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EXHIBIT 10.6
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made by and
between Purchaser and Seller as of the Effective Date.
In consideration of the mutual covenants and representations herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1.
DEFINITIONS
1.1 As used herein, the following terms shall have the meanings set
forth below in this Section 1.1:
Agent shall mean Xxxxxxxx Xxxx Company.
Approval Period shall mean the period commencing on the Effective Date
and ending at 5:00 p.m., Dallas, Texas time, on the 30th day thereafter.
Casualty Amount shall mean $500,000.00.
Closing shall mean the act of settlement of the purchase and sale of
the Property in accordance with this Agreement at which, among other matters,
title to the Property is conveyed from Seller to Purchaser and the Purchase
Price is paid by Purchaser to Seller.
Closing Date shall mean December 13, 2000.
Contracts shall mean all contracts pertaining to the Property and not
cancelable on thirty (30) days' notice without penalty or premium, including,
but not limited to, management contracts, service contracts, equipment leases
and maintenance contracts.
Xxxxxxx Money shall mean Two Hundred Thousand and 00/100 DOLLARS
($200,000.00), plus any interest earned thereon.
Effective Date shall mean the first date the Title Company is in
receipt of both this Agreement executed by Purchaser and Seller (whether in
counterparts or not) and the Xxxxxxx Money.
Improvements shall mean all improvements and related amenities in and
on the Land located at 0000-0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx.
Inspection Materials shall mean copies of the Contracts (to the extent
in the possession of Seller or its property manager), copies of the Leases and a
Rent Roll.
Land shall mean that certain tract of land located in the City of
Germantown, Shelby County, Tennessee, being more particularly described on
Exhibit A attached hereto and made a part hereof.
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Owner's Policy shall mean the Owner's Policy of Title Insurance in the
standard form in use in the State, naming Purchaser as insured, in the amount of
the Purchase Price, insuring that Purchaser owns good and marketable fee simple
title to the Property, subject only to the Permitted Encumbrances.
Property shall have the meaning provided in Section 2.1 of this
Agreement.
Purchase Price shall mean Nine Million Two Hundred Fifty Thousand and
00/100 DOLLARS $9,250,000.00.
Purchaser shall mean XXXXXXX X. XxXXXXX, XX., whose address for notice
under this Agreement is as follows:
0000 Xxxx Xxxxx Xxxx.
Xxxxxxxxxx, Xxxxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Rent Roll shall mean a rent roll in the form regularly prepared by the
property manager of the Property describing all Leases as of the last month
Seller received such information from the property manager.
Seller shall mean XXXXXX INCOME PROPERTIES II, LTD., a Texas limited
partnership, whose address for notice under this Agreement is as follows:
Xxxxxx Income Properties
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copies to:
Xxxxxx Income Properties
000 X. 0xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxx
Tel: 000-000-0000
Fax: 000-000-0000
and
Xxxxx Liddell & Xxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
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State shall mean the State of Tennessee.
Survey shall mean a current ALTA survey of the Property prepared in
accordance with the Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Survey and containing the surveyor's certification in form reasonably
satisfactory to Purchaser in favor of Seller, Purchaser, Purchaser's lender, if
any, and the Title Company.
Title Commitment shall mean a Commitment for Owner's Policy of Title
Insurance with respect to the Property issued by the Title Company together with
legible copies of any restrictive covenants, easements and other items listed as
title exceptions in such Commitment.
Title Company shall mean First American Title Insurance Company, whose
address for notice under this Agreement is as follows:
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
2.
PURCHASE AND SALE
2.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, all of the Seller's assignable and
transferable right, title and interest in and to the following described
property (herein collectively called the "Property"):
(a) Land. The Land.
(b) Easements. All easements, if any, benefiting the Land or
the Improvements.
(c) Rights and Appurtenances. All rights and appurtenances
pertaining to the Land, including any right, title and interest of
Seller in and to adjacent streets, alleys or rights-of-way.
(d) Improvements. The Improvements.
(e) Leases. All leases (the "Leases") of space in the
Improvements, concession leases and all tenant security deposits for
which landlord has liability to Tenants under the Leases on the Closing
Date.
(f) Tangible Personal Property. All appliances, fixtures,
equipment, machinery, furniture, carpet, drapes and other personal
property, if any, owned by Seller and located on or
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about the Land and the Improvements, the same being described on
Exhibit G attached hereto and made a part hereof (the "Tangible
Personal Property").
(g) Contracts. To the extent assignable without the consent of
third parties, all Contracts.
(h) Intangible Property. To the extent assignable without the
consent of third parties, all intangible property (the "Intangible
Property"), if any, owned by Seller and pertaining to the Land, the
Improvements, or the Tangible Personal Property including, without
limitation, transferable utility contracts, transferable telephone
exchange numbers, plans and specifications, engineering plans and
studies, floor plans and landscape plans.
2.2 Independent Consideration. Upon execution of this Agreement,
Purchaser has delivered to Seller, and Seller acknowledges receipt of, FIFTY AND
NO/100 DOLLARS ($50.00) (the "Independent Consideration"), as consideration for
Purchaser's right to purchase the Property and for Seller's execution, delivery
and performance of this Agreement. The Independent Consideration is in addition
to and independent of any other consideration or payment provided for in this
Agreement, is non-refundable and shall be retained by Seller notwithstanding any
other provision of this Agreement.
3.
PURCHASE PRICE
3.1 Purchase Price. The Purchase Price shall be paid in cash by
Purchaser to Seller at the Closing by wire transfer in accordance with wire
transfer instructions to be provided by Seller.
4.
XXXXXXX MONEY
4.1 Xxxxxxx Money. Purchaser shall deliver the Xxxxxxx Money to the
Title Company within two (2) business days after the date a fully-executed copy
of this Agreement is delivered to the Title Company, by wire transfer in
accordance with wire transfer instructions provided by the Title Company. Seller
shall have the option of terminating this Agreement if the full amount of
Xxxxxxx Money is not delivered to the Title Company as prescribed in this
Section 4.1. Purchaser agrees to promptly deliver or cause the Title Company to
deliver written acknowledgment by the Title Company that the executed copy of
this Agreement and the Xxxxxxx Money have been received by and are being held by
the Title Company pursuant to the terms of this Agreement. The Xxxxxxx Money
shall be invested by the Title Company in an interest-bearing account as
Purchaser and Seller shall direct. If the sale of the Property is consummated
under this Agreement, the Xxxxxxx Money shall be paid to Seller and applied to
the payment of the Purchase Price at Closing. If Purchaser terminates this
Agreement in accordance with any right to terminate granted to Purchaser by the
terms of this Agreement, the Xxxxxxx Money shall be immediately returned to
Purchaser, and no party hereto shall have any further obligations under this
Agreement except for such obligations which by their terms expressly survive the
termination of this Agreement (the "Surviving Obligations"). Purchaser agrees to
deliver to Seller copies of all Reports (as defined in Section 5.2 hereof) at
the time the notice to terminate this Agreement is given. The obligations to
deliver the Reports shall survive the termination of this Agreement. In no event
shall any Xxxxxxx Money be returned to Purchaser hereunder until all Reports
have been delivered to Seller.
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5.
CONDITIONS TO CLOSING
5.1 Seller's Obligations. Seller shall deliver the Inspection Materials
to Purchaser, at Seller's expense, within ten (10) days after the Effective
Date. Seller's failure to timely deliver the Inspection Materials to Purchaser
shall result in the extension of the Approval Period by one (1) day for each day
of delay in delivering the Inspection Materials. In addition, from and after the
Effective Date, Seller shall make available for inspection and copying by
Purchaser and/or its representatives, at Purchaser's expense, at the office of
Seller's property manager, during normal office hours and upon reasonable
advance notice, the following to the extent any of the same are in Seller's or
its property manager's possession: (i) copies of all engineering, environmental,
soils and technical reports commissioned by Seller relating to the Land or the
Improvements, (ii) copies of all plans, drawings and specifications relating to
the Improvements, (iii) copies of all licenses, permits, certificates of
occupancy and other governmental entitlements relating to use and occupancy of
the Improvements, (iv) copies of operating statements relating to the
Improvements for the most recent three-year period, (v) copies of the most
recent ad-valorem tax statements relating to the Property and (vi) copies of
files maintained by Seller in the ordinary course of business relating to
Tenants.
5.1.1 Purchaser's Termination Right. If for any reason
Purchaser does not desire to purchase the Property, Purchaser may terminate this
Agreement by written notice to Seller at or before the expiration of the
Approval Period; and upon such termination, Purchaser shall be entitled to the
return of the Xxxxxxx Money (subject to Purchaser's delivery of the Reports to
Seller), and neither party shall have any further obligation hereunder except
for the Surviving Obligations. If Purchaser does not terminate this Agreement by
written notice to Seller prior to the end of the Approval Period, Purchaser
shall be deemed to be satisfied with the Property and shall have waived its
right of termination under this Section 5.1.1.
5.1.2 Title Commitment and Survey.
(a) Purchaser shall order the Title Commitment and Seller
shall order the Survey; each party shall cause the same to be delivered
to the other party as promptly as reasonably practicable. In the event
(i) the Survey shows any easement, right-of-way, encroachment,
conflict, protrusion or other matter affecting the Property that is
unacceptable to Purchaser, or (ii) any exceptions appear in the Title
Commitment other than the standard printed exceptions set forth in the
standard form of Commitment for Title Insurance in use in the State,
that are unacceptable to Purchaser, Purchaser shall within ten (10)
days after receipt of the Survey and the Title Commitment, notify
Seller in writing of such facts and the reasons therefor ("Purchaser's
Objections"). Upon the expiration of said ten (10) day period, except
for Purchaser's Objections if same are timely raised, Purchaser shall
be deemed to have accepted the form and substance of the Survey and the
Title Commitment. Notwithstanding anything to the contrary contained
herein, Seller shall have no obligations to take any steps or bring any
action or proceeding or otherwise to incur any effort or expense
whatsoever to eliminate or modify any of the Purchaser's Objections.
Seller may, within five (5) days after receipt of written notice of
Purchaser's Objections ("Seller's Cure Period"), deliver to Purchaser
written notice ("Seller's Cure Notice") setting forth which of
Purchaser's Objections Seller will endeavor to cure prior to the
Closing Date and which of Purchaser's Objections Seller cannot or does
not intend to cure. If Seller has not given Seller's Cure Notice by the
end of Seller's Cure Period, Seller shall be deemed to have given
notice that it does not intend to cure any of Purchaser's Objections.
If by the earlier of (i) the end of the Approval Period or (ii) the end
of Seller's Cure Period, Seller has not cured or undertaken to cure all
of Purchaser's Objections to the reasonable satisfaction of Purchaser,
Purchaser may (as its sole and exclusive
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remedy) terminate this Agreement by delivering written notice thereof
to Seller not later than at or before the expiration of the Approval
Period. If one (1) business day prior to the Closing Date, Seller has
not cured to the reasonable satisfaction of Purchaser all of
Purchaser's Objections which Seller has in Seller's Cure Notice
undertaken to cure, Purchaser may (as its sole and exclusive remedy)
terminate this Agreement by written notice to Seller on the Closing
Date. In the event of a termination of this Agreement by Purchaser
under this Section 5.1.2, neither party shall have any further
obligations hereunder other than the Surviving Obligations.
(b) The term "Permitted Encumbrances" as used herein includes:
(i) any easement, right of way, encroachment, conflict, discrepancy,
overlapping of improvements, protrusion, lien, encumbrance,
restriction, condition, covenant, exception or other matter with
respect to the Property that is reflected or addressed on the Survey or
in the Title Commitment to which Purchaser fails to timely object
pursuant to Section 5.1.2(a) of this Agreement; (ii) subject to
Purchaser's termination rights provided in Section 5.1.2(a), (A) any
Purchaser's Objection which in Seller's Cure Notice Seller has
undertaken to cure that remains uncured, for whatever reason, at the
Closing Date; and (B) any other of Purchaser's Objections which by the
end of the Seller's Cure Period, Seller has failed to cure or has
given, or is deemed to have given, notice that it cannot or does not
intend to cure; and (iii) the rights and interests of parties claiming
under the Leases.
5.1.3 Limitations of Seller's Obligations. Notwithstanding
anything contained herein to the contrary, Seller shall have no obligation to
take any steps, bring any action or proceeding or incur any effort or expense
whatsoever to eliminate, modify or cure any objection Purchaser may have
pursuant to Section 5.1.1, Section 5.1.2 or Section 5.2.
5.2 Inspection.
(a) From and after the Effective Date through the Closing
Date, subject to the limitations hereinafter provided in this Section
5.2, Purchaser and its authorized agents and representatives may enter
upon the Land and Improvements to conduct such investigations, studies
and tests as Purchaser shall deem necessary or desirable.
Notwithstanding the foregoing, Purchaser must obtain Seller's written
approval of the scope and method of any environmental testing or
investigation (other than a Phase I environmental inspection) and any
physical or invasive testing or inspection prior to Purchaser's
commencement of such inspection or testing. Seller's prior written
consent for physical or invasive inspection or testing may be
conditioned upon receipt of a detailed description of the proposed
physical or invasive inspection or testing, a list of contractors who
will be performing the physical or invasive inspection or testing,
evidence of insurance satisfactory to Seller and such other information
as Seller reasonably requires in connection with such proposed
inspection or testing.
(b) All information provided by Seller to Purchaser or
obtained by Purchaser relating to the Property in the course of
Purchaser's review, including, without limitation, any environmental
assessment or audit (collectively, the "Reports") shall be treated as
confidential information by Purchaser, and Purchaser shall instruct all
of its employees, agents, representatives and contractors as to the
confidentiality of all such information.
(c) In conducting any inspections, investigations or tests of
the Property, Purchaser and its agents and representatives shall (i)
not unreasonably interfere with the operation and
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maintenance of the Property, (ii) not unreasonably disturb any Tenant
or unreasonably interfere with any Tenant's use of the Property
pursuant to its respective Lease, (iii) not damage any part of the
Property or any personal property owned or held by any Tenant or third
party, (iv) not injure or otherwise cause bodily harm to Seller, the
property manager or their respective guests, agents, invitees,
contractors and employees or any Tenant or its guests or invitees, (v)
maintain comprehensive general liability insurance in terms and amounts
reasonably acceptable to Seller covering any accident arising in
connection with the presence of Purchaser, its agents and
representatives on the Property, and deliver a certificate of insurance
verifying such coverage to Seller prior to entry upon the Property;
(vi) promptly pay when due the costs of all tests, investigations and
examinations done with regard to the Property; (vii) not permit any
liens to attach to the Property or any part thereof by reason of the
exercise of Purchaser's rights hereunder, (viii) fully restore the
Property to the condition in which the same was found before any such
inspection or tests were undertaken; (ix) not reveal or disclose any
information obtained concerning the Property to anyone outside
Purchaser's organization; (x) permit Seller and its agents and
representatives to be present during any such inspection, investigation
or test; (xi) not contact any leasing agent or property manager of the
Property without Seller's prior written consent, which consent shall
not be unreasonably withheld or delayed; and (xii) not contact any
Tenant or make any inquiry of any Tenant which in any way relates to
the Property or Seller without Seller's prior written consent, which
consent shall not be unreasonably withheld or delayed. Purchaser shall
indemnify, defend and hold harmless Seller and its agents, employees,
officers, directors, affiliates and asset managers from any liability,
claim, damage, cost or expense incurred by any of them arising out of
or resulting from inspections, investigations or tests of the Property
conducted by Purchaser or its agents or representatives. The foregoing
indemnification by Purchaser shall survive the Closing or the
termination of this Agreement, as applicable.
5.3 Purchaser's Representations and Warranties. Purchaser represents
and warrants to Seller that (a) if Purchaser is a partnership or corporation, it
is duly organized and in good standing under the laws of the State of its
organization, is qualified to do business in the State and has the power to
enter into this Agreement and to execute and deliver this Agreement and to
perform all duties and obligations imposed upon it hereunder, and Purchaser has
obtained all necessary partnership and corporate authorizations required in
connection with the execution, delivery and performance contemplated by this
Agreement and has obtained the consent of all entities and parties necessary to
bind Purchaser to this Agreement, and (b) neither the execution nor the delivery
of this Agreement, nor the consummation of the purchase and sale contemplated
hereby, nor the fulfillment of or compliance with the terms and conditions of
this Agreement conflict with or will result in the breach of any of the terms,
conditions, or provisions of any agreement or instrument to which Purchaser, or
any partner or related entity or affiliate of Purchaser, is a party or by which
Purchaser, any partner or related entity or affiliate of Purchaser, or any of
Purchaser's assets is bound. The Purchaser's representations and warranties set
forth in this Section 5.3 shall survive the Closing or termination of this
Agreement. Purchaser's representations and warranties contained herein must be
true and correct through the Closing Date, the breach of same being a default by
Purchaser under this Agreement.
5.4 Seller's Representations, Warranties and Covenants.
(a) Seller represents and warrants to, and covenants with,
Purchaser that:
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(i) Seller has full right, power and authority to
execute and deliver this Agreement and to consummate the
purchase and sale transactions provided for herein without
obtaining any further consents or approvals from, or the
taking of any other actions with respect to, any third
parties. This Agreement, when executed and delivered by Seller
and Purchaser, will constitute the valid and binding agreement
of Seller, enforceable against Seller in accordance with its
terms.
(ii) All bills and other payments due with respect to
the ownership, operation and maintenance of the Property for
the period of Seller's ownership of the Property shall be paid
by Seller in the ordinary course of business.
(iii) From the Effective Date until the Closing Date,
Seller shall: (A) maintain and operate the Property in
substantially the same manner as Seller has heretofore done;
(B) continue all Leases and Contracts in full force and
effect; and prior to the end of the Approval Period, neither
cancel, amend or renew any of the same nor enter into a new
Lease or Contract other than in the ordinary course of
Seller's business, or from and after the end of the Approval
Period, neither cancel, amend or renew any Lease or Contract
nor enter into any new Lease or Contract without Purchaser's
prior written approval, which approval will not be
unreasonably withheld, conditioned or delayed; (C) not commit
or permit to be committed any physical waste to the Property;
and (D) not remove any item of the Tangible Personal Property
from the Land or Improvements unless it is replaced with an
item of at least equal value that is properly suited for its
intended purpose.
(iv) With respect to each Tenant, except as reflected
in the Rent Roll or in the Lease: (A) to Seller's Knowledge,
such Tenant's Lease is in full force and effect and no uncured
breach or default exists on the part of the landlord or Tenant
thereunder; (B) Seller has received no written notice that
such Tenant is asserting any claim of offset or other defense
in respect of its or the landlord's obligations under its
Lease; and (C) Seller is the owner of the entire lessor's
interest in such Tenant's Lease and neither the landlord's
interest in and to the Leases nor the rents payable thereunder
have been assigned, pledged or encumbered in any manner by
Seller, except to Seller's mortgage lender which assignments
and encumbrances will be released at or prior to Closing.
(v) Except as disclosed on Exhibit G, none of the
Tangible Personal Property is held by Seller under a lease or
installment sale contract, and Seller owns title to the
Tangible Personal Property reflected on the inventory to be
delivered to Purchaser herein, free and clear of any liens or
claims, except liens to be released at Closing.
(vi) To Seller's Knowledge, except as disclosed on
Exhibit H, Seller has received no written notice of any
action, suit, proceeding or claim presently pending in any
court or before any federal, state, county or municipal
department, commission, board, bureau or agency or other
governmental instrumentality or before any arbitration,
tribunal or panel, affecting (A) the Property, or any portion
thereof, (B) Seller's title, use, operation or ownership of
the Property, or (C) Seller's ability to perform its
obligations under this Agreement, nor, to Seller's Knowledge
is any such action, suit, proceeding or claim threatened.
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(vii) To Seller's Knowledge, there is no attachment,
execution, general assignment for the benefit of creditors, or
voluntary or involuntary bankruptcy proceedings, or
proceedings under any debtor relief laws, contemplated by or
pending or threatened against Seller or the Property.
(viii) To Seller's Knowledge, Seller has received no
written notice of any condemnation, eminent domain or similar
proceedings being instituted or threatened against the
Property by any governmental authority having jurisdiction
over the Property.
(ix) To Seller's Knowledge, except as disclosed on
Exhibit I, Seller has received no written notice from any
governmental authority having jurisdiction over the Property
that the Improvements and the current operation thereof
violate any law, regulation, ordinance, rule, order or other
requirement of any governmental authority having jurisdiction
over the Property.
(x) To Seller's Knowledge, Seller has received no
written notice from any governmental authority having
jurisdiction over the Property of any proposed new assessment
against the Property.
When used herein, the phrase "to Seller's Knowledge" or
derivations thereof shall mean the current actual knowledge of
Xxxxx Xxxx, without any obligation to make any investigation
or inquiry regarding the Property, and without obligation to
make any investigation of the files, documents or studies in
the possession of the property manager or other persons, and
shall not include any knowledge which may be imputed to Seller
or of any other person. Purchaser acknowledges that the
individual named above is named solely for the purpose of
defining and narrowing the scope of Seller's knowledge and not
for the purpose of imposing any liability on or creating any
duties running from such individual to Purchaser. Purchaser
covenants that it will bring no action of any kind against
such individual, related to or arising out of these
representations and warranties.
(b) Seller's representations and warranties set forth in Section 5.4(a)
shall not be deemed to be merged into or waived by the instruments of Closing,
but shall survive the Closing for a period of six (6) months (the "Survival
Period"). No broker, agent or party other than Seller is authorized to make any
representation or warranty for or on behalf of Seller. Purchaser shall have the
right to bring an action against Seller for the breach of a representation or
warranty hereunder, but only on the following conditions: (1) Purchaser first
learns of the breach after Closing and files such action within the Survival
Period, and (2) Purchaser shall not have the right to bring a cause of action
for a breach of a representation or warranty unless the damage to Purchaser on
account of such breach (individually or when combined with damages from other
breaches) equals or exceeds $50,000.00. Notwithstanding any other provision of
this Agreement, any agreement contemplated by this Agreement, or any rights
which Purchaser might otherwise have at law, equity, or by statute, whether
based on contract or some other claim, any liability of Seller to Purchaser will
be limited in the aggregate to $300,000.00. The general or limited partners,
employees, agent or affiliates of Seller will not in any manner be personally or
individually liable for the obligations of Seller hereunder or for any claims
related to this Agreement, any agreement contemplated by this Agreement or the
Property. Seller shall not have any liability after
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Closing for the breach of a representation or warranty hereunder of which
Purchaser had knowledge as of Closing. The provisions of this Section 5.4(b)
shall survive Closing.
6.
NO REPRESENTATIONS OR WARRANTIES BY SELLER;
ACCEPTANCE OF PROPERTY
6.1 Disclaimer. PURCHASER ACKNOWLEDGES AND AGREES THAT EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES (OTHER THAN
THE SPECIAL WARRANTY OF TITLE AS SET OUT IN THE DEED, AS DEFINED BELOW),
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY
OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND
GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF
THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER OR ANY TENANT
MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, (F) THE
MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO
THE PROPERTY, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE
PROPERTY, OR (H) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND
USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THE EXISTENCE IN
OR ON THE PROPERTY OF HAZARDOUS MATERIALS (AS DEFINED BELOW) OR (I) ANY OTHER
MATTER WITH RESPECT TO THE PROPERTY. ADDITIONALLY, NO PERSON ACTING ON BEHALF OF
SELLER IS AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF OF PURCHASER ACKNOWLEDGES
THAT NO PERSON HAS MADE, ANY REPRESENTATION, AGREEMENT, STATEMENT, WARRANTY,
GUARANTY OR PROMISE REGARDING THE PROPERTY OR THE TRANSACTION CONTEMPLATED
HEREIN; AND NO SUCH REPRESENTATION, WARRANTY, AGREEMENT, GUARANTY, STATEMENT OR
PROMISE IF ANY, MADE BY ANY PERSON ACTING ON BEHALF OF SELLER SHALL BE VALID OR
BINDING UPON SELLER UNLESS EXPRESSLY SET FORTH HEREIN. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE
PROPERTY, PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY
AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER AND AGREES TO
ACCEPT THE PROPERTY AT THE CLOSING AND WAIVE ALL OBJECTIONS OR CLAIMS AGAINST
SELLER (INCLUDING, BUT NOT LIMITED TO, ANY RIGHT OR CLAIM OF CONTRIBUTION)
ARISING FROM OR RELATED TO THE PROPERTY OR TO ANY HAZARDOUS MATERIALS ON THE
PROPERTY. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION
PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A
VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR
VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE
ACCURACY, TRUTHFULNESS OR COMPLETENESS OF SUCH INFORMATION. SELLER IS
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NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENT,
REPRESENTATION OR INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION
THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, CONTRACTOR, AGENT, EMPLOYEE,
SERVANT OR OTHER PERSON. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE
MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN
IS MADE ON AN "AS IS" CONDITION AND BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND
AGREED THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR NEGOTIATION TO REFLECT
THAT ALL OF THE PROPERTY IS SOLD BY SELLER AND PURCHASED BY PURCHASER SUBJECT TO
THE FOREGOING. PURCHASER HEREBY AGREES TO INDEMNIFY, PROTECT, DEFEND, SAVE AND
HOLD HARMLESS SELLER FROM AND AGAINST ANY AND ALL DEBTS, DUTIES, OBLIGATIONS,
LIABILITIES, SUITS, CLAIMS, DEMANDS, CAUSES OF ACTION, DAMAGES, LOSSES, FEES AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND EXPENSES AND COURT
COSTS) IN ANY WAY RELATING TO, OR IN CONNECTION WITH OR ARISING OUT OF
PURCHASER'S ACQUISITION, OWNERSHIP, LEASING, USE, OPERATION, MAINTENANCE AND
MANAGEMENT OF THE PROPERTY. THE PROVISIONS OF THIS SECTION 6 SHALL SURVIVE THE
CLOSING OR ANY TERMINATION HEREOF.
6.2 Hazardous Materials. "Hazardous Materials" shall mean any substance
which is or contains (i) any "hazardous substance" as now or hereafter defined
in Section 101(14) of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.)
("CERCLA") or any regulations promulgated under CERCLA; (ii) any "hazardous
waste" as now or hereafter defined in the Resource Conservation and Recovery Act
(42 U.S.C. Section 6901 et seq.) ("RCRA") or regulations promulgated under RCRA;
(iii) any substance regulated by the Toxic Substances Control Act (15 U.S.C.
Section 2601 et seq.); (iv) gasoline, diesel fuel, or other petroleum
hydrocarbons; (v) asbestos and asbestos containing materials, in any form,
whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas;
and (viii) any additional substances or materials which are now or hereafter
classified or considered to be hazardous or toxic under Environmental
Requirements (as hereinafter defined) or the common law, or any other applicable
laws relating to the Property. Hazardous Materials shall include, without
limitation, any substance, the presence of which on the Property, (A) requires
reporting, investigation or remediation under Environmental Requirements; (B)
causes or threatens to cause a nuisance on the Property or adjacent property or
poses or threatens to pose a hazard to the health or safety of persons on the
Property or adjacent property; or (C) which, if it emanated or migrated from the
Property, could constitute a trespass.
6.3 Environmental Requirements. "Environmental Requirements" shall mean
all laws, ordinances, statutes, codes, rules, regulations, agreements,
judgments, orders, and decrees, now or hereafter enacted, promulgated, or
amended, of the United States, the states, the counties, the cities, or any
other political subdivisions in which the Property is located, and any other
political subdivision, agency or instrumentality exercising jurisdiction over
the owner of the Property, the Property, or the use of the Property, relating to
pollution, the protection or regulation of human health, natural resources, or
the environment, or the emission, discharge, release or threatened release of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or waste or Hazardous Materials into the environment (including,
without limitation, ambient air, surface water, ground water or land or soil).
12
7.
CLOSING
7.1 Closing. The Closing shall be held at the offices of the Title
Company on the Closing Date, unless the parties mutually agree in writing upon
another place, time or date.
7.2 Possession. Possession of the Property shall be delivered to
Purchaser at the Closing, subject to the Permitted Encumbrances.
7.3 Proration.
(a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on
the day immediately preceding the Closing Date, the following
(collectively, the "Proration Items"): real estate and personal
property taxes and assessments (subject to the terms of Section 7.3(d)
below), utility bills (except as hereinafter provided), collected Rents
(subject to the terms of Section 7.3(b) below) and Operating Expenses
(subject to the terms of Section 7.3(c) below) payable by the owner of
the Property. Seller will be charged and credited for the amount of all
of the Proration Items relating to the period up to and including the
Closing Date, and Purchaser will be charged and credited for all of the
Proration Items relating to the period after the Closing Date. Such
preliminary estimated Closing prorations shall be set forth on a
preliminary closing statement to be prepared by Seller and submitted to
Purchaser for Purchaser's written approval prior to the Closing Date
(the "Closing Statement"). The Closing Statement, once agreed upon,
shall be signed by Purchaser and Seller and delivered to Title Company
for purposes of making the proration adjustment at Closing. The
proration shall be paid at Closing by Purchaser to Seller (if the
prorations result in a net credit to Seller) or by Seller to Purchaser
(if the prorations result in a net credit to Purchaser) by increasing
or reducing the cash to be delivered by Purchaser in payment of the
Purchase Price at the Closing. If the actual amounts of the Proration
Items are not known as of the Closing Date, the prorations will be made
at Closing on the basis of the best evidence then available; such
prorations shall be conclusive and binding on the parties without
further adjustment. No prorations will be made in relation to insurance
premiums, and Seller's insurance policies will not be assigned to
Purchaser. Final readings and final xxxxxxxx for utilities will be made
if possible as of the Closing Date, in which event no proration will be
made at Closing with respect to utility bills. Seller will be entitled
to all deposits presently in effect with the utility providers, and
Purchaser will be obligated to make its own arrangements for deposits
with the utility providers. "Rents" shall mean and include fixed
monthly rentals, additional rentals, percentage rentals, escalation
rentals (which include each Tenant's proportionate share of building
operation and maintenance costs and expenses as provided for under the
applicable Lease, to the extent the same exceeds any expense stop
specified in such Lease), retroactive rentals, all administrative
charges, utility charges, tenant or real property association dues,
storage rentals, special event proceeds, temporary rents, telephone
receipts, locker rentals, vending machine receipts and other sums and
charges payable by Tenants under the Leases or from other occupants or
users of the Property, but excluding amounts received for Operating
Expenses. "Operating Expenses" shall mean operating expenses and common
area maintenance charges, including utilities, insurance and other
charges, under the Leases whether deemed additional rent or otherwise,
but excluding Rents.
(b) Purchaser will receive a credit on the Closing Statement
for the prorated amount (as of 11:59 p.m. of the day immediately
preceding the Closing Date) of all Rents previously paid to or
collected by Seller and attributable to any period following Closing.
Rents are "Delinquent" when they were due prior to the Closing Date,
and payment thereof has not been made on or before the Closing Date.
Delinquent Rents will not be prorated. All sums collected by Purchaser
13
from and after Closing from each Tenant will be applied first to
current amounts owed by such Tenant to Purchaser and then to Delinquent
Rents owed by such Tenant to Seller. Any sums due Seller will be
promptly remitted to Seller. Purchaser shall not have an exclusive
right to collect any sums due Seller from Tenants under the Leases, and
Seller hereby retains the right to pursue any Tenant under the Leases
for any sums due such Seller for periods attributable to Seller's
ownership of the Property. The provisions of this Section 7.3(b) will
survive the Closing for one year.
(c) All Additional Rents (as defined below) which have been
received in respect to the month in which the Closing Date occurs (the
"Current Month") shall be prorated as of the Closing Date. Such
Additional Rents for the Current Month which have been received as of
the Closing Date shall be prorated on a per diem basis based upon the
number of days in the Current Month prior to, but not including, the
Closing Date (which shall be allocated to Seller) and the number of
days in the Current Month from and after the Closing Date (which shall
be allocated to Purchaser). In addition, Seller shall be credited on
the Closing Date with its share of Rents and other Tenant charges and
Additional Rents for the Current Month and for all periods prior to the
Current Month which have not been received as of the Closing Date.
Purchaser shall be solely responsible, after the Closing Date, for
collecting unpaid Additional Rents. Additional Rents for calendar year
2000 are paid on an estimated basis in monthly installments. At least
five (5) business days prior to the Closing Date, Seller shall cause to
be prepared and delivered to Purchaser a reconciliation ("Additional
Rents Reconciliation") of (1) actual operating and similar expense of
the Property upon which Additional Rents are based ("Additional Rent
Expenses") for the period commencing on January 1, 2000 and ending on
the last day of the Current Month ("Additional Rents Reconciliation
Period"), it being understood that certain Additional Rents Expenses
for the Additional Rents Reconciliation Period, if not based on actual
amounts (such as certain operating expenses for the Current Month), may
be reasonably estimated by Seller; and (2) Additional Rents collected
by Seller for that portion of the Additional Rents Reconciliation
Period prior to the Current Month and Additional Rents payable for the
Current Month. Any amount shown to be owed by Seller to the Tenants
under the Additional Rents Reconciliation shall be credited to
Purchaser at the Closing, and any amounts shown to be owed to Seller by
Tenants of the Property under the Additional Rents Reconciliation shall
be credited to Seller at the Closing. For purposes of this Section
7.3(c), "Additional Rents" shall mean any and all amounts due from
Tenants for Operating Expenses and any other Tenant charges other than
Rents.
(d) All ad valorem real estate and personal property taxes
with respect to the Property (to the extent not prorated in Section
7.3(a) above) shall be prorated as of 11:59 p.m. of the day immediately
preceding the Closing Date on a cash basis for the calendar year in
which the Closing occurs, regardless of the year for which such taxes
are assessed.
(e) Purchaser shall receive a credit against Purchase Price at
Closing for all security deposits for which landlord has liability to
Tenants under the Leases on the Closing Date and for all Rents made in
advance (to the extent not prorated as set forth in Section 7.3(b)
above).
(f) Purchaser shall receive a credit against the Purchase
Price at Closing for all payments due or owing under any Contract for
periods prior to the Closing Date, which amounts shall be prorated as
of 11:59 p.m. of the day immediately preceding the Closing Date. If
Seller has paid any amounts under any Contract for periods after 11:59
p.m. of the day immediately preceding the
14
Closing Date, Purchaser shall pay such amounts to Seller at Closing in
addition to the Purchase Price. If any Contract requires more than ten
(10) days prior notice to terminate, then Purchaser must either (1)
assume such Contracts pursuant to the Xxxx of Sale, or (2) pay to
Seller at Closing, in addition to the Purchase Price, any amounts that
will be due or owing under any such Contract for periods from and after
the Closing Date until such Contract is terminable.
(g) Seller shall receive a credit for any and all Reimbursable
Lease Expenses (hereinafter defined) as set forth in Section 7.9 of
this Agreement and for any and all Reimbursable Capital Expenses, to
the extent that the same have been paid by Seller prior to Closing.
Each party shall make available to the other all records, bills,
vouchers and other data in such party's control verifying Reimbursable
Capital Expenses and the payment thereof. "Reimbursable Capital
Expenses" shall mean costs or expenses for any capital expenditures or
improvements made by Seller after the Effective Date hereof but before
Closing or as otherwise listed on Exhibit J. "Reimbursable Lease
Expenses" shall mean, collectively, those fees, costs and expenses
listed on Exhibit K. Reimbursable Lease Expenses shall include, without
limitation, (i) brokerage commissions and fees to effect any such
leasing transaction (including, without limitation, any fees owed to
any property manager), (ii) expenses incurred for repairs,
improvements, equipment, painting, decorating, partitioning and other
items to satisfy the Tenant's requirements with regard to such leasing
transaction, (iii) legal fees for services in connection with the
preparation of documents and other services rendered in connection with
the effectuation of the leasing transaction, and (iv) 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 Property). "New Lease"
shall mean any Lease entered into in accordance with this Agreement
between the Effective Date and the Closing Date.
7.4 Closing Costs. Except as otherwise expressly provided herein,
Seller shall pay, on the Closing Date, the cost of the Survey, one-half (1/2) of
any escrow fees and other customary charges of the Title Company, and Purchaser
shall pay, on the Closing Date, the premium for the Owner's Policy of Title
Insurance, all recording costs, documentary tax stamps, transfer taxes and any
other similar taxes, one-half (1/2) of any escrow fees and other customary
charges of the Title Company. Except as otherwise provided herein, each party
shall pay its own attorneys' fees.
7.5 Seller's Obligations at the Closing. At the Closing, Seller shall
deliver to Purchaser the following:
(a) Evidence of Authority. Such organizational and authorizing
documents of Seller as shall be reasonably required by the Title
Company to evidence Seller's authority to consummate the transactions
contemplated by this Agreement.
(b) Foreign Person. An affidavit of Seller in the form of
Exhibit E certifying that Seller is not a "foreign person," as defined
in the federal Foreign Investment in Real Property Tax Act of 1980, and
the 1984 Tax Reform Act, as amended.
(c) Leases. The originals of all of the Leases.
(d) Contracts. The originals of all of the Contracts, if any,
in Seller's possession.
15
(e) Tenant Estoppel Certificates substantially in the form of
Exhibit D (or if a Tenant's Lease specifies or contemplates another
form of tenant estoppel certificate, then such other specified or
contemplated form) executed by Tenants representing at least seventy
percent (70%) of the rentable square feet of space in the Improvements
(collectively, the "Tenant Estoppel Certificates").
7.6 Purchaser's Obligations at the Closing. At the Closing, Purchaser
shall deliver to Seller the following:
(a) Purchase Price. The Purchase Price by wire transfer of
immediately available funds.
(b) Evidence of Authority. Such organizational and authorizing
documents of Purchaser as shall be reasonably required by Seller and/or
the Title Company authorizing Purchaser's acquisition of the Property
pursuant to this Agreement and the execution of this Agreement and any
documents to be executed by Purchaser at the Closing.
7.7 Documents to be Executed by Seller and Purchaser. At the Closing,
Seller and Purchaser shall also execute and deliver the following:
(a) Deed. Special Warranty Deed (the "Deed") conveying the
Land and the Improvements to Purchaser subject to no exceptions other
than the Permitted Encumbrances, in the form attached to this Agreement
as Exhibit B.
(b) Tenant Notices. Signed statements or notices to all
tenants of the Property notifying such tenants that the Property has
been transferred to Purchaser and that Purchaser is responsible for
security deposits (specifying the amounts of such deposits).
(c) Xxxx of Sale, Assignment and Assumption of Personal
Property, Contracts, Warranties and Leases. The Xxxx of Sale (herein so
called) in the form attached to this Agreement as Exhibit C.
7.8 Purchaser's Assumption of Obligations. As additional consideration
for the purchase and sale of the Property, Purchaser covenants and agrees that
from and after Closing it will: (i) assume and perform all of the covenants and
obligations of Seller, Seller's predecessors in title and Seller's affiliates
(A) pursuant to the Leases and Contracts, including without limitation, those
relating to any security deposits, to the extent arising on or after the Closing
Date and (B) pursuant to the Leases regarding the physical, environmental or
legal compliance status of the Property, whether arising before, on or after the
Closing Date; (ii) assume and agree to discharge, perform and comply with each
and every liability, duty, covenant, debt or obligation of Seller of any of its
affiliates resulting from, arising out of, or in any way related to any licenses
and permits and arising on or after the Closing Date; and (iii) assume Seller's
obligations to pay, when due (whether on a stated due date or accelerated) any
Reimbursable Lease Expenses in accordance with Section 7.9 or any Reimbursable
Capital Expenses that are unpaid as of the Closing Date. Purchaser hereby
indemnifies and holds Seller harmless from and against any and all claims,
liens, damages, demands, causes of action, liabilities, lawsuits, judgments,
losses, costs and expenses (including but not limited to attorneys' fees and
expenses) asserted against or incurred by Seller and arising out of the failure
of Purchaser to perform its obligations pursuant to this Section 7.8. The
provisions of this Section 7.8 shall survive the Closing without limitation.
16
7.9 Lease Expenses. At Closing, Purchaser shall reimburse Seller for
any and all Reimbursable Lease Expenses to the extent that the same have been
paid by Seller prior to Closing. In addition, at Closing, Purchaser shall assume
Seller's obligations to pay, when due (whether on a stated due date or by
acceleration) any Reimbursable Lease Expenses unpaid as of the Closing, and
Purchaser hereby agrees to indemnify and hold Seller harmless from and against
any and all claims for such Reimbursable Lease Expenses which remain unpaid for
any reason at the time of Closing, which obligations of Purchaser shall survive
the Closing and shall not be merged therein. Each party shall make available to
the other all records, bills, vouchers and other data in such party's control
verifying Reimbursable Lease Expenses and the payment thereof.
8.
RISK OF LOSS
8.1 Condemnation. If, prior to the Closing, action is initiated to take
any of the Property by eminent domain proceedings or by deed in lieu thereof,
Purchaser may either at or prior to Closing (a) terminate this Agreement, or (b)
consummate the Closing, in which latter event all of Seller's assignable right,
title and interest in and to the award of the condemning authority shall be
assigned to Purchaser at the Closing and there shall be no reduction in the
Purchase Price.
8.2 Casualty. Except as provided in Sections 5.2 and 6.1 of this
Agreement, Seller assumes all risks and liability for damage to or injury
occurring to the Property by fire, storm, accident, or any other casualty or
cause until the Closing has been consummated. If the Property, or any part
thereof, suffers any damage in excess of the Casualty Amount prior to the
Closing from fire or other casualty, which Seller, at its sole option, does not
elect to repair, Purchaser may either at or prior to Closing (a) terminate this
Agreement, or (b) consummate the Closing, in which latter event all of Seller's
right, title and interest in and to the proceeds of any insurance covering such
damage (less an amount equal to any expenses and costs incurred by Seller to
repair or restore the Property and any portion of such proceeds paid or to be
paid on account of the loss of rents or other income from the Property for the
period prior to and including the Closing Date, all of which shall be payable to
Seller), to the extent the amount of such insurance does not exceed the Purchase
Price, shall be assigned to Purchaser at the Closing. If the Property, or any
part thereof, suffers any damage less than the Casualty Amount prior to the
Closing, Purchaser agrees that it will consummate the Closing and accept the
assignment of the proceeds of any insurance covering such damage plus an amount
equal to Seller's deductible under its insurance policy and there shall be no
reduction in the Purchase Price.
9.
DEFAULT
9.1 Breach by Seller. Except as Purchaser's remedies may otherwise be
expressly limited by the terms of this Agreement (including, without limitation,
the terms of Section 5.4):
(a) In the event that Seller shall default in any of its
obligations hereunder to be performed prior to Closing, for any reason
other than Purchaser's default or a termination of this Agreement by
Purchaser or Seller pursuant to a right to do so under the provisions
hereof, Purchaser, as its sole and exclusive remedy, may terminate this
Agreement, receive a refund of the Xxxxxxx Money and, subject to the
provisions of Section 9.1(c) below, pursue Seller for actual damages
incurred by Purchaser as a result of such default.
17
(b) If Purchaser discovers prior to Closing that any
representation or warranty made by Seller in Section 5.4(a) has been
breached, then Purchaser may extend the Closing for up to thirty (30)
days to investigate the pertinent facts, and Seller shall exercise
reasonable, good faith efforts to remedy or cure such breach. In the
event that such breach has not been cured or remedied to Purchaser's
satisfaction prior to Closing, as the same may be extended, the sole
and exclusive remedy of Purchaser shall be to either waive the breach
and proceed to Closing or terminate this Agreement by written notice to
Seller. Upon a termination of this Agreement under this Section 9.1(b),
the Xxxxxxx Money shall be returned to Purchaser, and neither party
shall have any further obligations hereunder except for Surviving
Obligations.
(c) Notwithstanding the foregoing, in no event shall the
aggregate amount of actual damages which Purchaser may be entitled to
recover against Seller pursuant to Sections 9.1(a) above exceed
$50,000.00 and in no event shall Seller be liable to Purchaser for any
punitive, speculative or consequential damages or to the remedy of
specific performance.
(d) If Seller is unable to deliver all requisite Tenant
Estoppel Certificates, then Purchaser's sole and exclusive remedy and
recourse shall be either to waive the requirement for the missing
Tenant Estoppel Certificates and proceed to Closing without reduction
in the Purchase Price or to terminate this Agreement by immediate
written notification to Seller, in which event the Xxxxxxx Money shall
be returned to Purchaser, and neither party shall have any further
obligations hereunder except for Surviving Obligations.
9.2 Breach by Purchaser. If Purchaser fails to comply with Section 7 of
this Agreement, Seller may terminate this Agreement and thereupon shall be
entitled to the Xxxxxxx Money as liquidated damages (and not as a penalty) and
as Seller's sole remedy and relief hereunder (except for the Surviving
Obligations). Seller and Purchaser have made this provision for liquidated
damages because it would be difficult to calculate, on the date hereof, the
amount of actual damages for such breach, and Seller and Purchaser agree that
these sums represent reasonable compensation to Seller for such breach, and
neither party shall have any further obligation hereunder except for Surviving
Obligations. The provisions of this Section 9.2 shall not limit or affect any of
Purchaser's indemnities as provided in other Sections of this Agreement.
10.
MISCELLANEOUS
10.1 Notices. All notices, demands and requests which may be given or
which are required to be given by either party to the other, and any exercise of
a right of termination provided by this Agreement, shall be in writing and shall
be deemed effective either: (a) on the date personally delivered to the address
specified in Section 1.1 above, as evidenced by written receipt therefore,
whether or not actually received by the person to whom addressed; (b) on the
third (3rd) business day after being sent, by certified or registered mail,
return receipt requested, addressed to the intended recipient at the address
specified in Section 1.1 above; (c) on the first (1st) business day after being
deposited into the custody of a nationally recognized overnight delivery service
such as Federal Express Corporation, Xxxxx or Purolator, addressed to such party
at the address specified in Section 1.1 above; or (d) on the date sent by
18
facsimile to the fax number specified in Section 1.1 above to the attention of
the appropriate person, with a copy of the receipt being forwarded by overnight
delivery service as herein provided. A party may change its address for notice
by written notice to all other parties as herein provided.
10.2 Real Estate Commissions. Seller shall pay to the Agent upon the
Closing of the transaction contemplated hereby, and not otherwise, a cash
commission in the amount agreed on in a separate listing agreement between
Seller and Agent. Said commission shall in no event be payable unless and until
the transaction contemplated hereby is closed in accordance with the terms of
this Agreement; if such transaction is not closed for any reason, including,
without limitation, failure of title or default by Seller or Purchaser or
termination of this Agreement pursuant to the terms hereof, then such commission
will be deemed not to have been earned and shall not be due or payable. Except
as set forth above with respect to Agent, neither Seller nor Purchaser has
authorized any broker or finder to act on Purchaser's behalf in connection with
the sale and purchase hereunder and neither Seller nor Purchaser has dealt with
any broker or finder purporting to act on behalf of any other party. Purchaser
agrees to indemnify and hold harmless Seller from and against any and all
claims, losses, damages, costs or expenses of any kind or character arising out
of or resulting from any agreement, arrangement or understanding alleged to have
been made by Purchaser or on Purchaser's behalf with any broker or finder in
connection with this Agreement or the transaction contemplated hereby. Seller
agrees to indemnify and hold harmless Purchaser from and against any and all
claims, losses, damages, costs or expenses of any kind or character arising out
of or resulting from any agreement, arrangement or understanding alleged to have
been made by Seller or on Seller's behalf with any broker or finder in
connection with this Agreement or the transaction contemplated hereby.
Notwithstanding anything to the contrary contained herein, this Section 10.2
shall survive the Closing or any earlier termination of this Agreement.
10.3 Entire Agreement. This Agreement embodies the entire agreement
between the parties relative to the subject matter hereof, and there are no oral
or written agreements between the parties, nor any representations made by
either party relative to the subject matter hereof, which are not expressly set
forth herein.
10.4 Amendment. This Agreement may be amended only by a written
instrument executed by the party or parties to be bound thereby.
10.5 Headings. The captions and headings used in this Agreement are for
convenience only and do not in any way limit, amplify, or otherwise modify the
provisions of this Agreement.
10.6 Time of Essence. Time is of the essence of this Agreement;
however, if the final date of any period which is set out in any provision of
this Agreement falls on a Saturday, Sunday or legal holiday under the laws of
the United States, the State of Texas or the State, then, in such event, the
time of such period shall be extended to the next day which is not a Saturday,
Sunday or legal holiday.
10.7 Governing Law. This Agreement shall be governed by the laws of the
State and the laws of the United States pertaining to transactions in the State.
10.8 Successors and Assigns; Assignment. This Agreement shall bind and
inure to the benefit of Seller and Purchaser and their respective heirs,
executors, administrators, personal and legal representatives, successors and
permitted assigns. Except as hereinafter provided, Purchaser shall not assign
Purchaser's rights under this Agreement without the prior written consent of
Seller, which consent
19
may be withheld absolutely. Without Seller's consent, Purchaser may assign this
Agreement to a corporation, partnership or limited liability company organized
by Purchaser and in which Purchaser, or another entity controlled by him, will
own a voting equity interest. Any subsequent assignment may be made only with
the prior written consent of Seller. No assignment of Purchaser's rights
hereunder shall relieve Purchaser of its liabilities under this Agreement. This
Agreement is solely for the benefit of Seller and Purchaser; there are no third
party beneficiaries hereof. Any assignment of this Agreement in violation of the
foregoing provisions shall be null and void.
10.9 Invalid Provision. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; and, the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
such illegal, invalid, or unenforceable provision or by its severance from this
Agreement.
10.10 Attorneys' Fees. In the event it becomes necessary for either
party hereto to file suit to enforce this Agreement or any provision contained
herein, the party prevailing in such suit shall be entitled to recover, in
addition to all other remedies or damages, as provided herein, reasonable
attorneys' fees incurred in such suit.
10.11 Multiple Counterparts. This Agreement may be executed in a number
of identical counterparts which, taken together, shall constitute collectively
one (1) agreement; in making proof of this Agreement, it shall not be necessary
to produce or account for more than one such counterpart with each party's
signature.
10.12 Exhibits. The following exhibits are attached to this Agreement
and are incorporated into this Agreement by this reference and made a part
hereof for all purposes:
Exhibit A, the legal description of the Land
Exhibit B, the form of the Deed
Exhibit C, the form of the Xxxx of Sale, Assignment and Assumption of
Personal Property, Contracts, Warranties and Leases
Exhibit D, the form of the Estoppel Certificate
Exhibit E, the form of the Non-Foreign Affidavit
Exhibit F, Left Blank Intentionally
Exhibit G, Tangible Personal Property Leases or Installment Sales
Contracts
Exhibit H, Pending Actions
Exhibit I, Governmental Violations
Exhibit J, Reimbursable Capital Expenses
Exhibit K, Reimbursable Lease Expenses
10.13 No Recordation. Seller and Purchaser hereby acknowledge that
neither this Agreement nor any memorandum or affidavit thereof shall be recorded
of public record. Should Purchaser ever record or attempt to record this
Agreement, or a memorandum or affidavit thereof, or any other similar document,
then, notwithstanding anything herein to the contrary, said recordation or
attempt at recordation shall constitute a default by Purchaser hereunder, and,
in addition to the other remedies provided for herein,
20
Seller shall have the express right to terminate this Agreement by filing a
notice of said termination in the county in which the Land is located.
10.14 Merger Provision. Except as otherwise expressly provided herein,
any and all rights of action of Purchaser for any breach by Seller of any
representation, warranty or covenant contained in this Agreement shall merge
with the Deed and other instruments executed at Closing, shall terminate at
Closing and shall not survive Closing.
10.15 Jury Waiver. PURCHASER AND SELLER DO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, OR UNDER OR IN CONNECTION WITH
THIS AGREEMENT, THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING OR SELLER AT
CLOSING, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ANY ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN
ANY MANNER WITH THIS AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT LIMITATION,
ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT AND ANY CLAIMS OR DEFENSES
ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR
VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR SELLER TO ENTER INTO AND
ACCEPT THIS AGREEMENT AND THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING AND
SHALL SURVIVE THE CLOSING OF TERMINATION OF THIS AGREEMENT.
REMAINDER OF THIS PAGE
LEFT BLANK INTENTIONALLY
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PURCHASER: /s/ Xxxxxxx X. XxXxxxx,
----------------------------------------
XXXXXXX X. XxXXXXX, XX.
Date of Execution
by Purchaser:
October 24, 2000
SELLER: XXXXXX INCOME PROPERTIES II, LTD.,
a Texas limited partnership
Date of Execution
by Seller: By: Xxxxxx Realty Investors IX, Inc., a
October 24, 2000 Texas corporation
General Partner
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
Title: Executive Vice President
The undersigned Title Company hereby acknowledges receipt of the Xxxxxxx Money
and a copy of this Agreement, and agrees to hold and dispose of the Xxxxxxx
Money in accordance with the provisions of this Agreement.
Date of Execution by LAWYERS TITLE INSURANCE CORPORATION
Title Company:
October 26, 2000
By: /s/ [ILLEGIBLE]
-----------------------------------------
-----------------------------------------,
Authorized Officer
SIGNATURE PAGE TO PURCHASE AND SALE AGREEMENT
