any dispute shall arise between Seller and Purchaser
sufficient in the discretion of Escrow Agent to justify its doing so, Escrow
Agent shall be entitled to tender into the registry or custody of the clerk of
the Court for the county in which the Property is located or the clerk for the
United States District Court having jurisdiction over the county in which the
Property is located, any or all money (less any sums required to pay Escrow
Agent's attorneys' fees in filing such action), property or documents in its
hands relating to this Agreement, together with such pleadings as it shall deem
appropriate, and thereupon be discharged from all further duties under this
Agreement. Seller and Purchaser shall bear all costs and expenses of any such
legal proceedings.
31. Confidentiality. Pending the Closing, Purchaser and Seller agree to
---------------
keep the terms of this Agreement, and the existence thereof, strictly
confidential; provided, however, reasonable disclosure may be made to the
parties attorneys, accountants, advisors, lenders, prospective lenders,
investors, prospective investors and other persons whose involvement in the
transaction requires such disclosure. Purchaser shall not in no event contact
Cinemark nor inform Cinemark of this Agreement.
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:
Page 16
CNMRK HQ INVESTORS, L.P., INC., a Texas limited partnership
By: CCP INVESTORS GP, INC., a Texas corporation, its general partner
By: /s/ M. Xxxxx Xxxx
-------------------------------------
M. Xxxxx Xxxx, Vice President
PURCHASER:
XXXXX OPERATING PARTNERSHIP, L.P., a Delaware limited partnership
By: XXXXX REAL ESTATE INVESTMENT TRUST, a Maryland real estate investment trust
By: /s/ Xxx X. Xxxxx, III
--------------------------------------
Printed Name: Xxx X. Xxxxx, III
----------------------------
Title: President
-----------------------------------
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