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EXHIBIT 10.1
CONTRACT OF SALE
This Contract of Sale ("Contract") is effective November ___, 1997
entered into between NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation
("Seller"), and ALCU INVESTMENTS, INC., a Texas limited partnership ("Buyer").
ARTICLE I
AGREEMENT OF PURCHASE AND SALE
Subject to those provisions to follow, Seller agrees to sell, and
Buyer agrees to buy, the following described properties (hereinafter referred
to collectively as the "Property"):
1.1 Fee Title. Seller's fee simple title in the real property
known as 1055, 1057 and 0000 X. Xxxxxxx Xxxx, Xxxxxx xx Xxxxxx, Xxxx of
Xxxxxxxxxx, State of Texas, as described more specifically in Exhibit "A"
attached hereto and incorporated herein, together with all and singular the
Seller's rights and appurtenances pertaining to such real property including,
without limitation, all easements, streets, alleys and rights-of-way and all
rights of Seller relating to ingress and egress and all strips and gores
between such real property and adjacent land (collectively referred to as the
"Land");
1.2 Improvements. All buildings and improvements,
("Improvements") located on the Land;
1.3 Personal Property. All mechanical systems, fixtures and
equipment including, but not limited to, compressors, and engines; electrical
systems, fixtures and equipment; plumbing fixtures, systems and equipment;
heating fixtures, systems and equipment; air conditioning fixtures, systems and
equipment; furniture, carpets, drapes and other furnishings; maintenance
equipment and tools; and all other machinery, equipment, fixtures and personal
property of every kind and character, if any, owned by the Seller and located
in, or on or used in connection with, the Land or the Improvements or the
operations thereon ("Personal Property");
1.4 Plans, Etc. All site plans, surveys, soil and substrata
studies, architectural renderings, plans and specifications, engineering plans
and studies, floor plans, landscape plans and other plans, diagrams or studies
of any kind, if any, in Seller's possession which relate to the Land, the
Improvements or the Personal Property;
1.5 Tenant Leases. Seller's interest in all leases and rental
agreements with tenants occupying, or having the right to occupy, space situated
in Improvements or otherwise having rights with regard to use of the land or the
Improvements ("Leases"), and all security deposits, if any, held in connection
with such leases.
1.6 Miscellaneous Documents. All leasing brochures, market
studies, appraisals, tenant data sheets and other materials of any kind in
Seller's possession solely related to the Improvements.
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ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The purchase price for the Property shall be
SEVEN MILLION TWO HUNDRED THOUSAND DOLLARS ($7,200,000) (the "Purchase Price").
The Purchase Price shall be payable by wire transfer or immediately available
funds at Closing (hereinafter defined).
2.2 Xxxxxxx Money Deposit. Within three (3) business days after
execution of this Contract, by Buyer and Seller, the Buyer shall deposit with
the Title Company (hereinafter defined), as an xxxxxxx money deposit in cash an
amount of FIFTY THOUSAND DOLLARS ($50,000) ("Xxxxxxx Money Deposit") with
Commonwealth Land Title Insurance Company, 0000 Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxx Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxxx Xxxxxxx ("Title
Company"). The Title Company shall hold and dispose of the Xxxxxxx Money
Deposit in strict compliance with this Contract. Buyer shall direct the
Xxxxxxx Money Deposit to be invested in an interest bearing account in a
financial institution insured by the Federal Deposit Insurance Corporation
chosen by Buyer, with such account having a maturity date not later than the
Closing Date (hereinafter defined). All interest earned on the Xxxxxxx Money
Deposit shall be Buyer's property prior to a default by Buyer. All interest
earned after the date of a default by Buyer shall be for Seller's account.
Buyer and Seller agree that prior to Buyer's deposit of the Xxxxxxx Money
Deposit with the Title Company, Seller shall have no obligation or liability
under this Contract, and that Buyer's obligation to deposit the Xxxxxxx Money
Deposit is an express condition precedent to Seller's obligation and
liabilities under this Contract. In the event that the Xxxxxxx Money Deposit
is not received by the Title Company within three (3) business days from the
date of Buyer's and Seller's execution of this Contract whichever is later,
this Contract shall be deemed null and void with neither party having any
further obligation to the other.
2.3 Independent Contract Consideration. Prior to or
contemporaneous with the execution hereof by Buyer and Seller, Buyer has paid,
and Seller hereby acknowledges receipt of the sum of $50.00 cash (the
"Independent Contract Consideration"), which amount Buyer and Seller bargained
for and agreed to as consideration for Seller's execution and delivery of this
Contract. The Independent Contract Consideration is nonrefundable and of the
purchase and sale of the Property is consummated pursuant to this Contract, the
Independent Contract Consideration shall be applied toward the cash portion of
the Purchase Price paid by Buyer. Seller shalt be entitled to retain the
Independent Contract Consideration notwithstanding any other provision of this
Contract to the contrary.
ARTICLE III
REVIEW OF TITLE, SURVEY AND OWNERSHIP DOCUMENTS
3.1 Title Commitment. Within fifteen (15) days after the
Effective Date of this
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Contract, Seller shall furnish to Buyer, at Seller's expense, a current
commitment for an owner's title insurance policy ("Commitment") issued by the
Title Company, setting forth the state of title to the Property and all
exceptions including: easements, restrictions, rights of way, covenants,
reservations, and other conditions, if any, affecting the Property which would
appear in Owner's Title Policy, if issued. No representations or warranties
are made by or shall be made or given by Seller with respect to the Survey or
the information contained therein.
3.2 Ownership Documents. Within fifteen (15) days after the
Effective Date of this Contract, Seller shall, if available, furnish to Buyer
true and correct copies of the items listed below (collectively, the "Ownership
Documents"):
(a) The most complete set of "as-built" plans,
specifications and plat plans for the improvements on
the Property, if any;
(b) The Survey (hereinafter defined);
(c) Annual income and expense statements for Seller's
period of ownership;
(d) The most current rent roll and lease summary;
(e) True and correct copies of all Leases (including
amendments creating rights to the property); and all
correspondence by and between Seller and Northern
Telecom, Inc ("Nortel");
(f) All management, maintenance or other service
agreements;
(g) An itemized inventory of the Personal Property;
(h) Copies of certificate(s) of occupancy and all other
certificates, permits and governmental licenses or
approvals relating to the Property or the operation
thereof, to the extent available to Seller; and
(i) Copies of tax statements and paid tax receipts and of
utility bills and paid utility receipts for the
immediately preceding year, and the tax statement and
the utility bills and paid utility receipts for the
current year, to the extent available to Seller.
3.3 Survey. Within twenty (20) days after the Effective Date of
this Contract, Seller shall, at Seller's sole cost and expense, cause to be
prepared and furnished to Buyer and the Title Company, a current plat of an "as
built" survey of the Land and Improvements (hereinafter referred to as the
"Survey"), and a field note description thereof, prepared and certified as to
all matters shown thereon by a licensed professional engineer or surveyor
acceptable to the Title Company and in such form and substance sufficient to
permit deletion from the Owner's Policy of Title Insurance of the survey
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exception except for "shortages in area". The Survey shall meet the
requirements of a Category 1A, Condition 11, Land Title Survey in accordance
with the Standards for Land Surveys for the Texas Society of Professional
Surveyors. The Survey shall locate accurately (and identify by volume and page
reference, if applicable) all existing buildings, improvements, fences, parking
spaces (including handicapped parking spaces), encumbrances, encroachments,
conflicts, protrusions and uses (including the location of all highways,
streets, roads, easements, alleys and rights-of-way upon or adjacent to the
Land) which are visible on the ground or listed on the Title Binder (as
hereinafter defined); shall recite the exact area of the Land; shall show all
building set back lines; shall include a metes and bounds description of the
Land; and shall show routes of ingress to and egress from the Land and the
distance to and names of the nearest intersecting streets. The Survey shall
contain a certificate specifically verifying that (i) the Survey was made on
the ground of the Land; (ii) the Survey is correct and (iii) there are no
improvements, visible easements or uses, encroachments, conflicts or
protrusions except as shown on the Survey. The Survey shall also show any
portions of the Land falling within any flood plain area or within an area
designated as having special flood hazards by any official of any federal,
state or local government or any instrumentality hereof and shall contain a
certificate that no portion of the Land falls within any such area except if
and as shown on the Survey.
3.4 Tenant Estoppel Certificates. Prior to closing, Seller shall
obtain and submit to Buyer a signed estoppel certificate from each tenant on
such form as shall be provided by Buyer's counsel, and an approval in writing
by Seller's counsel, for the purpose of verifying the status of each lease.
ARTICLE IV
CONDITIONS
4.1 Inspection Period.
(a) Inspection Period. Buyer shall have a period
commencing on the Effective Date of this Contract and extending sixty (60) days
thereafter to examine the title and Survey ("Title Inspection") and the
Property and any Ownership Documents not previously provided ("Property
Inspection") (collectively the "Inspection Period"). Such examination may
include any matters that Buyer finds relevant to its decision to purchase the
Property including, without limitation, an interview with any and all Tenant(s)
occupying all or part of the Property in the presence of real estate agents for
both Seller and Buyer, a soil, hazardous substance, engineering and feasibility
study. Buyer agrees that if it elects to have a Phase I environmental audit on
the Property that it will provide Seller with a copy of said report. Seller
shall assist Buyer in gaining access to the portion of the Property occupied
under any Leases, if applicable, so that any inspecting engineer retained by
Buyer can conduct those on-site structural inspections it deems necessary in
order to conclude that the improvements are structurally sound. All
inspections, unless otherwise stated herein, and studies conducted by Buyer or
at Buyer's direction shall be at Buyer's sole cost and expense. In conducting
such inspections, Buyer shall not unreasonably interfere with the use or
occupancy of the Property and/or Land. Buyer agrees to indemnify Seller and
hold Seller harmless from and against any injury,
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damage, loss, cost or expense related to or arising out of Buyer's inspection
of the Property pursuant to this Section whether foreseen or not, including,
but not limited to, costs of repairing damage to the Property, Land,
Improvement and/or Personal Property. After the expiration of the Inspection
Period, the sole obligation of Seller, except es provided herein, will be to
deliver possession of the Property in the same condition as existed on the date
of termination (ordinary wear and tear excepted). In the event the Buyer does
not elect to terminate the Contract (as provided herein) and except as
otherwise expressly provided herein, THE BUYER AGREES THAT THE PROPERTY,
INCLUDING BUT NOT LIMITED TO THE PERSONAL PROPERTY, IS BEING CONVEYED HEREUNDER
"AS IS, WHERE IS, AND WITH ALL FAULTS", WITHOUT ANY REPRESENTATION OR WARRANTY
BY SELLER EXCEPT AS EXPRESSLY SET FORTH HEREIN AND THE PERSONAL PROPERTY IS
BEING SOLD AND ASSIGNED HEREUNDER ONLY TO THE EXTENT THAT IT MAY BE OWNED BY
THE SELLER AND USED IN THE OPERATION OF THE PROPERTY. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, SELLER HAS NOT MADE AND IS NOT MAKING ANY EXPRESS OR IMPLIED
REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PROPERTY, INCLUDING WITHOUT
LIMITATION ANY REPRESENTATION OR WARRANTY REGARDING QUALITY OF CONSTRUCTION,
WORKMANSHIP, CONDITION, STATE OF REPAIR, SAFETY, MERCHANTABILITY OR FITNESS FOR
ANY PARTICULAR PURPOSE, ACCURACY OF DIMENSIONS, WHETHER THE IMPROVEMENTS ARE
STRUCTURALLY SOUND, IN GOOD CONDITION OR IN COMPLIANCE WITH APPLICABLE CITY,
COUNTY, STATE OR FEDERAL STATUTES, CODES, OR REGULATIONS, INCLUDING, WITHOUT
LIMITATION, TO HAZARDOUS MATERIALS OR ANY ENVIRONMENTAL MATTERS AND THE
AMERICANS WITH DISABILITIES ACT, OPERATION OF MECHANICAL SYSTEMS, EQUIPMENT AND
FIXTURES, SUITABILITY OF SOIL OR GEOLOGY, ABSENCE OF DEFECTS OR HAZARDOUS OR
TOXIC MATERIALS OR WASTES, ANY PAST, PRESENT OR FUTURE OPERATING RESULTS,
INCLUDING BOTH INCOME AND EXPENSES, ANY PROJECTIONS WITH RESPECT TO OPERATING
RESULTS, THE FINANCIAL VIABILITY OF THE PROPERTY, OR THE COMPLETENESS OR
ACCURACY OF ANY BOOKS OR RECORDS OF SELLER PERTAINING TO THE PROPERTY, AND
BUYER ACKNOWLEDGES THAT BUYER ACCEPTS THIS PROPERTY WITHOUT RELYING UPON ANY
SUCH REPRESENTATION OR WARRANTY BY SELLER OR BY ANY OTHER PERSON AND BASED
SOLELY UPON BUYER'S OWN INSPECTIONS, INVESTIGATIONS AND FINANCIAL ANALYSIS OF
THE PROPERTY.
(b) Seller's Cure Period. Buyer agrees to notify Seller
of all objections it may have based on Title Inspection within fifteen (15)
days of its receipt thereof. Seller shall have the right, but not the
obligation, to cure any or all of Buyer's objections based on the Title
Inspection. Any exceptions reflected in the Commitment to which Buyer does not
object or which are waived by Buyer shall be deemed permitted exceptions (the
"Permitted Exceptions"). Seller shall have no obligation to provide to Buyer
any response to Buyer's objections on or before the expiration of the
applicable Inspection Period and Seller's failure to respond to any such
objections shall in no way constitute an express or implied agreement to cure
such objections or to convey the Property free and clear of those or any other
matters to which Buyer has objected.
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4.2 Termination. In the event the Property is not satisfactory to
Buyer, in Buyer's sole and absolute discretion, Buyer agrees to notify Seller
in writing on or before the expiration of the Inspection Period of its intent
to terminate the Contract. If Buyer fails to give Seller timely written notice
of such termination, all objections will be waived and this Contract will
become binding on both parties. Seller shall have the right but not the
obligation to cure any reason or reasons given by the Buyer for its
termination. If the Seller does not cure, the Buyer may waive the objection or
terminate the Contract so long as it is still within the Inspection Period. If
Buyer terminates this Contract as provided herein in this Section, the Title
Company, without further authorization or direction from Seller, will
immediately refund the Xxxxxxx Money Deposit to Buyer. Thereafter, (except as
expressly provided for in this Contract) neither Buyer or Seller will have any
further obligations or liabilities under this Contract.
4.3 No Further Contracts. From the date hereof until the Closing
Date or the earlier termination of this Contract, Seller shall (a) maintain and
operate the Property in the same manner in which the Property was operated as
of the Effective Date, and will not knowingly permit to be committed any waste
on the Property, (b) continue all leases, if applicable, and insurance policies
relative to the Property in full force and effect, (c) neither cancel, amend,
enter into nor renew any lease, without the written consent of Buyer (which
consent will not be withheld unreasonably and notice of which approval or
disapproval shall be provided to Seller within five (5) days from Seller's
presentment to Buyer of the lease at issue), (d) not knowingly enter into any
agreement or instrument which would constitute an encumbrance on the Property
without prior written consent of Buyer (which consent will not be withheld
unreasonably and notice of which approval or disapproval shall be provided to
Seller within five (5) days from Seller's presentment to Buyer of the agreement
or instrument at issue) and (e) not remove Personal Property owned by Seller
from the Land, Improvements and/or Property. In the event that Buyer does not
provide Seller with notice required by this subsection within the time set
forth herein Buyer's approval shall be deemed to have been waived.
4.4 Financing Contingency. Buyers obligation to close is
contingent upon Buyer having obtained a commitment for financing (the
"Commitment) from a lender prior to the end of the Inspection Period Buyer
shall make written application for the loan on or before fifteen (15) days of
the Effective Date of this contract. Buyer shall diligently and timely pursue
the obtaining of the Commitment in good faith, execute all documents and
furnish all information and documents required by the lender in connection
therewith.
ARTICLE V
BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer represents and warrants to Seller the following statements are
true on the Effective Date of this Contract and will be true on the Closing
Date:
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5.1 Buyer's Power and Authority. Buyer and its representatives
have all power and authority legally necessary to enter into this Contract,
execute and deliver the Closing documents and purchase the Property in
accordance with this Contract's terms.
5.2 No Actions Against Buyer. Buyer knows of no action, suit or
proceeding, pending or threatened against Buyer, which would, if determined
against Buyer, adversely and materially affect Buyer's ability to perform its
obligations under this Contract.
Buyer's tender of performance of its obligations under this Contract
shall constitute Buyer's confirmation that the above representations end
warranties are then also true and correct.
ARTICLE VI
SELLER'S REPRESENTATIONS AND WARRANTIES
6.1 Seller's Representations and Warranties. Seller hereby
represents to Buyer that the facts recited below are true and accurate and that
if prior to the date of Closing Seller discovers that one or more of such facts
are untrue or inaccurate it will inform Buyer in writing of it discovery. The
obligation of Buyer to consummate this transaction shall be contingent upon the
lack of any material variance with respect to the truth and accuracy of all
such facts as of the date scheduled for Closing, notwithstanding the fact that,
with respect to representations or warranties made to the best of Seller's
knowledge, Seller had no knowledge of the untruth or inaccuracy of such facts.
It is expressly agreed that no examination or investigation of the Property or
of the Operational Information pertaining thereto by or on behalf of Buyer
shall in any way modify, affect or diminish the representations and warranties
of Seller contained herein, and that such representations and warranties of
Seller shall survive Closing for a period of six (6) months. In accordance
with the immediately preceding sentences, Seller represents to Buyer as
follows:
(a) Seller has full right, power and authority and has
taken all requisite action to enter into this Contract and to sell and convey
the Property to Buyer as provided in this Contract and to carry out its
obligations as set forth hereunder.
(b) To Seller's knowledge, there are no structural or
other defects, including but not limited to, defects in the plumbing, heating,
air conditioning, foundation or electrical wiring of any of the Improvements.
(c) To Seller's knowledge, the continued ownership,
operation, use and occupancy of the Land or Improvements do not violate any
building, health, fire or similar law, ordinance, order, regulation or
restrictive covenant. To Seller's knowledge, there are no violations of any
federal, state, county or municipal law, ordinance, order, regulation or
requirement affecting any portion of the Land, Improvements or Personal
Property.
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(d) There is no action, suit, proceeding or claim
affecting Seller or the Property or any portion thereof or arising out of the
ownership, operation, use or occupancy of the Property pending or being
prosecuted by or before any federal, state, county or municipal department,
commission, board, bureau or agency or other governmental instrumentality nor,
to the knowledge of Seller, is any such action, suit, proceeding or claim
threatened or being asserted.
(e) To Seller's knowledge, there is no pending
condemnation or similar proceeding affecting the Land, Improvements or Personal
Property or any portion thereof. Seller has not received any written notice and
has no knowledge that any such proceeding is contemplated.
(f) Seller has received no notice of and, to Seller's
knowledge, there are no pending improvement, liens or special assessments to be
made against the Property by any governmental authority.
(g) To Seller's knowledge, there is no pending or
threatened interruption or reduction of any utility services presently provided
to the Property.
(h) Seller has entered into no outstanding contracts for
construction on the Land or Improvements, or any portion thereof. No work has
been performed or is in progress by Seller on the Land or Improvements, or any
portion thereof, and no materials have been furnished to, the Land or
Improvements or any portion thereof, which might give rise to mechanic's,
materialman's or other liens against the Land or Improvements or any portion
thereof.
(i) To Seller's knowledge no part of the Improvements or
Personal Property have been destroyed or damaged by fire or other casualty
except as may have been replaced.
(j) There are no contracts of employment, management,
service, supply, rental or any other type or nature outstanding which affect
any part of the Property covered by this Contract or the operation of the
Property which will not be terminated on or before the date of Closing.
(k) There are no tenant leases affecting the Land and
Improvements other than the Nortel lease. There are no persons or entities in
possession of the Property other than Seller and Nortel.
(l) There are no attachments, executions, assignments for
the benefit of creditors, receiverships, conservatorships or voluntary or
involuntary proceedings in bankruptcy or pursuant to any debtor relief laws
contemplated or filed by Seller or pending against Seller or the Property.
(m) There are no options, contracts or other obligations
outstanding for the sale, exchange or transfer of the Property or any portion
thereof or the business operated thereon.
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(n) Seller is not and has never been a "foreign person"
within the meaning of Section 1445 of the Internal Revenue Code of 1986, as
amended, and any applicable regulations promulgated thereunder.
(o) To Seller's knowledge, there has been no
introduction' spillage, release, discharge or disposal of any pollutants of any
kind into or on the surface water, ground water, soil or subsurface of any
portion of the Property or the Improvements. To Seller's knowledge, there is no
pending or threatened litigation or proceedings before any administrative
agency in which any person or entity alleges the presence, release, threat of
release, placement on or in any portion of the Property, or the generation,
transportation, storage, treatment, or disposal at any portion of the Property,
of any pollutants.
For purposes of this Agreement, the terms "to the best of Seller's
knowledge", "Seller's knowledge", and/or knowledge shall be limited to such
actual knowledge or written notice or report that has actually been received by
Xxxx X. Xxxxxx, Xx., who is Seller's Manager of Real Estate Equity Assets or M.
Xxx Xxxxx, who is Seller's Manager of Real Estate Equity Assets.
6.2 Additional Conditions Precedent. The following shall be
additional conditions precedent to Buyer's obligations hereunder:
(a) On the date of Closing, there shall be no material
breach of any of Seller's representations or warranties and Seller shall have
substantially performed each covenant to have been performed by Seller
hereunder within the time specified.
(b) On the date of Closing, there shall be no material
and adverse change in the matters reflected in the Title Binder, Survey or the
UCC Reports, and there shall not exist any material and adverse encumbrance or
title defect affecting the Land, Improvements or Personal Property not
described in the Title Binder, Survey or the UCC Reports.
(c) On the date of Closing, the Improvements and the
Personal Property shall be in the Same condition and repair as at the date of
Buyer's inspection thereof, ordinary wear and tear due to normal conditions
excepted.
(d) On the date of Closing, there shall be no litigation
pending or threatened, seeking (i) to enjoin the consummation of the sale and
purchase hereunder, (ii) to recover title to the Property, or any part thereof
or any interest therein, (iii) to increase substantially ad valorem taxes
theretofore or thereafter assessed against the Land and Improvements or (iv)
to enjoin the violation of any law, rule, regulation, restrictive covenant or
zoning ordinance that may be applicable to the Land, Improvements or Personal
Property.
(e) On the date of Closing, the Nortel Lease Amendment
shall have been executed in form substantially similar to the form attached
hereto as Exhibit "B".
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(f) If any of the above described conditions precedent to
Buyer's obligations hereunder is not satisfied, Buyer may, at its option (a)
waive such condrtion and close this transaction, or (b) terminate this Contract
by notice in writing to Seller and receive back the Eamest Money Deposit.
ARTICLE VII
REQUEST FOR NONDISCLOSURE
7.1 Buyer and its representatives shall hold in strictest
confidence all data and information obtained with respect to the operation and
management of the Property, whether obtained before or after the execution and
delivery hereof, and shall not use such data or information for purposes
unrelated to this Contract or disclose the same to others except as expressly
permitted hereunder. The preceding sentence shall not be construed to prevent
Buyer from disclosing to its agents, consultants and lenders such information
with respect to the Property as is necessary for such agents, consultants and
lenders to perform their designated tasks in connection with Buyer's inspection
of the Property, so long as the Buyer causes such agents, consultants and
lenders to execute an agreement to keep such information confidential. However,
neither party shall have this obligation concerning information which: (a) is
published or becomes publicly available through no fault of either the Buyer or
Seller; (b) is rightfully received from a third party; or (c) is required to be
disclosed by law. In the event this Contract is terminated or Buyer fails to
perform hereunder, Buyer shall promptly return to Seller any statements,
documents, schedules, exhibits or other written information obtained from
Seller in connection with this Contract or the transactions contemplated hereby
(including all information which was provided to agents, consultants and/or
lenders). In the event of a breach or threatened breach by Buyer or its
agents, consultants and/or lenders of this paragraph, Seller shall be entitled
to an injunction restraining Buyer or its agents, consultants and/or lenders
from disclosing, in whole or in part, such confidential information Nothing
herein shall be construed as prohibiting Seller from pursuing any other
available remedy at law or in equity for such breach or threatened breach.
ARTICLE VIII
CLOSING
8.1 Date and Place of Closing. The Closing ("Closing") shall take
place at Commonwealth Title Insurance Company. The Closing Date ("Closing
Date") shall be within thirty (30) days after the Inspection Period; however,
Seller and Buyer may mutually designate an earlier date for Closing. At
Seller's option, Closing may occur in escrow, in which event the Title Company
shall act as escrow agent.
8.2 Seller's Closing Obligations. At the Closing or as provided
below, Seller shall deliver to Buyer, at Seller's sole cost and expense (except
as stated below), each of the following items:
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(a) An Owner's Policy of Title Insurance ("Title Policy")
issued by the Title Company in Buyer's favor in the full amount of the Purchase
Price, insuring Buyer's fee simple title to the Property and in and to any
easements and restrictions which inure to the benefit of the Property, subject
only to the Pemnitted Exceptions;
(b) A special warranty deed ("Deed"), duly executed and
acknowledged by Seller, and in form for recording, conveying good and
indefeasible fee simple title to the Property to Buyer, subject only to the
Permitted Exceptions;
(c) A Xxxx of Sale transferring all of the Personal
Property "As Is" "Where Is" and "With All Faults" and an assignment of the
Personal Property.
(d) An Assignment of all Warranties, Guaranties and
Service Contracts, if any;
(e) All keys to the Property in Seller's possession;
(f) An assignment of all Leases, including all escrows
and escalation reserve payments paid by any tenant pursuant to said Leases;
(g) Executed originals of the Leases in Seller's
possession;
8.3 Adjustments at Closing. Any maintenance charges, rent,
expense escalation reimbursements, utilities, service and employment contracts
(if Buyer is to assume any), all other expenses and ad valorem taxes for the
then current year, shall be prorated at the Closing effective as of the Closing
Date. If the Closing Date occurs before the tax rate is fixed for the then
current year, the apportionment of taxes shall be on the basis of the tax rate
for the preceding year applied to the latest assessed valuation. Seller shall
be solely responsible for any taxes and assessments attributable to the
Property for any period prior to the Closing Date.
8.4 Buyer's Closing Obligations. At Closing, Buyer shall execute
those Closing documents to which Buyer is a party and direct the Title Company
to remit to Seller the Purchase Price, plus any other sums required to be paid
by Buyer, in accordance with this Contract.
8.5 Possession and Closing. Notwithstanding anything contained
herein, exclusive possession of the Property shall be delivered to Buyer by
Seller at Closing.
8.6 Closing Costs. Unless otherwise specified in this contract,
all costs and expenses of Closing shall be allocated between Seller and Buyer.
Each party will be responsible for its own legal fees except in the event of
default.
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ARTICLE IX
TERMINATION. DEFAULTS AND REMEDIES
9.1 Buyer's Termination. If Seller is unable to convey title to
the Property, Buyer may, at Buyer's option, terminate this Contract by written
notice forwarded to Seller prior to the Closing Date or delivered to Seller on
the Closing Date or earlier date as specified in this Contract for such notice
of termination. If Buyer elects to terminate this Contract pursuant to a right
to do so expressly given to Buyer in this Contract, the Xxxxxxx Money Deposit
shall be promptly refunded to Buyer on written instruction to the Title Company
signed only by Buyer, and neither party shall have any further obligation or
liability to the other party hereunder. If the Xxxxxxx Money Deposit is to be
returned to Buyer in accordance with this Contract, Seller shall promptly, on
written request from Buyer, execute and deliver such documents as may be
required to cause the Title Company to return the Xxxxxxx Money Deposit to
Buyer.
9.2 Seller's Default: Buyer's Remedies. If Seller fails to
consummate this Contract for any reason (other than Buyer's default or a
termination of this Contract by Seller or Buyer pursuant to a right to do so
expressly provided for in this Contract), Buyer may elect to enforce the
specific performance of this Contract or terminate this Contract and receive a
refund of the Xxxxxxx Money Deposit; provided, however, in the event specific
performance of this Contract is frustrated due to Seller's conveyance of all or
part of the Property to a third party in breach of this Contract or due to
Seller's intentionally encumbering all or any part of the Property with a lien,
lease, easement, restriction or other encumbrance after the date of this
contract objected to by Buyer and not eliminated at or prior to Closing, Buyer
may pursue any remedies available to Buyer at law or in equity.
9.3 Buyer's Default: Seller's Remedy. If Buyer fails to
consummate this Contract for any reason (other than Seller's default or a
termination of this Contract by Seller or Buyer pursuant to a right to do so
expressly provided for in this Contract), Seller may, as Seller's sole and
exclusive remedy, terminate this Contract and retain the Xxxxxxx Money Deposit
as liquidated damages for breach of this Contract. Upon written notice of
termination by Seller to the Title Company and Buyer pursuant to this Section,
the Title Company, without further authorization from Buyer, shall immediately
deliver the Xxxxxxx Money Deposit to Seller. Such amount is agreed upon by and
between Seller and Buyer as liquidated damages, due to the difficulty and
inconvenience of ascertaining and measuring actual damages, and the uncertainty
thereof and the payment of the Xxxxxxx Money Deposit shall constitute full
satisfaction of Buyer's obligations under this Contract. Such amount is agreed
upon by and between Seller and Buyer as a reasonable estimate of just
compensation for the harm caused by Buyer's default.
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ARTICLE X
DAMAGE OR DESTRUCTION PRIOR TO CLOSING
10.1 In the event that either the Improvements or Personal Property
should be damaged by any casualty prior to Closing, and if the cost of
repairing such damage, as estimated by an independent contractor ("Independent
Contractor") retained by Buyer (and approved by Seller, which approval shall
not be withheld unreasonably or unduly delayed) is:
(a) less than FIFTY THOUSAND DOLLARS ($50,000), then, at
Seller's option: (i) Seller shall repair such damage prior to the Closing
Date, restoring the damaged Property at least to its condition immediately
prior to such damage, or (ii) elect to close the transaction and Buyer shall
receive a credit at Closing in an amount necessary to make such repairs as
determined by the Independent Contractor; or if said cost is
(b) equal to or more than FIFTY THOUSAND DOLLARS
($50,000) then the Buyer may elect within twenty (20) days of notification to
Buyer of such occurrence to (i) terminate this Contract or (ii) require Seller
to assign to Buyer at Closing, all insurance proceeds payable for such damage,
and pay to Buyer at Closing the amount of any deductible required by Seller's
insurance policies, and the sale shall be closed without the Seller's repairing
such damage.
ARTICLE XI
CONDEMNATION
11.1 Eminent Domain. Immediately upon obtaining knowledge of the
institution of any proceedings for the condemnation of the Property, or any
portion thereof, or any other proceedings arising out of or damage to the
Property, or any portion thereof, Seller will notify Buyer of the pendency of
such proceedings. In the event that any condemnation proceedings affecting the
Land or Improvements, or any part thereof, shall be commenced prior to Closing,
Buyer may, at its option, (a) terminate this Contract by notice in writing to
Seller and receive back the Deposit, or (b) proceed to close this transaction
and receive at Closing all of the right, title and interest of Seller in and to
any condemnation proceeds or awards or sales price in lieu of condemnation.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1 Broker's Commission. If, and when the Closing occurs, Seller
hereby agrees to pay one and one-half percent (1.5%) of the purchase price to
CB Commercial Real Estate Group and one and one-half percent (1.5%) to Dal-Mac
Companies in cash for their services in connection with this Contract. Seller
and Buyer each represent and warrant to the other that there are no claims for
broker's commissions or finder's fees in connection with the execution and
delivery of this Contract
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other than that of the Brokers named in this Section 12.1, and Seller and Buyer
each agree to indemnify the other against and hold such party harmless from all
liabilities arising from a breach of the representation and warranty made by
such party herein, including, without limitation, reasonable attorneys' fees
and related court costs.
12.2 Assignment. Buyer may not assign this Contract without
Seller's prior written consent unless the Buyer remains liable for all terms
and conditions under the Contract.
12.3 Notices. Any notice, approval, waiver, objection or other
communication (for convenience "Notice") required or permitted to be given
hereunder or given in regard to this Contract by one party to the other shall
be in writing and the same shall be given and be deemed to have been served and
given (a) if hand delivered, when delivered in person to the address set forth
hereinafter for the party to whom notice is given; (b) if mailed, (except where
actual receipt is specified in this Contract) when placed in the United States
mail, postage prepaid, by Certified Mail, Return Receipt Requested; addressed
to the parry at the address hereinafter specified; or (c) if by overnight
delivery, when received by the other party. Any party may change its address
for notices by notice theretofore given in accordance with this Section 12.3.
If to Seller: Nationwide Life Insurance Company
Xxx Xxxxxxxxxx Xxxxx, 0-00-00
Xxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxx, Xx.
Telephone: 000-000-0000
Facsimile: 000-000-0000
With copy to: Nationwide Life Insurance Company
Xxx Xxxxxxxxxx Xxxxx, 0-00-00
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to Buyer: ALCU Investments, Ltd.
c/o FJM, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile. 000-000-0000
With copy to: Xxxxxxx X. Xxxx, Esq.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
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Telephone: 000-000-0000
Facsimile: 000-000-0000
12.4 Entire Agreement. This contract and the exhibits attached
hereto constitute the entire agreement between Seller and Buyer, and there are
no other covenants, agreements, promises, terms, provisions, conditions,
undertakings, or understandings, either oral or written, between them
concerning the Property other than those herein set forth. No subsequent
alteration, amendment change, deletion or addition to this Contract shall be
binding upon Seller or Buyer unless in writing and signed by both Seller and
Buyer.
12.5 Headings. The headings, captions, numbering system, etc., are
inserted only as a matter of convenience and may under no circumstances be
considered in interpreting the provisions of this Contract.
12.6 Binding Effect. All of the provisions of this Contract are
hereby made binding upon the personal representatives, heirs, successors, and
assigns of both parties hereto. Where required for proper interpretation,
words in the singular shall include the plural; the masculine gender shall
include the neuter and the feminine, and vice versa. The terms "heirs,
executors, administrators and assigns" shall include "successors, legal
representatives and assigns."
12.7 Time of Essence. Time is of the essence of this Contract.
12.8 Unenforceable or Inapplicable Provisions. If any provision
hereof is for any reason unenforceable or inapplicable, the other provisions
hereof will remain in full force and effect in the same manner as if such
unenforceable or inapplicable provision had never been contained herein.
12.9 Counterparts. This Contract may be executed in any number of
counterparts, each of which will for all purposes be deemed to be an original,
and all of which are identical.
12.10 Applicable Law. This Contract shall be construed under and in
accordance with the laws of the State of Texas.
12.11 Attorney's Fees. In the event either Buyer or Seller should
bring suit against the other in respect to any matters provided for in this
Contract, the prevailing party shall be entitled to recover from the other
party reasonable attorneys' fees in connection with such suit.
12.12 Authority. Each person executing this Contract, by his
execution hereof, represents and warrants that he is fully authorized to do so,
and that no further action or consent on the part of the party for whom he is
acting is required to the effectiveness and enforceability of this Contract
against such party following such execution.
12.13 Further Assurances. In addition to the acts and deeds recited
herein and contemplated to be performed at the Closing, Seller and Buyer agree
to perform such other acts, and to execute
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and/or deliver such other instruments and documents as either Seller or Buyer,
or their respective counsel, may reasonably require in order to effect the
intents and purposes of this Contract. Further, Seller and Buyer each agree to
deliver to the Title Company affidavits and such other assurances as may
reasonably be necessary or required to enable the Title Company to issue the
Title Policy as contemplated in this Contract.
12.14 Time Periods. Unless otherwise expressly provided, all
periods for delivery or review and the like shall be determined on a "calendar"
day basis If any date for performance, approval, delivery or Closing falls on a
Saturday, Sunday or legal holiday, the time therefor shall be extended to the
next business day.
12.15 Survival. The representations, warranties and covenants
(except with respect to Section 12.1) of Buyer and Seller contained herein
shall survive the Closing for a period of six (6) months from the Closing Date
and shall thereafter be deemed void and of no force. The representations,
warranties and covenants contained in Section 12.1 shall survive the Closing
for an unlimited period and shall not merge with the delivery of the documents
at Closing.
12.16 Waiver of Right to Trial by Jury. The Buyer and the Seller
hereby waive any right to trial by jury of any claim, demand, action or cause
of action (i) arising under this Contract or any other instrument, document or
agreement executed or delivered in connection herewith or (ii) in any way
connected with or related or incidental to the dealings of the parties hereto
or any of them in respect of this Contract or any other instrument, document or
agreement executed or delivered in connection herewith or the transactions
related hereto, in each case whether now existing or hereafter arising, and
whether sounding in contract or tort or otherwise. The Buyer and the Seller
hereby agree and consent that any such claim, demand, action or cause of action
shall be decided by court trial without a jury and that any party may file an
original counterpart or a copy of this Contract with any court as written
evidence of the consent of the parties hereto to the waiver of their right to
trial by jury.
12.17 The effective date ("Effective Date") of this Contract shall
be the date on which the Title Company acknowledges receipt of the Xxxxxxx
Money Deposit.
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DATED this ___ day of November, 1997, which is the date this Contract
has been signed by whichever of Buyer or Seller is the last to sign this
Contract. All references to the "date of this Contract" or similar references
shall mean this date.
SELLER:
NATIONWIDE LIFE INSURANCE COMPANY,
an Ohio corporation
By:
--------------------------------------------- -------------------------------------------------------
Date Signed by Seller Xxxxxx X. XxXxxxxxx
Vice President-Real Estate Investments
BUYER:
ACLU INVESTMENTS, LTD.
a Texas limited partnership
11/11/97 By: /s/ XXXXX X. XXXXXX
--------------------------------------------- -------------------------------------------------------
Date Signed by Seller Xxxxx X. Xxxxxx
President
FJM, Inc., a Texas corporation
General Partner
Vice President-Real Estate Investments
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EXHIBIT A
LEGAL DESCRIPTION
(TO BE REPLACED IF DIFFERENT FROM SURVEY)
BEING a tract of land situated in Dallas County, Texas out of the Xxxxx Xxxxx
Survey, Abstract No. 1575, said tract also being part of Xxx 0 xx xxx Xxxxxx
Xxxxxx Xxxxxxxx Xxxx, an addition to the City of Richardson, Texas, and being
more particularly described as follows:
COMMENCING at the intersection point of the South right-of-way line of Spring
Valley Road (100 foot R.O.W.) and the West right-of-way line of the Houston and
Texas Central Railroad (100 foot R.O.W.);
THENCE S 27 degrees 35' 00" W along the West right-of-way line of said Railroad
for a distance of 770.24 feet to the POINT OF BEGINNING;
THENCE S 27 degrees 35' 00" W continuing along the West right-of-way line of
said Railroad for a distance of 646.48 feet to a point for corner;
THENCE N 62 degrees 25' 00" W for a distance of 450.00 feet to a point for
corner, said point also being in the East right-of-way line of Xxxxxxx Street
(100 foot R.O.W.);
THENCE N 27 degrees 35' 00" E along the East right-of-way of said Xxxxxxx
Street, for a distance of 581.83 feet to a point, said point also being the
point of curvature to the right whose central angle is 5 degrees 17'57", a
radius of 700.00 feet and a tangent length of 32.39 feet;
THENCE Northeasterly along said curve for a distance of 64.74 feet to a point
for corner, said point also being in the East right-of-way line of said Xxxxxxx
Street;
THENCE S 62 degrees 25' 00" E for a distance of 447.01 feet to the POINT Of
BEGINNING;
CONTAINING 290,851.64 square feet or 6.67 acres of land.
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EXHIBIT B
THIRD AMENDMENT TO LEASE AGREEMENT
THE THIRD AMENDMENT TO LEASE AGREEMENT is made and entered into by and
between NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation,
successor-in-interest to Xxxxxx Xxxxxx Xxxxxxxx Xxxx #0, Ltd. ("Landlord") and
NORTHERN TELECOM, INC., a Delaware corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
dated January 29, 1988 (the "Original Lease"), wherein Landlord leased to
Tenant approximately 65,104 square feet of rentable area located within two (2)
buildings known as 0000 Xxxxx Xxxxxxx 0000 Xxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxx,
all as is more fully described in the Lease; and
WHEREAS, Landlord and Tenant entered into that certain First Amendment
to Lease dated January 16, 1990 (the "First Amendment"); and
WHEREAS, Landlord and Tenant entered into that certain Second
Amendment to Lease dated January 1, 1993 (the "Second Amendment") (The Original
Lease, as amended by the First Amendment and the Second Amendment, shall be
referred to herein as the "Lease"); and
WHEREAS, Landlord and Tenant do hereby desire to amend the Lease in
certain respects;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby confessed and acknowledged, Landlord and Tenant
agree as follows (capitalized terms herein having the meaning attributed to
them in the Original Lease unless specifically otherwise provided):
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1. TERM. Section 1(d) of the Lease shall be amended to read: ""Lease
Term": A period of thirty-six (36) months, commencing on January 1, 1998 (the
"commencement date") and ending on December 31, 2000, unless such dates are
varied pursuant to the provisions of Paragraph 36 hereof."
2. RENTAL. Section l(e) of the Lease shall be amended to read: "Basic
Rental": shall mean Eleven and 75/100 Dollars ($11.75) per year per square foot
of the rentable area in the Premises.
3. ALLOWANCE. Landlord agrees to reimburse Tenant in an amount not to
exceed $282,912.00 for leasehold improvements made to the Premises and incurred
in connection with this Third Amendment. Reimbursement is subject to the
following conditions:
(1) Landlord's approval of construction plans. Said approval shall
not be unreasonably withheld or delayed.
(2) Satisfactory completion (in Landlord's architect's reasonable
judgement) of all improvements in accordance with approved
construction plans.
(3) Tenant furnishes Landlord with copies of all paid invoices as
documentation as to the nature and cost of labor and materials
furnished during the construction process.
(4) Tenant furnishes Landlord with fully executed lien waiver
affidavits covering all labor and materials furnished for the
leasehold improvement work.
4. EARLY TERMINATION. Provided Tenant is not in monetary default or in
default of any other provision beyond any applicable cure period under the
Lease at the time of exercise or on the effective date of termination, Tenant
shall have the right to terminate the Lease prior to the expiration date of the
Lease (as amended hereby), pursuant to the terms and conditions contained
herein. Tenant may terminate the Lease and the parties shall have no further
liability one to the other, except as hereinafter provided, such right of
termination to take effect after January 31, 2000, the twenty-fifth (25th)
month of the Term, upon Tenant giving nine (9) months prior written notice to
Landlord and the payment in cash at the time of giving such notice of a
termination fee (which
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shall be consideration for and a condition of the exercise by Tenant of its
option to terminate the Lease) equal to the unamortized allowance and
commission costs and two (2) months Basic Rental
5. RENEWAL OPTION. Notwithstanding anything in Section 34 of the Lease
to the contrary, Tenant shall have the right to extend the Lease Term (as
amended hereby) upon the terms set forth in Section 34 of the Lease except that
the Basic Rental for the renewal term shall be at the then prevailing Market
Rental Rate (as defined) in the Second Amendment for the Premises.
6. BROKERAGE COMMISSIONS. Landlord agrees to pay Xxxxxxx & Company
("Broker") a real estate brokerage commission as set forth in a separate
commission agreement between Landlord and Broker. The commission shall be four
percent (4%) of the gross revenue to be received by Landlord with respect to
the terms and conditions in this Third Amendment. Tenant hereby represents and
warrants to Landlord that Tenant has not employed any agents, brokers or other
such parties in connection with the extension of the term of the Lease as set
forth in this Third Amendment, and agrees that Tenant shall hold Landlord
harmless from and against any breach of the foregoing warranty.
7. MISCELLANEOUS.
(a) Except as expressly amended hereby, all other terms and provisions of the
Lease remain unchanged and in full force and effect.
(b) Except as expressly set forth in this Third amendment or the Lease to the
contrary, Landlord and Tenant hereby agree that Tenant's covenant to pay Basic
Rental and other sums due under this Third Amendment or the Lease (as amended
by the First and Second Amendments) shall be deemed separate and independent
from Landlord's covenant to provide services hereunder.
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(c) This Third Amendment may be executed in multiple counterparts, and by the
parties hereto on separate counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute but one agreement.
IN WITNESS WHEREOF, executed as of the ___ Day of November, 1993.
LANDLORD:
NATIONWIDE LIFE INSURANCE COMPANY,
an Ohio Corporation
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
TENANT:
NORTHERN TELECOM INC.,
a Delaware corporation
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
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