EXHIBIT 10.6
PURCHASE AND SALE AGREEMENT
(1909 XXXXXXX XXXXXXX FREEWAY)
THIS PURCHASE AND SALE AGREEMENT (this "AGREEMENT") is made by and
between OLY UPTOWN GENERAL PARTNERSHIP, a Texas general partnership ("SELLER"),
and PRG REALTY PARTNERS, LTD., a Texas limited partnership ("PURCHASER").
In consideration of the mutual covenants and representations herein
contained, and other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, Seller and Purchaser agree as follows:
1.
PURCHASE AND SALE
1.1 PURCHASE AND SALE. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, all of the Seller's assignable and
transferable right, title and interest in and to the following described
property (herein collectively called the "PROPERTY"):
(a) FEE SIMPLE LAND. That certain tract of land (the "FEE
SIMPLE LAND") located in the City of Dallas, Dallas County, Texas, being
more particularly described on EXHIBIT A-1 attached hereto and made a
part hereof.
(b) GROUND LEASE. Seller's leasehold interest as tenant in
and to that certain tract of land described on EXHIBIT A-2 attached
hereto and made a part hereof, located in the City of Dallas, Dallas
County, Texas (the "GROUND LEASE LAND") pursuant to that certain Amended
and Restated Lease dated September 30, 1998, by and between Seller, as
tenant, and Xxxxx X. Xxxxx, as landlord, ("GROUND LESSOR") (as amended,
assigned or otherwise modified, the "GROUND LEASE") (the Fee Simple Land
and Ground Lease Land are collectively referred to herein as the
"LAND").
(c) EASEMENTS. All easements, if any, benefiting the Land or
the Improvements (as defined in SECTION 1.1(D) of this Agreement).
(d) RIGHTS AND APPURTENANCES. All rights and appurtenances
pertaining to the Land, including any right, title and interest of
Seller in and to adjacent streets, alleys or rights-of-way.
(e) IMPROVEMENTS. As applicable, all improvements and
related amenities known as "1909 Xxxxxxx Xxxxxxx Office Building" (the
"IMPROVEMENTS") a five-story office building and an adjacent
drive-through banking facility in and on the Land, and having an address
of 0000 Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000.
(f) LEASES. All leases, including all amendments and
modifications thereof (the "LEASES") of space in the Property,
concession leases, and all tenant security deposits held by Seller on
the Closing Date (as defined in SECTION 6.1 of this Agreement).
(g) TANGIBLE PERSONAL PROPERTY. All appliances, fixtures,
equipment, machinery, furniture, carpet, drapes and other personal
property, if any, owned by Seller and located on or about the Land and
the Improvements (the "TANGIBLE PERSONAL PROPERTY").
(h) CONTRACTS. To the extent assignable at no cost to
Seller, the Contracts (as defined in SECTION 4.1(C) of this Agreement).
(i) INTANGIBLE PROPERTY. To the extent assignable without
the consent of third parties, all intangible property (the "INTANGIBLE
PROPERTY"), if any, owned by Seller and pertaining to the Land, the
Improvements, or the Tangible Personal Property including, without
limitation, transferable utility contracts, transferable telephone
exchange numbers, plans and specifications, engineering plans and
studies, floor plans and landscape plans.
1.2 INDEPENDENT CONSIDERATION. Upon execution of this Agreement,
Purchaser has delivered to Seller, and Seller acknowledges receipt of, FIFTY AND
NO/100 DOLLARS ($50.00) (the "INDEPENDENT CONSIDERATION"), as consideration for
Purchaser's right to purchase the Property and for Seller's execution, delivery
and performance of this Agreement. The Independent Consideration is in addition
to and independent of any other consideration or payment provided for in this
Agreement, is non-refundable and shall be retained by Seller notwithstanding any
other provision of this Agreement.
2.
PURCHASE PRICE
2.1 PURCHASE PRICE. The purchase price (the "PURCHASE PRICE") for
the Property shall be EIGHT MILLION SIX HUNDRED TWENTY-ONE THOUSAND SEVEN
HUNDRED SIXTY-THREE AND NO/100 DOLLARS ($8,621,763.00) and shall be paid in cash
by Purchaser to Seller at the Closing (as defined in SECTION 6.1 of this
Agreement) by wire transfer in accordance with wire transfer instructions to be
provided by Seller.
3.
XXXXXXX MONEY
3.1 XXXXXXX MONEY. Purchaser shall deliver to the Title Company (as
defined in SECTION 6.1 of this Agreement) (i) within two (2) business days after
the date a fully-executed copy of this Agreement is delivered to the Title
Company by Seller, by wire transfer in accordance with wire transfer
instructions provided by the Title Company, the amount of EIGHTY-FOUR THOUSAND
AND NO/100 DOLLARS ($84,000.00) (the "FIRST DEPOSIT"), and (ii) or on before the
expiration of the Approval Period (as defined in SECTION 4.1.1 of this
Agreement), by wire transfer in accordance with wire transfer instructions
provided by Title Company, an additional EIGHTY-FOUR THOUSAND AND NO/100 DOLLARS
($84,000.00) (the "SECOND DEPOSIT") (the First Deposit and the Second Deposit,
together with all interest accrued thereon, if any, is herein collectively
called the "XXXXXXX MONEY") to be invested by the Title Company in an
interest-bearing account as Purchaser and Seller shall direct. Seller shall have
the option of terminating this Agreement if the full amount of Xxxxxxx Money is
not delivered to the Title Company as prescribed in this SECTION 3.1. Purchaser
agrees to promptly deliver or cause the Title Company to deliver written
acknowledgment by the Title Company that the executed copy of this Agreement and
the Xxxxxxx Money have been received by and are being held by the Title Company
pursuant to the terms of this Agreement. If the sale of the Property is
consummated under this Agreement, the Xxxxxxx Money shall be paid to Seller and
applied to the payment of the Purchase Price at Closing. If Purchaser terminates
this Agreement in accordance with any right to terminate granted to Purchaser by
the terms of this Agreement, the Xxxxxxx Money shall be returned to Purchaser,
and no party hereto shall have any
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further obligations under this Agreement except for such obligations which by
their terms expressly survive the termination of this Agreement (the "SURVIVING
OBLIGATIONS"). Purchaser agrees to deliver to Seller copies of all Reports (as
defined in SECTION 4.2 of this Agreement) at the time the notice to terminate
this Agreement is given. The obligations to deliver the Reports shall survive
the termination of this Agreement.
4.
CONDITIONS TO CLOSING
4.1 SELLER'S OBLIGATIONS. Seller shall deliver to Purchaser the
following:
(a) TITLE COMMITMENT. Within twenty (20) days after the
Effective Date (as defined in SECTION 10.13 of this Agreement), a
Commitment for Owner's Policy of Title Insurance (the "TITLE
COMMITMENT") with respect to the Property, issued by the Title Company,
and legible copies of any restrictive covenants, easements, and other
items listed as title exceptions therein.
(b) SURVEY. Within twenty (20) days after the Effective
Date, Seller shall deliver to Purchaser a current Survey of the
Property.
(c) CONTRACTS. Prior to the Effective Date, Seller has
delivered to Purchaser copies of all contracts pertaining to the
Property (the "CONTRACTS"), including, but not limited to, service
contracts, equipment leases and maintenance contracts, to the extent in
the possession of Olympus Real Estate Partners, LLC ("OLYMPUS").
(d) RENT ROLL. Prior to the Effective Date, Seller has
delivered to Purchaser a rent roll describing all Leases of space in the
Improvements as of the last month Olympus has received such information
from the property manager of the Property.
(e) DUE DILIGENCE DOCUMENTS. Prior to the Effective Date,
Seller has delivered to Purchaser the documents set forth on SCHEDULE 1
attached hereto.
Seller's failure to deliver to Purchaser items (a) through (e) above within
twenty (20) days after the Effective Date shall not result in the extension of
the Approval Period, and Purchaser's sole remedy therefor shall be Purchaser's
right to terminate this Agreement by delivering written notice thereof to Seller
within thirty (30) days after the Effective Date hereof and receive a return of
the Xxxxxxx Money in which event neither party shall have any obligation
hereunder except for the Surviving Obligations.
4.1.1 PURCHASER'S SATISFACTION. During the period commencing
on the Effective Date and ending January 19, 2004 (the "APPROVAL PERIOD"), the
following matters shall be conditions precedent to Purchaser's obligations under
this Agreement:
(a) Purchaser's being satisfied in Purchaser's sole
discretion that the Property is suitable for Purchaser's intended uses;
and
(b) Purchaser's being satisfied, in Purchaser's sole
discretion, with the items listed above in SECTION 4.1(A) through
SECTION 4.1(E) above, including the information reflected therein.
If Purchaser is not satisfied in its sole discretion as to the suitability of
the Property for Purchaser's intended uses or any of the items listed above in
SECTION 4.1(A) through SECTION 4.1(E) above, Purchaser may give notice thereof
to Seller on or before the expiration of the Approval Period, whereupon this
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Agreement shall terminate, and upon such termination, Purchaser shall be
entitled to the return of the Xxxxxxx Money and neither party shall have any
further obligation hereunder except for the Surviving Obligations. If Purchaser
fails to give notice to Seller on or before the expiration of the Approval
Period that Purchaser is not satisfied with the suitability of the Property or
any of the items listed in SECTION 4.1(A) through SECTION 4.1(E) above,
Purchaser shall be deemed to be satisfied with such matters and the conditions
precedent in this SECTION 4.1.1 shall be deemed to be satisfied.
4.1.2 TITLE COMMITMENT AND SURVEY.
(a) In the event (i) the Survey shows any easement,
right-of-way, encroachment, conflict, protrusion or other matter
affecting the Property that is unacceptable to Purchaser, or (ii) any
exceptions appear in the Title Commitment other than the standard
printed exceptions set forth in the standard Texas form of Commitment
for Title Insurance, that are unacceptable to Purchaser, Purchaser shall
within five (5) business days after receipt of the Survey, the Title
Commitment and copies of all documents referred to as exceptions in the
Title Commitment, notify Seller in writing of such facts and the reasons
therefor ("PURCHASER'S OBJECTIONS"). Upon the expiration of said five
(5) business day period, except for Purchaser's Objections if same are
timely raised, Purchaser shall be deemed to have accepted the form and
substance of the Survey, all matters shown thereon, all exceptions to
the Title Commitment and other items shown thereon. Notwithstanding
anything to the contrary contained herein, except as otherwise set forth
in SECTION 4.1.3 of this Agreement, Seller shall have no obligations to
take any steps or bring any action or proceeding or otherwise to incur
any effort or expense whatsoever to eliminate or modify any of the
Purchaser's Objections. In the event Seller is unable or unwilling to
eliminate or modify all of Purchaser's Objections to the reasonable
satisfaction of Purchaser, Purchaser may (as its sole and exclusive
remedy) terminate this Agreement by delivering notice thereof in writing
to Seller by the earlier to occur of (i) the Closing Date or (ii) five
(5) days after Seller's written notice to Purchaser of Seller's intent
to not cure one or more of such Purchaser's Objections, in which event,
the Xxxxxxx Money will be returned to Purchaser and neither party shall
have any obligations hereunder other than the Surviving Obligations.
Notwithstanding anything contained in this SECTION 4.1.2 to the
contrary, in the event Purchaser does not receive all items to be
delivered to Purchaser under SECTION 4.1(A) and (B) in the time frame
set forth therein, Purchaser's rights shall be to terminate this
Agreement as set forth in SECTION 4.1, and such rights shall not be
modified or extended by the terms of this SECTION 4.1.2.
(b) The term "Permitted Encumbrances" as used herein
includes: (i) any easement, right of way, encroachment, conflict,
discrepancy, overlapping of improvements, protrusion, lien, encumbrance,
restriction, condition, covenant, exception or other matter with respect
to the Property that is reflected or addressed on the Survey or the
Title Commitment to which Purchaser fails to timely object pursuant to
SECTION 4.1.2(A) of this Agreement; (ii) any Purchaser's Objection that
remains uncured, for whatever reason, at the earlier to occur of (A)
Closing hereunder or (B) five (5) business days after Seller notifies
Purchaser that Seller is unwilling or unable to cure or modify
Purchaser's Objections to the reasonable satisfaction of Purchaser; and
(iii) the rights and interests of parties claiming under any Leases.
(c) If between the date of the expiration of the Approval
Period and the Closing Date, an updated Title Commitment shows any new
exceptions arising through no fault of Purchaser which did not appear
thereon as of the date of the initial title examination, then such new
exceptions will be subject to the objection process set forth above in
this SECTION 4.1.2.
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4.1.3 LIMITATIONS OF SELLER'S OBLIGATIONS. Notwithstanding
anything contained herein to the contrary, Seller shall have no obligation to
take any steps, bring any action or proceeding or incur any effort or expense
whatsoever to eliminate, modify or cure any objection Purchaser may have
pursuant to SECTION 4.1.1, SECTION 4.1.2 or SECTION 4.2. Notwithstanding
anything contained herein to the contrary, Seller at its sole cost and expense
on or before the Closing, shall remove of record (or bond around in a manner
reasonably satisfactory to Purchaser and the Title Company) (a) any mortgage,
deed of trust, assignment of leases and rents (or the equivalent), or financing
statement executed by Seller, (b) any mechanic's lien for work contracted for by
or on behalf of Seller, and (c) any judgment against Seller for sum certain, or
U.S. tax lien or real property tax lien (except for any taxes not yet
delinquent) of record affecting Seller's interest in the Land, which neither
arises from nor was caused by any work, services or labor performed by, or any
materials furnished to, or any other act or omission of, Purchaser or any of
Purchaser's representatives, the cost of which removal (as it applies only to
the matters described in (b) and (c) above) shall not in the aggregate exceed
$250,000.00.
4.2 INSPECTION. Purchaser shall be permitted full access to the
Property and Purchaser may inspect, test, and survey: (a) the Property, (b) all
financial records pertaining to the operation of the Property, (c) photocopies
of all Leases and Contracts, as applicable, in the possession of Olympus, and
(d) all other records pertaining to the Property which are available at the
Property or at Seller's or its property manager's offices, at any reasonable
time during business hours at any time during the Approval Period. With respect
to Purchaser's inspection of the records referenced in (c) above, Purchaser
specifically acknowledges and agrees that (c) shall not be construed to require
Seller to produce (i) information subject to attorney-client privilege, (ii)
information subject to third party confidentiality policies or provisions, or
(iii) Seller's or Olympus' internal financial analysis. Notwithstanding the
foregoing, Purchaser must obtain Seller's prior written approval of the scope
and method of any environmental testing or investigation (other than a
non-intrusive Phase I environmental inspection) and any inspection which would
materially alter the physical condition of the Property, prior to Purchaser's
commencement of such inspections or testing. In any event, Seller and its
representatives, agents, and/or contractors shall have the right to be present
during any such testing, investigation, or inspection. If such inspection
reveals any fact or condition unacceptable to Purchaser, Purchaser shall notify
Seller in writing prior to the expiration of the Approval Period of such
unacceptable fact or condition and Seller shall have the right (without any
obligation to do so) to correct same by the Closing Date. If Seller does not
correct such unacceptable fact or condition by the Closing Date, Purchaser may
terminate this Agreement, in which event the Xxxxxxx Money will be returned to
Purchaser and neither party shall have any further right or obligation hereunder
other than the Surviving Obligations. If Purchaser does not give such
notification to Seller in writing prior to the expiration of the Approval
Period, the said inspection of the Property shall be deemed satisfactory to
Purchaser and, as applicable, Purchaser shall be deemed to have agreed to assume
all obligations from and after the date of Closing with respect to the Leases
and the Contracts. All information provided by Seller to Purchaser or obtained
by Purchaser relating to the Property in the course of Purchaser's review,
including, without limitation, any environmental assessment or audit
(collectively, the "REPORTS") shall be treated as confidential information by
Purchaser and Purchaser shall instruct all of its employees, agents,
representatives and contractors as to the confidentiality of all such
information. Purchaser shall restore the Property to its condition existing
immediately prior to Purchaser's inspection thereof, and Purchaser shall be
liable for all damage or injury to any person or property resulting from,
relating to or arising out of any such inspection, whether occasioned by the
acts of Purchaser or any of its employees, agents, representatives or
contractors, and Purchaser shall indemnify and hold harmless Seller and its
agents, employees, officers, directors, affiliates and asset managers from any
liability resulting therefrom. This indemnification by Purchaser shall survive
the Closing or the termination of this Agreement, as applicable.
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4.3 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents
and warrants to Seller that (a) Purchaser is a partnership or corporation, duly
organized and in good standing under the laws of the State of Texas, is
qualified to do business in the State of Texas and has the power to enter into
this Agreement and to execute and deliver this Agreement and to perform all
duties and obligations imposed upon it hereunder, and Purchaser has obtained all
necessary partnership and corporate authorizations required in connection with
the execution, delivery and performance contemplated by this Agreement and has
obtained the consent of all entities and parties necessary to bind Purchaser to
this Agreement, and (b) neither the execution nor the delivery of this
Agreement, nor the consummation of the purchase and sale contemplated hereby,
nor the fulfillment of or compliance with the terms and conditions of this
Agreement conflict with or will result in the breach of any of the terms,
conditions, or provisions of any agreement or instrument to which Purchaser, or
any partner or related entity or affiliate of Purchaser, is a party or by which
Purchaser, any partner or related entity or affiliate of Purchaser, or any of
Purchaser's assets is bound, and (c) neither Purchaser nor any partner, related
entity or affiliate of Purchaser is in any way affiliated with Seller, Olympus
or any affiliate of Olympus, and (d) that, with respect to each source of funds
to be used by it to purchase the Property (respectively, the "SOURCE"), at least
one of the following statements shall be accurate as of the Closing Date: (i)
the Source does not include the assets of (A) an "employee benefit plan" as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), which is subject to Title I of ERISA, or (B) a "plan" as
defined in Section 4975(a) of the Internal Revenue Code of 1986, as amended
("CODE"), or (ii) the Source includes the assets of (A) an "employee benefit
plan" as defined in Section 3(3) of ERISA or (B) a "plan" as defined in Section
4975 of the Code (each of which has been identified to the Seller in writing
pursuant to this SECTION 4.3 at least ten (10) business days prior to the
Closing Date), but the use of such Source to purchase the Property will not
result in a nonexempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code. The Purchaser's representations and warranties set
forth in this SECTION 4.3 shall survive the Closing or termination of this
Agreement. Purchaser's representations and warranties contained herein must be
true and correct through the Closing Date, and Purchaser's failure to notify
Seller prior to the Closing Date of any inaccuracies shall be a default by
Purchaser under this Agreement.
4.4 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Purchaser that (a) Seller has the full partnership/corporate right,
power, and authority, without the joinder of any other person or entity, to
enter into, execute and deliver this Agreement, and to perform all duties and
obligations imposed on Seller under this Agreement, (b) neither the execution
nor the delivery of this Agreement, nor the consummation of the purchase and
sale contemplated hereby, nor the fulfillment of or compliance with the terms
and conditions of this Agreement conflict with or will result in the breach of
any of the terms, conditions, or provisions of any agreement or instrument to
which Seller is a party or by which Seller or any of Seller's assets is bound,
and (c) to Seller's knowledge, the Leases delivered to Purchaser pursuant to
this Agreement are true and complete copies of such Leases.
4.5 KNOWLEDGE. As used herein, the term "to Seller's knowledge"
shall mean only the current actual knowledge without inquiry" (as defined below)
of the following designee of Seller and Olympus: Xxxxx Xxxxxxxx. As used herein,
the term "current actual knowledge without inquiry" shall mean only the actual,
current and not constructive, imputed or implied knowledge of such designee
without having made a review of the files or other inquiry. Anything herein to
the contrary notwithstanding, such designee shall not have any personal
liability or obligation whatsoever with respect to any of the matters set forth
in this Agreement or any of the Seller's representation herein being or becoming
untrue, inaccurate or incomplete in any respect. Notwithstanding anything to the
contrary contained herein, Purchaser and any of its successor and assigns, shall
be, deemed to have knowledge all matters and information set forth in the
Reports (once received by Purchaser) and/or discovered by Purchaser as part of
Purchaser's due diligence of the Property pursuant to this Agreement.
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4.6 SURVIVAL: LIABILITY. Any and all of the representations and
warranties of Seller as contained in this Agreement shall be true as of the
Effective Date and the Closing Date and shall merge with the Deed and shall be
void and of no further force or effect whatsoever from and after nine (9) months
from the Closing Date. Consequently, Purchaser stipulates and agrees that from
and after such nine (9) month period, it is entitled to and agrees to claim no
damages of any kind with respect to any alleged breach and/or violation of any
of such representations and/or warranties of Seller. Furthermore,
(a) if Purchaser becomes aware prior to Closing of any
inaccuracy of any of Seller's representations or warranties as set forth
herein, Purchaser shall give Seller written notice of any such
inaccuracy, and during the fifteen (15) day period after such notice,
Seller shall have the right, but not the obligation, to cure any such
inaccuracy to the satisfaction of Purchaser, and the Closing Date shall
be extended for such period. In the event Purchaser becomes aware of any
inaccuracy of any of Seller's representations and warranties prior to
Closing and (a) Purchaser fails to give Seller notice thereof as
required hereby or (b) following notice thereof, Seller fails or is
unable to cure any such inaccuracy to the reasonable satisfaction of
Purchaser, Purchaser's sole remedy for any such inaccuracy shall be to
terminate this Agreement by delivering written notice of such
termination to Seller on or before the Closing Date, in which event the
Xxxxxxx Money will be returned to Purchaser and neither party shall have
any obligation hereunder, except the Surviving Obligations.
(b) if Purchaser becomes aware after Closing of any breach
and/or violation of any of Seller's representations and/or warranties
set forth herein, and Purchaser timely commences any action(s) to
enforce any alleged breach and/or violation of any of the
representations and/or warranties of Seller as set forth in this
Agreement, then Purchaser's sole remedy shall be to seek recovery of its
actual damages (but not special, consequential, speculative, punitive or
other damages) and the amount of such damages, in the aggregate (with
respect to any and all such breaches and/or violations) shall not exceed
TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($250,000.00), which such
sum shall include all of Purchaser's attorneys' fees, costs, expert
witness fees and court costs.
4.7 TENANT ESTOPPEL CERTIFICATES AND SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENTS. As applicable, Seller agrees to submit or cause its
property manager to submit within ten (10) days after the Effective Date hereof
to each tenant or lessee under a Lease a request for such tenant or lessee to
execute and deliver (i) a tenant estoppel certificate to Purchaser with respect
to its Lease in the form attached hereto as EXHIBIT D-1 (each, an "ESTOPPEL"),
and (ii) a subordination, non-disturbance and attornment agreement with respect
to its Lease in the form attached hereto as EXHIBIT D-2 (each, an "SNDA"). It
shall be a condition precedent to Purchaser's Closing obligations that Purchaser
receive tenant estoppel certificates and SNDAs from (i) Bank One, Republic
Title, Precept, and SFI of Delaware (collectively, the "MAJOR TENANTS"), plus
(ii) such number of other tenants which, together with the Major Tenants,
collectively occupy at least 40,000 square feet of the Precept Office Building
(collectively, the "REQUIRED ESTOPPELS" and "REQUIRED SNDAS") on the form of the
Estoppel and SNDA or on the form promulgated by the tenant or required by the
applicable lease agreement. If Purchaser does not receive the Required Estoppels
and Required SNDAs as of the Closing Date, Purchaser may by written notice to
Seller and the Title Company delivered before the Closing Date, terminate this
Agreement, whereupon Purchaser shall be entitled to a return of the Xxxxxxx
Money, and neither Purchaser nor Seller shall have any further obligation
hereunder except for the Surviving Obligations. If Purchaser shall not have
terminated this Agreement in accordance with this SECTION 4.7, Purchaser shall
be deemed for all purposes to be satisfied with the responses to Seller's
requests for tenant estoppel certificates and
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SNDAs and the form and substance of each tenant estoppel certificate and SNDA
and shall have no further right to terminate this Agreement based on the
response or lack thereof with respect to the tenant estoppel certificates and
SNDAs.
4.8 DEFECTIVE CONDITION EXTENSION; TERMINATION. The obligations of
Seller hereunder are subject to and contingent upon the following:
In the event that subsequent to the execution of this Agreement
Seller obtains knowledge of, or Purchaser's inspection of the Property
reveals, either (a) the presence of any Hazardous Materials (as defined
in SECTION 5.2 of this Agreement) or the violation or potential
violation of any Environmental Requirements (as defined in SECTION 5.3
of this Agreement), and Seller did not previously have actual knowledge
of either the presence of such Hazardous Materials or the extent of the
presence of such Hazardous Materials, or (b) any structural or other
defect in the Improvements, whether or not in violation of any
applicable law, ordinance, code, regulation or decree of any
governmental authority having jurisdiction over the Property
(collectively, a "DEFECTIVE Condition"), which Seller, in its sole
judgment, determines could constitute a potential liability to Seller
after the Closing or should be remedied prior to the sale of the
Property, Seller shall have the right upon written notice to Purchaser
on or before the scheduled Closing Date either (i) to extend the Closing
Date for the period of time necessary to evaluate the possibility of
remediating the Defective Condition, but no more than thirty (30) days
without the consent of Purchaser, and, if Seller so elects, to complete
such remediation at Seller's sole cost and expense, or (ii) to terminate
this Agreement upon written notice to Purchaser, in which event the
Xxxxxxx Money shall be refunded to Purchaser and neither party shall
have any further right or obligation hereunder other than the Surviving
Obligations. The terms of this SECTION 4.8 are solely for the benefit of
Seller and Purchaser shall have no additional right or remedy hereunder
as a result of the exercise by Seller of its rights under this SECTION
4.8.
4.9 GROUND LESSOR'S CONSENT AND ESTOPPEL CERTIFICATE. It shall be a
condition precedent to Seller's Closing obligations under SECTION 6 that Seller
receive from Ground Lessor a fully-executed Ground Lessor's Consent and Estoppel
Certificate in the form attached hereto as EXHIBIT H and incorporated herein by
this reference. It shall be a further condition precedent to Seller's Closing
obligations hereunder that the Ground Lessor affirmatively release Seller under
the Ground Lease for matters arising or accruing from and after the Closing and
state that there does not exist any condition or event which, with notice, the
passage of time, or both would constitute a default under the Ground Lease. If
Seller does not receive such estoppel certificate without exceptions or
qualifications as set forth above prior to Closing, Seller, upon written notice
to Purchaser prior to Closing, may terminate this Agreement, in which event the
Xxxxxxx Money shall be returned to Purchaser and neither party shall have any
further rights or obligations hereunder except for the Surviving Obligations.
Purchaser covenants to Seller that Purchaser shall:
(a) cooperate with Seller in obtaining Ground Lessor's
written consent to the assignment of the Ground Lease to Purchaser; and
(b) use its best efforts to obtain such consent within the
Approval Period, including, without limitation, (i) upon request,
attending any scheduled monthly meetings of Ground Lessor, (ii) forming
any entity to which Purchaser wishes to assign this Agreement (which
assignment must be effectuated in accordance with the terms of this
Agreement) promptly and sufficiently in advance so that information
regarding the ultimate purchasing entity can be provided to Ground
Lessor, and (iii) providing Ground Lessor with all information
reasonably requested by Ground Lessor regarding the purchasing entity,
its experience with managing property such as the Property, and its
financial capability (in connection with which Purchaser shall provide
financial
Page 8
statements of Purchaser and any affiliated/related entities as may be
reasonably necessary or desirable).
The terms and conditions of this SECTION 4.9 shall survive the Closing or
termination of this Agreement.
4.10 CONTINGENT SALE. The obligations of Seller hereunder are subject
to and contingent upon the fully consummated purchase and sale of, among other
things, those certain tracts of land pursuant to that certain Purchase and Sale
Agreement dated of even date herewith (as amended from time to time, the "XXX
XXXXXXXX AGREEMENT") by and between Xxx XxXxxxxx, L.P. and Purchaser.
4.11 TERMINATION/CROSS DEFAULT. A termination by Purchaser for any
reason of the Xxx XxXxxxxx Agreement or the occurrence of an event which would
constitute a default/breach by Purchaser under the Xxx XxXxxxxx Agreement shall,
at the option of Seller, in Seller's sole and absolute discretion, constitute a
termination or default/breach of this Agreement. In the event Seller chooses to
waive the foregoing termination or default/breach under this Agreement as a
result of the termination or default/breach of the Xxx XxXxxxxx Agreement, such
waiver may, in Seller's sole and absolute discretion, be conditioned upon
amending this Agreement to reflect a modification of the terms and conditions
contained herein, including without limitation, Purchase Price and Xxxxxxx
Money.
5.
NO REPRESENTATIONS OR WARRANTIES BY SELLER;
ACCEPTANCE OF PROPERTY
5.1 DISCLAIMER. PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS
NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES (OTHER THAN THE SPECIAL WARRANTY OF TITLE AS SET OUT
IN THE DEED, AS DEFINED BELOW OR PURSUANT TO THE TERMS OF THIS AGREEMENT),
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY
OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND
GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF
THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER OR ANY TENANT
MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, (F) THE
MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO
THE PROPERTY, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE
PROPERTY, OR (H) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND
USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THE EXISTENCE IN
OR ON THE PROPERTY OF HAZARDOUS MATERIALS (AS DEFINED BELOW) OR (I) ANY OTHER
MATTER WITH RESPECT TO THE PROPERTY. ADDITIONALLY, NO PERSON ACTING ON BEHALF OF
SELLER IS AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF OF PURCHASER ACKNOWLEDGES
THAT NO PERSON HAS MADE, ANY REPRESENTATION, AGREEMENT, STATEMENT, WARRANTY,
GUARANTY OR PROMISE REGARDING THE PROPERTY OR THE TRANSACTION CONTEMPLATED
HEREIN OTHER THAN AS SET FORTH HEREIN; AND NO SUCH REPRESENTATION, WARRANTY,
AGREEMENT, GUARANTY, STATEMENT OR PROMISE IF ANY, MADE BY ANY PERSON
Page 9
ACTING ON BEHALF OF SELLER SHALL BE VALID OR BINDING UPON SELLER UNLESS
EXPRESSLY SET FORTH HEREIN. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT
HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER IS RELYING
SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY SELLER, EXCEPT AS OTHERWISE SET FORTH HEREIN, AND
AGREES TO ACCEPT THE PROPERTY AT THE CLOSING AND WAIVE ALL OBJECTIONS OR CLAIMS
AGAINST SELLER (INCLUDING, BUT NOT LIMITED TO, ANY RIGHT OR CLAIM OF
CONTRIBUTION) ARISING FROM OR RELATED TO THE PROPERTY OR TO ANY HAZARDOUS
MATERIALS ON THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY
INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED
FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS
AS TO THE ACCURACY, TRUTHFULNESS OR COMPLETENESS, EXCEPT AS OTHERWISE SET FORTH
HEREIN, OF SUCH INFORMATION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY
VERBAL OR WRITTEN STATEMENT, REPRESENTATION OR INFORMATION PERTAINING TO THE
PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER,
CONTRACTOR, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF
THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND BASIS
WITH ALL FAULTS. IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN
ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY
SELLER AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING. THE PROVISIONS OF
THIS SECTION 5 SHALL SURVIVE THE CLOSING OR ANY TERMINATION HEREOF.
5.2 HAZARDOUS MATERIALS. "Hazardous Materials" shall mean any
substance which is or contains (i) any "hazardous substance" as now or hereafter
defined in ss.101(14) of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (42 U.S.C. ss.9601 ET SEQ.) ("CERCLA") or
any regulations promulgated under CERCLA; (ii) any "hazardous waste" as now or
hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C.
ss.6901 ET SEQ.) ("RCRA") or regulations promulgated under RCRA; (iii) any
substance regulated by the Toxic Substances Control Act (15 U.S.C. ss.2601 ET
SEQ.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos
and asbestos containing materials, in any form, whether friable or non-friable;
(vi) polychlorinated biphenyls; (vii) radon gas; and (viii) any additional
substances or materials which are now or hereafter classified or considered to
be hazardous or toxic under Environmental Requirements (as defined in SECTION
5.3 of this Agreement) or the common law, or any other applicable laws relating
to the Property. Hazardous Materials shall include, without limitation, any
substance, the presence of which on the Property, (A) requires reporting,
investigation or remediation under Environmental Requirements; (B) causes or
threatens to cause a nuisance on the Property or adjacent property or poses or
threatens to pose a hazard to the health or safety of persons on the Property or
adjacent property; or (C) which, if it emanated or migrated from the Property,
could constitute a trespass.
5.3 ENVIRONMENTAL REQUIREMENTS. "Environmental Requirements" shall
mean all laws, ordinances, statutes, codes, rules, regulations, agreements,
judgments, orders, and decrees, now or hereafter enacted, promulgated, or
amended, of the United States, the states, the counties, the cities, or any
other political subdivisions in which the Property is located, and any other
political subdivision, agency or instrumentality exercising jurisdiction over
the owner of the Property, the Property, or the use of the Property, relating to
pollution, the protection or regulation of human health, natural resources, or
the environment, or the emission, discharge, release or threatened release of
pollutants, contaminants,
Page 10
chemicals, or industrial, toxic or hazardous substances or waste or Hazardous
Materials into the environment (including, without limitation, ambient air,
surface water, ground water or land or soil).
6.
CLOSING
6.1 CLOSING. The Closing (the "CLOSING") shall be held at the
offices of Republic Title of Texas, Inc. (the "TITLE COMPANY") at 0000 Xxxxxxx
Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xx. Xxxx Xxxxxxx, at
a date designated by Seller and Purchaser on or before February 19, 2004 (the
"CLOSING DATE"), unless the parties mutually agree in writing upon another
place, time or date, or as provided in ARTICLE 7. Purchaser shall have the
one-time right to extend the Closing Date up to an additional fifteen (15) days
(i) upon delivering prior written notice to Seller and Title Company on or
before January 10, 2004, of Purchaser's election to extend the Closing Date
pursuant hereto, and (ii) upon depositing with Title Company, on or before
January 10, 2004, an additional ONE HUNDRED SIXTY-EIGHT THOUSAND AND NO/100
DOLLARS ($168,000.00), which amount shall be deemed additional Xxxxxxx Money and
shall be governed in accordance with this Agreement.
6.2 POSSESSION. Possession of the Property shall be delivered to
Purchaser at the Closing.
6.3 PRORATION. As applicable, all rents, other amounts payable by
the tenants under the Leases, income, utilities and all other operating expenses
with respect to the Property for the month in which the Closing occurs, and real
estate and personal property taxes and other assessments with respect to the
Property for the year in which the Closing occurs, shall be prorated to the date
Seller receives the Purchase Price in immediately available funds with Seller
receiving the benefits and burdens of ownership on the Closing Date.
(a) If the Closing shall occur before rents and all other
amounts payable by the tenants under the Leases and all other income
from the Property have actually been paid for the month in which the
Closing occurs, the apportionment of such rents and other amounts and
other income shall be upon the basis of such rents, other amounts and
other income actually received by Seller. Subsequent to the Closing, if
any such rents and other income are actually received by Purchaser, all
such amounts shall first be applied to post-closing rents due to
Purchaser which are past due and the balance shall be immediately paid
by Purchaser to Seller. Purchaser shall make a good faith effort and
attempt to collect any such rents and other amounts and other income not
apportioned at the Closing for the benefit of Seller, however, Purchaser
shall not be required to expend any funds or institute any litigation in
its collection efforts. Nothing in this SECTION 6.3(A) shall restrict
Seller's right to collect delinquent rents directly from a tenant by any
legal means.
(b) If the Closing shall occur before the tax rate or the
assessed valuation of the Property is fixed for the then current year,
the apportionment of taxes shall be upon the basis of the tax rate for
the preceding year applied to the latest assessed valuation. Subsequent
to the Closing, when the tax rate and the assessed valuation of the
Property is fixed for the year in which the Closing occurs, the parties
agree to adjust the proration of taxes and, if necessary, to refund or
repay such sums as shall be necessary to effect such adjustment. In the
event the Property has been assessed for property tax purposes at such
rates as could result in "roll-back" taxes upon changes in land usage or
ownership of the Property, Purchaser agrees to pay all such taxes and
indemnify and save Seller harmless from and against any and all claims
and liabilities for such taxes.
Page 11
(c) If the Closing shall occur before the actual amount of
utilities and all other operating expenses with respect to the Property
for the month in which the Closing occurs are determined, the
apportionment of such utilities and other operating expenses shall be
upon the basis of an estimate by Seller of such utilities and other
operating expenses for such month. Subsequent to the Closing, when the
actual amount of such utilities and other operating expenses with
respect to the Property for the month in which the Closing occurs are
determined, the parties agree to adjust the proration of such utilities
and other operating expenses and, if necessary, to refund or repay such
sums as shall be necessary to effect such adjustment.
The agreements of Seller and Purchaser set forth in this SECTION 6.3 shall
survive the Closing.
6.4 CLOSING COSTS. Except as otherwise expressly provided herein,
Seller shall pay, on the Closing Date, the cost of the initial Survey delivered
to Purchaser pursuant to SECTION 4.1(B) of this Agreement, the title insurance
premium for the base Fee Owner's Policy (as defined in SECTION 6.5(A) of this
Agreement) and the base Leasehold Owner's Policy (as defined in SECTION 6.5(A)
of this Agreement), the cost to record a release of any deeds of trust or
financing statements executed by Seller and encumbering title to the Property,
and one-half (1/2) of any escrow fees and other customary charges of the Title
Company, and Purchaser shall pay, on the Closing Date, the cost of any update or
revisions to the Survey, the cost of any endorsements or additional coverage
over the base Owner's Policy, all recording costs other than as allocated to
Seller pursuant to this SECTION 6.4, and one-half (1/2) of any escrow fees and
other customary charges of the Title Company. Except as otherwise provided
herein, each party shall pay its own attorneys' fees.
6.5 SELLER'S OBLIGATIONS AT THE CLOSING. At the Closing, or at such
other time as indicated below, Seller shall deliver to Purchaser the following:
(a) TITLE POLICY. Within a reasonable period of time
following Closing, (i) an Owner's Policy of Title Insurance in Texas
standard form (the "FEE OWNER'S POLICY"), naming Purchaser as insured
insuring that Purchaser owns good and indefeasible fee simple title to
the Property, as applicable, subject only to the Permitted Encumbrances,
and (ii) a Leasehold Owner's Policy of Title Insurance in Texas standard
form (the "LEASEHOLD POLICY"), naming Purchaser as insured, insuring
that Purchaser owns the leasehold interest to the Property, as
applicable, subject only to the Permitted Encumbrances. Purchaser hereby
acknowledges that in no event shall the aggregate cost to Seller of the
premiums for such base policies exceed what the premium would have been
had Seller paid one (1) premium for a base owner's policy of title
insurance in Texas standard form in the amount of the Purchase Price.
Purchaser, at Purchaser's sole expense, may elect to cause the Title
Company to amend the survey exception to read "any shortages in area" or
elect to obtain additional coverage or endorsements over the base
Owner's Policy, but obtaining such additional coverage or endorsements
will not be a condition precedent to Purchaser's Closing obligations
pursuant to this Agreement.
(b) EVIDENCE OF AUTHORITY. Such organizational and
authorizing documents of Seller as shall be reasonably required by the
Title Company to evidence Seller's authority to consummate the
transactions contemplated by this Agreement.
(c) FOREIGN PERSON. An affidavit of Seller certifying that
Seller is not a "foreign person," as defined in the federal Foreign
Investment in Real Property Tax Act of 1980, and the 1984 Tax Reform
Act, as amended.
Page 12
(d) LEASES. As applicable, the originals of the Ground Lease
and all of the Leases and all security deposits, if any, in the
possession of Olympus on the Closing Date. Seller shall have no
liability to Purchaser for any tenant security deposit not actually paid
to Seller.
(e) CONTRACTS. As applicable, the originals of all of the
Contracts, if any, in the possession of Olympus.
6.6 PURCHASER'S OBLIGATIONS AT THE CLOSING. At the Closing,
Purchaser shall deliver to Seller the following:
(a) PURCHASE PRICE. The Purchase Price by wire transfer of
immediately available funds, less the Xxxxxxx Money if paid to Seller
pursuant to SECTION 3.1 of this Agreement.
(b) POST EFFECTIVE DATE LEASE EXPENSES. As applicable,
immediately available funds in an amount equal to reasonable costs and
expenses incurred and paid by Seller under (i) any new lease of space in
the Improvements and (ii) any extension, renewal or modification of any
lease of space in the Improvements, executed after the Effective Date.
Said costs and expenses shall include, but not be limited to, costs
incurred and paid by Seller for tenant improvements, leasing
commissions, capital improvements as required under leases, and
reasonable attorney's fees.
(c) EVIDENCE OF AUTHORITY. Such organizational and
authorizing documents of Purchaser as shall be reasonably required by
Seller and/or the Title Company authorizing Purchaser's acquisition of
the Property pursuant to this Agreement and the execution of this
Agreement and any documents to be executed by Purchaser at the Closing.
(d) TAXPAYER I.D. CERTIFICATE. Taxpayer I.D. Certificate in
the form attached to this Agreement as EXHIBIT E.
6.7 DOCUMENTS TO BE EXECUTED BY SELLER AND PURCHASER. At the
Closing, Seller and Purchaser shall also execute and deliver the following:
(a) DEED. As applicable, a Special Warranty Deed (the
"DEED") conveying the Land and the Improvements to Purchaser in the form
attached to this Agreement as EXHIBIT B.
(b) TENANT NOTICES. As applicable, signed statements or
notices to all tenants of the Property, in the form attached to this
Agreement as EXHIBIT G, notifying such tenants that the Property has
been transferred to Purchaser and that Purchaser is responsible for
security deposits (specifying the amounts of such deposits), and, if
applicable, otherwise complying with Section 92.105 of the Texas
Property Code.
(c) XXXX OF SALE, ASSIGNMENT AND ASSUMPTION OF PERSONAL
PROPERTY, SERVICE CONTRACTS, WARRANTIES AND LEASES. As applicable, a
Xxxx of Sale, Assignment and Assumption of Personal Property, Service
Contracts, Warranties and Leases (the "ASSIGNMENT") in the form attached
to this Agreement as EXHIBIT C.
(d) ASSIGNMENT OF GROUND LEASE AND IMPROVEMENTS AND
ASSUMPTION OF GROUND LEASE. As applicable, an Assignment of Ground Lease
and Improvements and Assumption of Ground Lease (the "ASSIGNMENT OF
GROUND LEASE") in the form attached to this Agreement as EXHIBIT I.
Page 13
7.
RISK OF LOSS
7.1 CONDEMNATION. If, prior to the Closing, action is initiated to
take any of the Property by eminent domain proceedings or by deed in lieu
thereof, Purchaser may, within forty-five (45) days after receiving actual
notice of such condemnation, (a) terminate this Agreement, in which event the
Xxxxxxx Money shall be refunded to Purchaser and neither party shall have any
further right or obligation hereunder other than the Surviving Obligations, or
(b) consummate the Closing, in which latter event all of Seller's assignable
right, title and interest in and to the award of the condemning authority shall
be assigned to Purchaser at the Closing and there shall be no reduction in the
Purchase Price. Seller hereby agrees that in its notice of the condemnation
delivered to Purchaser, Seller shall include, to the extent available: (i)
amount of any proposed condemnation award, and (ii) any information relating to
the proposed condemnation or award. Purchaser shall have the right to
communicate directly with the condemning authority, so long as such
communication does not materially or adversely affect the amount of the proposed
condemnation award.
7.2 CASUALTY. Except as provided in SECTIONS 4.2 and 5.1 of this
Agreement, and only as applicable, Seller assumes all risks and liability for
damage to or injury occurring to the Property by fire, storm, accident, or any
other casualty or cause until the Closing has been consummated. If the Property,
or any part thereof, suffers any damage in excess of $250,000.00 prior to the
Closing from fire or other casualty, Purchaser may, within forty-five (45) days
after receiving actual notice of such casualty, either (a) terminate this
Agreement, in which event the Xxxxxxx Money shall be refunded to Purchaser and
neither party shall have any further right or obligation hereunder other than
the Surviving Obligations, or (b) consummate the Closing, in which latter event
all of Seller's right, title and interest in and to the proceeds of any
insurance covering such damage (less an amount paid or to be paid on account of
the loss of rents or other income from the Property for the period prior to and
including the Closing Date, all of which shall be payable to Seller), to the
extent the amount of such insurance does not exceed the Purchase Price, shall be
assigned to Purchaser at the Closing. If the Property, or any part thereof,
suffers any damage less than $250,000.00 prior to the Closing, Purchaser agrees
that it will consummate the Closing and accept the assignment of the proceeds of
any insurance covering such damage plus an amount equal to Seller's deductible
under its insurance policy and there shall be no reduction in the Purchase
Price. Seller hereby agrees that in its notice of the casualty delivered to
Purchaser, Seller shall include, to the extent available: (i) the supporting
information with respect to how Seller determined whether the Property, or any
part thereof, suffered damage in excess of $250,000, and (ii) any written
notices received by Xxxxx Xxxxxxxx after the Effective Date from Seller's
insurance carrier denying Seller coverage for such casualty.
8.
DEFAULT
8.1 BREACH BY SELLER. In the event that Seller shall fail to
consummate this Agreement for any reason, except Purchaser's default or a
termination of this Agreement by Purchaser or Seller pursuant to a right to do
so under the provisions hereof, Purchaser, as its sole and exclusive remedy may
either (a) terminate this Agreement and receive a refund of the Xxxxxxx Money
and neither party shall have any further right or obligation hereunder other
than the Surviving Obligations, or (b) pursue the remedy of specific performance
of Seller's obligations under this Agreement; provided, however, that (i)
Purchaser shall only be entitled to such remedy if (A) any such suit for
specific performance is filed within sixty (60) days after Purchaser becomes
aware of the default by Seller, (B) Purchaser is not in default under this
Agreement, (C) Purchaser has tendered the Purchase Price to the Title Company in
immediately available funds and the Title Company has acknowledged receipt of
same, in writing, to Seller, and (D)
Page 14
Purchaser has furnished ten (10) days prior written notice to Seller of its
intent and election to seek specific enforcement of this Agreement; and (ii)
notwithstanding anything to the contrary contained herein, Seller shall not be
obligated to expend any sums to cure any defaults under this Agreement and if
Purchaser seeks specific performance under this Agreement, Purchaser agrees to
accept the Property in its "WHERE IS, AS IS" condition. Purchaser hereby agrees
that prior to its exercise of any rights or remedies as a result of any defaults
by Seller, Purchaser will first deliver written notice of said default to
Seller, and if Seller so elects, Seller shall have the opportunity, but not the
obligation, to cure such default within ten (10) days after Seller's receipt of
such notice. In no event whatsoever shall Purchaser file any instrument of
record against title to the Property; provided, however, Purchaser may file a
lis pendens of this Agreement simultaneously with its filing of a suit for
specific performance pursuant to this SECTION 8.1. Notwithstanding any of the
foregoing to the contrary, in no event whatsoever shall Purchaser have the right
to seek money damages of any kind as a result of any default by Seller under any
of the terms of this Agreement. Notwithstanding the foregoing, solely in the
event that the remedy of specific performance is not available to Purchaser as a
result of Seller's conveyance of the Property to another third party, Purchaser
shall have the right to terminate this Agreement and then pursue Seller for
Purchaser's actual out-of-pocket costs as evidenced by bona fide paid invoices
from third parties, provided, however, in no event shall such amount exceed
$50,000.00 and in no event shall such amount include speculative, punitive or
consequential damages. In no event shall Seller be liable to Purchaser for any
punitive, speculative or consequential damages.
8.2 BREACH BY PURCHASER.
(a) If Purchaser fails to comply with any of the terms,
conditions or obligations of this Agreement, Seller may terminate this
Agreement and thereupon shall be entitled to the Xxxxxxx Money as
liquidated damages (and not as a penalty) and as Seller's sole remedy
and relief hereunder (except for the Surviving Obligations). Seller and
Purchaser have made this provision for liquidated damages because it
would be difficult to calculate, on the date hereof, the amount of
actual damages for such breach, and Seller and Purchaser agree that
these sums represent reasonable compensation to Seller for such breach.
(b) Notwithstanding the provisions of SECTION 8.2(A) above,
the foregoing shall not in any way limit, affect or impair any of
Purchaser's indemnities as provided in SECTIONS 4.2, 6.3(B) or 10.2 of
this Agreement.
9.
FUTURE OPERATIONS
9.1 FUTURE OPERATIONS.
(a) From the date of this Agreement until the Closing or
earlier termination of this Agreement:
(i) Seller will keep and maintain the Property in
substantially its condition as of the date of
this Agreement;
(ii) As applicable, Seller will perform all of
Seller's obligations under the Contracts. Seller
will not, without the prior written consent of
Purchaser, modify, enter into, or renew any
Contract which cannot be cancelled upon thirty
(30) days prior written notice.
Page 15
(b) As applicable, from the Effective Date until the Closing
or earlier termination of this Agreement, Seller will not lease any
space in the Improvements except on terms and conditions generally
accepted in like transactions; provided, however, Purchaser shall
deliver to Purchaser written notice of such new lease or lease
modification, together with the estimated reimbursable leasing costs.
From and after the date of expiration of the Approval Period until the
Closing or earlier termination of this Agreement, Seller will not lease
any space in the Improvements except upon the prior written approval of
Purchaser (such approval not to be unreasonably withheld or delayed);
provided, however, this limitation upon Seller shall not apply with
respect to lease renewals, lease extensions, rights of first refusal or
offer, or options pursuant to rights granted under leases existing as of
the Effective Date so long as the same are in strict accordance with
specific lease provisions (e.g. including, without limitation, fixed
terms, rental rates, etc.). All reasonable costs and expenses incurred
and paid by Seller under (i) any new lease entered into after the
Effective Date and (ii) any extension, renewal or modification of an
existing lease entered into after the Effective Date, shall be paid by
Purchaser in accordance with SECTION 6.6(B) of this ---------------
Agreement. Said costs and expenses shall include, but not be limited to,
costs incurred and paid by Seller for tenant improvements, leasing
commissions, capital improvements as required by leases, and reasonable
attorney's fees. If Purchaser does not deliver written notice to Seller
of its approval or disapproval of any matters for which Seller seeks
Purchaser's approval as set forth above within five (5) business days
after Purchaser's receipt of Seller's request for such approval,
Purchaser shall be deemed to have approved such matters and to have
agreed to assume all obligations with respect thereto so long as
Seller's notice specifically includes costs for which reimbursement is
sought.
(c) Seller agrees to deliver to Purchaser copies of any
written notices received by Xxxxx Xxxxxxxx after the Effective Date (i)
from governmental authorities with respect to a violation of any
governmental requirements relating to the Property, and any change in
zoning classification or condemnation proceedings, (ii) from tenants at
the Property alleging a default by landlord under its lease or asserting
a right of termination under its lease, (iii) from Seller's insurance
carrier denying or otherwise modifying Seller's existing coverage, and
(iv) service of process involving a claim against the Property.
10.
MISCELLANEOUS
10.1 NOTICES. All notices, demands and requests which may be given or
which are required to be given by either party to the other, and any exercise of
a right of termination provided by this Agreement, shall be in writing and shall
be deemed effective either: (a) on the date personally delivered to the address
below, as evidenced by written receipt therefore, whether or not actually
received by the person to whom addressed; (b) on the third (3rd) business day
after being sent, by certified or registered mail, return receipt requested,
addressed to the intended recipient at the address specified below; (c) on the
first (1st) business day after being deposited into the custody of a nationally
recognized overnight delivery service such as Federal Express Corporation, Xxxxx
or Purolator, addressed to such party at the address specified below, or (d) on
the first (1st) business day after the date delivered by facsimile to the
respective numbers specified below. For purposes of this SECTION 10.1, the
addresses of the parties for all notices are as follows (unless changed by
similar notice in writing given by the particular person whose address is to be
changed):
Page 16
If to Seller: WMC Management
0000 Xxxxxxxx Xxxxx
Xxxxx 0000 Xxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxxxx@xxxxxx.xxx
with a copy to: Olympus Real Estate Partners, LLC
0000 Xxxxxxxx Xxxxx
Xxxxx 0000 Xxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxx@xxxx.xxx
with a copy to: Xxxxxxx Xxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxxxx@xxxxxxxxxxxx.xxx
If to Purchaser: PRG Realty Partners, Ltd.
One XxXxxxxx Plaza
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxx@xxxxxxxxx.xxx
with a copy to: Xxxxxxx Xxxxxx L.L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxxxxx@xx.xxx
If to Title Company: Republic Title of Texas, Inc.
0000 Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxxx@xxxxxxxxxxxxx.xxx
Page 17
10.2 REAL ESTATE COMMISSIONS. Seller shall pay to Xxxxxxxxxx
Advisors, LLC (hereinafter called "AGENT" whether one or more) upon the Closing
of the transaction contemplated hereby, and not otherwise, a cash commission in
the amount agreed on in a separate listing agreement between Seller and Agent.
Said commission shall in no event be earned, due or payable unless and until the
transaction contemplated hereby is closed and fully consummated strictly in
accordance with the terms of this Agreement and Seller has received the Purchase
Price in immediately available funds; if such transaction is not closed and
fully consummated for any reason, including, without limitation, failure of
title or default by Seller or Purchaser or termination of this Agreement
pursuant to the terms hereof, then such commission will be deemed not to have
been earned and shall not be due or payable. Except as set forth above with
respect to Agent, neither Seller nor Purchaser has authorized any broker or
finder to act on Purchaser's behalf in connection with the sale and purchase
hereunder and neither Seller nor Purchaser has dealt with any broker or finder
purporting to act on behalf of any other party. Purchaser agrees to indemnify
and hold harmless Seller from and against any and all claims, losses, damages,
costs or expenses of any kind or character arising out of or resulting from any
agreement, arrangement or understanding alleged to have been made by Purchaser
or on Purchaser's behalf with any broker or finder in connection with this
Agreement or the transaction contemplated hereby. Seller agrees to indemnify and
hold harmless Purchaser from and against any and all claims, losses, damages,
costs or expenses of any kind or character arising out of or resulting from any
agreement, arrangement or understanding alleged to have been made by Seller or
on Seller's behalf with any broker or finder in connection with this Agreement
or the transaction contemplated hereby. Purchaser acknowledges that, in
accordance with the terms of the Real Estate License Act of the State of Texas,
Agent has advised Purchaser that Purchaser should have the abstract covering the
Property examined by an attorney of Purchaser's selection, or that Purchaser
should be furnished with or obtain a policy of title insurance. Notwithstanding
anything to the contrary contained herein, this SECTION 10.2 shall survive the
Closing or any earlier termination of this Agreement.
10.3 ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the parties relative to the subject matter hereof, and there are no oral
or written agreements between the parties, nor any representations made by
either party relative to the subject matter hereof, which are not expressly set
forth herein.
10.4 AMENDMENT. This Agreement may be amended only by a written
instrument executed by the party or parties to be bound thereby.
10.5 HEADINGS. The captions and headings used in this Agreement are
for convenience only and do not in any way limit, amplify, or otherwise modify
the provisions of this Agreement.
10.6 TIME OF ESSENCE. Time is of the essence of this Agreement;
however, if the final date of any period which is set out in any provision of
this Agreement falls on a Saturday, Sunday or legal holiday under the laws of
the United States or the State of Texas, then, in such event, the time of such
period shall be extended to the next day which is not a Saturday, Sunday or
legal holiday.
10.7 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Texas and the laws of the United States pertaining to transactions
in such State.
10.8 SUCCESSORS AND ASSIGNS; ASSIGNMENT. This Agreement shall bind
and inure to the benefit of Seller and Purchaser and their respective heirs,
executors, administrators, personal and legal representatives, successors and
permitted assigns. Purchaser shall not assign Purchaser's rights under this
Agreement without the prior written consent of Seller, which consent may be
withheld absolutely, provided, however, Purchaser may assign this Agreement
without Seller's consent to an entity in which
Page 18
an affiliate of Purchaser or Purchaser's principals is the general partner or
managing member of such assignee, subject, however, to the representations and
warranties set forth in SECTION 10.20 of this Agreement. In the event Seller
consents to such assignment, Purchaser and such assignee shall execute and
deliver an Assignment of Purchase and Sale Agreement in the form attached hereto
as EXHIBIT F. Any subsequent assignment may be made only with the prior written
consent of Seller. No assignment of Purchaser's rights hereunder shall relieve
Purchaser of its liabilities under this Agreement. This Agreement is solely for
the benefit of Seller and Purchaser; there are no third party beneficiaries
hereof. Any assignment of this Agreement in violation of the foregoing
provisions shall be null and void. Notwithstanding anything to the contrary
contained herein, Seller shall be entitled to assign its rights under this
Agreement to one or more entities prior to the Closing Date without the
necessity of Purchaser's consent, and upon such assignment and a conveyance of
the Property to Seller's assignee, Seller shall be released from all obligations
under this Agreement, "Seller" shall thereafter refer to and only to such
assignee, and Purchaser agrees to look solely to such assignee for performance
of all of Seller's obligations under this Agreement.
10.9 INVALID PROVISION. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; and, the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
such illegal, invalid, or unenforceable provision or by its severance from this
Agreement.
10.10 ATTORNEYS' FEES. In the event it becomes necessary for either
party hereto to file suit to enforce this Agreement or any provision contained
herein, the party prevailing in such suit shall be entitled to recover, in
addition to all other remedies or damages, as provided herein, reasonable
attorneys' fees incurred in such suit.
10.11 MULTIPLE COUNTERPARTS. This Agreement may be executed in a
number of identical counterparts which, taken together, shall constitute
collectively one (1) agreement; in making proof of this Agreement, it shall not
be necessary to produce or account for more than one such counterpart with each
party's signature.
10.12 EXPIRATION. The execution of this Agreement by Purchaser and the
delivery hereof to Seller shall constitute an offer which shall be automatically
withdrawn, revoked and terminated unless Seller accepts the same by executing
this Agreement and delivering one fully executed counterpart hereof to the Title
Company prior to 4:00 p.m. Central Standard Time the 19th day of December, 2003.
10.13 EFFECTIVE DATE. As used herein the term "Effective Date" shall
mean the first date the Title Company is in receipt of both this Agreement
executed by Purchaser and Seller (whether in counterparts or not) and the
Xxxxxxx Money.
10.14 EXHIBITS. The following exhibits are attached to this Agreement
and are incorporated into this Agreement by this reference and made a part
hereof for all purposes:
(a) EXHIBIT A-1, the legal description of the Fee Simple
Land.
(b) EXHIBIT A-2, the legal description of the Ground Lease
Land.
(c) EXHIBIT B, the form of the Deed.
Page 19
(d) EXHIBIT C, the form of the Assignment.
(e) EXHIBIT D-1, the form of the Estoppel.
(f) EXHIBIT D-2, the form of the SNDA.
(g) EXHIBIT E, the form of the Taxpayer I.D. Certificate.
(h) EXHIBIT F, the form of Assignment of Purchase and Sale
Agreement.
(i) EXHIBIT G, the form of Tenant Notice.
(j) EXHIBIT H, the form of Ground Lessor's Consent and
Estoppel Certificate.
(k) EXHIBIT I, the form of Assignment of Ground Lease.
(l) SCHEDULE 1, the list of Due Diligence Documents.
10.15 NO RECORDATION. Seller and Purchaser hereby acknowledge that
neither this Agreement nor any memorandum or affidavit thereof shall be recorded
of public record in Dallas County, Texas or any other county. Should Purchaser
ever record or attempt to record this Agreement, or a memorandum or affidavit
thereof, or any other similar document, then, notwithstanding anything herein to
the contrary, said recordation or attempt at recordation shall constitute a
default by Purchaser hereunder, and, in addition to the other remedies provided
for herein, Seller shall have the express right to terminate this Agreement by
filing a notice of said termination in the county in which the Land is located.
10.16 MERGER PROVISION. Except as otherwise expressly provided herein,
including, without limitation, SECTION 4.6 of this Agreement, any and all rights
of action of Purchaser for any breach by Seller of any representation, warranty
or covenant contained in this Agreement shall merge with the Deed and other
instruments executed at Closing, shall terminate at Closing and shall not
survive Closing.
10.17 JURY WAIVER. PURCHASER AND SELLER DO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, OR UNDER OR IN CONNECTION WITH
THIS AGREEMENT, THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING OR SELLER AT
CLOSING, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ANY ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN
ANY MANNER WITH THIS AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT LIMITATION,
ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT AND ANY CLAIMS OR DEFENSES
ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR
VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR SELLER TO ENTER INTO AND
ACCEPT THIS AGREEMENT AND THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING AND
SHALL SURVIVE THE CLOSING OF TERMINATION OF THIS AGREEMENT.
10.18 LIMITATION ON LIABILITY. No present or future partner, director,
officer, shareholder, employee, advisor, agent, attorney, asset manager, or
subasset manager of or in Seller shall have any personal liability, directly or
indirectly, under or in connection with this Agreement or any agreement made or
entered into under or in connection with the provisions of this Agreement, or
any amendment or amendments to any of the foregoing made at any time or times,
heretofore or hereafter, and Purchaser and
Page 20
its successors and assigns and, without limitation, all other persons and
entities, shall look solely to Seller's assets for the payment of any claim or
for any performance, and Purchaser hereby waives any and all such personal
liability. The limitations on liability contained in this SECTION 10.18 are in
addition to, and not in limitation of, any limitation on liability applicable to
Seller provided in any other provision of this Agreement or by law or by any
other contract, agreement or instrument.
10.19 CONFIDENTIALITY. Without limiting the terms and conditions of
SECTION 4.2 of this Agreement, both Seller and Purchaser shall keep confidential
and shall not disclose the terms of the transfers contemplated in this
Agreement, including, without limitation, the Purchase Price and all other
financial terms, without the prior written consent of the other party except:
(1) to such party's directors, officers, partners, investors, employees, legal
counsel, accountants, engineers, architects, financial advisors and similar
professionals and consultants to the extent such party deems it necessary or
appropriate in connection with the transaction contemplated hereunder (and each
party shall inform each of its foregoing parties of such party's obligations
under this SECTION 10.19 and shall secure the agreement of such parties to be
bound by the terms hereof) or (2) as otherwise required by law or regulation.
Notwithstanding anything to the contrary contained herein, Purchaser shall be
permitted to issue a press release regarding its acquisition of the Property so
long as such press release does not disclose the business terms set forth in
this Agreement or the identity of Seller or Olympus and so long as Purchaser
first delivers a copy of its press release to Seller for Seller's verification
of Purchaser's compliance with this SECTION 10.19.
10.20 PROHIBITED PERSONS AND TRANSACTIONS. Purchaser and Seller each
hereby represent that with respect to itself, neither it nor any of its
affiliates, nor any of their respective partners, members, shareholders or other
equity owners, and none of their respective employees, officers, directors,
representatives or agents is, nor will they become, a person or entity with whom
United States persons or entities are restricted from doing business under
regulations of the Office of Foreign Asset Control ("OFAC") of the Department of
the Treasury (including those named on OFAC's Specially Designated and Blocked
Persons List) or under any statute, executive order (including the September 24,
2001, Executive Order Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit, or Support Terrorism), or other
governmental action and is not and will not engage in any dealings or
transactions or be otherwise associated with such persons or entities.
Page 21
PURCHASER: PRG REALTY PARTNERS, LTD.,
a Texas limited partnership
Date of Execution By: PRG REALTY, INC.,
by Purchaser: a Texas corporation,
its General Partner
December 17, 2003
----------------------------
By: /s/ Xxx Xxxx Xxxxxxxxx
--------------------------------
Name: Xxx Xxxx Xxxxxxxxx
-------------------------------
Title: Principal
------------------------------
SELLER: OLY UPTOWN GENERAL PARTNERSHIP,
a Texas general partnership
Date of Execution By: Oly Uptown GP, L.P.,
by Seller: a Texas limited partnership,
its managing general partner
December 17, 2003
----------------------------
By: Oly Texas XX XX, LLC,
a Texas limited liability company
its sole general partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name Xxxxx X. Xxxxxx
--------------------------
Title: Vice President
------------------------
The undersigned Title Company hereby acknowledges receipt of the First Deposit
and a copy of this Agreement, and agrees to hold and dispose of the Xxxxxxx
Money in accordance with the provisions of this Agreement.
TITLE COMPANY: REPUBLIC TITLE OF TEXAS, INC.
Date of Execution
by Title Company:
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
December 22, 2003 Name: Xxxx X. Xxxxxxx
---------------------------- ---------------------------
Title: Senior Vice President
--------------------------
Page 22
