PURCHASE AND SALE AGREEMENT
by and between
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
("Seller")
and
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
("Buyer")
INDUSTRIAL PACKAGE SALE
TEXAS PROPERTIES
Date: May ____, 1997
TABLE OF CONTENTS
ARTICLE 1 SALE OF PROPERTY . . . . . . . . . . . . . . . . . . . . . . . 5
1.1 REAL PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . 5
1.2 PERSONAL PROPERTY. . . . . . . . . . . . . . . . . . . . . . . 5
1.3 OTHER PROPERTY RIGHTS. . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 2 PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . . . . 6
2.1 DEPOSIT MONEY. . . . . . . . . . . . . . . . . . . . . . . . . 6
2.2 CASH AT CLOSING. . . . . . . . . . . . . . . . . . . . . . . . 6
2.3 ALLOCATION OF PURCHASE PRICE . . . . . . . . . . . . . . . . . 6
ARTICLE 3 TITLE MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1 TITLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.2 TITLE DEFECTS. . . . . . . . . . . . . . . . . . . . . . . . . 7
3.2.1 CERTAIN EXCEPTIONS TO TITLE. . . . . . . . . . . . . . . . . 7
3.2.2 DISCHARGE OF OTHER LIENS . . . . . . . . . . . . . . . . . . 7
3.3 TITLE INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . 8
3.4 TITLE COMPANY FEE. . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 4 BUYER'S DUE DILIGENCE/CONDITION OF THE PROPERTY. . . . . . . . 8
4.1 BUYER'S INSPECTION OF PROPERTY . . . . . . . . . . . . . . . . 8
4.2 BUYER'S INSPECTION OF DOCUMENTS. . . . . . . . . . . . . . . . 8
4.4 BUYER'S CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 5 ADJUSTMENTS AND PRORATIONS . . . . . . . . . . . . . . . . . . 10
5.1 LEASE RENTALS AND EXPENSES . . . . . . . . . . . . . . . . . . 10
5.1.1 RENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.1.2 EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.2 REAL ESTATE AND PERSONAL PROPERTY TAXES. . . . . . . . . . . . 11
5.3 PROPERTY OPERATING EXPENSES. . . . . . . . . . . . . . . . . . 12
5.4 CLOSING COSTS. . . . . . . . . . . . . . . . . . . . . . . . . 12
5.5 APPORTIONMENT CREDIT . . . . . . . . . . . . . . . . . . . . . 12
5.6 DELAYED ADJUSTMENT . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 6. CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.1 CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.2 CLOSING DATE . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.3 TITLE TRANSFER AND PAYMENT OF PURCHASE PRICE . . . . . . . . . 14
6.4 SELLER'S CLOSING DELIVERIES. . . . . . . . . . . . . . . . . . 14
6.5 BUYER'S CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . 17
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ARTICLE 7 CONDITIONS TO CLOSING. . . . . . . . . . . . . . . . . . . . . 17
7.1 SELLER'S OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . 17
7.2 BUYER'S OBLIGATIONS. . . . . . . . . . . . . . . . . . . . . . 18
7.3 WAIVER OF FAILURE OF CONDITIONS PRECEDENT. . . . . . . . . . . 18
ARTICLE 8 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 18
8.1 BUYER'S REPRESENTATIONS. . . . . . . . . . . . . . . . . . . . 19
8.1.1 BUYER'S AUTHORIZATION. . . . . . . . . . . . . . . . . . . . 19
8.1.2 PROPERTY SOLD AS IS. . . . . . . . . . . . . . . . . . . . . 19
8.1.3 SURVIVAL . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.2 SELLER'S REPRESENTATIONS . . . . . . . . . . . . . . . . . . . 23
8.2.1 SELLER'S AUTHORIZATION . . . . . . . . . . . . . . . . . . . 23
8.2.2 NO OTHER AGREEMENTS. . . . . . . . . . . . . . . . . . . . . 23
8.2.3 NO OTHER TENANTS . . . . . . . . . . . . . . . . . . . . . . 23
8.2.4 OTHER SELLER'S REPRESENTATIONS . . . . . . . . . . . . . . . 24
8.3 GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 24
8.3.1 PARTIES' RIGHT TO AMEND REPRESENTATION . . . . . . . . . . . 24
8.3.2 NO REPRESENTATION AS TO LEASES . . . . . . . . . . . . . . . 24
8.3.3 DEFINITION OF SELLER'S KNOWLEDGE . . . . . . . . . . . . . . 24
8.3.4 SURVIVAL . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.3.5 LIMITATION ON SELLER LIABILITY . . . . . . . . . . . . . . . 25
ARTICLE 9 COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.1 BUYER'S COVENANTS. . . . . . . . . . . . . . . . . . . . . . . 25
9.1.1 CONFIDENTIALITY. . . . . . . . . . . . . . . . . . . . . . . 25
9.1.2 APPROVALS NOT A CONDITION TO BUYER'S PERFORMANCE . . . . . . 26
9.2 SELLER'S COVENANTS . . . . . . . . . . . . . . . . . . . . . . 26
9.2.1 MAINTENANCE OF PROPERTY. . . . . . . . . . . . . . . . . . . 26
9.2.2 ACCESS TO PROPERTY . . . . . . . . . . . . . . . . . . . . . 26
9.3 MUTUAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . 26
9.3.1 PUBLICITY. . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.3.2 BROKER . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE 10 FAILURE OF CONDITIONS . . . . . . . . . . . . . . . . . . . . 27
10.1 TO SELLER'S OBLIGATIONS. . . . . . . . . . . . . . . . . . . . 27
10.1.1 BUYER'S BREACH . . . . . . . . . . . . . . . . . . . . . . . 27
10.1.2 NON-AUTHORIZATION FEE. . . . . . . . . . . . . . . . . . . . 28
10.2 TO BUYER'S OBLIGATIONS . . . . . . . . . . . . . . . . . . . . 28
10.2.1 BUYER'S REMEDY . . . . . . . . . . . . . . . . . . . . . . . 28
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ARTICLE 11 CONDEMNATION/CASUALTY . . . . . . . . . . . . . . . . . . . . 28
11.1 CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . 28
11.1.1 RIGHT TO TERMINATE . . . . . . . . . . . . . . . . . . . . . 28
11.1.2 ASSIGNMENT OF PROCEEDS . . . . . . . . . . . . . . . . . . . 29
11.2 DESTRUCTION OR DAMAGE. . . . . . . . . . . . . . . . . . . . . 29
11.3 INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.4 EFFECT OF TERMINATION. . . . . . . . . . . . . . . . . . . . . 29
11.5 WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 12 ESCROW. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
12.1 ESCROW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 13 LEASING MATTERS . . . . . . . . . . . . . . . . . . . . . . . 31
13.1 NEW LEASES . . . . . . . . . . . . . . . . . . . . . . . . . . 31
13.2 OTHER LEASE ACTIVITY . . . . . . . . . . . . . . . . . . . . . 32
13.3 LEASE ENFORCEMENT. . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 14 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 32
14.1 BUYER'S ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . 32
14.2 DESIGNATION AGREEMENT. . . . . . . . . . . . . . . . . . . . . 33
14.3 SURVIVAL/MERGER. . . . . . . . . . . . . . . . . . . . . . . . 33
14.4 INTEGRATION; WAIVER. . . . . . . . . . . . . . . . . . . . . . 33
14.5 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . 34
14.6 CAPTIONS NOT BINDING; SCHEDULES AND EXHIBITS . . . . . . . . . 34
14.7 BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . . . . 34
14.8 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . 34
14.9 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
14.10 COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . 35
14.11 NO RECORDATION . . . . . . . . . . . . . . . . . . . . . . . . 35
14.12 ADDITIONAL AGREEMENTS; FURTHER ASSURANCES. . . . . . . . . . . 36
14.13 CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 36
14.14 ERISA COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . 36
14.15 LIKE-KIND EXCHANGE . . . . . . . . . . . . . . . . . . . . . . 36
14.16 BUYER'S AUDIT RIGHTS . . . . . . . . . . . . . . . . . . . . . 36
14.17 WAIVER OF DECEPTIVE TRADE PRACTICES ACT. . . . . . . . . . . . 37
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made this ______ day of May,
1997, by and between THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey
corporation ("SELLER"), and MERIDIAN INDUSTRIAL TRUST, INC., a Maryland
corporation ("BUYER").
W I T N E S S E T H:
In consideration of the mutual covenants and agreements set forth herein the
parties hereto do hereby agree as follows:
ARTICLE 1 - SALE OF PROPERTY
Seller agrees to transfer and assign and Buyer agrees to accept and assume,
subject to the terms and conditions stated herein, all of Seller's right,
title and interest in and to the following (collectively called the
"Property"):
1.1 REAL PROPERTY. Those tracts of the land situated in various Counties in
the State of Texas which are more particularly described in EXHIBIT A and
EXHIBITS X-0, X-0, XXX X-00 XXXXXXX X-00 xxxxxxxx hereto as a part hereof,
together with all buildings, improvements and fixtures located thereon and
owned by Seller or Seller's designee under the terms of a like-kind exchange
as described in Section 14.15 hereof, as of the Closing Date (as defined in
SECTION 6.2) and all rights, privileges and appurtenances pertaining thereto
including all of Seller's right, title and interest in and to all
rights-of-way, open or proposed streets, alleys, easements, strips or gores
of land adjacent thereto (collectively called the "Real Property");
1.2 PERSONAL PROPERTY. All tangible personal property owned by Seller
(excluding any computer or computer equipment and software), located on the
Real Property, and used in the ownership, operation and maintenance of the
Real Property and all non-confidential books, records and files in the
possession or control of Seller's property manager relating to the Real
Property (collectively called the "Personal Property"); and
1.3 OTHER PROPERTY RIGHTS. (a) Seller's interest as landlord in all leases
encumbering the Real Property on the Closing Date; and (b) If and to the
extent assignable by Seller, all licenses, permits and other written
authorizations necessary for the use, operation or ownership of the Real
Property or Personal Property and in Seller's possession or control plus all
rights (if any) to use the project names, but Seller does not represent that
it has exclusive rights to use such name, and Seller has not registered the
same in any manner.
5
ARTICLE 2 - PURCHASE PRICE
The total purchase price to be paid by Buyer for the purchase of the Property
is the sum of THIRTY ONE MILLION, FIFTY FIVE THOUSAND, FOUR HUNDRED THIRTY
ONE DOLLARS ($31,055,431.00) in cash (the "Purchase Price"). The Purchase
Price shall be paid in the following manner:
2.1 DEPOSIT MONEY. Upon the full and final execution of this Agreement and
as a condition precedent to the formation of this Agreement, Buyer shall
deposit the sum of ONE HUNDRED FIFTY EIGHT THOUSAND, TWO HUNDRED EIGHTY FIVE
DOLLARS ($158,285.00) in immediately available funds as a deposit (the
"Deposit") with First American Title Insurance Company whose mailing address
is 00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, Attention: Xxxx X.
("Xxxx") Xxxxxx, Vice President & Special Counsel (the "Title Company").
The Deposit, and any additional sums deposited pursuant to Section 6.2
hereof, shall be held and delivered by the Title Company as escrow agent
("Escrow Agent") in accordance with the provisions of ARTICLES 6 AND 12, and
any interest earned thereon shall be considered a part of the Deposit.
Except as expressly otherwise set forth herein, the Deposit shall be applied
against the Purchase Price on the Closing Date.
2.2 CASH AT CLOSING. On the Closing Date, Buyer shall pay to Seller through
Escrow Agent the balance of the Purchase Price (the "Balance") in cash
(subject to the prorations and adjustments set forth in ARTICLE 5 or as
otherwise provided under this Agreement) in immediately available U.S. funds
by wire transfer as more particularly set forth in ARTICLES 6 AND 12.
2.3 ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be allocated
between the projects as set forth in EXHIBIT B which is annexed hereto
subject to Closing adjustments provided hereunder.
ARTICLE 3 - TITLE MATTERS
3.1 TITLE
REAL PROPERTY. Buyer acknowledges that, commencing upon mutual execution
of this Agreement and ending on July 7, 1997 (the "Due Diligence Period"), Buyer
shall conduct an examination of the status of title to the Property. On or
before the expiration of the Due Diligence Period, Buyer shall notify Seller and
Title Company of the specific exceptions to title to the Property which Buyer is
willing to accept in the Title Policies (as hereinafter defined), including all
title endorsements required by Buyer (collectively, the "Permitted
Exceptions"). Provided Title Company is prepared to issue the Title Policies
subject only to the Permitted Exceptions, then at Closing Seller shall transfer
title to the Real Property subject to (i) applicable zoning ordinances and land
use regulations; (ii) such conditions, easements, agreements, and restrictions
of record as exist on the date hereof, continue to exist on the expiration of
the Due Diligence period, and as are listed on Schedule B of the title reports
issued by Title Company a copy of which reports have been made available to
Buyer and are listed on EXHIBIT C (the "Title
6
Reports") which is annexed hereto, (iii) such state of facts as have been
disclosed in the surveys of the Real Property, which have been provided by
Seller to Buyer and which shall be prepared in accordance with the Minimum
Requirements for ALTA/ACSM land title surveys ("Surveys"), (iv) such state of
facts as would be disclosed by a physical inspection of the Property, (v) the
lien of taxes not yet due and payable, and (vi) the Leases (as defined in
SECTION 6.4 (c)). Notwithstanding the foregoing, Seller shall, at Seller's
expense, cause to be removed from the Title Reports all mortgages, deeds of
trust, mechanic's liens, and other monetary liens and judgments described
thereon. Buyer shall pay any additional premiums required for the deletion
of the "survey exception" on Buyer's fee policy of title insurance and for
the issuance of any desired or applicable endorsements requested by Buyer
which are available in the state where each project comprising a portion of
the Property is located. Buyer is aware that ALTA policies and ALTA
endorsements may not be available in all states in which the projects
comprising the Property are located
3.2 TITLE DEFECTS.
3.2.1 ADDITIONAL EXCEPTIONS TO TITLE. If any exceptions to title that
are not Permitted Exceptions arise after the date on which Buyer identifies
the Permitted Exceptions and are not reflected in the Title Reports
provided to Buyer prior to June 15, 1997, which by their terms, may be
removed or satisfied by the payment of a liquidated sum of money (the
"Other Liens"), Seller shall remove the same (or cause the same to be
removed) and shall be entitled to a reasonable adjournment of the Closing
(not to exceed thirty (30) days) for the purpose of such removal.
Notwithstanding the foregoing, Seller may, at its sole election, in
lieu of removing any Other Liens which do not exceed Fifty Thousand
Dollars ($50,000.00): (x) deposit with Title Company such amount of money
or (y) provide such indemnity to the Title Company, as may, in the case of
either clause (x) or (y), be sufficient to induce the Title Company to
insure Buyer against collection of such Other Liens, including interest and
penalties, out of or against the Property, in which event such Other Liens
shall not be deemed to constitute exceptions to title hereunder. Except as
expressly provided above, Seller shall not be required to bring any action
or proceeding or to take any other action to cure or eliminate any title
defect or exception reflected in the Title Reports.
3.2.2 DISCHARGE OF OTHER LIENS. If on the Closing Date there are any
Other Liens which Seller is obligated or has elected to pay and discharge,
Seller may use any portion of the Balance to satisfy the same, provided
Seller shall deliver to Buyer or Title Company at Closing instruments in
recordable form and sufficient to satisfy such Other Liens of record,
together with the cost of recording or filing such instruments, or provided
that Seller shall cause the Title Company to insure over the same, without
any additional cost to Buyer, whether such insurance is made available in
consideration of payment, bonding, indemnity of Seller or otherwise.
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3.3 TITLE INSURANCE. At Closing, the Title Company shall issue to Buyer, for
each project comprising a portion of the Property, at Buyer's sole cost and
expense, an ALTEX Owner's Form of title insurance policy, or form that is
customary in the State where the project is located, in the amount of the
allocated portion of the Purchase Price, insuring that fee simple title to the
Real Property is vested in Buyer subject only to the Permitted Exceptions (the
"Title Policies").
3.4 TITLE COMPANY FEE. In the event Buyer purchases the Property and does
NOT have Title Company issue the Title Policies described in SECTION 3.3,
Buyer shall pay to Title Company an amount equal to Twenty Thousand Dollars
($20,000.00) on the Closing Date, such sum to represent a partial loss of
profits to the Title Company, a loss to Seller, and for the time and services
provided by Title Company to Buyer and Seller in the preparation of this
Agreement, preparation of the Title Reports described in EXHIBIT C, and
assisting Seller with pre-marketing title and survey clarifications. In the
event Buyer elects to pay the Title Company Fee and obtain title insurance
from another title insurance company, Title Company agrees to provide to
Buyer and Seller a release of liability upon Title Company's receipt of the
Title Company Fee.
ARTICLE 4 - BUYER'S DUE DILIGENCE/CONDITION OF THE PROPERTY
4.1 BUYER'S INSPECTION OF PROPERTY. Buyer acknowledges that commencing
prior to the execution of this Agreement and continuing until expiration of
the Due Diligence Period, Buyer has conducted, and shall have the right to
continue to conduct, its examinations, inspections, studies and/or
investigations (collectively, "Due Diligence") of the Property and
information regarding the Property. IF BUYER IS NOT REASONABLY SATISFIED
WITH THE RESULTS OF ITS DUE DILIGENCE, BUYER MAY TERMINATE THIS AGREEMENT by
written notice to Seller on or before the last day of the Due Diligence
Period, and, in the event of such termination, neither Seller nor Buyer shall
have any liability hereunder (except for those obligations which expressly
survive the termination of this Agreement) and Buyer shall be entitled to the
return of the Deposit. In the event Buyer fails to terminate this Agreement
on or before the last day of the Due Diligence Period, Buyer shall be deemed
to have waived its rights to terminate this Agreement in accordance with this
SECTION 4.1. Buyer and Seller each acknowledge and agree that Buyer shall
have no additional period after the expiration of the Due Diligence Period to
conduct further Due Diligence with respect to the Documents (as hereinafter
defined) except as provided for in Section 4.3, the other information
regarding the Property, or the Property. At Closing, Buyer will deliver a
certification in the form annexed hereto as EXHIBIT C-1 certifying that no
representations or warranties concerning the Property have been made, except
as expressly set forth herein.
4.2 BUYER'S INSPECTION OF DOCUMENTS. Buyer acknowledges that prior to
Buyer's execution of this Agreement, Seller made available to Buyer and
otherwise allowed Buyer access to copies of certain documents in Seller's
possession applicable to the Property, including, but not limited to, the
Title Reports and all exceptions thereto, the Surveys, all leases affecting
the Property (collectively, the "Leases"), other reports and any available
documents and other pertinent books and records which pertain to the Property
(collectively, the "Documents"). Buyer shall determine to its satisfaction
the assignability of any Documents to be assigned hereunder. Seller
8
shall cooperate with Buyer (but shall not be obligated) to obtain any
consents required in connection with the assignment to Buyer of any of the
Documents. All of the Documents are confidential and, prior to such time, if
any, that Buyer takes title to the Property, shall not be distributed or
disclosed by Buyer to any person or entity not associated with Buyer (which
obligation of Buyer shall survive any termination of this Agreement). If the
transaction fails to close for any reason whatsoever, Buyer shall return to
Seller all of the Documents (together with all copies thereof made by or on
behalf of Buyer) which Seller, its sales agents or brokers may have
previously delivered or made available or any hereafter deliver or make
available to Buyer in accordance with this SECTION 4.2 (which obligation of
Buyer shall survive any termination of this Agreement). BY FURNISHING TO
BUYER THE DOCUMENTS, EXCEPT AS EXPRESSLY SET FORTH HEREIN, WHETHER HERETOFORE
OR HEREAFTER, NONE OF SELLER, ITS SALES AGENTS OR BROKERS, NOR ANY PARTNER,
OFFICER, DIRECTOR, EMPLOYEE, AGENT OR ATTORNEY OF SELLER, NOR ANY OTHER
PARTY RELATED IN ANY WAY TO ANY OF THE FOREGOING (ALL OF WHICH PARTIES ARE
COLLECTIVELY REFERRED TO AS THE "SELLER PARTIES") SHALL BE DEEMED TO HAVE
MADE ANY REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE WHATSOEVER WITH
RESPECT TO ANY MATTER SET FORTH, CONTAINED OR ADDRESSED IN THE DOCUMENTS,
INCLUDING, BUT NOT LIMITED TO, THE ACCURACY AND COMPLETENESS THEREOF, AND
BUYER SHALL CONFIRM INDEPENDENTLY ALL INFORMATION THAT IT CONSIDERS MATERIAL
TO ITS PURCHASE OF THE PROPERTY.
Buyer acknowledges that prior to Buyer's execution of this Agreement Seller has
made available to Buyer, and Seller hereby agrees to continue to make available
to Buyer and otherwise allow Buyer access to, other non-confidential information
regarding the Property, including, but not limited to, information which may
have related to its construction, history, current economic and leasing status,
physical condition and prospects for future use or development, as Buyer has
deemed appropriate. Buyer acknowledges that Buyer will review the Documents and
the other information regarding the Property with the assistance of such experts
as Buyer deems appropriate. While Seller has provided, and will continue to
provide, the Documents and such other information to Buyer and to cooperate with
Buyer, SELLER HAS MADE IT CLEAR THAT IT IS UNWILLING TO SELL THE PROPERTY TO
BUYER UNLESS SELLER AND THE OTHER SELLER PARTIES ARE EXPRESSLY RELEASED FROM
LIABILITY BY BUYER FOR ANY AND ALL REPRESENTATIONS MADE IN ANY STATEMENTS
HERETOFORE OR HEREAFTER MADE, OR INFORMATION HERETOFORE OR HEREAFTER FURNISHED
TO BUYER OR ITS AGENTS OR REPRESENTATIVES BY THE SELLER PARTIES UNLESS SUCH
REPRESENTATIONS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY EXHIBIT
HERETO. Consequently, Buyer, for Buyer and Buyer's successors in interest,
hereby releases the Seller Parties from, and waives all claims and liability
against the Seller Parties for, any and all representations now or hereafter
made, or information now or hereafter furnished, by the Seller Parties to Buyer
or its agents or representatives (including, but not limited to, representations
regarding the ownership, operation, economic and leasing status and physical and
soil condition of the Property), unless the representations are expressly set
forth in this Agreement or any exhibit hereto. The release of Seller Parties
set forth in this SECTION 4.2 shall be deemed to be reaffirmed as of the Closing
and
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shall survive the Closing and shall not be merged therein.
4.3 OPTION CLOSING DATE. In the event Buyer exercises its option to close
on the Option Closing Date (as described in Section 6.2), Buyer shall have
the right from the date of its delivery of notice of such election to Seller,
through September 19, 1997, to re-inspect the Property and conduct such tests
as Buyer may deem appropriate for the purpose of determining whether there
has been a material adverse change ("Material Change") in the condition of
the Property since July 7, 1997. In the event that Buyer determines in its
reasonable opinion that the Property, or a substantial and material portion
thereof, has suffered a Material Change subsequent to July 7, 1997, Buyer
shall on or before September 19, 1997 give Seller written notice of the
nature of the Material Change, and Seller shall be entitled to a reasonable
adjournment of the Option Closing Date (but not beyond December 31, 1997) to
return the Property to the condition existing on July 7, 1997.
4.4 BUYER'S CERTIFICATE. Buyer shall deliver to Seller at the Closing, a
certificate of an authorized officer of Buyer, if Buyer is a corporation, or
of a general partner, if Buyer is a partnership, or of the managing member if
Buyer is a limited liability company, confirming and certifying Buyer's
acceptance and acknowledgment of all matters set forth in this ARTICLE 4 and
in SECTION 8.1.
ARTICLE 5 - ADJUSTMENTS AND PRORATIONS
The following adjustments and prorations shall be made at Closing:
5.1 LEASE RENTALS AND EXPENSES.
5.1.1 RENTS. Rents shall be prorated as of midnight of the day
immediately preceding the Closing Date. Without otherwise limiting the
foregoing, Seller shall be entitled to all rents (including any percentage
rent and any accrued tax and operating expense escalations, subject to the
provisions of SECTION 5.6), charges, and other revenue of any kind
attributable to any period under the Leases to but not including the
Closing Date. Buyer shall be entitled to all rents (including any
percentage rent and any accrued tax and operating expense escalations,
subject to the provisions of SECTION 5.6), charges and other revenue of any
kind attributable to any period under the Leases on and after the Closing
Date. Rents and expense escalations or other reimbursements due landlord
under the Leases not collected as of the Closing Date shall not be prorated
at the time of Closing, but Buyer shall make a good faith effort to collect
the same on Seller's behalf (which obligation of Buyer shall survive the
Closing), and to tender the same to Seller upon receipt, provided that all
rents, escalations and other reimbursements due landlord under the Leases
collected by Buyer on or after the Closing Date shall first be applied to
all amounts due under the Leases at the time of collection (i.e., current
rents and sums due Buyer as the current owner and landlord) with the
balance (if any) payable to Seller, but only to the extent of amounts
delinquent and actually due Seller. Buyer shall not have an exclusive
right to collect the sums due Seller under the Leases and Seller hereby
retains
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its rights to pursue any tenant under the Leases for sums due Seller
for periods attributable to Seller's ownership of the Property;
provided, however, that Seller shall not without Buyer's prior written
consent, which may be withheld for any reason or for no reason, cause any
Lease to be terminated as a result of any default by any tenant under its
Lease. Buyer shall receive a credit against the Purchase Price for all
security deposits and pre-paid rentals held by Seller covering the period
post-Closing. To the extent assignable, Seller shall assign to Buyer any
security deposits held by Seller at Closing.
5.1.2 EXPENSES. Expenses shall be prorated as of midnight of the day
immediately preceding the Closing Date. At Closing, Buyer shall (i)
reimburse Seller on the Closing Date for any and all fees, including
leasing commissions, paid or expenses incurred (collectively the "Lease
Expenses") arising out of or in connection with any extensions, renewals or
expansions under the Leases exercisable by any tenant after April 25, 1997,
which Lease Expenses were paid by Seller prior to Closing, and (ii)
indemnify and hold Seller harmless from and against any and all claims for
such Lease Expenses which Buyer is required to pay hereunder. Expenses in
connection with New Leases or discretionary extensions, renewals and
expansions shall be reimbursed to Seller in accordance with the provisions
of SECTION 13.1.
5.2 REAL ESTATE AND PERSONAL PROPERTY TAXES. Real estate, as opposed to
personal property taxes, shall be prorated only on the basis of real estate
taxes which become due and payable in the calendar year during which Closing
occurs, based upon the latest available tax xxxx and the number of days elapsed
in the calendar year of Closing, as of midnight of the day immediately preceding
the Closing Date. Personal property taxes shall be prorated as of the Closing
Date based upon the date they become due. Seller shall be entitled to all tax
refunds and credits attributable to the Property prior to the Closing Date.
Buyer shall pay all real estate and personal property taxes and shall be
entitled to all tax refunds and credits attributable to the Property after the
Closing Date. If the real estate and/or personal property tax rate and
assessments have not been set for the year in which the Closing occurs, then the
proration of such taxes shall be based upon the rate and assessments for the
preceding tax year, and there will be no re-proration or adjustment upon
receipt of the actual tax xxxx even if it differs from the amounts used at
Closing. Seller shall pay all special assessments payable prior to the Closing
Date and Buyer shall pay all special assessments payable on and after the
Closing Date; provided, however, that Seller shall not be responsible for any
special assessments which have not been confirmed or which relate to projects
that have not been completed on the date hereof. Notwithstanding the foregoing,
any obligation of Seller hereunder shall be offset on a dollar for dollar basis
to the extent Buyer is entitled after Closing to recover an increase in taxes
from the tenants under the Leases for any tax period prior to the Closing Date,
regardless of whether Buyer actually collects such increased taxes from such
tenants. In the event the Property has been assessed for property tax purposes
at such rates as would result in reassessment (i.e., "escape assessment" or
"roll-back taxes") based upon the change in land usage or ownership of the
Property, Buyer hereby agrees to pay all such taxes and to indemnify and save
Seller harmless from and against all claims and liability for such taxes. Such
indemnity shall survive the Closing and not be merged therein.
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5.3 PROPERTY OPERATING EXPENSES. Operating expenses for the Property shall
be prorated as midnight of the day immediately preceding the Closing Date.
Seller shall pay all utility charges and other operating expenses
attributable to the Property to, but not including the Closing Date (except
for those utility charges and operating expenses payable by tenants in
accordance with the Leases) and Buyer shall pay all utility charges and other
operating expenses attributable to the Property on or after the Closing Date.
To the extent that the amount of actual consumption of any utility services
is not determined prior to the Closing Date, a proration shall be made at
Closing based on the last available reading and post-closing adjustments
shall be within twenty (20) days of the date that actual consumption for such
pre-closing period is determined. Seller shall not assign to Buyer any
deposits which Seller has with any of the utility services or companies
servicing the Property. Buyer shall arrange with such services and companies
to have accounts opened in Buyer's name beginning at 12:01 a.m. on the day
following the Closing Date.
5.4 CLOSING COSTS. Except as expressly provided herein, Buyer shall pay all
costs associated with Closing other than Seller's attorney's fees and costs.
Without otherwise limiting the foregoing, Buyer shall pay all premiums and
charges of the Title Company for the Owner's Title Policies (including
endorsements requested by Buyer) which Owner's Title Policies will be issued
pursuant to the Title Report, the cost of any Survey obtained by Buyer or
Seller to be used as a part of this transaction (including any Surveys for
the Property prepared for Seller on or after February 1, 1997 in anticipation
of this sale), the cost of any Phase I environmental reports and asbestos
surveys ordered by Seller subsequent to February 1, 1997, all recording and
filing charges in connection with the instrument by which Seller conveys the
Property and all escrow charges, all transfer taxes, and any other costs
customarily paid by the Buyer pursuant to the customs of the state in which
each Property is located. Each party shall pay its own attorneys. The
obligations of the Buyer to pay applicable escrow charges shall survive the
termination of this Agreement. The foregoing notwithstanding, in the event
Seller elects to proceed with a like-kind exchange as described in SECTION
14.15 of this Agreement, Seller will pay any increase in recording or
documentary taxes associated with the recording of documents necessary to
accomplish the like-kind exchange.
5.5 APPORTIONMENT CREDIT. In the event the apportionments to be made at the
Closing result in a credit balance (i) to Buyer, such sum shall be paid (at
Seller's option) at the Closing by giving Buyer a credit against the Balance
in the amount of such credit balance or without reduction of the Balance by
giving Buyer a certified or bank check payable to the order of Buyer or (ii)
to Seller, Buyer shall pay the amount thereof to Seller at the Closing by
wire transfer of immediately available federal funds to the account or
accounts to be designated by Seller for the payment of the Balance or, if no
such account is designated, by certified or bank check payable to the direct
order of Seller.
5.6 DELAYED ADJUSTMENT. If at any time following the Closing Date, the
amount of an item listed in any section of this ARTICLE 5 shall prove to be
incorrect, the party in whose favor the error was made shall promptly pay to
the other party the sum necessary to correct such error upon receipt of proof
of such error, provided that such proof is delivered to the party from whom
payment is requested on or before six (6) months after Closing. The
provisions of this SECTION 5.6 shall survive the Closing.
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ARTICLE 6 - CLOSING
6.1 CLOSING. Buyer and Seller hereby agree that the Transaction (as
hereinafter defined) shall be consummated via a Closing in escrow with the
Escrow Agent. The Escrow Agent shall be paid a closing escrow fee in the
total sum of Seven Hundred Dollars ($700.00) for services as Escrow Agent.
On the Closing Date, Escrow Agent shall close escrow by:
(i) Recording all documents as may be necessary to clear title to
each Property in accordance with the requirements of this
Agreement;
(ii) Recording the Deeds (as hereinafter defined);
(iii) Paying all closing costs and making all prorations in accordance
with the terms of this Agreement and a statement of adjustments
and prorations prepared by Escrow Agent and approved by Buyer and
Seller, copies of which statement shall be signed in multiple
originals by Buyer and Seller and delivered to Escrow Holder
prior to the Closing Date;
(iv) Delivering to Buyer the Title Policies, closing statement(s) duly
executed by Buyer, Seller and Escrow Agent, and an original of
each of the documents described in SECTIONS 6.4 (b) through (m)
and 6.4(p) (the Deeds referred to in SECTION 6.4(a) to be
delivered by Escrow Agent to Buyer after return from the
recorder's office); and
(v) Delivering to Seller, by wire transfer to be received by Seller's
bank not later than 3:00 p.m. Eastern Time, on the Closing Date,
or as may otherwise be directed by written instructions from
Seller, the Purchase Price plus or minus closing adjustments and
prorations; and delivering to Seller, on or promptly after the
Closing Date, a closing statement fully executed by Seller, Buyer
and Escrow Agent, a copy of the Title Policies, conformed copies
of the recorded Deeds, and an original of each of the documents
described in SECTIONS 6.5(a) through (f), and a copy of the
documents described in SECTION 6.5(g).
In the event that Buyer or Seller execute separate escrow instructions,
such separate escrow instructions shall constitute separate agreements between
Escrow Holder on the one hand, and Buyer or Seller, as the case may be, on the
other hand, and shall not constitute agreements between Buyer and Seller. Such
separate escrow instructions shall be enforceable only to the extent not
inconsistent with this Agreement.
6.2 CLOSING DATE. Subject to Seller's right to extend the Closing as
provided in SECTION 3.2, the transaction contemplated by this Agreement
("Transaction") shall close ("Closing") on July 18, 1997 ("Closing Date").
Buyer shall have the option to delay the Closing Date to September 30, 1997
(the "Option Closing Date"). Buyer may exercise its option to delay the
Closing Date to the Option Closing Date only by (a) delivering to Seller on
or before July 7, 1997 a written
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notice of Buyer's election to close on the Option Closing Date ("Election
Notice"), and (b) depositing with Title Company on the first business day
following delivery of the Election Notice an additional deposit of ONE
HUNDRED FIFTY EIGHT THOUSAND, TWO HUNDRED EIGHTY FIVE DOLLARS ($158,285.00).
The Closing shall take place at 11:00 a.m. Central Time in the offices of
the Title Company. Buyer and Seller shall conduct a "pre-closing" no later
than three (3) business days prior to the Closing Date. Seller shall escrow
with the Title Company no later than two (2) business days prior to the
Closing Date fully executed, notarized and recordable Deeds (as hereinafter
defined) for the Real Property bills of sale for the Personal Property, such
documents to be held by the Title Company pursuant to an escrow letter to be
provided by Seller on or before the Closing Date. Title transfer and payment
of the Purchase Price is to be completed on the Closing Date as set forth in
SECTION 6.3. Time is of the essence with respect to the Closing Date.
6.3 TITLE TRANSFER AND PAYMENT OF PURCHASE PRICE. Seller agrees to convey
title to the Real Property to Buyer by special warranty or limited warranty
deed with covenants only against Seller's acts during Seller's term of
ownership and not otherwise (collectively, the "Deeds"). Seller's conveyance
is conditioned upon confirmation of receipt of the Purchase Price by the
Title Company as set forth below or by Seller's written agreement to release
the transfer documents on some other basis. Buyer's acceptance of the Deeds
shall be deemed to be the full performance and discharge of any and all of
Seller's obligations hereunder, except as expressly set forth herein. Buyer
agrees to deliver the Balance to the Title Company no later than 12:00 noon,
Central Time on the Closing Date and Buyer unconditionally directing the
Title Company to deposit the same in Seller's designated account.
Notwithstanding the foregoing, either party shall have the right to terminate
this Agreement if the other party has not performed its obligations under
this Agreement required to be performed as of the Closing Date.
6.4 SELLER'S CLOSING DELIVERIES. At the Closing, Seller shall deliver or
cause to be delivered to Buyer the following:
a. DEEDS. A duly executed and acknowledged special warranty
deed in recordable form and acceptable to Seller and Buyer
conveying to Buyer all of Seller's right, title and interest
in and to the Real Property.
b. XXXX OF SALE. A xxxx of sale in the form attached hereto as
EXHIBIT D ("Xxxx of Sale") conveying all of the Seller's
right, title and interest in and to the Personal Property
for each project.
c. ASSIGNMENT OF LEASES. An assignment and assumption of
tenant leases, in the form attached hereto as EXHIBIT E-1
("Assignment of Leases") transferring all of Seller's
interest in the tenant space leases and any amendments,
guarantees and other documents relating thereto ("Leases"),
together with all assignable security deposits paid by the
tenants thereunder and not applied by Seller in accordance
with the terms of the Leases and the accrued interest, if
any, on each of such security deposits. EXHIBIT E-2
attached hereto sets forth a list of all Leases, which list
will be updated by Seller as of the Closing Date.
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d. ASSIGNMENT OF WARRANTIES AND GUARANTIES. An assignment of
any warranties and guaranties in the form attached hereto as
EXHIBIT F ("Assignment of Warranties") assigning to Buyer
all of Seller's right, title and interest in any unexpired
warranties and guaranties pertaining to the Property, but
only to the extent the same are assignable without expense
to Seller.
e. ESTOPPEL LETTERS. Estoppel letters from each of those
tenants identified on EXHIBIT G as "Major Tenants" (the
"Major Tenants"), and from each of the other tenants under
the Leases which provide an estoppel letter to Seller in
response to Seller's written request for the same (Seller
being obligated under this Agreement to request the Estoppel
letters from each tenant holding an interest under a Lease,
but without Seller obligation to obtain the same from
tenants other than Major Tenants) (the "Other Tenants"),
dated not earlier than forty-five (45) days prior to the
initially scheduled Closing Date, and substantially in the
form of the estoppel letter attached hereto as EXHIBIT H-1
or in the form which such Other Tenant is required to
provide pursuant to the terms of such Other Tenant's Lease.
In the event Seller cannot, after reasonable efforts, obtain
a tenant estoppel letter from a Major Tenant from whom an
estoppel letter is requested, then Seller shall deliver to
Buyer a Seller's (landlord) estoppel letter in the form of
estoppel letter attached hereto as EXHIBIT H-2 dated within
five (5) business days prior to the Closing Date or the
Option Closing Date, as applicable, which Seller's estoppel
letter shall expire and be of no further force or effect on
the date that is ninety (90) days following the Closing
Date; provided, however, that if Seller shall obtain an
estoppel letter from any such tenant after delivery of such
Seller's estoppel letter, Seller's (landlord) estoppel
letter shall thereafter be without further force or effect.
In the event Buyer gives the Election Notice, Seller shall
deliver to Buyer, within five (5) business days prior to the
Option Closing Date, (a) any tenant estoppel letter that is
dated earlier than forty five (45) days prior to the Option
Closing Date, (b) any tenant estoppel letter dated more than
forty-five days prior to the Option Closing Date, together
with a schedule warranting to Buyer that, to Seller's
Knowledge, except as set forth in such schedule, Seller is
not aware of any default under such tenant's Lease arising
after the date of such tenant estoppel letter, (c) a Seller
estoppel letter for each Major Tenant of the Property for
which a tenant estoppel letter was not received, as
described above, or (d) a combination of (a), (b) and (c).
f. NOTICE TO TENANTS. Letters to each tenant under the Leases
in the form attached hereto as EXHIBIT I notifying them of
the sale of the Property to Buyer and advising them that all
future payments of rent and other payments due under the
Leases are to be made to Buyer at an address designated by
Buyer.
g. NON-FOREIGN STATUS AFFIDAVIT. A non-foreign status
affidavit in the form attached hereto as EXHIBIT J, as
required by Section 1445 of the United States Internal
Revenue
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Code ("Code"), and any similar affidavit or statement required
pursuant to the laws of the States in which the projects
comprising the Property are located.
h. EVIDENCE OF AUTHORITY. A certificate of an Assistant
Secretary of Seller with respect to the authority to act on
behalf of Seller of the individual executing on behalf of
Seller all documents contemplated by this Agreement. Seller
shall deliver to the Title Company such documents as may be
reasonably required by Title Company to evidence the
capacity of the Seller hereto and the authority of the
person executing any documents on behalf of the Seller.
i. SELLER'S CERTIFICATE. The Certificate of Seller certifying
to the matters set forth in SECTIONS 8.2.1, 8.2.2, 8.2.3
and 8.2.4.
j. PROPERTY DOCUMENTS. (i) To the extent in the possession of
Seller or the current manager of the Property, [x] the
original (or, if unavailable, a copy) of the existing
certificate or certificates of occupancy for the
improvements on the Property, [y] all original (or, if
unavailable, copies of) certificates, licenses, permits,
authorizations and approvals issued for or with respect to
the Property by governmental and quasi-governmental
authorities having jurisdiction; (ii) All books and
records located at the Property or at the office of Seller's
building manager relating to the Property and the ownership
and operation thereof.
k. SELLER'S ERISA CERTIFICATE. The certificate of Seller
substantially in the form attached hereto as EXHIBIT K and
any other certificate or other information reasonably
required by Buyer to satisfy Buyer that the transaction
contemplated in this Agreement does not constitute a
non-exempt prohibited transaction under ERISA and that such
transaction complies with ERISA in all respects.
l. OTHER DOCUMENTS. Such other documents as may be reasonably
required by Title Company or as may be agreed upon by Seller
and Buyer to consummate the Transaction.
m. TENANT SECURITY DEPOSITS. Either (i) a separate certified
or cashier's check payable to the order of Buyer, or (ii) a
credit to Buyer against the Balance, in the aggregate amount
of the unapplied cash security deposits then held by Seller
under the Leases and any interest thereon. With respect to
any security deposits which are letters of credit, Seller
shall, if the same are assignable, deliver to Buyer at the
Closing such letters of credit and shall execute and deliver
such other instruments as the issuers of such letters of
credit shall reasonably require and shall cooperate with
Buyer to change the named beneficiary under such letters of
credit to Buyer. Seller shall make good faith efforts to
obtain consent to assignment of all such letters of credit
from the issuers thereof and, if required, from tenants.
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n. KEYS AND ORIGINAL DOCUMENTS. Keys to all locks on the Real
Property in Seller's possession, and originals or, if
originals are not available, copies, of the Leases and of
the assigned warranties and guarantees.
o. TRANSFER TAX FORMS. If applicable, duly completed and
signed real estate transfer tax forms.
6.5 BUYER'S CLOSING DELIVERIES. At the Closing, Buyer shall deliver or cause
to be delivered to Seller the following:
(a) PURCHASE PRICE BALANCE. The Balance, as adjusted for
apportionments and other adjustments required under this
Agreement.
(b) ASSIGNMENTS OF LEASES, WARRANTIES AND GUARANTIES. The
Assignment of Leases and the Assignment of Warranties and
Guaranties executed and acknowledged by Buyer.
(c) BUYER'S CERTIFICATE. The certificate of Buyer certifying to
the matters set forth in ARTICLE 4 and SECTIONS 8.1.1 and
8.1.2.
(d) BUYER'S ERISA CERTIFICATE. The certificate of Buyer substantially in
the form attached hereto as EXHIBIT L and any other certificate or
other information reasonably required by Seller to satisfy Seller that
the transaction contemplated in this Agreement does not constitute a
non-exempt prohibited transaction under ERISA and that such
transaction complies with ERISA in all respects.
(e) EVIDENCE OF AUTHORITY. Documentation to establish to Seller's
reasonable satisfaction the due authorization of Buyer's acquisition
of the Property and Buyer's delivery of the documents required to be
delivered by Buyer pursuant to this Agreement, including, but not
limited to, the organizational documents of Buyer, as they may have
been amended from time to time, resolutions of Buyer, and incumbency
certificates of Buyer.
(f) OTHER DOCUMENTS. Any other documents required by this Agreement to
be delivered by Buyer.
(g) TRANSFER TAX FORMS. If applicable, duly completed and signed real
estate transfer tax returns and check(s) for such payment.
ARTICLE 7 - CONDITIONS TO CLOSING
7.1 SELLER'S OBLIGATIONS. Seller's obligation to close the Transaction is
conditioned on all of the following, any or all of which may be waived by
Seller by an express written waiver, at its sole option:
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(a) CORPORATE APPROVAL. For Seller, the unconditional approval
of the Transaction contemplated in this Agreement by its
corporate officers, its Law Department and, if necessary, by
the Finance Committee of it's Board of Directors, each in
their sole discretion, on or before the date set forth in
SECTION 10.1.2.
(b) REPRESENTATIONS TRUE. All representations and warranties
made by Buyer in this Agreement, as the same may be amended
as provided in SECTION 8.3.1, shall be true and correct in
all material respects on and as of the Closing Date, as if
made on and as of such date except to the extent they
expressly relate to an earlier date.
(c) BUYER'S DELIVERIES COMPLETE. Buyer shall have delivered the funds
required hereunder and all of the documents to be executed by Buyer
set forth in SECTION 6.5 and shall have performed all other covenants,
undertakings and obligations, and complied with all conditions
required by this Agreement to be performed or complied with by Buyer
at or prior to the Closing.
7.2 BUYER'S OBLIGATIONS. Buyer's obligations to close the Transaction is
conditioned on all of the following, any or all of which may be expressly
waived by Buyer in writing, at its sole option:
(a) REPRESENTATIONS TRUE. All representations and warranties made by
Seller in this Agreement, as the same may be amended as provided in
SECTION 8.3.1, shall be true and correct in all material respects on
and as of the Closing Date, as if made on and as of such date except
to the extent that they expressly relate to an earlier date.
(b) TITLE CONDITIONS SATISFIED. At the time of the Closing, title to the
Property shall be as provided in ARTICLE 3 of this Agreement.
(c) SELLER'S DELIVERIES COMPLETE. Seller shall have delivered all of the
documents and other items required pursuant to SECTION 6.4 and shall
have performed all other covenants, undertakings and obligations, and
complied with all conditions required by this Agreement to be
performed or complied with by Seller at or prior to the Closing.
7.3 WAIVER OF FAILURE OF CONDITIONS PRECEDENT. At any time or times on or
before the date specified for the satisfaction of any condition, Buyer or
Seller may elect in writing to waive the benefit of any such condition. By
closing the Transaction, Buyer and Seller shall be conclusively deemed to
have waived the benefit of any such unfulfilled conditions. In the event
any of the conditions set forth herein are neither waived nor fulfilled,
Buyer or Seller (as appropriate) may terminate their obligations to perform
at the Closing and otherwise under this Agreement in accordance with the
provisions of ARTICLE 10.
ARTICLE 8 - REPRESENTATIONS AND WARRANTIES
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8.1 BUYER'S REPRESENTATIONS. Buyer represents and warrants to Seller as
follows:
8.1.1. BUYER'S AUTHORIZATION. Buyer is duly organized (or formed),
validly existing and in good standing under the laws of Maryland and the
State in which the Property is located, and is authorized to consummate the
transactions contemplated hereby and fulfill all of its respective
obligations hereunder and under all documents contemplated hereunder to be
executed by Buyer, and Buyer has received all necessary power to execute
and deliver this Agreement and all documents contemplated hereunder to be
executed by Buyer, and to perform all of Buyer's obligations hereunder and
thereunder. This Agreement and all documents contemplated hereunder to be
executed by Buyer, have been duly authorized by all requisite partnership
or corporate action on the part of Buyer and are the valid and legally
binding obligation of Buyer, enforceable in accordance with their
respective terms. Neither the execution and delivery of this Agreement and
all documents contemplated hereunder to be executed by Buyer, nor the
performance of the obligations of Buyer hereunder or thereunder will result
in the violation of any law or any provision of the agreement of
partnership or articles of incorporation and by-laws of the Buyer or will
conflict with any order or decree of any court or governmental
instrumentality of any nature by which Buyer is bound.
8.1.2. PROPERTY SOLD "AS-IS". Except as expressly set forth herein,
Buyer acknowledges and agrees that the Property is to be sold on an "As-Is,
Where-Is" basis, and Buyer will rely entirely upon its own inspections and
analysis of the Property. Without in any way limiting the foregoing,
Buyer hereby specifically acknowledges and agrees that:
(a) THE PROPERTY SHALL BE SOLD, AND BUYER SHALL ACCEPT
POSSESSION OF THE PROPERTY ON THE CLOSING DATE, "AS-IS,
WHERE-IS, WITH ALL FAULTS", WITH NO RIGHT OF SETOFF OR
REDUCTION IN THE PURCHASE PRICE.
(b) EXCEPT FOR SELLER'S REPRESENTATIONS AND WARRANTIES SET FORTH
IN THIS AGREEMENT, THE REPRESENTATIONS AND WARRANTIES SET
FORTH IN ANY ESTOPPEL LETTER DELIVERED BY SELLER IN
ACCORDANCE WITH THE TERMS OF SECTION 6.4 HEREOF, AND THE
LIMITED WARRANTY TO TITLE TO BE GIVEN IN THE DEEDS (HEREIN
COLLECTIVELY CALLED THE "SELLER'S WARRANTIES"), NONE OF THE
SELLER PARTIES HAVE OR SHALL BE DEEMED TO HAVE MADE ANY
VERBAL OR WRITTEN REPRESENTATIONS, WARRANTIES, PROMISES, OR
GUARANTIES (WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE), TO BUYER WITH RESPECT TO THE PROPERTY, IN ANY
MANNER SET FORTH, CONTAINED OR ADDRESSED IN THE DOCUMENTS
(INCLUDING, BUT NOT LIMITED TO, THE ACCURACY AND
COMPLETENESS THEREOF) OR THE RESULTS OF THE INVESTIGATIONS;
AND BUYER HAS CONFIRMED INDEPENDENTLY
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ALL INFORMATION THAT IT CONSIDERS MATERIAL TO ITS PURCHASE
OF THE PROPERTY OR THE TRANSACTION.
(c) BUYER SPECIFICALLY ACKNOWLEDGES THAT, EXCEPT FOR SELLER'S
WARRANTIES, BUYER IS NOT RELYING ON (AND SELLER AND EACH OF
THE OTHER SELLER PARTIES DOES HEREBY DISCLAIM AND RENOUNCE)
ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE
WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, FROM SELLER OR ANY OTHER SELLER
PARTIES, AS TO: (1) THE OPERATION OR INCOME POTENTIAL OF
THE PROPERTY, USES, MERCHANTABILITY OR FITNESS OF ANY
PORTION OF THE PROPERTY FOR A PARTICULAR USE OR PURPOSE;
(2) THE PHYSICAL CONDITION OR SAFETY OF THE PROPERTY OR ANY
IMPROVEMENTS THEREON, INCLUDING, BUT NOT LIMITED TO,
PLUMBING, SEWER, HEATING AND ELECTRICAL SYSTEMS, ROOFING,
AIR CONDITIONING, FOUNDATIONS, SOILS AND GEOLOGY, INCLUDING
HAZARDOUS MATERIALS, LOT SIZE, OR SUITABILITY OF THE
PROPERTY OR ANY IMPROVEMENTS THEREON FOR A PARTICULAR
PURPOSE; (3) THE PRESENCE OR ABSENCE, LOCATION OR SCOPE OF
ANY HAZARDOUS MATERIALS IN, AT OR UNDER THE PROPERTY; (4)
WHETHER THE APPLIANCES, IF ANY, PLUMBING OR UTILITIES ARE
IN WORKING ORDER; (5) THE HABITABILITY OR SUITABILITY FOR
OCCUPANCY OF ANY STRUCTURE AND THE QUALITY OF ITS
CONSTRUCTION; (6) WHETHER THE IMPROVEMENTS ARE STRUCTURALLY
SOUND, IN GOOD CONDITION, OR IN COMPLIANCE WITH APPLICABLE
MUNICIPAL, COUNTY, STATE OR FEDERAL STATUTES, CODES OR
ORDINANCES; (7) THE ACCURACY OF ANY STATEMENTS,
CALCULATIONS, OR CONDITIONS STATED OR SET FORTH IN
SELLER'S BOOKS OR RECORDS CONCERNING THE PROPERTY OR AS
DESCRIBED OR SET FORTH IN ANY OF SELLER'S OFFERING
MATERIALS WITH RESPECT TO THE PROPERTY; (8) THE DIMENSIONS
OF THE PROPERTY OR THE ACCURACY OF ANY FLOOR PLANS, SQUARE
FOOTAGE MEASUREMENTS, LEASE ABSTRACTS, SKETCHES, REVENUE
OR EXPENSE PROJECTIONS WHICH ARE RELATED TO THE PROPERTY;
(9) THE OPERATING PERFORMANCE AND INCOME AND EXPENSES OF
THE PROPERTY OR THE ECONOMIC STATUS OF THE PROPERTY; (10)
THE ABILITY OF THE BUYER TO OBTAIN ANY OR ALL GOVERNMENTAL
APPROVALS OR PERMITS FOR BUYER'S INTENDED USE AND
DEVELOPMENT OF THE PROPERTY; (11) THE LEASING STATUS OF THE
PROPERTY OR THE INTENTIONS OF ANY PARTIES WITH RESPECT TO
THE NEGOTIATION AND/OR EXECUTION OF ANY LEASE FOR ANY
PORTION OF THE
20
PROPERTY; AND (12) SELLER'S OWNERSHIP OF ANY PORTION OF THE
PROPERTY. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT
SELLER IS UNDER NO DUTY TO MAKE ANY AFFIRMATIVE DISCLOSURES
OR INQUIRY REGARDING ANY MATTER WHICH MAY OR MAY NOT BE
KNOWN TO SELLER, ITS OFFICERS, DIRECTORS, CONTRACTORS,
AGENTS OR EMPLOYEES.
(d) ANY REPORTS, REPAIRS, OR WORK REQUIRED BY BUYER ARE THE
SOLE RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT THERE
IS NO OBLIGATION ON THE PART OF SELLER TO MAKE ANY CHANGES,
ALTERATIONS OR REPAIRS TO THE PROPERTY. BUYER IS SOLELY
RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR
ANY OTHER APPROVAL OR PERMIT NECESSARY FOR TRANSFER OR
OCCUPANCY OF THE PROPERTY AND FOR ANY REPAIRS OR
ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER'S
SOLE COST AND EXPENSE. BUYER ACKNOWLEDGES AND AGREES THAT
BUYER'S OBLIGATIONS HEREUNDER SHALL REMAIN IN FULL FORCE
AND EFFECT WITH BUYER HAVING NO RIGHT TO DELAY THE CLOSING
OR TERMINATE THIS AGREEMENT REGARDLESS OF ANY FACTS OR
INFORMATION LEARNED BY BUYER AFTER THE DATE HEREOF, EXCEPT
AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT.
(e) Buyer, for Buyer and Buyer's successors in interest,
releases Seller from, and waives all claims and liability
against Seller for or attributable to the following:
(i) any and all statements or opinions heretofore or
hereafter made, or information furnished, by the
Seller Parties to Buyer or its agents or
representatives, except for Seller's Warranties; and
(ii) any structural, physical or environmental condition
at the Property, including without limitation, claims
or liabilities relating to the presence, discovery or
removal of any Hazardous Materials in, at, about or
under the Property, or for, connected with or arising
out of any and all claims or causes of action based
upon CERCLA (Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C.
SECTIONS 9601 et seq., as amended by XXXX
[Superfund Amendment and Reauthorization Act of 1986]
and as may be further amended from time to time), the
Resource Conservation and Recovery Act of 1976, 42
U.S.C. SECTIONS 6901 et seq., or any related claims
or causes of action or any other federal or state
based statutory or regulatory causes of action for
environmental contamination at, in or under the
Property.
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(f) Except as expressly provided to the contrary in this
SECTION (f), Buyer hereby (i) assumes and takes
responsibility and liability for all losses, costs, claims,
liabilities, expenses, demand and obligations of every kind
or nature whatsoever attributable to the Property, whether
arising or occurring before or after the date hereof and
whether attributable to events or circumstances which have
heretofore or may hereafter occur, including, without
limitation, all losses, costs, claims, liabilities,
expenses and demands with respect to the structural,
physical or environmental condition of the Property
(including, without limitation, any Hazardous Materials,
in, at, under or about the Property), and (ii) agrees to
indemnify, defend and hold harmless Seller from any loss,
cost, claim, liability, expense or demand with respect
thereto. By its execution of this Agreement, Buyer hereby
agrees that it shall at all times comply with all
applicable federal, state and local laws, rules and
regulations involving hazardous materials in, at, under or
about the Property or their removal from the Property.
Notwithstanding the foregoing, however, Buyer does NOT
assume (and shall not be required to indemnify Seller for)
any responsibility or liability arising out of or in
connection with:
(i) any claims made or causes of action brought by any
third party unrelated to Buyer alleging a default or
breach by Seller which is alleged to have occurred
prior to the Closing Date under any contract or
agreement (other than any Lease (as such term is
herein defined)) entered into between Seller and any
such claimant; PROVIDED, HOWEVER, that Buyer shall be
deemed to assume and shall indemnify Seller in
accordance with the terms of this Section with
respect to any such claims or causes of action to the
extent that the same relates to any alleged defaults
or the breach of any of the Leases (as such term is
herein defined), it being understood and agreed by
Buyer and Seller that Buyer shall rely solely upon
its due diligence with respect to the Property,
Seller's representations (as set forth in SECTION 8.2
herein) and such estoppel letters as Buyer may
receive on or before the Closing Date with respect to
protection against any alleged breach or default by
Seller under any of the Leases that may have occurred
prior to the Closing Date; or
(ii) any tort claims made or brought by a third party
unrelated to Buyer which arise from any acts or
omissions of Seller which occurred during the time
that Seller owned fee title to the Property;
PROVIDED, HOWEVER, that Buyer shall be deemed to
assume and shall indemnify Seller in accordance with
the terms of this Section with respect to any such
claims to the extent that (A) Buyer has the right to
seek recovery from any tenants or previous tenants of
the Property with respect to such tort claims or any
tenant or previous tenant of the Property has
otherwise agreed to indemnify the owner of the
Property with respect to such tort claims, or (B)
Buyer is able, after making all reasonable efforts,
to obtain
22
an agreement by any tenants or previous tenants of
the Property or any other party to indemnify or
otherwise compensate Buyer with respect to such tort
claims.
(g) For purposes of this Agreement, the term "Hazardous
Material" shall mean any substance, chemical, waste or
material that is or becomes regulated by any federal, state
or local governmental authority because it is toxic,
infectious, radioactive, explosive, ignitable, corrosive or
reactive, including, without limitation, asbestos or any
substance containing more than 0.1 percent asbestos, the
group of compounds known as polychlorinated biphenyls,
flammable explosives, oil, petroleum or any refined
petroleum product.
(h) The agreements of Buyer set forth in this SECTION 8.1.2
shall be reaffirmed at the Closing and shall not be merged
therein.
8.1.3. SURVIVAL. Buyer's representations and warranties shall survive
the Closing for a period of thirty six (36) months, after which they
shall be of no further force or effect.
8.2 SELLER'S REPRESENTATIONS. Seller represents and warrants to Buyer as
follows:
8.2.1 SELLER'S AUTHORIZATION. Seller is (x) duly organized, validly
existing and in good standing under the laws of the State of New Jersey,
its state of organization, and is qualified to transact business and in
good standing in the state of Texas, (y) authorized to consummate this
transaction and fulfill all of its obligations hereunder, and (z)
subject to obtaining the approvals described in SECTION 7.1(a) has all
necessary power to execute and deliver this Agreement and to perform all
of its obligations hereunder. Neither the execution and delivery of
this Agreement by Seller nor the performance of its obligations
hereunder will result in the violation of any law or any provision of
Seller's articles of incorporation and by-laws or will conflict with any
order or decree of any court or governmental instrumentality of any
nature by which Seller is bound.
8.2.2 NO OTHER AGREEMENTS. Seller has not entered into any currently
effective agreement to sell or dispose all of its interests in and to
the Property (except for this Agreement).
8.2.3 NO OTHER TENANTS. As of the date of this Agreement, the only
tenants of the Property are the tenants listed in the Leases described
in EXHIBIT E-2 annexed hereto, and the copies of the Leases delivered to
or made available to Buyer by Seller pursuant to this Agreement are
true, correct and complete. This representation shall terminate on the
Closing Date for any tenant providing an estoppel letter which (a) is in
conformity with Section 6.4 (e) of this Agreement, and (b) has attached
thereto a copy of such tenant's Lease which is identical to the copy of
such Lease provided to Buyer pursuant to Section 4.2 hereof.
23
8.2.4 OTHER SELLER'S REPRESENTATIONS. To the best of Seller's
Knowledge (as such term is hereafter defined):
(a) Except as listed in EXHIBIT M annexed hereto, Seller has
not received any actual (as opposed to constructive) notice
of pending or threatened litigation against the Seller
which would materially and adversely affect the Property.
(b) Except as listed in EXHIBIT N annexed hereto, Seller has
not received any written notice from any governmental
authority of any violation of any zoning, building, fire,
or health code, statute, ordinance, rule or regulation
applicable to the Property.
(c) Seller has not entered into any service, supply,
maintenance or utility contracts affecting the Property
which will be binding upon the Buyer after the Closing
other than the Service Contracts listed in EXHIBIT O
annexed hereto.
(d) Except as disclosed in the schedule described in Section
6.4(e), there are no defaults under any of the Leases for
which Seller obtained a tenant estoppel letter which is
dated more than forty-five (45) days prior to the Option
Closing Date.
8.3 GENERAL PROVISIONS.
8.3.1 Parties' Right to Amend Representation. Seller and Buyer shall
have the right from time to time by notice to the other to amend its
representations and warranties hereunder, by amendment of the schedules
hereto or otherwise, to reflect changes in facts or to correct any
immaterial factual inaccuracies of which Buyer or Seller become aware
after the date of this Agreement. Neither party shall have any
liability in connection with this Agreement by reason of an inaccuracy
of a representation or warranty of which Buyer or Seller become aware,
if and to the extent that such inaccuracy is in fact promptly disclosed
to the other party. If a party is aware of any such inaccuracy at the
time of the Closing and such party elects, nevertheless, to close
hereunder, then the disclosing party shall have no liability for such
inaccuracy.
8.3.2 NO REPRESENTATION AS TO LEASES. Except as expressly set forth
herein or in a Seller estoppel letter, Seller does not represent or
warrant that any particular Lease or Leases will be in force or effect
on the Closing Date or that the tenants will have performed their
obligations thereunder.
8.3.3 DEFINITION OF "SELLER'S KNOWLEDGE". All references in this
Agreement to "Seller's Knowledge" shall refer only to the actual
knowledge of those persons listed on EXHIBIT P (the "Designated
Employees") which Designated Employees' actual knowledge is limited to
the project indicated and none other. Seller's Knowledge shall not be
construed to refer to the knowledge of any other officer, agent or
employee of Seller, any affiliate, its property manager or leasing
agent, or any of their officers or employees, or to
24
impose or have imposed upon the Designated Employees any duty to
investigate the matters to which such knowledge, or the absence thereof,
pertains, including, but not limited to, the contents of the files,
documents and materials made available to or disclosed to Buyer or the
contents of files maintained by the Designated Employees. Buyer
acknowledges that Seller has informed Buyer that the Designated
Employees may have limited knowledge as to any project due to Seller's
reorganization of its real estate operations, downsizing over the past
five years, and the resulting reduction in staff. The Designated
Employees have not conducted an extensive search of Seller's files and
are only generally informed of recent property management matters
related to the indicated project. There shall be no personal liability
on the part of any Designated Employee arising out of any
representations or warranties made herein.
8.3.4 SURVIVAL. Seller's representations and warranties shall survive
the Closing for a period of ninety (90) days, after which they shall be
of no further force or effect.
8.3.5 LIMITATION ON SELLER LIABILITY. In the event the Transaction is
closed on the Closing Date and thereafter Seller should be found by a
court of competent jurisdiction to be liable to Buyer for acts or
actions related to this Agreement or any documents provided by Seller
to implement the Closing, the maximum aggregate liability of Seller to
Buyer and any person claiming by, through or under Buyer shall be in the
amount of ONE HUNDRED FIFTY EIGHT THOUSAND TWO HUNDRED EIGHTY FIVE
DOLLARS ($158,285.00). This sum of $158,285.00 is the maximum aggregate
amount of damages which may be awarded to and collected by Buyer under
this Agreement or any document executed by Seller as a part of or in
anticipation of the Closing (including without limitation, any Seller
liability for damages in contract or tort relating to any Seller
representations or warranties contained in this Agreement, and any tort
claims which arise from the actions of Seller, its officers, employees
and agents as the same may relate to or be associated with the Sale of
the Property by Seller).
ARTICLE 9 - COVENANTS
9.1 BUYER'S COVENANTS. Buyer hereby covenants as follows:
9.1.1 CONFIDENTIALITY. Buyer acknowledges that any information
furnished to Buyer with respect to the Property is and has been so
furnished on the condition that Buyer maintain the confidentiality
thereof. Accordingly, Buyer shall hold, and shall cause its directors,
officers and other personnel and representatives to hold, in strict
confidence, and not disclose to any other person without the prior
written consent of Seller until the Closing shall have been consummated,
any of the information in respect of the Property delivered to or for
the benefit of Buyer by Seller or any of its agents, representatives or
employees. In the event the Closing does not occur and this Agreement
is terminated, Buyer shall promptly return to Seller all copies of
documents containing any of such information without retaining any copy
thereof or extract therefrom. Notwithstanding anything to the contrary
hereinabove set forth, Buyer may disclose such information (i) on a
need-to-know basis to its employees or members of professional firms
serving it,
25
and (ii) as any governmental agency may require in order to comply with
applicable laws or regulations.
9.1.2 APPROVALS NOT A CONDITION TO BUYER'S PERFORMANCE. Buyer
acknowledges and agrees that its obligation to perform under this
Agreement is not contingent upon Buyer's ability to obtain any (i)
governmental or quasi-governmental approval of changes or modifications
in use or zoning, or (ii) modification of any existing land use
restriction.
9.2 SELLER'S COVENANTS. Seller hereby covenants as follows:
9.2.1 MAINTENANCE OF PROPERTY. Except to the extent Seller is relieved
of such obligations by ARTICLE 11 hereof, Seller shall maintain and keep
the Property in a manner consistent with Seller's past practices with
respect to the Property; PROVIDED, HOWEVER, that Buyer hereby agrees
that it shall accept the Property subject to (i) all violations of law
or municipal ordinances, orders or requirements and (ii) all physical
conditions which would give rise to violations, existing on the date
hereof. From the date hereof through the Closing Date, Seller will (a)
advise and provide to Buyer a copy of any written notice Seller receives
after the date hereof from any governmental authority relating to the
violation of any law or ordinance regulating the condition or xxx of the
Property, and (b) promptly notify Buyer of any material change
affecting the Property of which Seller has knowledge.
9.2.2 ACCESS TO PROPERTY. Seller shall allow Buyer or Buyer's
representatives access to the Property upon reasonable prior notice at
reasonable times provided such access does not interfere with the
operation of the Property or the rights of tenants. Buyer shall
indemnify and hold harmless Seller for all damages resulting from
Buyer's activities on the Property. The foregoing indemnification shall
survive the Closing or the earlier termination of this Agreement.
9.3 MUTUAL COVENANTS.
9.3.1 PUBLICITY. Seller and Buyer each hereby covenant that, except to
the extent required by law, neither Seller nor Buyer shall issue any
press release or public statement (a "Release") with respect to the
transactions contemplated hereby without the prior consent of the other,
which consent shall not be unreasonably withheld, delayed or
conditioned. If either Seller or Buyer is required by law to issue a
Release, such party shall, at least two (2) business days prior to the
issuance of the same, deliver a copy of the proposed Release to the
other party for its review.
9.3.2 BROKER. Seller and Buyer expressly acknowledge that C B
Commercial Real Estate Services Group, Inc. ("Broker") has acted as the
exclusive broker with respect to the transaction contemplated herein and
with respect to this Agreement. Seller shall pay any brokerage
commission due to Broker in accordance with the separate agreement
between Seller and Broker. Seller and Buyer each represent and warrant
to the other that it has not dealt with any other broker in this
Transaction and each agrees to hold harmless
26
the other and indemnify the other from and against any and all damages,
costs or expenses (including, but not limited to, reasonable attorneys'
fees and disbursements) suffered by the indemnified party as a result
of acts of the indemnifying party that would constitute a breach of its
representation and warranty in this SECTION 9.3. The provisions of this
SECTION 9.3 shall survive the Closing or earlier termination of this
Agreement.
ARTICLE 10 - FAILURE OF CONDITIONS
10.1 TO SELLER'S OBLIGATIONS.
10.1.1 BUYER'S BREACH. If, on or before the Closing Date: (i) Buyer
is in default of any of its obligations hereunder, or (ii) any of
Buyer's material representations or warranties are untrue in any
material respect, or (iii) any condition to the obligation of Seller to
close hereunder has not been satisfied as a result of the failure by
Buyer to materially perform its obligations under this Agreement or
otherwise in a prompt and timely basis, then Seller may elect to (x)
terminate this Agreement by written notice to Buyer, or (y) waive such
default by Buyer and close the Transaction. If this Agreement is so
terminated, then Seller shall be entitled, as its sole and exclusive
remedy for Buyer's breach, to the Deposit as liquidated damages, and
thereafter neither party to this Agreement shall have any further
rights or obligations hereunder, other than as expressly provided
herein.
27
10.1.2 NON-AUTHORIZATION FEE. Seller acknowledges that Buyer, upon
execution of this Agreement, will expend a considerable amount of time
and effort, and will incur expenses, related to completion of its Due
Diligence, all with no assurance that Seller will obtain the
authorizations described in SECTION 7.1(a). To provide Buyer with the
assurance that its efforts and expenses are not being unduly put at
risk, Seller agrees (a) to proceed in good faith toward obtaining the
authorizations described in SECTION 7.1(a) on or before June 12, 1997,
and (b) that in the event the Seller is unable to provide the
authorizations described in SECTION 7.1(a), for any reason other than
Seller's receipt of written notice that Buyer has terminated this
Agreement pursuant to SECTION 4.1 of this Agreement, then Seller will
pay to Buyer a fixed sum of SEVENTY NINE THOUSAND ONE HUNDRED FORTY TWO
DOLLARS AND FIFTY CENTS ($79,142.50) as liquidated damages, to be paid
without regard to Buyer's actually incurred costs and this represents
the absolute limit on Seller's liability under the terms of this
Agreement in the event Seller does not obtain the authorizations
described in SECTION 7.1(a).
10.2 TO BUYER'S OBLIGATIONS.
10.2.1 BUYER'S REMEDY. If, at the Closing, any condition to the
obligation of Buyer to close hereunder set forth in Section 7.2 has not
been substantially satisfied, Buyer shall have the right to (i)
terminate this Agreement by written notice to Seller, promptly after
which Seller shall return the Deposit to Buyer, or (ii) Buyer may waive
the condition and proceed to close the transaction.
ARTICLE 11 - CONDEMNATION/CASUALTY
11.1 CONDEMNATION.
11.1.1 RIGHT TO TERMINATE. If, prior to the Closing Date, all or any
significant portion (as hereinafter defined) of any project which
comprises a portion of the Property is taken by eminent domain (or is
the subject of a pending taking which has not yet been consummated),
Seller shall notify Buyer of such fact promptly after obtaining
knowledge thereof, and Buyer shall have the right to terminate this
Agreement by giving notice to Seller not later than ten (10) days after
receipt of notice. For purposes hereof, a "significant portion" of
the Property shall mean (i) such portion as shall have a value in excess
of One Hundred Thousand Dollars ($100,000.00) for each project described
in EXHIBIT A, or (ii) such portion, the taking of which shall have a
material adverse effect on the operation of such project. If Buyer
elects to terminate this Agreement as aforesaid, the provisions of
SECTION 11.4 shall apply.
28
11.1.2 ASSIGNMENT OF PROCEEDS. If (i) Buyer elects not to terminate
this Agreement as aforesaid, there shall be no abatement of the
Purchase Price; PROVIDED, HOWEVER, that, at the Closing, Seller shall
pay to Buyer the amount of any award for or other proceeds on account of
such taking which may have been paid to Seller prior to the Closing Date
as a result of such taking and Seller shall assign to Buyer at the
Closing (without recourse to Seller) the rights of Seller to, and Buyer
shall be entitled to receive and keep, all awards for the taking of such
project or such portion thereof.
11.2 DESTRUCTION OR DAMAGE. In the event any project comprising a portion
of the Property is damaged or destroyed prior to the Closing Date and such
damage or destruction (a) would cost less than or equal to One Hundred
Thousand Dollars ($100,000.00) to repair or restore, and (b) would not give
any tenant thereof the right to terminate or materially alter its Lease, then
this Agreement shall remain in full force and effect and Buyer shall acquire
the Property upon the terms and conditions set forth herein. In such event,
the parties shall close the Transaction and Buyer shall receive at Closing a
credit against the Purchase Price equal to the amount required to repair or
restore the project to the condition existing immediately before such damage
or destruction; provided, however, nothing herein shall be construed to
require Seller to repair or restore the project to a condition better than
that existing on the date of this Agreement. If the cost of repair or
restoration of the project would equal or exceed One Hundred Thousand
Dollars ($100,000.00), then Buyer shall have thirty (30) days after Seller
notifies Buyer that a casualty has occurred to make an election to terminate
this Agreement by delivery to Seller of a written election notice (the
"Election Notice"). The failure by Buyer to deliver the Election Notice
within such thirty (30) day period shall be deemed an election not to
terminate this Agreement. In the event Buyer elects not to terminate this
Agreement as set forth above, this Agreement shall remain in full force and
effect, the parties shall close the Transaction, and at Closing Buyer shall
receive a credit against the Purchase Price equal to the cost of repair or
restoration of the project to the condition existing before such damage or
destruction.
11.3 INSURANCE. Seller shall maintain the property insurance coverage
currently in effect for the Property through the Closing Date. Seller shall
not assign to Buyer any insurance policies in connection with the Property.
11.4 EFFECT OF TERMINATION. If this Agreement is terminated pursuant to
this ARTICLE 11, Seller promptly shall direct that the Deposit be refunded
to Buyer. Upon such refund, this Agreement shall terminate and neither party
to this Agreement shall have any further rights or obligations hereunder
other than any arising under any Section herein which expressly provides that
it shall survive the termination of this Agreement.
11.5 WAIVER. The provisions of this ARTICLE 11 supersede the provisions of
any applicable statutory or decisional law with respect to the subject matter
of this ARTICLE 11.
ARTICLE 12 - ESCROW
29
12.1 ESCROW. The Deposit and any other sums which the parties agree shall
be held in escrow together with all interest earned thereon (collectively,
the "Escrow Deposits"), shall be held by the Escrow Agent, in trust, and
disposed of only in accordance with the following provisions:
(a) The Escrow Agent shall deposit the Escrow Deposits with a bank or
trust company mutually acceptable to Seller and Buyer in a separate
special money market rate interest-bearing commercial bank account
in the State of Illinois (or otherwise invested in government
insured instruments as may be agreed in writing by Seller, Buyer
and the Escrow Agent), shall not commingle the Escrow Deposits with
any funds of the Escrow Agent or others and shall promptly advise
Buyer and Seller of the number of such account.
(b) If the Closing under this Agreement occurs, the Escrow Agent shall
deliver the Escrow Deposits to, or upon the instructions of, Buyer
and Seller on the Closing Date by wire transfer.
(c) If for any reason the Closing does not occur, the Escrow Agent
shall deliver the Escrow Deposits to Seller or Buyer only upon
receipt of a written demand therefor from such party, subject to
the following provisions of this SECTION 12.1(c). If for any
reason the Closing does not occur and either party makes a written
demand upon the Escrow Agent for payment of the Escrow Deposits,
the Escrow Agent shall give written notice to the other party of
such demand. If the Escrow Agent does not receive a written
objection from the other party to the proposed payment within ten
(10) days after the giving of such notice, the Escrow Agent is
hereby authorized to make such payment. If the Escrow Agent does
receive such written objection within such period, the Escrow Agent
shall continue to hold such amount until otherwise directed by
written instructions signed by Seller and Buyer or a final judgment
of a court.
(d) The parties acknowledge that the Escrow Agent is acting solely as a
stakeholder at their request and for their convenience, that the
Escrow Agent shall not be deemed to be the agent of either of the
parties, and that the Escrow Agent shall not be liable to either of
the parties for any action or omission on its part taken or made in
good faith, and not in disregard of this Agreement, but shall be
liable for its negligent acts and for any loss, cost or expense
incurred by Seller or Buyer resulting from the Escrow Agent's
mistake of law respecting the Escrow Agent's scope or nature of its
duties. Seller and Buyer shall jointly and severally indemnify and
hold the Escrow Agent harmless from and against all costs, claims
and expenses, including reasonable attorneys' fees, incurred in
connection with the performance of the Escrow Agent's duties
hereunder, except with respect to actions or omissions taken or
made by the Escrow Agent in bad faith, in disregard of this
Agreement or involving negligence on the part of the Escrow Agent.
(e) The party receiving the Escrow Deposits and the interest earned
thereon shall pay any income taxes on such interest. The parties
hereto represent and warrant to the Escrow
30
Agent that their respective taxpayer identification numbers are:
Seller 00-0000000; and Buyer 00-0000000.
(f) The Escrow Agent has executed this Agreement in the place indicated
on the signature page hereof in order to confirm that the Escrow
Agent has received and shall hold the Escrow Deposits in escrow,
and shall disburse the Escrow Deposits, pursuant to the provisions
of this ARTICLE 12.
(g) The total escrow fee charged by the Escrow Agent shall be the sum
of Seven Hundred Dollars ($ 700.00) paid solely by Buyer, but
Escrow Agent acknowledges that its duties shall be to both Buyer
and Seller equally under the terms of this Agreement.
ARTICLE 13 - LEASING MATTERS
13.1 NEW LEASES. After April 25, 1997, Seller shall not, without Buyer's
prior written consent in each instance, which consent shall not be
unreasonably withheld and shall be given or denied, with the reasons for such
denial, within three (3) business days after receipt by Buyer of the
information referred to in the next sentence, enter into a new lease
affecting any portion of the Property or renew or extend any Lease (except
pursuant to the exercise by a tenant of a renewal, extension or expansion
option contained in such tenant's Lease). Seller shall furnish Buyer with
all information regarding any proposed new leases, renewals and extensions
reasonably necessary to enable Buyer to make informed decisions. Seller
shall deliver to Buyer a true and complete copy of each such new lease,
renewal and extension agreement, if any, promptly after the execution and
delivery thereof. Seller shall keep accurate records of all of the following
types of expenses (collectively, "New Lease Expenses") incurred in connection
with any new lease for space at the Property, or any extension, renewal or
expansion of a Lease where such Lease does not provide for its extension,
renewal or expansion, entered into on or after the date hereof (a "New
Lease"): (a) brokerage commissions and fees to effect such leasing
transaction, (b) expenses incurred for repairs, improvements, equipment,
painting, decorating, partitioning and other items to satisfy the tenant's
requirements with regard to such leasing transaction, (c) legal fees for
services in connection with the preparation of documents and other services
rendered in connection with the effectuation of the leasing transaction, (d)
if there are any rent concessions covering any period that the tenant has the
right to be in possession of the demised space, the rents that would have
accrued during the period of such concession prior to the Closing Date as if
such concession were amortized over the entire initial term of such New
Lease, and (e) expenses incurred for the purpose of satisfying or terminating
the obligations of a tenant under a New Lease to the landlord under another
lease (whether or not such other lease covers space in the Building). At the
Closing, Buyer shall reimburse Seller for all New Lease Expenses paid or
incurred by Seller after April 25, 1997 and prior to the Closing Date and
shall assume Seller's obligations to pay, when due (whether on a stated due
date or accelerated) any such New Lease Expenses unpaid as of the Closing.
Each party shall make available to the other all records, bills, vouchers and
other data in such party's control verifying such New Lease Expenses and the
payment thereof.
31
13.2 OTHER LEASE ACTIVITY. Except as provided in this SECTION 13.2, without
the prior consent of Buyer, which shall not be unreasonably withheld (i) no
Lease shall be modified or amended except as provided in SECTION 13.1 with
respect to extensions, renewals or expansions of existing Leases and the
execution of New Leases, (ii) Seller shall not consent to any assignment or
sublease in connection with any Lease or New Lease, and (iii) Seller shall
not remove any tenant under any Lease or New Lease, whether by summary
proceedings or otherwise, except by reason of a default of the tenant under
the Lease or New Lease. In furtherance of the foregoing, Seller shall
deliver to Buyer a written notice of each proposed action of the type
described in clauses (i) - (iii) hereinabove which Seller has been asked or
proposes to take, stating, if applicable, whether Seller is willing to
consent to such action and setting forth the relevant information therefor.
Buyer shall have five (5) business days after delivery to it of such notice
and information to determine whether or not to approve such action. If Buyer
shall not give notice of its disapproval of such action within such five (5)
business day period, Buyer shall be deemed to have approved such action. If
any Lease REQUIRES that the landlord's consent be given under the applicable
circumstances (or not be unreasonably withheld), then Buyer shall be deemed
IPSO FACTO to have approved such action. Seller shall perform all of the
obligations of the landlord under the Leases and New Leases which under the
terms of such Leases and New Leases are required to be performed by the
landlord prior to the Closing Date.
13.3 LEASE ENFORCEMENT. Subject to the provisions of SECTION 13.2 above, prior
to the Closing Date, Seller shall have the right, but not the obligation (except
to the extent that Seller's failure to act shall constitute a waiver of such
rights or remedies), to enforce the rights and remedies of the landlord under
any Lease or New Lease, by summary proceedings or otherwise, and to apply all or
any portion of any security deposits then held by Seller toward any loss or
damage incurred by Seller by reason of any defaults by tenants.
ARTICLE 14 - MISCELLANEOUS
14.1 BUYER'S ASSIGNMENT. Buyer shall not assign this Agreement or its
rights hereunder to any individual or entity without the prior written
consent of Seller, which consent Seller may grant or withhold in its sole
discretion, and any such assignment shall be null and void. Notwithstanding
the foregoing, Buyer shall be permitted to assign this Agreement to an entity
in which Buyer owns or controls one hundred percent (100%) of the beneficial
interests provided (a) Buyer effectuates such assignment in writing prior to
expiration of the Due Diligence Period, (b) the assignee assumes the
obligations of Buyer under the terms of this Agreement, and (c) Buyer
remains liable to Seller under the terms of this Agreement.
32
14.2 DESIGNATION AGREEMENT. Section 6045(e) of the Code and the regulations
promulgated thereunder (collectively, the "Reporting Requirements") require
an information return to be made to the United States Internal Revenue
Service, and a statement to be furnished to Seller, in connection with the
Transaction contemplated by this Agreement. Title Company is (i) the person
responsible for closing the Transaction (as described in the Reporting
Requirements) or (ii) the disbursing title or escrow company that is most
significant in terms of gross proceeds disbursed in connection with the
Transaction (as described in the Reporting Requirements). Accordingly:
(i) Escrow Agent is hereby designated as the "Reporting Person" (as
defined in the Reporting Requirements) for the Transaction.
Escrow Agent shall perform all duties that are required by the
Reporting Requirements to be performed by the Reporting Person
for the Transaction.
(ii) Seller and Buyer shall furnish to the Escrow Agent, in a timely
manner, any information requested by Escrow Agent and necessary
for Agent to perform its duties as Reporting Person for the
Transaction.
(iii) Escrow Agent hereby requests Seller to furnish to Escrow Agent
Seller's correct taxpayer identification number. Seller
acknowledges that any failure by Seller to provide Escrow Agent
with Seller's correct taxpayer identification number may
subject Seller to civil or criminal penalties imposed by law.
Accordingly, Seller hereby certifies to Escrow Agent, under
penalties of perjury, that Seller's correct taxpayer
identification numbers is as follows: Seller 00-0000000.
(iv) Each of the parties hereto shall retain this Agreement for a
period of four (4) years following the calendar year during
which Closing occurs.
14.3 SURVIVAL/MERGER. The delivery of the Deeds and any other documents and
instruments by either party hereto, and the acceptance thereof by the other
party shall not effect a merger.
14.4 INTEGRATION: WAIVER; ENTIRE AGREEMENT. THIS AGREEMENT, TOGETHER WITH
THE SCHEDULES AND EXHIBITS ATTACHED HERETO, EMBODIES AND CONSTITUTES THE
ENTIRE UNDERSTANDING BETWEEN THE PARTIES WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED HEREIN AND ALL PRIOR AGREEMENTS, UNDERSTANDINGS, REPRESENTATIONS
AND STATEMENTS, ORAL OR WRITTEN, ARE MERGED INTO THIS AGREEMENT. NEITHER
THIS AGREEMENT NOR ANY PROVISION HEREOF MAY BE WAIVED, MODIFIED, AMENDED,
DISCHARGED, OR TERMINATED EXCEPT BY AN INSTRUMENT SIGNED BY THE PARTY
AGAINST WHOM THE ENFORCEMENT OF SUCH WAIVER, MODIFICATION, AMENDMENT,
DISCHARGE, OR TERMINATION IS SOUGHT, AND THEN ONLY TO THE EXTENT SET FORTH IN
SUCH INSTRUMENT. NO WAIVER BY EITHER PARTY HERETO OF ANY FAILURE OR REFUSAL
BY THE OTHER PARTY TO COMPLY WITH ITS
33
OBLIGATIONS HEREUNDER SHALL BE DEEMED A WAIVER OF ANY OTHER OR SUBSEQUENT
FAILURE OR REFUSAL TO SO COMPLY.
14.5 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of TEXAS. Buyer and Seller hereby
agree that contacts with the State of TEXAS have been significant in
relation to this Agreement, and all the Property is located in the State of
TEXAS.
14.6 CAPTIONS NOT BINDING; SCHEDULES AND EXHIBITS. The captions in this
Agreement are inserted for reference only and in no way define, describe or
limit the scope or intent of this Agreement or of any of the provisions
hereof. All Schedules and Exhibits attached hereto shall be incorporated by
reference as if set out herein in full.
14.7 BINDING EFFECT. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
14.8 SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement or the application
of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable shall not be affected thereby, and
each term and provision of this Agreement shall be valid and enforced to the
fullest extent permitted by law.
14.9 NOTICES. Any notice, request, demand, consent, approval and other
communications under this Agreement shall be in writing, and shall be deemed
duly given or made at the time and on the business day when personally
delivered as shown on a receipt therefor (which shall include delivery by a
nationally recognized overnight delivery service) or three (3) business days
after being mailed by prepaid registered or certified mail, return receipt
requested, to the address for each party set forth below, or by telecopy on
the date shown on the receiving party's confirmation thereof, unless such
telecopy is received after 2:00 p.m., in which case the date of delivery
shall be the next succeeding business day. Any party, by written notice to
the other in the manner herein provided, may designate an address different
from that set forth below.
IF TO BUYER:
MERIDIAN INDUSTRIAL TRUST, INC.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Executive Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
COPY TO:
MERIDIAN INDUSTRIAL TRUST, INC.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
34
Attention: Xxxxxx X. Xxxxxx, General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
COPY TO:
XXXXXX XXXXXXXX XXXXXXX & Share LLP
Xxxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxxx, Esquire
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
IF TO SELLER:
The Prudential Insurance Company of America
Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
COPY TO:
The Prudential Insurance Company of America
Law Department
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Regional Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
COPY TO:
The Prudential Insurance Company of America
Law Department
Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Diamond Mendonides, Regional Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
14.10 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be an original and all of which counterparts taken together shall
constitute one and the same agreement.
14.11 NO RECORDATION. Seller and Buyer each agrees that neither this
Agreement nor any memorandum or notice hereof shall be recorded and Buyer
agrees (a) not to file any notice of pendency or other instrument (other than
a judgment) against the Property or any portion thereof in connection
herewith and (b) to indemnify Seller against all costs, expenses and damages,
35
including, without limitation, reasonable attorneys' fees and disbursements,
incurred by Seller by reason of the filing by Buyer of such notice of
pendency or other instrument.
14.12 ADDITIONAL AGREEMENTS; FURTHER ASSURANCES. Subject to the terms and
conditions herein provided, each of the parties hereto shall execute and
deliver such documents as the other party shall reasonably request in order
to consummate and make effective the transactions contemplated by this
Agreement ; provided, that the execution and delivery of such documents by
such party shall not result in any additional liability or cost to such
party.
14.13 CONSTRUCTION. The parties acknowledge that each party and its counsel
have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this
Agreement or any amendment, Schedule or Exhibits hereto.
14.14 ERISA COMPLIANCE. Buyer hereby represents and warrants that Buyer (a)
is not an employee benefit plan or governmental plan, and (b) the funds being
used to acquire the Property are not "plan assets" within the meaning of 29
C.F.R. SECTION 2510.3-101 of any such plan and are not subject to state laws
regulating investments of and fiduciary obligations with respect to a
governmental plan. As used herein, the terms "employee benefit plan" and
"governmental plan" shall have the respective meanings assigned to them in
the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
Seller shall not have any obligation to close the Transaction if the
Transaction for any reason constitutes a prohibited transaction under Section
406 of ERISA or if representations of Buyer d are found to be false or
misleading in any respect.
14.15 LIKE-KIND EXCHANGE. Buyer agrees to cooperate reasonably with Seller
in effecting an exchange transaction which includes the Property, pursuant to
Section 1031 of the Code, provided that any such exchange transaction, and
the related documentation, shall: (a) be at the sole cost and expense of
Seller, (b) not require Buyer to execute any contract, make any commitment,
or incur any obligations, contingent or otherwise, to third parties, (c) not
cause Buyer to be liable or potentially liable for any environmental
conditions affecting property other than the Property, (d) not delay the
closing or the transaction contemplated by this Agreement , (e) not include
Buyer's acquiring title to any property other than the Property or otherwise
becoming involved in an transaction with a third party, and (f) not otherwise
be contrary to or inconsistent with the terms of this Agreement.
Notwithstanding anything to the contrary contained herein, Buyer is not to
incur any, and Seller shall reimburse, indemnify and hold Buyer harmless
from, any and all costs, expenses and liabilities incurred solely from
Buyer's accommodation of such tax deferred exchange, including, without
limitation, reasonable attorneys' fees, and any title or escrow fees or
expenses. The obligations of Buyer under this paragraph shall survive the
execution and delivery of this Agreement and the Closing and shall not be
merged therein.
14.16 BUYER'S AUDIT RIGHTS. Seller acknowledges that Buyer is required to
have audits performed of the records of the real properties acquired by
Buyer. Accordingly, for the period from the Opening of Escrow through
December 31 of the calendar year following the Closing Date, upon fifteen
(15) days advance written notice from Buyer, Seller agrees to make available
36
to Buyer's independent accountants those items respecting the Property
described in EXHIBIT Q attached hereto. The obligations of Seller under this
subsection shall survive the Closing.
14.17 WAIVER OF DECEPTIVE TRADE PRACTICES ACT. BUYER AND SELLER EACH
ACKNOWLEDGE, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUCCESSORS AND ASSIGNS,
THAT THE TEXAS DECEPTIVE TRADE PRACTICES CONSUMER PROTECTION ACTION,
SUBCHAPTER E OF CHAPTER 17 OF THE TEXAS BUSINESS AND COMMERCE CODE ("DTPA"),
IS NOT APPLICABLE TO THIS TRANSACTION. ACCORDINGLY, THE RIGHTS AND
REMEDIES OF BUYER AND SELLER WITH RESPECT TO ALL ACTS OR PRACTICES OF THE
OTHER, PAST, PRESENT OR FUTURE, IN CONNECTION WITH THE TRANSACTION, SHALL BE
GOVERNED BY LEGAL PRINCIPLES OTHER THAN DTPA. IN FURTHERANCE THEREOF, BUYER
AND SELLER EACH AGREE AS FOLLOWS:
(a) Buyer represents that it is represented by legal counsel, is a
business consumer and that Buyer seeks to acquire by purchase or
lease the goods or services (i.e., the Property) that is the
subject of this Agreement for commercial or business use. Buyer
and Seller each represent to the other that they have knowledge and
experience in financial and business matters that enable it to
evaluate the merits and risks of the Transaction. Buyer and Seller
each further represent to the other that they are not in a
significantly disparate bargaining position in relation to one
another.
(b) Buyer represents to Seller that it either has assets of FIVE
MILLION AND NO/100 DOLLARS ($5,000,000.00) or more or it is owned
or controlled by a corporation or entity with assets of TWENTY-FIVE
MILLION AND NO/100 DOLLARS ($25,000,000.00) or more.
(c) Buyer and Seller each agrees, on its own behalf and on behalf of
its assigns and successors, that all of the rights and remedies
under the DTPA are WAIVED AND RELEASED, including specifically,
without limitation, all rights and remedies resulting from or
arising out of any and all acts or practices of the other party in
connection with the Transaction, regardless of whether such acts or
practices occur before or after the execution of this Agreement.
Notwithstanding anything to the contrary herein and in accordance
with Section 17.42 of the DTPA, neither party hereto waives Section
17.555 of the DTPA. THE PROVISIONS OF THIS SECTION 14.17 SHALL
SURVIVE THE CLOSING. Buyer agrees to have its attorney execute
this Agreement in order to effect this provision in accordance with
Section 17.42 of the DTPA.
THIS WAIVER IS AGREED TO: BUYER'S INITIALS ( ) ________________________
SELLER'S INITIALS ( ) BUYER'S ATTORNEY
37
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly
executed on its behalf on the day and year first above written.
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By: ____________________________
Name: Xxxxxxx X. Xxxxxxxx
Its: Vice President
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By: ____________________________
Name:__________________________
Its: ____________________________
The undersigned has executed this
Agreement solely to confirm its
agreement to act as Escrow Agent and
(i) to hold the Escrow Deposits in escrow
in accordance with the provisions of ARTICLE 12,
(ii) to report the Transaction pursuant to
Section 6045(e) of the Code as described in
ARTICLE 14, (iii) to comply with the
closing provisions of ARTICLE 6, and (iv) to
provide a Release to Buyer and Seller under
conditions described in ARTICLE 3.
First American Title Insurance Company
By: ______________________
Name: Xxxx X. ("Xxxx") Xxxxxx, Vice President
Date: May ___, 1997
38
EXHIBIT A
TEXAS PROPERTY PACKAGE
PRUDENTIAL
PROPERTY # PROPERTY NAME LOCATION EXHIBIT
---------- ------------- -------- -------
00039000 EXCHANGE SERVICE CENTER ARLINGTON, TX A-1
01152006 HIGHLAND SUPER STORE DALLAS, TX A-2
01315000 PINEMONT DISTRIBUTION CENTER HOUSTON, TX A-11
01316000 PERIMETER DISTRIBUTION CENTER HOUSTON, TX A-12
01317000 BRITTMORE DISTRIBUTION CENTER HOUSTON, TX A-13
01318000 PINE NORTH DISTRIBUTION CENTER HOUSTON, TX X-00
XXXXXXX X-0
EXCHANGE SERVICE CENTER
ARLINGTON, TEXAS
BEING a tract of land in the X. Xxxxxx Survey, Abstract No. 704, Tarrant County,
Texas, a part of that certain 164.868 acre tract of land described in deed to
Vantage Investment Properties, Inc. by Great Southwest Corporation, and being
all of Sites 1 and 2 of the Third Installment, Six Flags Business Park, an
addition to the City of Arlington, Texas, as recorded in Volume 388-65, Page 20
of the Map Records of Tarrant County, Texas, and being more particularly
described as follows:
BEGINNING at a 1/2-inch iron rod with a yellow plastic cap stamped "Halff
Assoc., Inc." (hereafter referred to as "with cap") set at the northeast corner
of said Site 1, and being in the south line of the T & P and G S RR Interchange
and Yard as recorded in Volume 3202, Pages 68 and 332 of the Deed Records of
Tarrant County, Texas, said point being west, a distance of 25.00 feet along the
said south line from the northwest corner of a tract conveyed to T.E.S. Company
by deed recorded in Volume 3137, Page 355 of the Deed Records of Tarrant County,
Texas;
THENCE South, departing said south line a distance of 335.00 feet to a 1/2-inch
iron rod with cap found in the north line of Exchange Drive;
THENCE West, along the north line of Exchange Drive a distance of 1214.43 feet
to an "L" scribed in concrete for the beginning of a circular curve to the left
having a radius of 630.00 feet;
THENCE Westerly, continuing along said north line and along said curve through a
central angle of 13 degrees 55 minutes 16 seconds, an arc distance of 153.06
feet to a 1/2-inch iron rod with cap found for a corner;
THENCE North, departing said north line, a distance of 353.50 feet to a 1/2-inch
iron rod with cap set in said T & P and G S RR Yard south line;
THENCE East, along said south line, a distance of 1366.00 feet to the POINT OF
BEGINNING AND CONTAINING 458,540 square feet or 10.527 acres of land, more or
less.
EXHIBIT A-2
HIGHLAND SUPER STORE
DALLAS, TEXAS
BEING a tract of land in the Xxxx X. Xxxxxxx Survey, Abstract No. 885, and being
that tract of land known as Xxxxx X/0000, Xxxxxxx Xxxxxxxxxxxx Xxxxxx, Xxxxx I,
an Industrial Subdivision, as platted for record in Volume 85117, Page 5792, Map
Records, Dallas County, Texas, and being more particularly described as follows:
BEGINNING at a 1/2-inch iron rod with a yellow plastic cap stamped "X. X. XXXXX
ASSOC." (hereafter referred to as "with cap") found at the northwest corner of
said Redbird Distribution Center, Phase I;
THENCE South 89 degrees 43 minutes 48 seconds East, along the north line of said
Redbird Distribution Center, Phase I, a distance of 1473.82 feet to a 1/2-inch
found iron rod with cap at the northerly common corner between said Block D/8026
and Block E/8026;
THENCE South 00 degrees 16 minutes 12 seconds West, departing said north line
and along said common line, a distance of 475.00 feet to a 1/2-inch found iron
rod with cap in the north right-of-way line of Highland Place Drive (60-foot
right-of-way);
THENCE North 89 degrees 43 minutes 48 seconds West, departing said common line
and along said north right-of-way line, passing the point of curvature at
1008.30 feet, and continuing along the south line of said Block D/8026, a total
distance of 1468.70 feet to a 1/2-inch found iron rod with cap in the west line
of said Phase I, also being the southwest corner of said Block D/8026;
THENCE North 00 degrees 20 minutes 50 seconds West, along the west line of said
Phase I, a distance of 475.03 feet to the POINT OF BEGINNING AND CONTAINING
698,849 square feet or 16.0434 acres of land, more or less.
EXHIBIT X-00
XXXXXXXX XXXXXXXXXXXX XXXXXX
XXXXXXX, XX
-----------
Field note description of a tract of land containing 5.6920 acres (247,944
square feet) which is out of Unrestricted Reserve "A" of the REPLAT OF
PINEWAY SOUTH as recorded in Volume 218, Page 12 of the Xxxxxx County Map
Records, and being that same tract described in a Substitute Trustee's Deed
to The Prudential Insurance Company of America recorded under Xxxxxx County
Clerk's File No. M508772, in the Xxxxxxx X. Xxxxxxx Survey, Abstract No. 848,
in the City of Houston, Xxxxxx County, Texas, said 5.6920 acre tract being
more particularly described by metes and bounds as follows (all bearings are
referenced to the aforesaid REPLAT OF PINEWAY SOUTH):
COMMENCING at a 5/8-inch iron rod found on the northerly right-of-way line of
Clay Road (100 feet wide) which marks the southwest end of the corner cut
back line at the intersection of the northerly right-of-way line said Clay
Road with the westerly right-of-way line of South Pinemont Drive (width
varies), said point also marks the most southerly southeast corner of said
Unrestricted Reserve "A" of the REPLAT OF PINEWAY SOUTH and a called 5.0441
acre tract described in a deed to Pinemont GPI, LTD. recorded under Xxxxxx
County Clerk's File No. S124169;
THENCE, North 42DEG. 34' 32" East, along said corner cut back line a distance
of 14.17 feet to a 5/8-inch iron rod found on the westerly right-of-way line
of said Xxxxx Xxxxxxxx Xxxxx;
XXXXXX, Xxxxx 00XXX. 19' 19" West, along the said westerly right-of-way line
of South Pinemont Drive, a distance of 30.29 feet to an "X" cut in concrete
found for the point of curvature of a curve to the right;
THENCE, in a northerly direction, continuing along the said westerly
right-of-way line of South Pinemont Drive, and along said curve to the right
having a radius of 1,000.00 feet, a central angle of 05DEG. 43' 56", (a chord
which bears North 00DEG. 32' 39" East for 100.00 feet), an arc distance of
100.05 feet to a 5/8-inch iron rod found at a point of reverse curvature;
THENCE, in a northerly direction, continuing along said westerly right-of-way
line and along said curve to the left having a radius of 1,000.00 feet, a
central angle of 05DEG. 43' 56", (a chord which bears North 00DEG. 32' 39"
East for 100.00 feet), an arc distance of 100.05 feet to an "X" found cut in
concrete found at the point of tangency of said curve;
THENCE, North 02DEG. 19' 19" West, continuing along said right-of-way line a
distance of 427.71 feet to an "X" found cut in a concrete driveway which
marks the southeast corner of the aforesaid Prudential Insurance Company
tract, the northeast corner of the said 5.0441 acre tract and the southeast
corner and POINT OF BEGINNING of this herein described tract;
THENCE, South 87DEG. 40' 41" West, along the southerly line of the said
Prudential Insurance Company tract, and the northerly line of the said 5.0441
acre tract a distance of 332.00 feet to a
5/8-inch iron rod found in the westerly line of said Unrestricted Reserve "A"
and the easterly line of Block E of OUTPOST ESTATES Sec. 1 as recorded in
Volume 37, Page 36 of the Xxxxxx County Map Records, said point marks the
southwest corner of the said Prudential Insurance Company tract and the
northwest corner of the said 5.0441 acre tract;
THENCE, North 02DEG. 19' 19" West, along the westerly line of the said
Prudential Insurance Company tract, the said westerly line of Unrestricted
Reserve "A" and the said easterly line of Block E of OUTPOST ESTATES Sec. 1 a
distance of 746.81 feet to a 5/8-inch iron rod found at the northwest corner
of the said Prudential Insurance Company tract and the southwest corner of a
called 1.6272 acre tract described in a deed to Xxxxxx X. Xxxxxxx recorded
under Xxxxxx County Clerk's File No. N314140;
THENCE, North 87DEG. 40' 41" East, along the northerly line of the said
Prudential Insurance Company tract and the southerly line of the aforesaid
1.6272 acre a distance of 332.00 feet to a 5/8-inch iron rod found on the
easterly line of said Unrestricted Reserve "A" and the said westerly
right-of-way line of South Pinemont Drive which marks the northeast corner of
said Prudential Insurance Company tract and the southeast corner of the said
1.6272 acre tract;
THENCE, South 02DEG. 19' 19" East, along the said easterly line of
Unrestricted Reserve "A", the said westerly right-of-way line of South
Pinemont Drive and the easterly line of the said Prudential Insurance Company
tract a distance of 746.81 feet to the POINT OF BEGINNING and containing a
computed area of 5.6920 acres (247,944 square feet). This description is
based on a ground survey completed February 27, 1997 and is submitted in
conjunction with a survey drawing completed August 20, 1993 and updated March
18, 1997, Xxxxx Surveying Company Job No. 97-02-3952.
EXHIBIT A-12
PERIMETER DISTRIBUTION CENTER
HOUSTON, TX
Legal description of a 7.0812 acre tract of land out of the Xxxxxx Xxxxx Survey,
a-326 Xxxxxx County, Texas
Being a 7.0812 acre (308,457 square feet) tract of land out of a 9.3794 acre
tract of land located in the Xxxxxx Xxxxx Survey, abstract No. 326, Xxxxxx
County, Texas, said 9.3794 acre tract of land also being out of Restricted
Reserve "A", Block 1 of Perimeter Park subdivision, a subdivision per map or
plat thereof recorded in Volume 295, Page 62 of the map records of Xxxxxx
County, Texas, said 9.3794 acre tract of land being more particularly described
by metes and bounds as follows:
Beginning at a found 5/8 inch iron rod for the northwest corner of Restricted
Reserve "A", said northwest corner also being on the southwest right of way
of a 100 foot wide H. & T.C. railroad right of way as recorded in Volume S,
Page 600 of the Xxxxxx County map records and the east line of a called 20
foot wide T. and N.O. railroad easement recorded under Xxxxxx County Film
Code No. ###-##-####;
Thence south 52 degrees 44 minutes 30 seconds east, at 154.56 feet pass a
found 5/8 inch iron rod marking the northerly right of way line of a 2.2982
acre tract of land (called 2.3011 acres) taken in condemnation proceedings by
the county of Xxxxxx as set forth in that final judgment filed of record
under H.C.C.F. No. M-166347, a distance of 545.40 feet to a found 5/8 inch
iron rod for corner and the southerly right of way line of said 2.2982 acre
tract of land and the most northerly northwest corner of that certain 2.8073
acre tract of land conveyed to XxXxxxxx X.X. as per that certain general
warranty deed recorded in H.C.C.F. No. L-419781;
Thence south 66 degrees 29 minutes 57 seconds west and along said southerly
right of way line and along the westerly line of said 2.8073 acre tract of land,
a distance of 36.87 feet to a found 5/8 inch iron rod for corner;
Thence north 52 degrees 43 minutes 58 seconds west, a distance of 2.74 feet to a
found 5/8 inch iron rod for corner;
Thence south 37 degrees 21 minutes 27 seconds west, a distance of 2.19 feet to a
found 5/8 inch iron rod for corner;
Thence north 52 degrees 38 minutes 33 seconds west, a distance of 4.00 feet to a
found 5/8 inch iron rod for corner;
Thence south 37 degrees 21 minutes 27 seconds west, a distance of 9.90 feet to a
found 5/8 inch iron rod for corner;
Thence south 66 degrees 29 minutes 57 seconds west, a distance of 73.23 feet to
a found 5/8 inch iron rod for corner and the point of curvature on a curve to
the left whose chord bears south 66 degrees 07 minutes 34 seconds west and a
chord distance of 24.95 feet;
Thence along said curve to the left having a central angle of 00 degrees 44
minutes 46 seconds and a radius of 1916.02 feet, an arc distance of 24.95 feet
to a found "x" cut in concrete for corner;
Thence departing from said county of Xxxxxx right of way and along the common
line between the aforementioned 2.8073 acre tract of land and the herein
described 9.3794 acre tract of land on a bearing of south 02 degrees 34 minutes
35 seconds east, a distance of 186.81 feet to a found "x" cut in concrete;
Thence continuing along said common line and on a bearing of south 52 degrees 43
minutes 31 seconds east, a distance of 315.03 feet to a found "x" cut in
concrete;
Thence continuing along said common line and on a bearing of north 87 degrees 29
minutes 46 seconds east, a distance of 128.20 feet to a "x" cut in concrete for
corner, said "x" cut in concrete also being on the west right of way line of
perimeter road (60 foot wide) as recorded as per the plat of Perimeter Park
subdivision and being a point on a non-tangent curve to the left whose chord
bears south 02 degrees 09 minutes 23 seconds west, a chord distance of 53.63
feet;
Thence along said west right of way of Perimeter Road and along said curve to
the left having a radius of 330.00 feet and a central angle of 09 degrees 19
minutes 20 seconds, an arc length of 53.69 feet to a set 3/8 inch iron rod for
the point of tangency of said curve;
Thence continuing along said right of way line and on a bearing of south 02
degrees 30 minutes 05 seconds east, a distance of 226.03 feet to a found 3/8
inch iron rod for the southeast corner of the herein described 9.3794 acre tract
of land;
Thence south 87 degrees 29 minutes 55 seconds west, departing from the west
right of way line of Perimeter Road and along the south line of the herein tract
of land, a distance of 651.50 feet to a found 5/8 inch iron rod for the
southwest corner of the herein described 9.3794 acre tract of land, said corner
also being on the east line of the aforementioned 20 foot wide t. And N.O.
railroad easement;
Thence north 02 degrees 14 minutes 06 seconds west, along said west line of
Restricted Reserve "A", at 526.97 feet pass the south line of the aforementioned
2.2982 acre tract and at 892.20 feet pass the north line of said 2.2982 acre
tract of land, and continuing for a total distance of 1070.18 feet to the point
of beginning and containing 9.3794 acres of land, more or less, less, save and
except the aforementioned 2.2982 acre tract of land, said 2.2982 acre tract of
land being more particularly described as follows:
Commencing at a found 5/8 inch iron rod for the northwest corner of Restricted
Reserve "A", said northwest corner also being on the southwest right of way of a
100 foot wide H. & T.C.
railroad right of way as recorded in Volume S, Page 600 of the Xxxxxx County
map records and the east line of a called 20 foot wide T. and N.O. Railroad
easement recorded under Xxxxxx County Film Code No. 000-00-0000;
Thence south 52 degrees 44 minutes 30 seconds east, a distance of 154.56 feet to
a found 5/8 inch iron rod for the point of beginning of the herein described
2.2982 acre tract of land (called 2.3011 acres) taken in condemnation
proceedings by the county of Xxxxxx as set forth in that final judgment filed of
record under H.C.C.F. No. M-166347;
Thence continuing south 52 degrees 44 minutes 30 seconds east, a distance of
390.84 feet to a found 5/8 inch iron rod for corner and the southerly right of
way line of said 2.2982 acre tract of land and the most northerly northwest
corner of that certain 2.8073 acre tract of land conveyed to XxXxxxxx X.X. as
per that certain general warranty deed recorded in H.C.C.F. No. L-419781;
Thence south 66 degrees 29 minutes 57 seconds west and along said southerly
right of way line and along the westerly line of said 2.8073 acre tract of land,
a distance of 36.87 feet to a found 5/8 inch iron rod for corner;
Thence north 52 degrees 43 minute 58 seconds west, a distance of 2.74 feet to a
found 5/8 inch iron rod for corner;
Thence south 37 degrees 21 minutes 27 seconds west, a distance of 2.19 feet to a
found 5/8 inch iron rod for corner;
Thence north 52 degrees 38 minutes 33 seconds west, a distance of 4.00 feet to a
found 5/8 inch iron rod for corner;
Thence south 37 degrees 21 minutes 27 degrees west, a distance of 9.90 feet to a
found 5/8 inch iron rod for corner;
Thence south 66 degrees 29 minutes 57 seconds west, a distance of 73.23 feet to
a found 5/8 inch iron rod for corner and the point of curvature on a curve to
the left whose chord bears south 61 degrees 23 minutes 46 seconds west and a
chord distance of 340.84 feet;
Thence along said curve to the left having a central angle of 10 degrees 12
minutes 21 seconds and a radius of 1916.02 feet, an arc distance of 341.29 feet
to a found 5/8 inch iron rod for corner, said corner also being on the east line
of the aforementioned 20 foot wide T. and N.O. railroad easement;
Thence north 02 degrees 14 minutes 06 seconds west, along said west line of
Restricted Reserve "A", a distance of 365.23 feet for the northwest corner of
said 2.2982 acre tract and the point of beginning of a non-tangent curve to the
right having a chord bearing north 54 degrees 00 minutes 41 seconds east and a
chord distance of 105.12 feet;
Thence along said curve to the right having a central angle of 02 degrees 49
minutes 45 seconds east and a radius of 2129.00 feet, an arc distance of 105.13
feet to the point of tangency and corner;
Thence north 54 degrees 02 minutes 50 seconds east, a distance of 38.32 feet for
the point of beginning and containing 2.2982 acres of land for a net acreage of
7.0812 acres of land.
EXHIBIT A-13
BRITTMORE DISTRIBUTION CENTER
HOUSTON, TX
Field note description of 12.9373 acres (563,549 square feet) of land, out of
Unrestricted Reserve "A" of Hammerly Industrial Park subd., according to the
map or plat thereof recorded in Volume 296, Page 107 of the map records,
Xxxxxx County, Texas, said 12.9373 acre tract being more particularly
described by metes and bounds as follows; [bearings referenced to the
south line of said Hammerly Industrial Park subd., bearing S 87 DEG.
52' 34" w]:
BEGINNING at a 1/2 inch iron rod pipe found in the East right-of-way line of
Brittmore Road (80 feet wide), for the Southwest corner of said Hammerly
Industrial Park and the herein described tract;
THENCE, N 01 DEG. 54' 45" W, along the East line of Brittmore Road, a
distance of 608.00 feet to a P.K. nail found in concrete for the Northwest
corner of the herein described tract;
THENCE, N 87 DEG. 52' 34" E, a distance of 820.00 feet to a found 5/8 inch
iron rod for the most Northeasterly corner of the herein described tract;
THENCE, S 02 DEG. 07' 26" E, a distance of 324.07 feet to a 5/8 inch iron rod
found marking an interior corner of the herein described tract;
THENCE, S 79 DEG. 22' 26" E, a distance of 29.27 feet to a 5/8 inch iron rod
found at the point of curvature of a non-tangent curve to the Right having a
radial line that bears S 13 DEG. 14' 45" W;
THENCE, Southeasterly, along and with said curve to the Right having a radius
of 468.37 feet, a central angle of 46 DEG. 41' 24" an arc length of 381.67
feet and a chord bearing S 53 DEG. 24' 32" E, for a distance of 371.20 feet
to a 5/8 inch iron rod found on the East line of Hammerly Industrial Park,
said iron xxx xxxxx an exterior corner of the herein described tract;
THENCE, S 01 DEG. 21' 06" E, along the East line of Hammerly Industrial Park,
a distance of 45.30 feet, to a 5/8 inch iron rod found for the Southeast
corner of the herein described tract;
THENCE, S 87 DEG. 52' 34" W, along the South line of Hammerly Industrial
Park, a distance of 1139.81 feet to the POINT OF BEGINNING and containing
12.9373 acres (563,549 square feet) of land.
EXHIBIT X-00
XXXX XXXXX XXXXXXXXXXXX XXXXXX
XXXXXXX, XX
A parcel of land containing 5.8343 acres (254,142 square feet) being a part of
Xxxxx 0, Xxxxxxxxxxxx Xxxxxxx X, Xxxxxxx Xxxxx Subdivision according to the Plat
thereof recorded in Volume 290, Page 49, Map Records, Xxxxxx County, Texas, said
tract being in the Xxxxxxx Xxxxxx Survey, Abstract No. 670, Houston, Xxxxxx
County, Texas and being more particularly described as follows;
BEGINNING at a point, said point being in the north line of said Pineway North
Subdivision, said point being in the east line of Guhn Road (60 feet wide) and
in the south line of Block 9, Fawndale Center as recorded in Volume 21, Page 15,
Map Records, Xxxxxx County, Texas, from said corner a found iron rod with Xxxxx
Surveying cap bears S 73 DEG W, 1.26 feet in length;
THENCE N 87 DEG 21' 10" E, along the said north line of Pineway North
Subdivision and the said south line of Block 9, Fawndale Center a distance of
611.42 feet to a 4"x 4" wood fence post at the northeast corner of said Pineway
North Subdivision, from said corner a found 5/8 inch iron rod bears
S 03 DEG 50' 40" E, 1.13 feet in length;
THENCE S 03 DEG 50' 40" E, along the east line of said Pineway North
Subdivision, at a distance of 316.52 feet pass a found 1/2 inch iron rod being
3.03 feet east of property line, in all a total distance of 467.54 feet to a
found 5/8 inch iron rod;
THENCE S 86 DEG 09' 20" W, a distance of 447.02 feet to an "X" found in concrete
in the east line of said Guhn Road;
THENCE along the east line of said Guhn Road and the arc of a 530.00 foot radius
curve to the left, through a central angle of 10 DEG 54' 17", a distance of
100.87 feet to a found 5/8 inch iron rod, said curve being subtended by a chord
bearing N 21 DEG 34' 45" W, 100.72 feet in length;
THENCE 27 DEG 01' 54" W, continuing along the east line of said Guhn Road a
distance of 273.82 feet to a found 5/8 inch iron rod at the beginning of a
320.00 foot radius curve to the right;
THENCE along said east line of Guhn Road and the arc of said curve to the right,
through a central angle of 24 DEG 23' 04", a distance of 136.19 feet to the
POINT OF BEGINNING and containing 5.8343 acres (254,142 square feet) of land,
said curve being subtended by a chord bearing N 14 DEG 30' 22" W, 135.16 feet
in length.
EXHIBIT B
ALLOCATION OF PURCHASE PRICE
PROJECT DESCRIBED ALLOCATED PRICE
----------------- ---------------
Exhibit $
A-1 EXCHANGE SERVICE CENTER 5,579,161
A-2 HIGHLAND SERVICE CENTER 7,830,000
A-11 PINEMONT DISTRIBUTION 2,988,440
A-12 PERIMETER DISTRIBUTION 3,291,437
A-13 BRITTMORE DISTRIBUTION 8,099,212
A-14 PINE NORTH DISTRIBUTION 3,267,181
EXHIBIT C
REPORTS ISSUED BY FIRST AMERICAN TITLE INSURANCE COMPANY
PROPERTY DESCRIBED COMMITMENT # / NATIONAL ACC.#
------------------ -----------------------------
EXHIBIT
A-1 97R01107 CR3 NA19805
A-2 97R01106 CR3 NA19804
A-11 531070 NA19806
A-12 531071 NA19807
A-13 531075 NA19808
A-14 531074 NA19809
EXHIBIT C-1
BUYER'S CERTIFICATION OF NO REPRESENTATIONS
To: THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
From: MERIDIAN INDUSTRIAL TRUST, INC.
State of California
County of
Before me the undersigned notary public in and for the State of California, this
day personally appeared known to me to be the President of MERIDIAN INDUSTRIAL
TRUST, INC., a Maryland corporation, who being by me first duly sworn, before
me under oath and penalty of perjury says:
1. That he or she is the President of MERIDIAN INDUSTRIAL TRUST, INC., a
Maryland corporation, and
2. That said MERIDIAN INDUSTRIAL TRUST, INC. is the Buyer in that certain
Purchase and Sale Agreement dated the day of May, 1997 (the
"Agreement"), and
3. That subsection 4.5 of the Agreement requires a Buyer's Certification from
an authorized officer of Buyer confirming and certifying it's acceptance and
acknowledgment of all matters set forth in Article 4 and in subsection 8.1.3
of the Agreement, copies of which are attached hereto incorporated herein as
Exhibit A and Exhibit B, and
4. That without limiting the matters certified to as set forth in Article 4 and
in subsection 8.1.1 and 8.1.2 of the Agreement, the undersigned on behalf of
the Buyer is hereby certifies that Seller, its officers, employees, agents
and legal counsel have made no representations or warranties concerning the
Property except as specifically set forth in the Agreement and the
conveyance documents, and
5. That he or she has been duly authorized by the Board of Directors of
MERIDIAN INDUSTRIAL TRUST, INC. to confirm and acknowledge the matters set
forth in Article 4 and in subsection 8.1.1 and 8.1.2 of the Agreement and he
or she knows of no fact or facts which would alter , amend or modify the
understandings, statements or agreements stated therein.
8. That the undersigned understands that the Seller in the Agreement is relying
upon this representation.
Sworn and subscribed this day of , 1997.
------------------------
Notary Public, State of
My Commission Expires:
EXHIBIT D
XXXX OF SALE
STATE OF ILLINOIS )
) KNOW ALL MEN BY THESE PRESENTS THAT:
COUNTY OF XXXX )
WHEREAS, by deed of even date herewith, THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation ("Seller") conveyed to MERIDIAN INDUSTRIAL
TRUST, INC., a Maryland corporation ("Buyer"), whose mailing address is 000
Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000, those parcels of land more
particularly described in EXHIBIT "A" attached hereto as a part hereof, together
with all improvements located thereon ("Real Property").
WHEREAS, in connection with the above described conveyance Seller desires to
sell, transfer and convey to Buyer certain items of tangible personal property
as hereinafter described.
NOW, THEREFORE, in consideration of the receipt of TEN AND NO/100 DOLLARS
($10.00) and other good and valuable consideration paid in hand by Buyer to
Seller, the receipt and sufficiency of which are hereby acknowledged, Seller has
GRANTED, CONVEYED, SOLD, TRANSFERRED, SET OVER and DELIVERED and by these
presents does hereby GRANT, SELL, TRANSFER, SET OVER and DELIVER to Buyer, its
legal representatives, successors and assigns, all of its right, title and
interest in and to all fixtures, fittings, appliances, apparatus, equipment,
machinery, and all other items of personal property owned by the Seller which
are affixed or attached to or placed or situated upon the Real Property and used
in the operation and management thereof (excluding any computer equipment and
software) (collectively the "Personal Property"), to have and to hold, all and
singular, the Personal Property unto Buyer forever.
Seller does hereby bind itself, its legal representatives, successors and
assigns, to WARRANT, and FOREVER DEFEND title to the Personal Property unto
Buyer, its legal representatives, successors and assigns, against every person
whomsoever lawfully claiming or to claim same or any part thereof, by, through
or under Seller, but not otherwise.
SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE CONDITION OF THE
PERSONAL PROPERTY OR ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE. BY ITS ACCEPTANCE OF THIS XXXX OF SALE, BUYER ACKNOWLEDGES THAT
IT HAS FULLY INSPECTED THE PERSONAL PROPERTY AND BUYER ACCEPTS THE SAME IN
ITS PRESENT USED AND "AS IS" CONDITION.
SELLER AND BUYER AGREE THAT THE PERSONAL PROPERTY IS SOLD, AND THAT BUYER
ACCEPTS POSSESSION OF THE PERSONAL PROPERTY, "AS IS, WHERE IS, WITH ALL
FAULTS", AND THAT, EXCEPT FOR THE LIMITED WARRANTY OF TITLE GIVEN
HEREINABOVE, SUCH SALE IS MADE
WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE WHATSOEVER BY
SELLER, SELLER'S SALES AGENTS OR BROKERS, ANY PARTNER OR SELLER OR ITS
SALES AGENTS OR BROKERS, OR ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT OR
ATTORNEY OF SELLER OR ITS SALES AGENTS OR BROKERS, OR ANY OTHER PARTY
RELATED IN ANY WAY TO ANY OF THE FOREGOING (COLLECTIVELY, THE "SELLER
PARTIES"), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, WARRANTY OF INCOME POTENTIAL, OPERATING EXPENSES,
USES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSES, AND SELLER AND
EACH OF THE SELLER PARTIES DOES HEREBY DISCLAIM AND RENOUNCE ANY SUCH
REPRESENTATION OR WARRANTY. BY ITS ACCEPTANCE OF THIS XXXX OF SALE, BUYER
SPECIFICALLY ACKNOWLEDGES THAT, EXCEPT FOR THE LIMITED WARRANTY OF TITLE
GIVEN HEREINABOVE, BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, FROM SELLER OR ANY OTHER SELLER PARTIES AS TO ANY
MATTERS CONCERNING THE PERSONAL PROPERTY, AND BUYER FURTHER ACKNOWLEDGES
AND AGREES THAT SELLER IS UNDER NO DUTY TO MAKE ANY AFFIRMATIVE DISCLOSURES
REGARDING ANY MATTER WHICH MAY BE KNOWN TO SELLER, ITS OFFICERS, DIRECTORS,
CONTRACTORS, AGENTS OR EMPLOYEES, AND THAT IT IS RELYING SOLELY UPON ITS
OWN INSPECTION OF THE PERSONAL PROPERTY AND NOT UPON ANY REPRESENTATIONS
MADE TO IT BY ANY PERSON WHOMSOEVER AND THAT BUYER ACCEPTS THE PERSONAL
PROPERTY IN ITS PRESENT USED AND "AS IS, WHERE IS, WITH ALL FAULTS"
CONDITION.
EXECUTED this __ day of , 1997, TO BE EFFECTIVE as of the _____
day of ___________________, 1997.
SELLER:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA,
a New Jersey corporation
By:________________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
STATE OF ILLINOIS )
)
COUNTY OF XXXX )
This instrument was acknowledged before me on __________, 1997 by Xxxxxxx X.
Xxxxxxxx, Vice President of The Prudential Insurance Company of America, a New
Jersey corporation, on behalf of said corporation.
______________________________________
_______________________, Notary Public
My Commission Expires:
______________________
EXHIBIT E-1
ASSIGNMENT OF TENANT LEASES
THIS ASSIGNMENT OF TENANT LEASES ("Assignment"), is made by and between THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation
("Assignor") and MERIDIAN INDUSTRIAL TRUST, INC., a Maryland corporation
("Assignee").
W I T N E S S E T H:
WHEREAS, by Purchase and Sale Agreement ("Sale Agreement") dated as of May
___, 1997, by and between Assignor and Assignee, Assignor agreed to sell to
Assignee certain real property, and the improvements located thereon
("Property") as more particularly described in the Sale Agreement; and
WHEREAS, the Sale Agreement provides, INTER ALIA, that Assignor shall assign
to Assignee certain leases and Assignee shall assume all of the obligations
of Seller under such leases.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. ASSIGNMENT OF TENANT LEASES. Assignor hereby assigns, sets over and
transfers to Assignee all of its right, title and interest in, to and under
those certain tenant space leases set forth in EXHIBIT "E-2" attached hereto
as a part hereof ("Leases"). Assignee hereby assumes all liabilities and
obligations of Assignor under the Leases and indemnifies and holds harmless
Assignor from all of the liabilities and obligations of Assignor under the
Leases.
2. MISCELLANEOUS. This Assignment and the obligations of the parties
hereunder shall survive the closing of the transaction referred to in the
Sale Agreement, shall be binding upon and inure to the benefit of the parties
hereto, their respective legal representatives, successors and assigns, shall
be governed by and construed in accordance with the laws of the State of
Texas applicable to agreements made within said State and may not be
modified or amended in any manner other than by a written agreement signed by
the party to be charged therewith.
EXECUTED this ___ day of , 1997, TO BE EFFECTIVE as of the _____
day of ____________, 1997.
ASSIGNOR:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey corporation
By:________________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
ASSIGNEE:
MERIDIAN INDUSTRIAL TRUST, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
EXHIBIT E-2
LIST OF LEASES
EXH. PROPERTY NAME LEASES
---- ------------- ------
A-1 EXCHANGE SERVICE CENTER THE XXXXXX GROUP
GULF SYSTEMS, INC.
GATX LOGISTICS
A-2 HIGHLAND SUPER STORE TREE OF LIFE
A-11 PINEMONT DISTRIBUTION CENTER ACR SUPPLY, INC.
XXXXXX SAN XXXXXX & CO.
WESTINGHOUSE ASSIGNED LEASE TO XXXXXX-
XXXXXX, INC.
ATT HEADWEAR, INC.
GOLDEN CREEK CARPET, INC.
GOLDEN CREEK CARPET, INC.
THE TUDOR MINT
A-CUSTOM CHOP OF TEXAS
A-12 PERIMETER DISTRIBUTION CENTER THE XXXXXX GROUP
PENNZOIL PRODUCTS
SUN INVENTORY MANAGEMENT CORP.
INTERNATIONAL GROCERS
ICEE USA, INC.
PRESIDENT BAKING CO.
A-13 BRITTMORE DISTRIBUTION CENTER ITL INDUSTRIAL TIRES
MITSUBISHI CATERPILLAR FORKLIFT
IGLOO PRODUCTS CORP.
MITSUBISHI CATERPILLAR FORKLIFT
XXXXX /CW. INC.
DHL AIRWAYS
FLEXIBLE LINE UNDERGROUND TECHNOLOGIES,
INC.
HLF DISTRIBUTORS
FANDELI INTERNATIONAL CORP.
XXXXXX XXXXXXX SOUTHWEST CORP.
A-14 PINE NORTH DISTRIBUTION CENTER ALAMO IRONWORKS
TIME WARNER CABLE
THE SERVICE CENTER
EXHIBIT F
ASSIGNMENT OF WARRANTIES/GUARANTIES
THIS ASSIGNMENT OF WARRANTIES/GUARANTIES ("Assignment"), is made by and between
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation
("Assignor") and MERIDIAN INDUSTRIAL TRUST, INC., a Maryland Corporation
("Assignee").
W I T N E S S E T H:
WHEREAS, by Purchase and Sale Agreement ("Sale Agreement") dated as of May ___,
1997, by and between Assignor and Assignee, Assignor agreed to sell to Assignee
certain real property, and the improvements located thereon ("Property") as more
particularly described in the Sale Agreement; and
WHEREAS, the Sale Agreement provides, INTER ALIA, that Assignor shall assign to
Assignee certain warranties and guarantees, and that Assignor and Assignee shall
enter into this Assignment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. ASSIGNMENT OF WARRANTIES AND GUARANTEES. Assignor hereby
assigns, set over and transfers to Assignee all of its right, title and
interest in, to and under those certain warranties and guarantees set forth
in SCHEDULE A attached hereto as a part hereof, to the extent assignable.
2. MISCELLANEOUS. This Assignment and the obligations of the
parties hereunder shall survive the closing of the transaction referred to in
the Sale Agreement, shall be binding upon and inure to the benefit of the
parties hereto, their respective legal representatives, successors and
assigns, shall be governed by and construed in accordance with the laws of
the State of Texas applicable to agreements made within said State and may
not be modified or amended in any manner other than by a written agreement
signed by the party to be charged therewith.
EXECUTED this ___ day of , 1997 TO BE EFFECTIVE as of the ___ day of
____________, 1997.
ASSIGNOR:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey Corporation
By:________________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
ASSIGNEE:
MERIDIAN INDUSTRIAL TRUST, INC., a Maryland
Corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
EXHIBIT G
LIST OF MAJOR TENANTS
EXH. PROPERTY NAME LEASES
---- ------------- ------
A-1 EXCHANGE SERVICE CENTER THE XXXXXX GROUP
GULF SYSTEMS, INC.
GATX LOGISTICS, UNIT DISTRIBUTION OF
TEXAS
A-2 HIGHLAND SUPER STORE TREE OF LIFE (GOURMET FOODS)
A-11 PINEMONT DISTRIBUTION CENTER A-CUSTOM CHOP OF TEXAS
A-12 PERIMETER DISTRIBUTION CENTER THE XXXXXX GROUP
PENNZOIL PRODUCTS
A-13 BRITTMORE DISTRIBUTION CENTER IGLOO PRODUCTS CORP.
FANDELI INTERNATIONAL CORP.
XXXXXX XXXXXXX SOUTHWEST CORP.
A-14 PINE NORTH DISTRIBUTION CENTER THE SERVICE CENTER
EXHIBIT H-1
TENANT ESTOPPEL LETTER
By lease dated _________________________ ("Lease"), the undersigned ("Tenant")
has leased from THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, or its predecessors
in interest ("Landlord") the lease premises located at _______________________
__________________________________ which are more particularly described in the
Lease. Landlord, as owner of the property ("PROPERTY") of which the lease
premises are a part, intends to sell the said Property to _____________________
____________________________________ ("BUYER") who, as a condition to the
purchase of the Property, has required this Tenant Estoppel Letter.
In consideration of Buyer's agreement to purchase the Property, Tenant agrees
and certifies to Landlord and to Buyer as follows:
1. The leased premises and possession thereof are accepted; the
Lease is in full force and effect; and the lease term begins on
____________________ and ends on _____________________________.
2. Tenant claims no present charge, lien or claim of offset
against rent.
3. Rent is paid for the current month but is not paid and will
not be paid more than one month in advance. Basic or fixed rent is
$____________ per month and is due on the __________ of each month. A
security deposit in the amount of $_____________ has been paid to Landlord.
4. There are no existing defaults by reason of any act or
omission of the Landlord except as
follows:___________________________________
___________________________________________.
5. The Lease has not been modified, except in accordance with the
amendments dated as follows:_____________________________________
______________________________________.
6. Attached is a true and correct copy of the Lease together with
all amendments, modifications or renewals.
TENANT:
__________________________________
By:_______________________________
Name: ____________________________
Title:_____________________________
EXHIBIT H-2
SELLER ESTOPPEL LETTER
By lease dated _________________________ ("Lease"), the undersigned
("Tenant") has leased from THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, or
its predecessors in interest ("Landlord") the lease premises located at
_______________________ __________________________________ which are more
particularly described in the Lease. Landlord, as owner of the property
("PROPERTY") of which the lease premises are a part, intends to sell the said
Property to _____________________ ____________________________________
("BUYER") who, as a condition to the purchase of the Property, has required
this Tenant Estoppel Letter.
In consideration of Buyer's agreement to
purchase the Property, Landlord certifies to Buyer as follows:
1. The leased premises and possession thereof are accepted;
the Lease is in full force and effect; and the lease term begins on
____________________ and ends on _____________________________.
2. Tenant claims no present charge, lien or claim of offset
against rent.
3. Rent is paid for the current month but is not paid and will not
be paid more than one month in advance. Basic or fixed rent is $____________
per month and is due on the __________ of each month. A security deposit in
the amount of $_____________ has been paid to Landlord.
4. There are no existing defaults by reason of any act or omission
of the Landlord except as follows:___________________________________
___________________________________________.
5. The Lease has not been modified, except in accordance with the
amendments dated as follows:_____________________________________
______________________________________.
ATTACHED IS A TRUE AND CORRECT COPY OF THE LEASE TOGETHER WITH ALL AMENDMENTS,
MODIFICATIONS OR RENEWALS.
The liability of Landlord pursuant to this letter shall be null and void the
earlier of a) the one hundred and eightieth day from the date hereof, or b)
Seller delivering to Purchaser a Tenant Estoppel letter in substantial
conformity with this letter. Any liability on behalf of Landlord under this
letter is subject to the limitations on maximum aggregate Seller liability
as set forth in Section ___ of the Purchase and Sale Agreement dated May ,
1997 in which Seller and Landlord are one and the same party.
Notwithstanding the foregoing, Purchaser hereby expressly waives and releases
any right or remedy available to it at law, in equity or under the Purchase
and Sale Agreement for damages that the Purchaser may incur as a result of
any of Seller's or Landlord's representations being inaccurate if (a)
Purchaser knew or should have known on or
before this date that such representation was not accurate, or (b)
Purchaser's damages are reasonably estimated aggregate less than $25,000.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:___________________________________
Xxxxxxx X. Xxxxxxxx, Vice President
EXHIBIT I
NOTICE TO TENANTS
, 1997
RE: Notice of Change of Ownership of _________________
Property Address (City, State)
Dear _____________:
You are hereby notified as follows:
(1) That as of the date hereof, The Prudential Insurance Company of America
has transferred, sold, assigned, and conveyed all of its interest in and to
the above-described property, (the "Property") to MERIDIAN INDUSTRIAL TRUST,
INC. (the "New Owner").
(2) Future rental payments with respect to your lease premises at the
Property should be made to the New Owner in accordance with your Lease terms
at the following address:
Meridian Industrial Trust, Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
(3) Your security deposit in the amount of $_________ has been transferred
to the New Owner and as such the New Owner shall be responsible for holding
the same in accordance with the terms of your lease.
Sincerely,
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: ___________________________________
Xxxxxxx X. Xxxxxxxx, Vice President
EXHIBIT J
NON-FOREIGN AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee of a United
States real property interest must withhold tax if the transferor is a foreign
person. To inform the transferee that withholding of tax is not required upon
the disposition of a United States real property interest by THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA, a New Jersey corporation ("Prudential"), the
undersigned hereby certifies the following on behalf of Prudential:
1. Prudential is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations); and
2. Prudential's U.S. employer identification number is 00-0000000;
and
3. Prudential's office address is 000 Xxxxx Xxxxxx, Xxxxxx, Xxx
Xxxxxx, 00000-0000.
Prudential understands that this certification may be disclosed to the Internal
Revenue Service by transferee and that any false statement contained herein
could be punished by fine, imprisonment, or both.
The undersigned officer of Prudential declares that he has examined this
certification and to the best of his knowledge and belief it is true, correct
and complete, and he further declares that he has authority to sign this
document on behalf of Prudential.
Dated: _____________, 1997.
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey corporation
By:_________________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
STATE OF ILLINOIS )
)
COUNTY OF XXXX )
This instrument was acknowledged before me on ____________, 1997 by Xxxxxxx X.
Xxxxxxxx, Vice President of The Prudential Insurance Company of America, a New
Jersey corporation, on behalf of said corporation.
______________________________________
Notary Public, State of Illinois
MY COMMISSION EXPIRES:
EXHIBIT K
SELLER'S ERISA REPRESENTATION
, 1997
MERIDIAN INDUSTRIAL TRUST, INC.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Re: Industrial Sale Package
Dear :
To satisfy compliance with the Employee Retirement Income Security Act of 1974,
as amended, The Prudential Insurance Company of America, a New Jersey
corporation ("Seller") hereby represents and warrants to MERIDIAN INDUSTRIAL
TRUST, INC. that Seller is a "fiduciary" and an "investment manger" of certain
pooled asset separate accounts as those terms are defined under the Employee
Retirement Income Security Act of 1974, as amended and is applicable to
regulations as issued by the Department of Labor and the Internal Revenue
Service ("ERISA"). Seller further represents :
1. The Property listed in Exhibits X-0, X-0 and A-11 through A-14 is not part
of Seller's pooled asset separate accounts which are subject to ERISA.
2. Seller holds the Property in Seller's General Account as part of Seller's
corporate investments managed for its own interest.
The Prudential Insurance Company
of America
By:___________________________
Xxxxxxx Xxxxxxxx, Vice President
EXHIBIT L
BUYER'S ERISA REPRESENTATION
, 1997
Xx. Xxxxxxx X. Xxxxxxxx, Vice President
THE PRUDENTIAL INSURANCE COMPANY
XX XXXXXXX
Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: Industrial Sale Package
Dear Xx. Xxxxxxxx:
To satisfy compliance with the Employee Retirement Income Security Act of 1974,
as amended, MERIDIAN INDUSTRIAL TRUST, INC. , a Maryland ("Buyer") hereby
represents and warrants to The Prudential Insurance Company ("Seller") that:
Upon Buyer's acquisition of the Property, the Property shall not constitute
"plan assets" within the meaning of 29 C.F.R. Section 2510.3-101, because one or
more of the following circumstances is true:
Equity interest in Buyer are publicly offered securities, within the meaning of
20 C.F.R. Section 2510.3-101(b)(2); or
Less than twenty-five (25%) of all equity interests in Buyer are held by
"benefit plan investors" within the meaning of 29 C.F.R. Section
2510.3-101(f)(2); or
Buyer qualifies as an "operating company", "venture capital operating company",
or a "real estate operating company" within the meaning of 29 C.F.R. Section
2510.3-101 (c), (d) or (e).
Buyer is not a "governmental plan" within the meaning of Section 3(32) of ERISA
and the purchase of the Property by Buyer is not subject to state statutes
regulating investments of and fiduciary obligations with respect to governmental
plans.
MERIDIAN INDUSTRIAL TRUST, INC.
By:_________________________
Name:_______________________
Title:______________________
EXHIBIT M
PENDING LITIGATION
NONE
EXHIBIT N
NOTICE OF VIOLATIONS
NONE
THIS NOTICE IS NOT INTENDED TO BE A LISTING OF ALL VIOLATIONS RELATING TO THE
PROPERTY BUT RATHER A LISTING OF THOSE VIOLATIONS KNOWN TO OFFICERS OF SELLER
LOCATED IN CHICAGO, ILLINOIS.
EXHIBIT O
LIST OF SERVICE CONTRACTS
NONE TO BE TRANSFERRED
EXHIBIT P
DESIGNATED EMPLOYEES
THE NAME OF THE DESIGNATED EMPLOYEES IS UNKNOWN AT THIS TIME.
EXHIBIT Q
LIST OF ENVIRONMENTAL REPORTS OR SURVEYS
EXHIBIT ENVIRONMENTAL REPORTS
------- ----------------------
A-1 EXCHANGE SERVICE CENTER Asbestos Survey Report (10/85)
A-2 HIGHLAND SERVICE CENTER Asbestos-Containing Materials Survey (10/91)
Phase I Environmental Assessment (10/91)
Phase II Environmental Assessment (12/91)
Hazardous Materials Survey included in Tree of
Life, Inc. d/b/a Gourmet Award Foods
Southwest tenant lease (2/95)
A-11 PINEMONT DISTRIBUTION Level I Environmental Assessment (1/90)
Environmental Assessment Follow-Up (3/92)
Asbestos Engineering & Hygiene Services Proposal
Revision #1 (6/92)
Project Summary Report for Asbestos Removal (8/92)
A-12 PERIMETER DISTRIBUTION Reconnaissance Environmental Assessment(4/88)
Level I Environmental Assessment (7/91) - DRAFT
Survey for Location of Asbestos-Containing
Materials - Final (1/92)
Environmental Surface & Subsurface Assessment
(2/92) - DRAFT
Disposal of Soil Cuttings & Purge Water Proposal
(3/93)
Phase II Subsurface Investigation (11/92)
Phase II Environmental Site Assessment (6/95)
A-13 BRITTMORE DISTRIBUTION Environmental Assessment (11/87)
A-14 PINE NORTH DISTRIBUTION Preliminary Summary of Findings: Environmental
Consultation (6/89) w/ Environmental Assessment
(5/89)
THIS MAY NOT BE A LISTING OF ALL ENVIRONMENTAL REPORTS OR SURVEYS WHICH
SELLER MAY HAVE WHICH RELATE TO THE PROPERTY. DUE TO SOME OF SELLER'S FILES
BEING LOST, SELLER CANNOT REPRESENT THIS LIST IS COMPLETE.
EXHIBIT R
AUDIT DOCUMENT LIST
1. COPIES OF PROPERTY OPERATING STATEMENTS AND ACCESS TO YEAR-TO-DATE
GENERAL LEDGERS (OR ACCESS TO BOOKS OF ORIGINAL ACCOUNTING RECORDS)
FOR THE YEAR ENDED DECEMBER 31, 1996 AND FOR THE PERIOD FROM JANUARY
1, 1997 TO THE CLOSING DATE.
2. COPIES OF PROPERTY RENT ROLLS FOR MARCH, AUGUST AND DECEMBER 1996,
JANUARY 1997 AND THE CALENDAR MONTH IMMEDIATELY PRECEDING THE MONTH IN
WHICH THE CLOSING OCCURS.
3. ACCESS TO LEASES FOR ALL TENANTS IN OCCUPANCY OF THE PROPERTY DURING
1996 AND 1997.
4. ACCESS TO BANK STATEMENTS AND CASH RECEIPTS DOCUMENTS (CHECK COPIES
AND DEPOSIT SLIPS) SUPPORTING RECORDED REVENUES FOR MARCH, AUGUST, AND
DECEMBER 1996, JANUARY 1997 AND THE CALENDAR MONTH IMMEDIATELY
PRECEDING THE MONTH IN WHICH THE CLOSING OCCURS.
5. ACCESS TO DETAIL UNPAID RENT AND OTHER CHARGES AS OF DECEMBER 31,
1996, AND MOST RECENT DATE AVAILABLE PRIOR TO THE CLOSING DATE, ALONG
WITH DOCUMENTATION SUPPORTING SUBSEQUENT COLLECTION EXPLANATIONS AND/OR
UNCOLLECTED BALANCES.
6. COPIES OF 1996 AND 1997 OPERATING EXPENSE PASS-THROUGH RECONCILIATION
STATEMENTS AND RELATED ADJUSTMENTS.
7. ACCESS TO INVOICES SUPPORTING OPERATING EXPENSES PAID BY TENANTS IN
1996 AND 1997.
8. COPIES OF REAL PROPERTY TAX BILLS FOR THE TAX YEAR ENDED DECEMBER 31,
1996 AND FOR THE PERIOD FROM JANUARY 1, 1997 TO THE CLOSING DATE.
9. SCHEDULE OF ALL TENANTS GRANTED FREE RENT INCLUDING AMOUNTS GRANTED
DURING 1996 AND 1997, TO THE EXTENT SUCH A SCHEDULE EXISTS.
BUYER RECOGNIZES THAT THESE RECORDS WILL NOT BE LOCATED IN THE SAME OFFICE BUT
ARE LIKELY TO BE SPREAD OVER A NUMBER OF OFFICES IN DIFFERENT STATES.
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT ("First
Amendment") is entered into as of July 7, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement, dated as of May 29, 1997 (the "Agreement"), for the purchase and
sale of real property designated as "Industrial Package Sale - Texas
Properties" as more particularly described on Exhibit A to the Agreement,
together with certain personal property, lease interests and intangible
property, all as more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this First Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from July 7, 1997 to and including July 22, 1997. In
addition, the date "July 7, 1997" where it appears in Section 4.3 of the
Agreement is deleted and replaced with the phrase "the end of the Due Diligence
Period".
2. CLOSING DATE. Seller acknowledges that the Closing Date has been
extended until September 30, 1997 (I.E., the Option Closing Date) pursuant to
Election Notice duly given by Buyer.
3. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this First Amendment and the terms and
conditions of the Agreement, the terms and conditions of this First Amendment
shall govern and control the rights and obligations of the parties hereto.
4. EFFECT OF FIRST AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
5. COUNTERPARTS. This First Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This First
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this First
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By: ______________________________
Its: ______________________________
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New
Jersey corporation
By: ______________________________
Xxxxxxx X. Xxxxxxxx
Its: Vice President
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Second
Amendment") is entered into as of July 22, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, and that certain First Amendment thereto
dated as of July 7, 1997 (the "First Amendment") (jointly, the "Agreement"), for
the purchase and sale of real property designated "Industrial Package Sale -
Texas Properties", as more particularly described on Exhibit A to the Agreement,
together with certain personal property, lease interests and intangible
property, all as more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as
provided herein.
C. Capitalized terms in this Second Amendment not defined
herein shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due
Diligence Period is extended from July 22, 1997 to and including August 5,
1997.
2. CONFLICT IN TERMS. In the event of any conflict or
inconsistency between the terms and conditions of this Second Amendment and
the terms and conditions of the Agreement, the terms and conditions of this
Second Amendment shall govern and control the rights and obligations of the
parties hereto.
3. EFFECT OF SECOND AMENDMENT. Except as expressly modified
herein, all terms and conditions of the Agreement remain unmodified and in
full force and effect.
4. COUNTERPARTS. This Second Amendment may be executed in
one or more counterparts, each of which may be deemed an original, and all of
which, when taken together, shall constitute one and the same instrument.
This Second Amendment may be executed via telecopied signatures with original
signatures to follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Second
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By: ______________________________
Xxxxxx X. Xxxxxx
Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By: ______________________________
Xxxxxxx X. Xxxxxxxx
Its: Vice President
THIRD AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Third
Amendment") is entered into as of August 5, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, and that certain Second Amendment thereto dated July 22,
1997 (collectively, the "Agreement"), for the purchase and sale of real property
designated "Industrial Package Sale - Texas Properties", as more particularly
described on Exhibit A to the Agreement, together with certain personal
property, lease interests and intangible property, all as more particularly
described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as
provided herein.
C. Capitalized terms in this Third Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due
Diligence Period is extended from August 5, 1997 to and including August 20,
1997.
2. CONFLICT IN TERMS. In the event of any conflict or
inconsistency between the terms and conditions of this Third Amendment and
the terms and conditions of the Agreement, the terms and conditions of this
Third Amendment shall govern and control the rights and obligations of the
parties hereto.
3. EFFECT OF THIRD AMENDMENT. Except as expressly modified
herein, all terms and conditions of the Agreement remain unmodified and in
full force and effect.
4. COUNTERPARTS. This Third Amendment may be executed in
one or more counterparts, each of which may be deemed an original, and all of
which, when taken together, shall constitute one and the same instrument.
This Third Amendment may be executed via telecopied signatures with original
signatures to follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Third
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By: ______________________________
Xxxxxx X. Xxxxxx
Its: Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By: ______________________________
Xxxxxxx X. Xxxxxxxx
Its: Vice President
