EXHIBIT 10.27
ASSIGNMENT OF AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THE XXXXXXXXXXXX COMPANY, INC., AS SELLER
AND
SERIES A, LLC, AS BUYER
ASSIGNOR, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, does hereby assign all of its right, title and
interest in that certain Agreement of Purchase and Sale and Joint Escrow
Instructions ("Purchase Agreement") described herein, to ASSIGNEE and its
successors and assigns. The Purchase Agreement is described as follows:
DATE OF AGREEMENT: September 15, 2005
ORIGINAL BUYER: Series A, LLC
ASSIGNED TO: Xxxx XX Rockford IL, LLC
PROPERTY ADDRESS: 0000 Xxxxx Xxxx, Xxxxxxxx, XX 00000
ASSIGNOR acknowledges that it is not released from any and all obligations
or liabilities under said Purchase Agreement with the exception of the xxxxxxx
money deposit which is currently in escrow.
ASSIGNEE hereby agrees to assume and be responsible for all obligations
and liabilities under said Purchase Agreement. This Assignment shall be in full
force and effect upon its full execution.
Executed this 8th day of December, 2005.
ASSIGNOR: ASSIGNEE:
SERIES A, LLC XXXX XX ROCKFORD IL, LLC
By Xxxx REIT Advisors II, LLC
By: /S/ Xxxx X. Xxxx its Manager
-------------------------------
Xxxx X. Xxxx
Authorized Officer
By: /S/ Xxxx X. Xxxx
---------------------------
Xxxx X. Xxxx
Senior Vice President
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AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
By and Between
THE XXXXXXXXXXXX COMPANY, INC.
an Alabama corporation
as Seller
and
SERIES A, LLC
an Arizona limited liability company
as Buyer
Dated as of September 15, 2005
Re: FDXG Facility
Rockford, Illinois
================================================================================
TABLE OF CONTENTS
Page
1. Certain Basic Definitions..........................................
2. Sale of Property; Purchase Price...................................
2.1 Sale of Property..........................................
2.2 Purchase Price............................................
3. Escrow; Closing Conditions.........................................
3.1 Escrow....................................................
3.2 Closing Date..............................................
3.3 Buyer's Conditions to.....................................
Closing............................................................
3.4 Approval..................................................
3.5 Termination...............................................
3.6 Seller's Conditions to Closing............................
3.7 Title and Title Insurance.................................
3.8 Closing Costs and Charges.................................
3.9 Deposit of Documents and Funds by Seller..................
3.10 Deposit of Documents and Funds by Buyer...................
3.11 Delivery of Documents and Funds at Closing................
3.12 Prorations and Adjustments................................
4. Reserved...........................................................
5. Reserved ..........................................................
6. Commissions........................................................
7. Damage or Destruction; Condemnation................................
8. Seller's Representations, Warranties and Covenants.................
9. Buyer's Representations and Warranties.............................
10. Default............................................................
11. Waiver of Trial by Jury............................................
12. Attorneys' Fees....................................................
13. Notices............................................................
14. Amendment; Complete Agreement......................................
15. Governing Law......................................................
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16. Severability.......................................................
17. Counterparts, Headings, and Defined Terms..........................
18. Time of the Essence................................................
19. Waiver.............................................................
20. Third Parties......................................................
21. Additional Documents...............................................
22. Independent Counsel................................................
23. Condition of Property..............................................
24. Property "AS IS"...................................................
25. Governmental Approvals.............................................
26. Release............................................................
27. Hazardous Materials................................................
28. Indemnification....................................................
29. Assignment.........................................................
30. Successors and Assigns.............................................
31. Exhibits...........................................................
32. No Reservation of Property.........................................
33. Duty of Confidentiality............................................
34. Survival...........................................................
35. 1031 Exchange......................................................
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AGREEMENT OF PURCHASE AND SALE
AND
JOINT ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS
("Agreement") is made as of this 15 day of September 2005 (the "Effective
Date"), by and between THE XXXXXXXXXXXX COMPANY, INC., an Alabama corporation
("Seller"), and SERIES A, LLC, an Arizona limited liability company ("Buyer").
R E C I T A L S:
A Seller desires to sell and Buyer desires to buy the Property (defined
below), subject to satisfaction of the conditions contained herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Buyer and Seller agree as follows:
AGREEMENT
For purposes of this Agreement, the following terms shall have the
following definitions:
1 Certain Basic Definitions.
1.1 "Broker" means:
Xxxx Xxxxxxx Company
0000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Fax No.: (000) 000-0000
1.2 "Buyer's Address" means:
SERIES A, LLC
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Legal Department
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
E-Mail: xxxxxx@xxxxxxxxxxx.xxx
With a copy at the same time to:
Xxxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxx, PLC
0000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
E-Mail: xxxxxx@xxxxxxx.xxx
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1.3 "Closing Date" means 12:00 noon Phoenix, Arizona time on or
before November 9, 2005, provided, however, Buyer shall have the right to
designate an earlier date upon providing Seller at least ten (10) business days
prior notice thereof but not prior to September 15, 2005. Buyer may extend the
Closing Date for up to an additional thirty (30) days upon delivery of written
notice to extend the Closing Date to Title Company and to Seller prior to the
original Closing Date and by depositing an additional Fifty Thousand and no/100
Dollars ($50,000.00) of xxxxxxx money with Title Company. For purposes of this
Agreement, any additional xxxxxxx money deposited with Title Company pursuant to
this Section 1.3 shall be added to and become a part of the Deposit (as defined
below).
1.4 Reserved.
1.5 "Deposit" means Seventy-Five Thousand and No/100 Dollars
($75,000.00), to be deposited with the Title Company within five (5) business
days after the execution hereof. The Title Company shall place the Deposit in an
interest-bearing account. The interest which accrues on the Deposit shall be for
the benefit of Buyer in the event that closing does not occur for any reason
other than Buyer's default hereunder and for the benefit of Buyer, to be
credited against the Purchase Price, in the event that closing does occur.
Interest shall only accrue to the benefit of Seller, in the event that Buyer
defaults hereunder.
1.6 "Due Diligence Period" means 5:00 p.m., MST, on that date which
is thirty (30) days from the later of (i) that date which Seller delivers to
Buyer all of the Due Diligence Items, identified on Exhibit B attached hereto
and made a part hereof, or (ii) that date Title Company acknowledges, by its
execution of the Acceptance By Title Company made a part hereof, its receipt of
this Agreement and its receipt of the Deposit.
1.7 "Lease" means the lease between Seller and FedEx Ground Package
System, Inc. ("FDXG") dated as of October 25, 1994, as amended, including the
Third Amendment dated March 29, 2005.
1.8 "Personal Property" means Seller's interest, if any, in any
tangible personal property owned by Seller and located on the Real Property,
together with Seller's interest, if any, in any licenses, permits, warranties,
and guaranties relating to the Property and any intangible property related to
the Real Property, including building name and telephone number.
1.9 "Property" means (i) the Lease; (ii) the Real Property and (iii)
Personal Property, collectively.
1.10 "Purchase Price" means the sum of Six Million One Hundred Fifty
Thousand Dollars ($6,150,000).
1.11 "Real Property" means the improved real property located in
Rockford, Illinois, and more particularly described in Exhibit A attached hereto
and incorporated herein by this reference, together with buildings, structures,
fixtures and other improvements now or hereafter located thereon, and all rights
and appurtenances thereto.
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1.12 "Seller's Address" means:
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxx Xxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
E-mail: xxxx@xxxxxx.xx
With a copy at the same time to:
Xxx & Xxxxxx, LLC
000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
E-mail: xxxx@xxx-xxx.xxx
1.13 "Title Company" means Lawyers Title Insurance Corporation.
1.14 "Title Company's Address" means:
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
E-mail: xxxxxx@xxxxxx.xxx
2. Sale of Property; Purchase Price.
2.1 Sale of Property. Seller shall sell the Property to Buyer, and
Buyer shall purchase the Property from Seller, for the Purchase Price and
otherwise on the terms and conditions of this Agreement. The Property shall be
sold, granted, conveyed, transferred and assigned by Seller to Buyer by
appropriate instruments, including a Special Warranty Deed, for the Real
Property in the form attached hereto as Exhibit D (the "Deed"), an Assignment
and Assumption of Lease for the Lease in the form attached hereto as Exhibit G
(the "Assignment of Lease"), a Xxxx of Sale with general warranties as to title
for any Personal Property to be conveyed in the form attached hereto as Exhibit
E (the "Xxxx of Sale"), as well as other instruments as shall be necessary to
effect the terms of the conveyance herein embodied. The Deed, the Assignment of
Lease and the Xxxx of Sale shall collectively be referred to herein as the
"Transfer Documents."
2.2 Purchase Price. The Purchase Price shall be payable as follows:
2.2.1 Deposit. On or prior to the fifth (5th) business day
after the date of this Agreement, Buyer shall deliver to the Title Company the
Deposit in the form of a wire transfer or cash or cashier's check drawn on good
and sufficient funds made payable to the order of Title Company. The Deposit
shall, except as set forth in
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Section 7 and Section 10.2, be non-refundable and shall either be applied toward
the payment of the Purchase Price on the Close of Escrow or be immediately
delivered by the Title Company to Seller if Seller becomes entitled thereto
under Section 10.1. The Deposit must be held in an interest bearing account with
all interest being for Buyer's benefit. Notwithstanding the foregoing, the
Deposit shall be returned to Buyer if this Agreement is terminated pursuant to
Section 3.5, Section 7 or Section 10.2 or the Close of Escrow does not occur as
a result of the failure of a condition contained in Section 3.3 or breach of
this Agreement by Seller.
2.2.2 Balance. Buyer shall deposit into Escrow an amount
("Cash Balance"), in immediately available federal funds equal to the Purchase
Price minus the Deposit and increased or decreased, as appropriate, by the
amount of any credits due or any items chargeable to Buyer under this Agreement.
Buyer shall deposit the Cash Balance into Escrow in the form of immediately
available federal funds no later than 12:00 noon, MST, on the Closing Date such
that Title Company will be in a position to disburse the cash proceeds to Seller
on the Closing Date.
3. Escrow; Closing Conditions.
3.1Escrow. Upon the execution of this Agreement by Buyer and Seller,
and the acceptance of this Agreement by the Title Company in writing, this
Agreement shall constitute the joint escrow instructions of Buyer and Seller to
the Title Company to open an escrow ("Escrow") for the consummation of the sale
of the Property to Buyer pursuant to the terms of this Agreement. Upon the Title
Company's written acceptance of this Agreement, the Title Company is authorized
to act in accordance with the terms of this Agreement. Buyer and Seller shall
execute the Title Company's general escrow instructions upon request; provided,
however, that if there is any conflict or inconsistency between such general
escrow instructions and this Agreement, this Agreement shall control. Upon the
Close of Escrow, the Title Company shall pay any sum owed to Seller with
immediately available federal funds.
3.2 Closing Date. The Escrow shall close ("Close of Escrow") on the
Closing Date, provided that all conditions to the Close of Escrow set forth in
this Agreement have been satisfied or waived by the party intended to be
benefited thereby.
3.3 Buyer's Conditions to Closing. The Close of Escrow is subject to
and contingent on the satisfaction of the following conditions:
3.3.1 Inspection. Buyer's approval of the physical condition,
and all other matters related to, of the Property at Buyer's sole cost and
expense prior to the expiration of the Due Diligence Period. Buyer acknowledges
that prior to the expiration of the Due Diligence Period: (i) Buyer will conduct
such surveys and inspections, and make such boring, percolation, geologic,
environmental and soils tests and other studies of the Property; and (ii) Buyer
will have adequate opportunity to make such inspection of the Property
(including an inspection for zoning, land use, environmental and other laws,
regulations and restrictions) as Buyer has, in Buyer's discretion, deemed
necessary or advisable as a condition precedent to Buyer's purchase of the
Property and to determine the physical, environmental and land use
characteristics of the Property (including, without limitation, its subsurface)
and its suitability for Buyer's intended use. Buyer shall protect, indemnify,
defend and hold
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the Property, Seller and Seller's officers, directors, shareholders,
participants, affiliates, employees, representatives, invitees, agents and
contractors free and harmless from and against any and all claims, damages,
liens, liabilities, losses, costs and expenses, including reasonable attorneys'
fees and court costs, directly resulting from Buyer's inspection and testing of
the Property, except those arising from the release of pre-existing
contamination including, except as hereinbefore provided, without limitation,
repairing any and all damages to any portion of the Property, directly resulting
from Buyer's conducting such inspections, surveys, tests, and studies. Buyer
shall keep the Property free and clear of any mechanics' liens or materialmen's
liens related to Buyer's right of inspection and the activities contemplated by
Section 3.3.1 of this Agreement. Buyer's indemnification obligations set forth
herein shall survive the Close of Escrow and shall not be merged with the Deed,
and shall survive the termination of this Agreement and Escrow prior to the
Close of Escrow. It is understood by the parties that, except as set forth in
Section 8.1, Seller does not make any representation or warranty, express or
implied, as to the accuracy or completeness of any information contained in
Seller's files or in the documents produced by Seller, including, without
limitation, any environmental audit or report. Buyer acknowledges that, except
as set forth in Section 8.1, Seller and Seller's affiliates shall have no
responsibility for the contents and accuracy of such disclosures, and Buyer
agrees that the obligations of Seller in connection with the purchase of the
Property shall be governed by this Agreement irrespective of the contents of any
such disclosures or the timing or delivery thereof.
3.3.2 Title Policy. The Title Company's commitment to issue
the Buyer's Title Policy complying with the requirements of Section 3.7.2 below;
such commitment to be delivered to the Buyer, along with copies of the documents
referred to therein, within ten (10) business days of the date of this
Agreement.
3.3.3 Covenants; Representations and Warranties. Seller having
performed and satisfied all agreements and covenants required hereby to be
performed by Seller prior to or at the Close of Escrow; and all of Seller's
representations and warranties shall be true and correct in all material
respects and they and Seller's covenants shall not have been breached as of the
date of execution hereof and as of the Close of Escrow.
3.3.4 Preliminary Report/Survey. Seller shall deliver to Buyer
a copy of Seller's most recent survey (the "Existing Survey") dated April 28,
2005. In addition, Seller shall promptly cause the Existing Survey to be updated
and provide to Buyer not later than five (5) business days prior to the
expiration of the Due Diligence Period an "As-Built" survey (the "Updated
Survey"). To the extent the Updated Survey is not timely delivered, the Due
Diligence Period shall be extended so that it expires five (5) business days
after Buyer's receipt of the Updated Survey. The Updated Survey shall be
prepared in accordance with the quality standards and specifications delivered
by Buyer to Seller contemporaneously with the execution and delivery of this
Agreement. Buyer shall have until the expiration of the Due Diligence Period (as
the same may be extended pursuant to the third sentence of this Section 3.3.4)
to review the Title Commitment and the Updated Survey to specifically state in
writing any objections ("Objections"). Any items appearing in the Title
Commitment or the Updated Survey, which Buyer does not object to within said
time period and any matter to which Buyer waives its objection as set forth in
sub-paragraph (ii) below
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shall be deemed a "Permitted Exception." If Buyer gives written notice of any
Objections, Seller shall, not more than five (5) business days after its receipt
of Buyer's written Objections, advise Buyer which Objections Seller intends to
cure. Seller hereby acknowledges and agrees that it shall use its good faith
efforts to cure any Objections relating to the payment of liens or encumbrances
created by Seller, and may, but shall have no obligation to cure Objections
based on matters other than Seller created liens or encumbrances. Seller's lack
of response shall be deemed Seller's decision not to cure the Objections. Buyer
hereby objects to any deed of trust, mechanics or similar lien filed against the
Property and, to the extent such encumbrances were created by or as a result of
Seller's acts, Seller agrees to cause such encumbrances to be released by Seller
or Seller's lender's at or prior to Closing. If Seller elects to not cure one or
more Objections before Close of Escrow, Buyer shall, within five (5) business
days after its receipt of such notice, notify Seller of Buyer's election to
either (i) terminate this Agreement effective upon giving written notice thereof
to Seller and the Title Company and thereupon, Buyer shall be entitled to the
return of the Deposit and this Agreement and all obligations hereunder shall
thereupon terminate, except those which expressly survive termination; or (ii)
waive the Objections Seller has elected not to cure and consummate the purchase
of the Property subject to such Objections, which shall be included within the
Permitted Exceptions without any abatement or reduction of the Purchase Price.
3.3.5 Due Diligence Items. Within five (5) working days from
the date of this Agreement, Seller, at Seller's cost, shall deliver to Buyer, to
Buyer's Address (without copies to Xxxxx Xxxxxxx & Xxxxx LLP or Investors Real
Estate Agency) the documents and information ("Due Diligence Items") set forth
in Exhibit B attached hereto and incorporated herein by this reference. Buyer
may, at Buyer's cost, make additional copies of all or any part of the Due
Diligence Items. Promptly following any termination of this Agreement by Buyer,
Buyer agrees to return to Seller all Due Diligence Items delivered to Buyer by
Seller and deliver to Seller copies of any engineering, environmental and other
third party reports or surveys obtained or performed by Buyer to the extent such
delivery is permitted by the third party that prepared such report, excluding,
however, any financial projections or analyses of the Property prepared by or
for the account of Buyer and legally related matters. This covenant will survive
the termination of this Agreement.
3.3.6 Tenant Estoppel, Subordination, Non-Disturbance and
Attornment Agreement. Seller shall endeavor to secure and deliver to Buyer by
the Close of Escrow, a Subordination, Non-Disturbance and Attornment Agreement
("SNDA") and estoppel certificate ("Estoppel Certificate") for the Lease
consistent with the information provided to Buyer and summarized in Section 8.1
(e) hereof and in the form of Exhibit C attached hereto and incorporated herein
by this reference, or forms reasonably satisfactory to Buyer's lender. Buyer may
terminate this Agreement upon written notice to Seller if, no less than two (2)
business days prior to the Close of Escrow, Seller fails to deliver to Buyer the
required Estoppel Certificate and the SNDA. Buyer's receipt of the Tenant
Estoppel and SNDA is a condition of Closing. At Closing, if any punch list or
incomplete items remain, an amount equal to 125% of the cost to complete such
items as estimated by Seller's General Contractor or design professional (or, if
unavailable, a design professional reasonably acceptable to Seller and selected
and compensated for the preparation of the estimate by Buyer) shall be held in
escrow by the Escrow Agent and released pursuant to an escrow agreement to
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be entered into among Seller, Buyer and Escrow Agent substantially in the form
attached hereto as Exhibit I.
3.3.7 Delivery of Transfer Documents. Seller shall deliver to
Title Company, for delivery to Buyer at Close of Escrow, the executed original
Transfer Documents.
3.3.8 Reserved.
3.3.9 Delivery of Owner's Affidavit. Seller shall endeavor to
deposit with Title Company an executed affidavit of Seller and such other
documentation as may be reasonably required by Title Company to allow for the
deletion of the mechanics' lien exception from the Buyer's Title Policy.
Deletion of the mechanics' lien exception is a condition of Closing.
3.3.10 Delivery of Certificate of Occupancy. Seller shall
endeavor to deliver to Buyer of the Certificate of Occupancy for the
improvements on the Real Property not later than ten (10) days prior to the
Close of Escrow. Delivery of the certificate shall be a condition of Closing.
3.3.11 Notice to Tenant. Seller shall deposit with Title
Company a letter from Seller to Tenant requesting that future rent under the
Lease be paid to Buyer.
3.3.12 Delivery of Personal Property not located on the Real
Property. Seller shall deliver to Buyer an original of the Lease, any permits,
warranties, guaranties and contracts related to the Property.
If the foregoing conditions have not been satisfied by the specified date
or Close of Escrow as the case may be, then Buyer shall have the right, at
Buyer's sole option, by giving written notice to Seller and Title Company, to
either (i) extend the Close of Escrow for such period of time Buyer believes is
reasonably required for Seller to satisfy the unsatisfied condition or
conditions, or (ii) cancel this Agreement, whereupon the Deposit plus interest
shall be paid immediately by Title Company to Buyer and, except as otherwise
provided in this Agreement, neither of the parties shall have any further
liability or obligation under this Agreement.
3.4 Reserved.
3.5 Termination. Buyer has the right, for any or no reason, on or
before the end of the Due Diligence Period (as the same may be extended pursuant
to Section 3.3.4), to deliver Seller written notice that Buyer has elected to
terminate this Agreement. In such event, the Deposit will be returned to Buyer
and the parties will be released from further liability, except that which
expressly survives termination. If Buyer fails to timely deliver such notice,
Buyer will be deemed to have terminated this Agreement. This is an "all or none"
transaction and Buyer has no right to terminate this Agreement except in its
entirety.
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3.6 Seller's Conditions to Closing. The obligations of Seller to
consummate the transactions provided for herein are subject to and contingent
upon the satisfaction of the following conditions or the waiver of same by
Seller in writing:
3.6.1 Representations and Warranties. All representations and
warranties of Buyer contained in this Agreement shall be true and correct as of
the date made and as of the Close of Escrow with the same effect as though such
representations and warranties were made at and as of the Close of Escrow.
3.6.2 Covenants. Buyer shall have performed and satisfied all
agreements and covenants required hereby to be performed by Buyer prior to or at
the Close of Escrow.
3.7 Title and Title Insurance.
3.7.1 Deed. On the Closing Date, Seller shall convey title to
the Property to Buyer by special warranty deed in the form of Exhibit D attached
hereto and incorporated herein by this reference ("Deed"), subject only to the
Permitted Exceptions.
3.7.2 Buyer's Title Policy. At the Close of Escrow, the Title
Company shall issue to Buyer an Illinois Standard Coverage Owner's Policy of
Title Insurance ("Buyer's Title Policy") which:
a. shall be written with liability in the amount of the
Purchase Price; and
b. shall insure title to the Property, to be vested in
Buyer free and clear of all liens, claims, encumbrances, reservations,
restrictions, charges, equities, rights-of-way and exceptions, except for
the Permitted Exceptions.
3.7.3 Survey Coverage. Buyer shall have the right to procure
survey coverage and such other endorsements to Buyer's Title Policy required by
Buyer (the "Endorsements") as long as the issuance of such Endorsements does not
delay or extend the Closing Date. Buyer shall pay for (i) the cost of such
Endorsements, and (ii) for the cost of any other increase in the amount or scope
of title insurance if Buyer elects to increase the amount or scope of title
insurance coverage provided in the Buyer's Title Policy.
3.8 Closing Costs and Charges.
3.8.1 Seller's Costs. Seller shall pay (a) the Title Company's
escrow fees; (b) all expenses and charges incurred in connection with the
discharge of delinquent taxes, if any, which may be required in order for the
Title Company to issue the Buyer's Title Policy in accordance with Section
3.7.2(b) above; (c) the cost to record any lien releases or other instruments,
if any, filed to cure Objections which Seller agreed to cure; (d) Seller's share
of prorations as determined in accordance with Section 3.12; (e) Commissions
payable to Broker; (f) Seller's attorneys' fees; and (g) state and city transfer
and documentary stamp taxes, if any.
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3.8.2 Buyer's Costs. Buyer shall pay (a) all document
recording charges (except those specifically assumed by Seller); (b) the cost of
the Buyer's Title Policy; (c) any environmental survey, appraisal or other
diligence expenses; (d) the premium for all endorsements to Buyer's Title
Policy; (e) the cost of the Updated Survey; (f) Buyer's attorneys' fees and (g)
Buyer's share of prorations as determined in accordance with Section 3.12.
3.8.3 Other Costs. All other costs, if any, shall be
apportioned in the customary manner for real property transactions in the County
where the Real Property is located.
3.9 Deposit of Documents and Funds by Seller. Not later than
11:30 a.m., Rockford, Illinois time on the Closing Date, Seller shall deposit
the following items into Escrow, each of which shall be duly executed and
acknowledged by Seller where appropriate:
3.9.1 The Deed.
3.9.2 Two (2) counterparts of the Assignment and Assumption of
Lease.
3.9.3 Two (2) counterparts of the Xxxx of Sale.
3.9.4 A non-foreign affidavit in the form of Exhibit F
attached hereto and incorporated herein by this reference (the "FIRPTA
Certificate").
3.9.5 The Original Lease.
3.9.6 An executed letter to be supplied by Buyer directing
tenant under the Lease to make future rental payments to Buyer and specifically
attorning to Buyer.
3.9.7 A certificate affirming and renewing, as of the Close of
Escrow, all of the representations and warranties set forth in this Agreement.
3.9.8 Other documents pertaining to Seller's authority to
record the Deed that may reasonably be required by the Title Company to close
the Escrow in accordance with this Agreement.
3.10 Deposit of Documents and Funds by Buyer. Not later than
11:30 a.m., Rockford, Illinois time on the Closing Date, Buyer shall deposit the
following items into Escrow:
3.10.1 Reserved.
3.10.2 Two (2) counterparts of the Assignment and Assumption
of Lease, duly executed by Buyer.
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3.10.3 Two (2) counterparts of the Xxxx of Sale, duly executed
by Buyer; and
3.10.4 A certificate affirming and renewing as of the Close of
Escrow, all of the representations and warranties set forth in this Agreement.
3.10.5 All other documents as may reasonably be required by
the Title Company to close the Escrow in accordance with this Agreement.
3.10.6 As set forth in Section 2.2.2 hereof, the Cash Balance
shall be deposited into escrow by Buyer no later than 12:00 noon, MST, on the
Closing Date.
3.11 Delivery of Documents and Funds at Closing. Provided
that all conditions to closing set forth in this Agreement have been satisfied
or, as to any condition not satisfied, waived in writing by the party intended
to be benefited thereby and provided, further, that Buyer has not terminated
this Agreement pursuant to the terms hereof, on the Closing Date the Title
Company shall conduct the closing by recording or distributing the following
documents and funds in the following manner:
3.11.1 Recorded Documents. Record the Deed, the Assignment and
Assumption of Lease in the Official Records of the County in which the Real
Property is located;
3.11.2 Buyer's Documents. Deliver to Buyer: (a) the original
Buyer's Title Policy; (b) an original fully executed counterpart of the
Assignment and Assumption of Lease; (c) an original fully executed counterpart
of the Xxxx of Sale; (d) a copy of the original fully executed Deed; (e) an
original fully executed FIRPTA Certificate; and (f) other documents identified
in Section 3.9 hereof.
3.11.3 Purchase Price. Deliver to Seller: (a) the Purchase
Price and such other funds, if any, as may be due to Seller by reason of credits
under this Agreement, less all items chargeable to Seller under this Agreement;
(b) copies of the fully executed Assignment and Assumption of Lease and Xxxx of
Sale, and (c) other documents identified in Section 3.10 hereof.
3.12 Prorations and Adjustments.
3.12.1 General. Any matters set forth below shall be prorated
as of midnight on the day preceding the Close of Escrow. For purposes of
calculating prorations, Buyer shall be deemed to be in title to the Property,
and therefore responsible for the expenses, for the entire day upon which the
Close of Escrow occurs. If, however, Seller fails to receive the Purchase Price
in its account on the Closing Date, such prorations will be adjusted to reflect
Seller as in title through the date preceding the date of such receipt.
3.12.2 Rentals. All rents shall be prorated as of midnight on
the day preceding the Close of Escrow.
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3.12.3 Taxes and Assessments. All real estate taxes and
current installments of assessments affecting the Property are the
responsibility of FDXG under the Lease, shall not be charged to = Seller. Buyer
shall look solely to FDXG under the Lease to recover such taxes.
3.12.4 Operating Expenses. All utility service charges for
electricity, heat and air conditioning service, other utilities, elevator
maintenance, common area maintenance, taxes (other than real estate taxes and
income taxes) such as rental taxes, and other expenses affecting the Property
which are payable by Seller and any other costs incurred in the ordinary course
of business or the management and operation of the Property are the
responsibility of FDXG under the Lease and shall not be prorated.
3.12.5 Tenant Deposits. There are no tenant deposits to
transfer.
3.12.6 Method of Proration. The Title Company shall, with the
assistance of Buyer and Seller, prepare a schedule of tentative prorations prior
to the Closing Date with respect to the Property. Such prorations, if and to the
extent known and agreed upon as of the Close of Escrow, shall be paid by Buyer
to Seller (if the prorations result in a net credit to the Seller) or by Seller
to Buyer (if the prorations result in a net credit to the Buyer) by increasing
or reducing the cash to be paid by Buyer at the Close of Escrow.
4. Reserved.
5. Reserved.
6. Commissions.
Buyer and Seller each represent and warrant to the other that there
are no commissions, finder's fees or brokerage fees arising out of the
transactions contemplated by this Agreement other than a commission payable by
Seller to Broker pursuant to a separate agreement payable on the Close of Escrow
only. Each party hereto shall indemnify and hold the other harmless from and
against any and all liabilities, claims, demands, damages, costs and expenses,
including, without limitation, reasonable attorneys' fees and court costs, in
connection with claims for any such commissions, finders' fees or brokerage fees
arising out of either party's conduct or the inaccuracy of the foregoing
representations and/or warranties of Buyer.
7. Damage or Destruction; Condemnation. Seller shall bear the risk of loss
or damage to the Property from the date of this Agreement until the Close of
Escrow. Buyer shall have the right to terminate this Agreement if all or a
material part of the Property is destroyed without fault of Buyer or a material
part of the Property is taken by or subject to a written threat of taking by
eminent domain. Buyer shall give written notice of Buyer's election to either
(i) terminate this Agreement, or (ii) proceed to Closing within five (5)
business days after Buyer receives written notice from Seller of any damage to
or condemnation of the Property which entitles Buyer to terminate this
Agreement. If Buyer does not give such notice, then this Agreement shall be
deemed terminated and of no further force or effect. If Buyer elects to proceed
to Closing,
11
there shall be no reduction in the Purchase Price, but Seller shall,
at Close of Escrow, assign to Buyer (a) any insurance proceeds paid or payable
with respect to such damage; or (b) the entire award paid or payable with
respect to such condemnation proceeding, whichever is applicable, plus Buyer
will receive a credit for the amount of any insurance deductible. As used
herein, the term "material part of the Property" means any portion of the
Property having a value of $50,000.00 or more, in the aggregate or which would
give FDXG the right to xxxxx rent under the Lease or terminate the Lease. If any
non-material part of the Property is damaged or taken by or subject to potential
or threatened taking by eminent domain without fault of Buyer, Buyer will have
no right to terminate, but Seller will assign any insurance proceeds paid or
payable with respect to such damage to Buyer, plus give Buyer a credit for the
amount of any insurance deductible or the entire condemnation award paid or
payable with respect to such condemnation proceeding.
8. Seller's Representations, Warranties and Covenants.
8.1 Seller represents and warrants to Buyer that as of the date of
this Agreement and as of the Closing Date:
(a) Seller is duly organized, validly existing, and in good
standing under the laws of the state of its formation. Seller is duly qualified
and in good standing to do business in the State of Illinois.
(b) Seller has the full power and authority to execute,
deliver and perform its obligations under this Agreement.
(c) To Seller's Actual Knowledge, there is no pending
condemnation or similar proceeding by any person or entity regarding the
Property.
(d) To Seller's Actual Knowledge, there is no pending
litigation or administrative proceedings which could adversely affect title to
the Property or any part thereof or the ability of Seller to perform any of its
obligations hereunder.
(e) The Lease is in full force and effect, and has not been
amended or modified, except as may be otherwise disclosed to Buyer in writing.
To the best of Seller's knowledge, information and belief, Seller has performed
and complied with all of its obligations under the Lease other than matters
described in Section 8.4(e) and Seller has received no notice from FDXG under
the Lease alleging or claiming a default of the Seller under the Lease; nor has
Seller received notice from FDXG indicating such tenant is entitled to any
offsets or defenses against the prompt, current payment of rent under the Lease.
To the best of Seller's knowledge, information and belief, FDXG actually
occupies the premises which are the subject of the Lease. No rent under the
Lease has been collected in advance of the current month and there are no
concessions, bonuses, free months' rental, rebates or other matter affecting a
rental for the tenant under the Lease. Except for those matters to be satisfied
at Closing, Seller is the owner of the entire lessor's interest in and to the
Lease and the Lease or the rentals or other sums payable thereunder have not
been assigned or otherwise encumbered.
(f) To the Seller's Actual Knowledge, there are no unrecorded
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leases (other than the Lease), liens or encumbrances which may
affect title to the Property.
(g) To Seller's Actual Knowledge, there are no intended public
improvements which will or could result in any charges being assessed against
the Property which will result in a lien upon the Property.
(h) To Seller's Actual Knowledge, there is no impending or
contemplated condemnation or taking by inverse condemnation of the Property, or
any portion thereof, by any governmental authorities.
(i) Other than this Agreement and contracts which have
terminated, Seller has not entered into and there is not existing any other
agreement, written or oral, under which Seller is or could become obligated to
sell the Property, or any portion thereof, to a third party and Seller will not
enter into nor execute any such agreement without Buyer's prior written consent.
(j) Seller has not and will not, without the prior written
consent of Buyer, take any action before any governmental authority having
jurisdiction thereover, the object of which would be to change the present
zoning of or other land-use limitations, upon the Property, or any portion
thereof, or its potential use, and, to Seller's Actual Knowledge after due
inquiry, there are no pending proceedings, the object of which would be to
change the present zoning or other land-use limitations.
(k) This transaction will not in any way violate any other
agreements to which Seller is a party.
(l) No leasing commissions will be due or owing in connection
with the Lease on or on account of any tenancy or occupancy in effect on the
Close of Escrow.
By executing and delivering the documents listed in Section 3.9, Seller
shall be deemed to have made all of the foregoing representations and warranties
as of the date hereof and as of Closing. If any of the foregoing shall be found
to be incorrect prior to Closing, Buyer shall be entitled either to waive same
and close this transaction, or terminate this Agreement. In the event Buyer
elects to terminate this Agreement as set forth in the above sentence, Escrow
Agent shall return the Deposit to Buyer and neither party to this Agreement
shall thereafter have any further rights or obligations hereunder (except for
those items which expressly survive termination). As used herein, the term
"Seller's Actual Knowledge" means the actual knowledge of Xxxx Xxx and Xxxx Xxx
(together "the Xxxx") without any duty of inquiry or investigation. The Xxxx
have no personal liability under this Agreement and are currently employees of
Seller most likely to know about the matters described in the foregoing
representations. All representations made in this Agreement by Seller shall
survive the execution and delivery of this Agreement and Close of Escrow. Seller
shall and does hereby indemnify against and hold Buyer harmless from any loss,
damage, liability and expense, together with all court costs and attorneys' fees
which Buyer may incur, by reason of any material misrepresentation by Seller or
any material breach of any of Seller's warranties. Seller's indemnity and hold
harmless obligations
13
shall survive Close of Escrow for a period of twelve (12) months; thereafter,
all claims arising out of the representations and warranties of any kind shall
be barred.
8.2. Seller shall, on the Close of Escrow, by written certification,
renew and affirm each of the representations set forth in Subparagraphs (a)
through (l) of Section 8.1, which representations shall survive the Close of
Escrow.
8.3. From and after the date of this Agreement and until the Close
of Escrow, Seller will keep the Property in the same order and condition as it
is as of the date hereof. Seller will be responsible for all operating costs,
bills, charges and liabilities for services rendered prior to the Close of
Escrow and Seller will indemnify Buyer against any such bills, charges and
liabilities.
8.4 Seller covenants and agrees as follows:
(a) After the date of this Agreement, Seller will not enter
into any leases or grant, suffer, or permit any additional encumbrances
affecting title to the Property, without in each case, receiving Buyer's
consent.
(b) Seller will continue to operate the Property in accordance
with Seller's current practice, but such covenant does not require Seller to
incur any capital expenditures or make any alterations, repairs or improvements
to the Property, except if an emergency and except as required under the Lease.
(c) Seller will advise Buyer promptly of any litigation,
arbitration or administrative hearing concerning or affecting the Property of
which Seller has knowledge or notice.
(d) Seller will promptly notify Buyer of any condemnation or
threatened condemnation of the Property or any portion thereof.
(e) After Closing, Seller shall at its sole cost and expense
complete the Construction Work as required under the Lease and in accordance
with the plans and specifications attached hereto as Exhibit H. Buyer shall
provide Seller full access to the Property at all times until the Construction
Work is complete. Seller shall cause the construction architect to issue its
completion certificate and shall provide Buyer with all required occupancy
certificates. Seller shall assign to Buyer any unexpired and assignable
warranties Seller receives from manufacturers, contractors or others with
respect to the roof, structure and construction work. If any lien related to the
construction work shall be filed against the Property, Seller shall have sixty
(60) days after notice from Buyer to remove such lien or provide Buyer with
satisfactory security. Seller shall protect, indemnify, defend and hold the
Property, Buyer and Buyer's officers, directors, shareholders, participants,
affiliates, employees, heirs, representatives, invitees, agents and contractors
free and harmless from and against any and all claims, damages, liens,
liabilities, losses, costs and expenses, including reasonable attorneys' fees
and court costs, resulting from the Construction Work. Seller's indemnification
obligations set forth herein shall survive the Close of Escrow.
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9. Buyer's Representations and Warranties.
Buyer represents and warrants to Seller that as of the date of this
Agreement and as of the Closing Date:
9.1 Buyer is duly organized, validly existing, and in good standing
under the laws of the state of its formation.
9.2 Buyer has full power and authority to execute, deliver and
perform Buyer's obligations under this Agreement.
10. Default.
10.1 LIQUIDATED DAMAGES - DEPOSIT. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS AGREEMENT, IF BUYER HAS ELECTED TO CONTINUE THIS
AGREEMENT AFTER THE EXPIRATION OF THE DUE DILIGENCE PERIOD (AS THE SAME MAY BE
EXTENDED PURSUANT TO Section 3.3.4) AND IF THE SALE OF THE PROPERTY TO BUYER IS
NOT CONSUMMATED FOR ANY REASON OTHER THAN SELLER'S DEFAULT UNDER THE AGREEMENT
OR BUYER'S EXERCISE OF ITS RIGHT TO TERMINATE THIS AGREEMENT, SELLER SHALL BE
ENTITLED TO RETAIN THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES. THE PARTIES AGREE
THAT IT WOULD BE IMPRACTICABLE AND EXTREMELY DIFFICULT TO ASCERTAIN THE ACTUAL
DAMAGES SUFFERED BY SELLER AS A RESULT OF BUYER'S FAILURE TO COMPLETE THE
PURCHASE OF THE PROPERTY PURSUANT TO THIS AGREEMENT, AND THAT UNDER THE
CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, THE LIQUIDATED DAMAGES
PROVIDED FOR IN THIS SECTION REPRESENT A REASONABLE ESTIMATE OF THE DAMAGES
WHICH SELLER WILL INCUR AS A RESULT OF SUCH FAILURE, PROVIDED, HOWEVER, THAT
THIS PROVISION SHALL NOT WAIVE OR AFFECT SELLER'S RIGHTS AND BUYER'S OBLIGATIONS
UNDER INDEMNITY PROVISIONS OF THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE
PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY,
BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER.
10.2 Buyer's Remedies. If Seller breaches this Agreement, Buyer may,
at Buyer's sole option, either: (i) by written notice to Seller and Escrow
Agent, cancel this Agreement whereupon the Xxxxxxx Money Deposit plus interest
shall be paid immediately by Escrow Agent to Buyer and, except as otherwise
provided in this Agreement, neither of the Parties shall have any further
liability or obligation hereunder; or (ii) seek specific performance against
Seller in which event XXX shall be automatically extended as necessary.
Notwithstanding the foregoing, if specific performance is unavailable as a
remedy to Buyer because of Seller's affirmative acts, Buyer shall be entitled to
pursue all rights and remedies available at law or in equity; provided, however,
that Buyer shall make no claim for exemplary or consequential damages (including
but not limited to loss of tax-free exchange opportunity).
10.3 No Contesting Liquidated Damages. As material consideration to
each party's agreement to the liquidated damages provisions stated above, each
party hereby agrees to waive any and all rights whatsoever to contest the
validity of the liquidated damage provisions for any reason whatsoever,
including, but not limited to,
15
that such provision was unreasonable under circumstances existing at the time
this Agreement was made.
11. Waiver of Trial by Jury.
Seller and Buyer, to the extent they may legally do so, hereby
expressly waive any right to trial by jury of any claim, demand, action, cause
of action, or proceeding arising under or with respect to this Agreement, or in
any way connected with, or related to, or incidental to, the dealings of the
parties hereto with respect to this Agreement or the transactions related hereto
or thereto, in each case whether now existing or hereafter arising, and
irrespective of whether sounding in contract, tort, or otherwise. To the extent
they may legally do so, Seller and Buyer hereby agree that any such claim,
demand, action, cause of action, or proceeding shall be decided by a court trial
without a jury and that any party hereto may file an original counterpart or a
copy of this section with any court as written evidence of the consent of the
other party or parties hereto to waiver of its or their right to trial by jury.
12. Attorneys' Fees.
If there is any litigation to enforce any provisions or rights
arising herein in accordance with Section 10.2, the unsuccessful party in such
litigation, as determined by the court, agrees to pay the successful party, as
determined by the court, all costs and expenses, including, but not limited to,
reasonable attorneys' fees incurred by the successful party, such fees to be
determined by the court.
13. Notices.
All notices, demands, approvals, and other communications provided
for in this Agreement shall be in writing and shall be effective upon the
earlier of the following to occur: (a) when delivered to the recipient; or (b)
three (3) business days after deposit in a sealed envelope in the United States
mail, postage prepaid by registered or certified mail, return receipt requested,
addressed to the recipient as set forth herein; or (c) upon transmission if sent
by facsimile as long as confirmation is received and such notice is also sent on
the same day by certified mail, return receipt requested or by overnight
delivery with a nationally recognized delivery service. All notices to Seller
shall be sent to Seller's Address. All notices to Buyer shall be sent to Buyer's
Address, with a copy as provided in Section 1.2. All notices to Title Company
shall be sent to Title Company's Address. The foregoing addresses may be changed
by written notice given in accordance with this Section. If the date on which
any notice to be given hereunder falls on a Saturday, Sunday or legal holiday,
then such date shall automatically be extended to the next business day
immediately following such Saturday, Sunday or legal holiday.
14. Amendment; Complete Agreement.
All amendments and supplements to this Agreement must be in writing
and executed by Buyer and Seller. This Agreement contains the entire agreement
and understanding between Buyer and Seller concerning the subject matter of this
Agreement and supersedes all prior agreements, terms, understandings,
conditions, representations and warranties, whether written or oral, made by
Buyer or Seller
16
concerning the Property or the other matters which are the subject of this
Agreement. This Agreement has been drafted through a joint effort of the parties
and their counsel and, therefore, shall not be construed in favor of or against
either of the parties.
15. Governing Law.
This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Illinois.
16. Severability.
If any provision of this Agreement or application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the
remainder of this Agreement (including the application of such provision to
persons or circumstances other than those to which it is held invalid or
unenforceable) shall not be affected thereby (except if same would substantially
alter the economic agreement of the parties herein), and each provision of this
Agreement shall be valid and enforced to the fullest extent permitted by law.
17. Counterparts, Headings, and Defined Terms.
This Agreement may be executed in counterparts, each of which shall
be an original, but all of which together shall constitute one Agreement. The
headings to sections of this Agreement are for convenient reference only and
shall not be used in interpreting this Agreement.
18. Time of the Essence.
Time is of the essence of this Agreement. In the event that any
relevant date under this Agreement shall fall on a Saturday, Sunday or legal
holiday under the laws of the State of Illinois or the United States, then the
date for performance hereunder shall be extended until the next day which is not
a Saturday, Sunday or legal holiday.
19. Waiver.
No waiver by Buyer or Seller of any of the terms or conditions of
this Agreement or any of their respective rights under this Agreement shall be
effective unless such waiver is in writing and signed by the party charged with
the waiver.
20. Third Parties.
This Agreement is entered into for the sole benefit of Buyer and
Seller and their respective permitted successors and assigns. No party other
than Buyer and Seller and such permitted successors and assigns shall have any
right of action under or rights or remedies by reason of this Agreement.
17
21. Additional Documents.
Each party agrees to perform any further acts and to execute and
deliver such further documents which may be reasonably necessary to carry out
the terms of this Agreement.
22. Independent Counsel.
Buyer and Seller each acknowledge that: (i) they have been
represented by independent counsel in connection with this Agreement; (ii) they
have executed this Agreement with the advice of such counsel; and (iii) this
Agreement is the result of negotiations between the parties hereto and the
advice and assistance of their respective counsel. The fact that this Agreement
was prepared by Seller's counsel as a matter of convenience shall have no import
or significance. Any uncertainty or ambiguity in this Agreement shall not be
construed against Seller because Seller's counsel prepared this Agreement in its
final form.
23. Condition of Property.
Buyer represents and warrants, which representations and warranties
shall survive the Close of Escrow and not be merged with the Deed, that, as
specified in Section 3.3.1 hereof, Buyer has, or shall have inspected and
conducted tests and studies of the Property, and that Buyer is or will be prior
to the Close of Escrow familiar with the general condition of the Property.
Buyer understands and acknowledges that the Property may be subject to
earthquake, fire, floods, erosion, high water table, dangerous underground soil
conditions, hazardous materials and similar occurrences that may alter its
condition or affect its suitability for any proposed use. Seller shall have no
responsibility or liability, except as otherwise expressly set forth herein,
with respect to any such occurrence or condition. Buyer represents and warrants
that, except as otherwise expressly set forth herein, Buyer is acting, and will
act, only upon information obtained by Buyer directly from Buyer's own
inspection of the Property.
24. Property "AS IS".
24.1 No Side Agreements or Representations. No person acting on
behalf of Seller is authorized to make, and by execution hereof, Buyer
acknowledges that no person has made, any representation, agreement, statement,
warranty, guarantee or promise regarding the Property or the transaction
contemplated herein or the zoning, construction, physical condition or other
status of the Property except as may be expressly set forth in this Agreement.
No representation, warranty, agreement, statement, guarantee or promise, if any,
made by any person acting on behalf of Seller which is not contained in this
Agreement will be valid or binding on Seller.
24.2 "AS IS" CONDITION. AS A MATERIAL PART OF THE CONSIDERATION FOR
THIS AGREEMENT, BUYER AGREES TO ACCEPT THE PROPERTY ON AN "AS IS" AND "WHERE IS"
BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH
SELLER HEREBY DISCLAIMS, EXCEPT FOR THOSE WARRANTIES OF SELLER SET FORTH IN THIS
18
AGREEMENT. EXCEPT FOR THOSE WARRANTIES OF SELLER SET FORTH IN THIS AGREEMENT, NO
WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR
PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION. BUYER ACKNOWLEDGES THAT
BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING
UPON ITS OWN INVESTIGATION OF THE CONDITION OF THE PROPERTY AND THAT BUYER IS
NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND
WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR
UNDER OR ON SELLER'S BEHALF CONCERNING THE PROPERTY, EXCEPT THOSE WARRANTIES OF
SELLER SET FORTH IN THIS AGREEMENT. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE
THAT (A) EXCEPT FOR THOSE WARRANTIES OF SELLER SET FORTH IN THIS AGREEMENT,
BUYER IS TAKING THE PROPERTY "AS IS" WITH ALL LATENT AND PATENT DEFECTS AND
THAT, EXCEPT FOR THOSE WARRANTIES OF SELLER SET FORTH IN THIS AGREEMENT, THERE
IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B)
EXCEPT FOR THOSE WARRANTIES OF SELLER SET FORTH IN THIS AGREEMENT, BUYER IS
SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE
PROPERTY UNDER THIS CONTRACT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO
EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET
FORTH IN THE DEED AND THOSE WARRANTIES OF SELLER SET FORTH IN THIS AGREEMENT).
25. Governmental Approvals.
Nothing contained in this Agreement shall be construed as
authorizing Buyer to apply for a zoning change, variance, subdivision map, lot
line adjustment or other discretionary governmental act, approval or permit with
respect to the Property prior to the Close of Escrow, and Buyer agrees not to do
so without Seller's prior written approval, which approval may be withheld in
Seller's sole and absolute discretion. Buyer agrees not to submit any reports,
studies or other documents, including, without limitation, plans and
specifications, impact statements for water, sewage, drainage or traffic,
environmental review forms, or energy conservation checklists to any
governmental agency, or any amendment or modification to any such instruments or
documents prior to the Close of Escrow unless first approved by Seller, which
approval Seller may withhold in Seller's sole discretion. Buyer's obligation to
purchase the Property shall not be subject to or conditioned upon Buyer's
obtaining any variances, zoning amendments, subdivision maps, lot line
adjustment, or other discretionary governmental act, approval or permit.
26. Reserved.
27. Reserved.
28. Reserved.
29. Assignment. Buyer shall not assign this Agreement without Seller's
prior written consent, which consent may be withheld in Seller's sole and
absolute discretion, provided that Buyer may, without Seller's consent, assign
this Agreement
19
to an entity controlled by or under common control with Buyer, as long as (a)
Buyer notifies Seller at least five (5) business days prior to the Closing Date
of such assignment; and (b) delivers to Seller an assumption agreement which
provides that Buyer will remain liable hereunder notwithstanding such
assignment. Any purported assignment in violation of the terms of this Agreement
shall be void.
30. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefits of the heirs, successors and assigns of the parties hereto.
31. Exhibits. Each reference to a Section or Exhibit in this Agreement
shall mean the sections of this Agreement and the exhibits attached to this
Agreement, unless the context requires otherwise. Each such exhibit is
incorporated herein by this reference.
32. No Reservation of Property. The preparation and/or delivery of
unsigned drafts of this Agreement shall not create any legally binding rights in
the Property and/or obligations of the parties, and Buyer and Seller acknowledge
that this Agreement shall be of no effect until it is duly executed by both
Buyer and Seller.
33. Duty of Confidentiality. Buyer and Seller represent and warrant that
each shall keep all information and/or reports obtained from the other, or
related to or connected with the Property, the other party, or this transaction,
confidential and will not disclose any such information to any person or entity
without obtaining the prior consent of the other party, which consent shall not
be unreasonably withheld, conditioned or delayed, provided each party may
disclose such information to its agents, contractors, engineers, accountants,
attorneys, investors and lenders as long as such parties agree to maintain the
confidentiality thereof.
34. Survival. Unless otherwise specifically set forth in this Agreement,
none of the representations, warranties or indemnities set forth herein shall
survive the Close of Escrow. As to any representations, warranties or
indemnities set forth herein which expressly survive the Close of Escrow no
lawsuit may be filed or claim made unless filed or made on or before the second
(2nd) anniversary of the Closing Date.
35. 1031 Exchange. Seller may, at Seller's option, elect to structure this
transaction as a "like-kind" exchange under Section 1031 of the Internal Revenue
Code of 1986, as amended. In such event, Buyer agrees to reasonably cooperate
with Seller in so structuring this transaction, including execution of
appropriate assignments and other documents at the Closing. Buyer will not,
however, be required to incur any additional costs or assume any additional
liabilities unless reimbursed by Seller. Further, the Closing Date may not be
postponed solely to effectuate such exchange unless otherwise agreed by Buyer
and Seller.
Buyer may, at Buyer's option, elect to structure this transaction as
a "like-kind" exchange under Section 1031 of the Internal Revenue Code of 1986,
as amended. In such event, Seller agrees to reasonably cooperate with Buyer in
so structuring this transaction, including execution of appropriate assignments
and other documents at the Closing. Seller will not, however, be required to
incur any additional costs or assume any additional liabilities unless
reimbursed by Buyer.
20
Further, the Closing Date may not be postponed solely to effectuate such
exchange unless otherwise agreed by Buyer and Seller.
21
SIGNATURE PAGE FOR
REAL ESTATE PURCHASE AND SALE AGREEMENT
EXECUTED on the date(s) set forth next to the signatures of Seller and Buyer
below.
SELLER:
THE XXXXXXXXXXXX COMPANY, INC., AN ALABAMA CORPORATION
By: /S/ Xxxx X. Xxx
-----------------------
Xxxx X. Xxx
Its: President
Date of Seller's Signature: 9/14/05
BUYER:
SERIES A, LLC, AN ARIZONA LIMITED LIABILITY COMPANY
By: /S/ Xxxx X. Xxxx
-----------------------
Xxxx X. Xxxx
Its: Authorized Officer
Date of Buyer's Signature: 9/12/05
22
ACCEPTANCE BY TITLE COMPANY
The Title Company acknowledges receipt of the foregoing Agreement,
together with the $75,000 Deposit, and accepts the instructions contained
therein.
Dated: September 19, 2005
LAWYERS TITLE INSURANCE CORPORATION
By: /S/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Accounts Administrator
23
EXHIBIT LIST
EXHIBIT "A" Legal Description
EXHIBIT "B" Due Diligence Items
EXHIBIT "C" Tenant Estoppel, Subordination, Non-Disturbance and
Attornment Agreement
EXHIBIT "D" Special Warranty Deed
EXHIBIT "E" Xxxx of Sale
EXHIBIT "F" FIRPTA Certificate
EXHIBIT "G" Assignment and Assumption of Lease
EXHIBIT "H" Construction Work
EXHIBIT "I" Post-Closing Holdback/Escrow Agreement
