AGREEMENT OF SALE AND PURCHASE
between
98 CUSA PLANO, L.P.
A DELAWARE LIMITED PARTNERSHIP
"Seller"
and
REALTY AMERICA (1221 XXXX ROAD), L.P.
A TEXAS LIMITED PARTNERSHIP
"Buyer"
with Escrow Instructions for
LANDAMERICA FINANCIAL GROUP, INC.
as Escrow Agent
TABLE OF CONTENTS
PAGE
ARTICLE 1 - CERTAIN DEFINITIONS..........................................................................1
Section 1.1 Definitions...........................................................................1
Section 1.2 Rules of Construction.................................................................6
ARTICLE 2 - AGREEMENT OF PURCHASE AND SALE; PURCHASE PRICE...............................................6
Section 2.1 Agreement of Purchase and Sale........................................................6
Section 2.2 Purchase Price........................................................................6
Section 2.3 Deposit...............................................................................6
Section 2.4 Independent Consideration.............................................................7
Section 2.5 Indivisible Economic Package..........................................................7
Section 2.6 Assumption of Obligations.............................................................7
ARTICLE 3 - BUYER'S DUE DILIGENCE/CONDITION OF THE PROPERTY..............................................8
Section 3.1 Buyer's Inspections and Due Diligence.................................................8
Section 3.2 Delivery Period.......................................................................8
Section 3.3 Site Visits...........................................................................9
Section 3.4 Due Diligence Indemnity...............................................................9
Section 3.5 Confidentiality......................................................................10
Section 3.6 Due Diligence Period.................................................................10
Section 3.7 Estoppel Certificates................................................................11
Section 3.8 Buyer advised Seller that Buyer must cause to be prepared up to three (3) years
of audited financial statements in respect of the Property in compliance with
the policies of Buyer and certain laws and regulations, including, without
limitation, Securities and Exchange Commission Regulation S-X, Rule 3-14.............11
ARTICLE 4 - TITLE AND SURVEY............................................................................11
Section 4.1 Title to Real Property...............................................................11
Section 4.2 Certain Exceptions to Title..........................................................12
Section 4.3 Title Insurance......................................................................12
ARTICLE 5 - REMEDIES AND DEPOSIT INSTRUCTIONS...........................................................13
Section 5.1 Permitted Termination; Seller Default................................................13
Section 5.2 Buyer Default; Liquidated Damages....................................................13
Section 5.3 Deposit Instructions.................................................................13
Section 5.4 Designation of Reporting Person......................................................14
-i-
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF SELLER....................................................15
Section 6.1 Representations and Warranties of Seller.............................................15
Section 6.2 Limited Liability....................................................................16
Section 6.3 Seller's Knowledge...................................................................16
Section 6.4 Liability of Representations and Warranties..........................................16
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES OF BUYER.....................................................17
Section 7.1 Buyer's Representations and Warranties...............................................17
Section 7.2 Buyer's Independent Investigation....................................................17
Section 7.3 Buyer's Release of Seller............................................................19
Section 7.4 Discharge............................................................................20
ARTICLE 8 - interim operating covenants.................................................................20
Section 8.1 Certain Interim Operating Covenants..................................................20
ARTICLE 9 - CLOSING AND CONDITIONS......................................................................21
Section 9.1 Escrow Instructions..................................................................21
Section 9.2 Closing..............................................................................21
Section 9.3 Seller's Closing Documents and Other Items...........................................22
Section 9.4 Buyer's Closing Documents and Other Items............................................23
Section 9.5 Prorations and Closing Costs.........................................................24
Section 9.6 Broker...............................................................................25
Section 9.7 Expenses.............................................................................26
ARTICLE 10 - MISCELLANEOUS...............................................................................26
Section 10.1 Amendment and Modification...........................................................26
Section 10.2 Risk of Loss and Insurance Proceeds..................................................26
Section 10.3 Notices..............................................................................27
Section 10.4 Assignment...........................................................................28
Section 10.5 Governing Law and Consent to Jurisdiction............................................28
Section 10.6 Counterparts.........................................................................29
Section 10.7 Entire Agreement.....................................................................29
Section 10.8 Severability.........................................................................29
Section 10.9 Attorney Fees........................................................................29
Section 10.10 Payment of Fees and Expenses.........................................................29
Section 10.11 Confidential Information.............................................................29
Section 10.12 No Joint Venture.....................................................................30
-ii-
Section 10.13 Waiver of Jury Trial.................................................................30
Section 10.14 Limited Liability....................................................................30
Section 10.15 Time of Essence......................................................................30
Section 10.16 No Waiver............................................................................30
ARTICLE 11 - seller financing............................................................................31
Section 11.1 Loan.................................................................................31
Section 11.2 Conditions to Funding................................................................31
Section 11.3 Loan Documents.......................................................................31
Section 11.4 Closing Date.........................................................................31
-iii-
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (this "AGREEMENT"), dated as of July
6, 2004, is between 98 Cusa Plano, L.P., a Delaware limited partnership
("SELLER"), and realty america (1221 Xxxx Road), L.P. a Texas limited
partnership ("BUYER").
ARTICLE 1 - CERTAIN DEFINITIONS
SECTION 1.1 DEFINITIONS. The parties hereby agree that the following
terms shall have the meanings hereinafter set forth, such definitions to be
applicable equally to the singular and plural forms, and to the masculine and
feminine forms, of such terms:
1.1.1 "ADDITIONAL DEPOSIT" shall have the meaning ascribed in
SECTION 2.3.
1.1.2 "AFFILIATE" shall mean the any person or entity that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with Buyer or Seller, as the case may
be. For the purposes of this definition, "control" means the possession, direct
or indirect, of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities, by
contract or otherwise, and the terms "controlling" and "controlled" have the
meanings correlative to the foregoing.
1.1.3 "ASSIGNMENT AND ASSUMPTION OF CONTRACTS" shall have the
meaning ascribed in SECTION 9.3.4.
1.1.4 "ASSIGNMENT AND ASSUMPTION OF LEASES" shall have the
meaning ascribed in SECTION 9.3.3.
1.1.5 "XXXX OF SALE" shall have the meaning ascribed in
SECTION 9.3.2.
1.1.6 "BROKER" shall mean Realty America Group.
1.1.7 "BROKER'S COMMISSION" shall have the meaning ascribed in
SECTION 9.6.
1.1.8 "BORROWER ENTITY" shall have the meaning ascribed in
SECTION 11.1(A).
1.1.9 "CLOSING" shall have the meaning ascribed in SECTION
9.2.
1.1.10 "CLOSING DATE" shall mean the date set forth in SECTION
9.2.
1.1.11 "CLOSING STATEMENT" shall have the meaning ascribed in
SECTION 9.5.1(A).
1.1.12 "CODE" shall have the meaning ascribed in SECTION 5.4.
1.1.13 "COMMISSIONS" shall mean all commissions, referral fees,
payments and obligations of Seller or the Property Manager to make payments to
leasing agents, leasing brokers or other parties with respect to the leasing of
all or any of the Property, whether such agreements are contained in a Lease or
in any separate Commission Agreement.
-1-
1.1.14 "COMMISSION AGREEMENTS" shall mean all written
agreements and documents entered into by Seller or the Property Manager to pay
Commissions that are not contained in a Lease, together with all amendments
thereto or modifications thereof.
1.1.15 "CONTRACTS" shall mean the service contracts and other
contracts described in EXHIBIT B and all other contracts entered into by Seller
after the Effective Date with respect to the Property in accordance with SECTION
8.1.
1.1.16 "DEED" shall have the meaning ascribed in SECTION 9.3.1.
1.1.17 "DEPOSIT" shall have the meaning ascribed in SECTION
2.3.
1.1.18 "DISCLOSURE ITEMS" shall have the meaning ascribed in
SECTION 6.1.
1.1.19 "DUE DILIGENCE" shall have the meaning ascribed in
SECTION 3.1.
1.1.20 "DUE DILIGENCE ITEMS" shall have the meaning ascribed in
SECTION 3.2.
1.1.21 "DUE DILIGENCE PERIOD" shall mean the time period
provided for in SECTION 3.1 of this Agreement.
1.1.22 "EFFECTIVE DATE" shall mean July 6, 2004.
1.1.23 "ENVIRONMENTAL INDEMNITY AGREEMENT" shall have the
meaning ascribed in SECTION 11.3(D).
1.1.24 "ENVIRONMENTAL LAWS" means all federal, state and local
environmental laws, rules, statutes, directives, binding written
interpretations, binding written policies, ordinances and regulations issued by
any Governmental Entity and in effect as of the date of this Agreement with
respect to or which otherwise pertain to or affect the Real Property or the
Improvements, or any portion thereof, the use, ownership, occupancy or operation
of the Real Property or the Improvements, or any portion thereof, or any owner
of the Real Property, and as same have been amended, modified or supplemented
from time to time prior to the date of this Agreement, including but not limited
to the Comprehensive Environmental Response, Compensation and Liability Act of
1980 (42 U.S.C. ss. 9601 et seq.), the Hazardous Substances Transportation Act
(49 U.S.C. ss. 1802 et seq.), the Resource Conservation and Recovery Act (42
U.S.C. ss. 6901 et seq.), the Water Pollution Control Act (33 U.S.C. ss. 1251 et
seq.), the Safe Drinking Water Act (42 U.S.C. ss. 300f et seq.), the Clean Air
Act (42 U.S.C. ss. 7401 et seq.), the Solid Waste Disposal Act (42 U.S.C. ss.
6901 et seq.), the Toxic Substances Control Act (15 U.S.C. ss. 2601 et seq.),
the Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. ss.
11001 et seq.), the Radon and Indoor Air Quality Research Act (42 U.S.C. ss.
7401 note, et seq.), the Superfund Amendment Reauthorization Act of 1986 (42
U.S.C. ss. 9601 et seq.), comparable state and local laws, and any and all rules
and regulations which have become effective prior to the date of this Agreement
under any and all of the aforementioned laws.
1.1.25 "ESCROW AGENT" shall mean LandAmerica Financial Group,
Inc.
-2-
1.1.26 "EXCLUDED PROPERTY RECORDS" shall have the meaning
ascribed in SECTION 3.2.
1.1.27 "FEE OWNER" shall have the meaning ascribed in SECTION
11.1(B).
1.1.28 "FIXTURES" shall mean the fixtures which are located at
and affixed to any of the Improvements as of the Closing Date, but specifically
excluding any trade fixtures of the Tenants under the Leases.
1.1.29 "GOVERNMENTAL ENTITY" means the various governmental and
quasi- governmental bodies or agencies having jurisdiction over Seller, the Real
Property or any portion thereof.
1.1.30 "HAZARDOUS MATERIALS" means any pollutants,
contaminants, hazardous or toxic substances, materials or wastes (including
petroleum, petroleum by-products, radon, asbestos and asbestos containing
materials, polychlorinated biphenyls ("PCBS"), PCB-containing equipment,
radioactive elements, infectious agents, and urea formaldehyde), as such terms
are used in any Environmental Laws (excluding solvents, cleaning fluids and
other lawful substances used in the ordinary operation and maintenance of the
Real Property, to the extent in closed containers).
1.1.31 "IMPROVEMENTS" shall mean the buildings, improvements,
and structures located on the Land.
1.1.32 "INDEPENDENT CONSIDERATION" shall have the meaning
ascribed in SECTION 2.4.
1.1.33 "INITIAL DEPOSIT" shall have the meaning ascribed in
SECTION 2.3.
1.1.34 "LAND" shall mean that certain parcel of land and
appurtenances thereto more particularly described on EXHIBIT A, including
Seller's right, title and interest, if any, in and to all rights-of-way, open or
proposed streets (public or private), alleys, easements, strips or gores of land
adjacent thereto.
1.1.35 "LEASES" shall mean all unexpired leases, subleases,
occupancy agreements, and any other agreements, including all modifications or
amendments thereto, for the use, possession, or occupancy of any portion of the
Real Property as of the Closing Date, including any tenant guaranties delivered
in connection with any of the foregoing.
1.1.36 "LICENSEE PARTIES" shall mean those authorized agents,
contractors, consultants and representatives of Buyer who shall inspect,
investigate, test or evaluate the Property on behalf of Buyer in accordance with
this Agreement.
1.1.37 "LICENSES AND PERMITS" shall mean, collectively, to the
extent assignable, all licenses, permits, approvals, certificates of occupancy,
dedications, subdivision maps and entitlements now or hereafter issued, approved
or granted by any Governmental Entity in connection with the Real Property,
together with all renewals and modifications thereof.
-3-
1.1.38 "LIENS" shall have the meaning ascribed in SECTION 4.2.
1.1.39 "LOAN AGREEMENT" shall have the meaning ascribed in
SECTION 11.3(B).
1.1.40 "LOAN CLOSING CONDITIONS" shall have the meaning
ascribed in SECTION 11.2.
1.1.41 "LOAN DOCUMENTS" shall have the meaning ascribed in
SECTION 11.3.
1.1.42 "LOSSES" shall have the meaning ascribed in SECTION 3.4.
1.1.43 "OPERATING EXPENSES" shall have the meaning ascribed in
SECTION 9.5.1(C).
1.1.44 "PERMITTED EXCEPTIONS" shall mean and include all of the
following: (a) applicable zoning and building ordinances and land use
regulations; (b) the lien of taxes and assessments not yet due and payable (it
being agreed by Buyer and Seller that if any tax or assessment is levied or
assessed with respect to the Property after the date hereof and the owner of the
Property has the election to pay such tax or assessment either immediately or
under a payment plan with interest, Seller may elect to pay under a payment
plan, which election shall be binding on Buyer); (c) any exclusions from
coverage set forth in the jacket of any Owner's Policy of Title Insurance or any
standard printed exceptions; (d) any exceptions caused by Buyer, its agents,
representatives or employees; (e) such other exceptions as the Title Company
shall commit to insure over, without any additional cost to Buyer, whether such
insurance is made available in consideration of payment, bonding, indemnity of
Seller or otherwise; (f) the rights of the Tenants under the Leases; and (g) any
matters deemed to constitute Permitted Exceptions under SECTION 4.2 hereof.
1.1.45 "PERMITTED OUTSIDE PARTIES" shall have the meaning
ascribed in SECTION 3.5.
1.1.46 "PERSONAL PROPERTY" shall mean all of the right, title,
and interest of Seller in and to the tangible personal property, which is
located at and used in connection with any of the Real Property as of the
Closing Date, but specifically excluding (a) any personal property owned,
financed or leased by the Tenants under the Leases or otherwise removable by any
Tenant under the Leases, (b) any computer software which either is licensed to
Seller, or Seller deems proprietary, (c) any tangible personal property used by
any affiliated or unaffiliated on-site property manager and (d) any warrants,
stock options or other equity securities related to the Property. Personal
Property shall not include any appraisals, budgets, strategic plans for the Real
Property, internal analyses, marketing information, submissions relating to
Seller's obtaining of corporate authorization, attorney and accountant work
product, attorney-client privileged documents, or other information in the
possession or control of Seller or Seller's Property Manager which Seller deems
proprietary.
1.1.47 "PLEDGE" shall have the meaning ascribed in SECTION
11.3(C).
1.1.48 "PROMISSORY NOTE" shall have the meaning ascribed in
SECTION 11.3(A).
-4-
1.1.49 "PROPERTY" shall mean the Real Property, the Personal
Property, the Leases, the Contracts, and to the extent transferable, all of
Seller's right, title and interest in and to all tangible and intangible assets
of any nature relating to the Property, including without limitation, (a) all
warranties upon the Improvements or the Personal Property, (b) rights to any
plans, specifications, engineering studies, reports, drawings, and prints
relating to the construction, reconstruction, modification, and alteration of
Improvements, (c) all works of art, graphic designs, and other intellectual or
intangible property owned and used by Seller in connection with the Property,
including any trade name and Internet domain sites associated with the
Improvements, (d) all claims and causes of action arising out of or in
connection with the Property after the Closing Date or that are pending and may
benefit the Property, and (e) the Licenses and Permits.
1.1.50 "PROPERTY MANAGER" shall mean those individuals or
entities which manage the Property.
1.1.51 "PRORATION ITEMS" shall have the meaning ascribed in
SECTION 9.5.1(A).
1.1.52 "PRORATION TIME" shall have the meaning ascribed in
SECTION 9.5.1(A).
1.1.53 "PURCHASE PRICE" shall have the meaning ascribed in
SECTION 2.2.
1.1.54 "REAL PROPERTY" shall mean the Land, the Improvements,
and the Fixtures.
1.1.55 "RENT ROLL" shall have the meaning ascribed in SECTION
3.2(A).
1.1.56 "RENT" or "RENTS" shall mean and include fixed monthly
rentals, additional rentals, percentage rentals, escalation rentals (which
include each Tenant's proration 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.
1.1.57 "REPORTING PERSON" shall have the meaning ascribed in
SECTION 5.4(A).
1.1.58 "SELLER FINANCING LOAN" shall have the meaning ascribed
in SECTION 11.1.
1.1.59 "SURVEY" shall mean that certain existing survey of the
Land and Improvements more particularly described on EXHIBIT I attached hereto.
1.1.60 "TENANT DEPOSIT" means all advance rents and security
deposits (whether cash or non-cash) paid or deposited by a Tenant to Seller, as
landlord, or any other person on Seller's behalf pursuant to a Lease (together
with any interest which has accrued thereon as required by the terms of such
Lease, but only to the extent such interest has accrued for the account of the
respective Tenant or as required by law).
-5-
1.1.61 "TENANT" or "TENANTS" shall mean all persons or entities
occupying or entitled to possession of any portion of the Real Property pursuant
to the Leases, including tenants, subtenants, and licensees.
1.1.62 "TITLE COMMITMENT" shall have the meaning ascribed in
SECTION 4.1.
1.1.63 "TITLE COMPANY" shall mean Lawyers Title Insurance
Corporation.
1.1.64 "TITLE DOCUMENTS" shall have the meaning ascribed in
SECTION 4.1.
1.1.65 "TITLE OBJECTIONS" shall have the meaning ascribed in
SECTION 4.2.
1.1.66 "TITLE POLICY" shall have the meaning ascribed in
SECTION 4.3.
SECTION 1.2 RULES OF CONSTRUCTION. Article and Section captions used in
this Agreement are for convenience only and shall not affect the construction of
this Agreement. All references to "Article" or "Sections" without reference to a
document other than this Agreement, are intended to designate articles and
sections of this Agreement, and the words "herein," "hereof," "hereunder," and
other words of similar import refer to this Agreement as a whole and not to any
particular Article or Section, unless specifically designated otherwise. The use
of the term "including" shall mean in all cases "including but not limited to,"
unless specifically designated otherwise. No rules of construction against the
drafter of this Agreement shall apply in any interpretation or enforcement of
this Agreement, any documents or certificates executed pursuant hereto, or any
provisions of any of the foregoing.
ARTICLE 2 - AGREEMENT OF PURCHASE AND SALE; PURCHASE PRICE
SECTION 2.1 AGREEMENT OF PURCHASE AND SALE. Seller agrees to sell,
transfer, assign and convey to Buyer, and Buyer agrees to purchase, accept and
assume subject to the terms and conditions stated herein, all of the Property.
SECTION 2.2 PURCHASE PRICE. Buyer shall pay Seller the purchase price of
Eleven Million Three Hundred Thousand and NO/100 Dollars ($11,300,000.00)
("PURCHASE PRICE") at Closing. Buyer shall pay Seller the Purchase Price in the
following manner:
(i) Buyer shall receive a credit in an amount equal
to the Deposit against the sum of the Purchase Price;
(ii) Buyer (or Buyer's assignee of this Agreement as
approved by Seller pursuant to SECTION 10.4) shall deliver a
promissory note payable to the order of Seller (or Seller's
designee) in the original principal amount of its Seller
Financing Loan as set forth in SECTION 11.1; and
(iii) Buyer shall deposit such other funds as may be
necessary to pay Buyer's expenses hereunder subject to Closing
adjustments.
SECTION 2.3 DEPOSIT. Within two (2) business days after this Agreement
is executed by Buyer and Seller, Buyer shall deposit via wire transfer the sum
of Twenty-Five Thousand and
-6-
NO/100 Dollars ($25,000.00) in immediately available funds as a deposit (the
"INITIAL DEPOSIT") with Escrow Agent whose address is as indicated in SECTION
10.3. Buyer shall instruct Escrow Agent to release the Initial Deposit to Seller
on the tenth day following the Effective Date if Buyer intends to proceed with
its inspection of the Property. The Initial Deposit shall be non-refundable to
Buyer except as provided in SECTIONS 5.1, 10.2 and the following sentence. Buyer
may terminate this Agreement, and the Initial Deposit shall be refunded to Buyer
if Seller and Buyer's senior lender are unable to agree, on or prior to the last
day of the Due Diligence Period, as to the terms of the senior and mezzanine
loans, including any documents ancillary thereto, or said terms are not
reasonably acceptable to the Borrower entity. Buyer shall deposit with Escrow
Agent via wire transfer an additional One Hundred Twenty-Five Thousand and
NO/100 Dollars ($125,000.00) (the "ADDITIONAL DEPOSIT"; the Initial Deposit and
the Additional Deposit, collectively, the "DEPOSIT") in immediately available
funds within two (2) business days following the expiration of the Due Diligence
Period. The Deposit shall be non-refundable except as provided in SECTIONS 5.1
and 10.2. Interest earned on the Additional Deposit shall be considered part of
the Deposit and shall be deemed to have been earned by, and constitute income
of, Buyer. Except as otherwise expressly set forth herein, the Deposit shall be
applied against the Purchase Price on the Closing Date.
SECTION 2.4 INDEPENDENT CONSIDERATION. Contemporaneously with the
execution and delivery of this Agreement, Buyer has paid to Seller as further
consideration for this Agreement, in cash, the sum of One Hundred Dollars
($100.00) (the "INDEPENDENT CONSIDERATION"), in addition to the Deposit and the
Purchase Price and independent of any other consideration provided hereunder,
which Independent Consideration is fully earned by Seller and is non-refundable
under any circumstances.
SECTION 2.5 INDIVISIBLE ECONOMIC PACKAGE. Buyer has no right to
purchase, and Seller has no obligation to sell, less than all of the Property,
it being the express agreement and understanding of Buyer and Seller that, as a
material inducement to Seller and Buyer to enter into this Agreement, Buyer has
agreed to purchase, and Seller has agreed to sell, all of the Property, subject
to and in accordance with the terms and conditions hereof.
SECTION 2.6 ASSUMPTION OF OBLIGATIONS. As additional consideration for
the purchase and sale of the Property, at Closing Buyer will: (a) assume and
perform (i) all of the covenants and obligations of Seller, Seller's
predecessors in title and Seller's Affiliates pursuant to the Leases and
Contracts (including, without limitation, those relating to any tenant deposits)
which arise on or after the Closing Date and (ii) all obligations under the
Leases and Contracts relating to the physical and environmental condition of the
Property regardless of whether such obligations arise before, on or after the
Closing Date; and (b) assume and agree to discharge, perform and comply with
each and every liability, duty, covenant, debt or obligation of Seller or 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. The provisions of
this SECTION 2.6 shall survive the Closing without limitation.
-7-
ARTICLE 3 - BUYER'S DUE
DILIGENCE/CONDITION OF THE PROPERTY
SECTION 3.1 BUYER'S INSPECTIONS AND DUE DILIGENCE. Buyer acknowledges
that commencing on the Effective Date and continuing for a period which will
expire at 5:00 p.m. Central Time on August 14, 2004 (the "DUE DILIGENCE
PERIOD"), Buyer shall conduct its examinations, inspections, testing, studies
and investigations of the Property, information regarding the Property and such
documents applicable to the Property, including, without limitation, the
documents that Seller delivers or makes available, as set forth in SECTION 3.2
below (collectively, the "DUE DILIGENCE"). Except for any limitations as may be
imposed by SECTION 3.4 below, Buyer may conduct such due diligence activities,
inspections, and studies of the Property as it deems necessary or appropriate,
and examine and investigate to its full satisfaction all facts, circumstances,
and matters relating to the Property (including the physical condition and use,
availability and adequacy of utilities, access, zoning, compliance with
applicable laws, environmental conditions, engineering and structural matters),
title and survey matters, and any other matters it deems necessary or
appropriate for purposes of consummating this transaction. The Due Diligence
shall be at Buyer's sole cost and expense.
SECTION 3.2 DELIVERY PERIOD. (a) On or before five (5) business days
after the Effective Date, Seller shall deliver to Buyer, or make available to
Buyer for inspection at the Property or at the office of the Property Manager,
the following: (i) the most recent rent roll statement (the "RENT ROLL") with
respect to the Property prepared by Seller, in the form and containing such
information as maintained by Seller from time to time, together with copies of
all Leases referenced on the Rent Roll and copies of any subleases or amendments
relating thereto and Tenant correspondence in Seller's possession; (ii) the
Survey; (iii) copies of all Contracts (including any Commission Agreements);
(iv) copies of any of the following items pertaining to the Property to the
extent they exist and are in Seller's possession or control: monthly cashflow
reports for the current year to date; copies of existing engineering studies and
existing environmental audits prepared by third parties in connection with the
Property; the Licenses and Permits; and any lists of personal property owned by
Seller and located on the Real Property; and (v) a copy of Seller's existing
policy of title insurance (collectively, the "DUE DILIGENCE ITEMS"). In addition
and except as provided below, Buyer will have the right to review the Property
files relating to the Property located in the Property Manager's office.
(b) All documents, materials, and information furnished to
or made available to Buyer pursuant to this SECTION 3.2 are being furnished or
made available to Buyer for information purposes only and without any
representation or warranty by Seller with respect thereto, express or implied,
except as may otherwise be expressly set forth in SECTION 6.1 below and as
limited by SECTIONS 6.2 and 7.2 below, and all such documents, materials, and
information are expressly understood by Buyer to be subject to the
confidentiality provisions of SECTION 3.5 below.
Notwithstanding any terms to the contrary in this Agreement, (a) Seller
shall not be obligated or otherwise required to furnish or make available to
Buyer any of the following (collectively, "EXCLUDED PROPERTY RECORDS"): (i) any
appraisals or other economic evaluations of, or projections with respect to, all
or any portion of the Property, including, without limitation, budgets prepared
by or on behalf of Seller or any Affiliate of Seller, (ii) any documents,
-8-
materials or information which are subject to attorney/client, work product or
similar privilege, which constitute attorney communications with respect to the
purchase of the Property by Seller, or which are subject to a confidentiality
agreement, and (iii) those documents listed on SCHEDULE 3.2 attached hereto; (b)
Due Diligence Items shall not include any Excluded Property Records; and (c)
Seller shall have no obligation or liability of any kind to Buyer as a result of
Seller not furnishing or making available to Buyer the Excluded Property
Records.
SECTION 3.3 SITE VISITS. Buyer and its Licensee Parties shall have
reasonable access to the Real Property at agreed upon times for the purposes set
forth in this Agreement on at least one (1) business day prior notice to Seller,
which may be written or oral. Such notice shall describe the scope of the Due
Diligence Buyer intends to conduct during Buyer's access to the Real Property.
Seller shall make reasonable efforts to have an agent available to accompany
Buyer or any Licensee Parties, and in all events Seller shall have the right to
have a representative present during any visits to or inspections of any Real
Property or any meetings or discussions with any Tenant by Buyer or any Licensee
Parties. Buyer will conduct its Due Diligence in a manner so as to minimize, to
the extent reasonably possible to do so, any interference with the operations
and occupancy of the Property and to minimize, to the extent reasonably possible
to do so, any disturbance to Tenants. Buyer will not enter the Real Property or
contact any leasing agents or the Property Manager of the Real Property or any
Governmental Entity without Seller's prior written consent, which consent shall
not be unreasonably withheld or delayed. Neither Buyer nor any Licensee Parties
may contact any Tenants at the Real Property or make any inquiries of such
Tenants which in any way relate to the Real Property, any of the tenant estoppel
certificates, or to Seller without Seller's prior written consent. In the event
Buyer desires to conduct any physically intrusive Due Diligence, such as
sampling of soils, other media, building materials, or the like, Buyer will
identify in writing exactly what procedures Buyer desires to perform and request
Seller's express written consent. Seller may withhold or condition consent to
any physically intrusive Due Diligence in Seller's sole and absolute discretion
(other than with respect to core samples of roofs and asphalt on parking lots
for which Seller's consent shall not be unreasonably withheld or delayed)
Seller's consent to samples of roofs and asphalt parking lots shall be deemed to
have been given if Seller does not disapprove such sampling on or prior to two
(2) business days after Seller's receipt of Buyer's reasonably detailed sampling
plan therefor. Upon receipt of Seller's written consent, Buyer and all Licensee
Parties shall, in performing such Due Diligence, comply with the agreed upon
procedures and with any and all laws, ordinances, rules, and regulations
applicable to the Property and will not engage in any activities which would
violate any permit, license, or environmental law or regulation. Buyer and any
Licensee Parties will: (a) maintain comprehensive general liability (occurrence)
insurance in an amount of not less than $1,000,000 covering any accident arising
in connection with the presence of Buyer or the other Licensee Parties on the
Real Property or Improvements, and deliver a certificate of insurance, which
names the Seller and the Property Manager as additional insureds thereunder
verifying such coverage to Seller prior to entry upon the Real Property or
Improvements; (b) promptly pay when due the costs of all entry and inspections
and examinations done with regard to the Property; and (c) restore the Real
Property and Improvements to the condition in which the same were found before
any such entry upon the Real Property and inspection or examination was
undertaken.
SECTION 3.4 DUE DILIGENCE INDEMNITY. Buyer shall defend, indemnify, and
hold harmless Seller, Seller's partners, shareholders or members, as applicable,
and the Property
-9-
Manager from and against all losses, costs, damages, claims, and liabilities
(whether arising out of injury or death to persons or damage to the Property or
otherwise) including, but not limited to, costs of remediation, restoration and
other similar activities, mechanic's and materialmen's liens and attorneys'
fees, arising out of or in connection with Buyer's Due Diligence, Buyer's breach
of its obligations under SECTION 3.5 or Buyer's or any Licensee Parties' entry
upon the Real Property (collectively, "LOSSES"), unless any of the same are
caused solely by the gross negligence or willful misconduct of Seller, Seller's
partners, shareholders or members, as applicable, and/or the Property Manager.
The provisions of this SECTION 3.4 shall survive the Closing or, if the purchase
and sale is not consummated, any termination of this Agreement, and shall not be
subject to the twelve month limitation set forth in SECTION 6.2.
SECTION 3.5 CONFIDENTIALITY. Buyer agrees that any information obtained
by Buyer or its attorneys, partners, accountants, lenders or investors
(collectively, for purposes of this SECTION 3.5, the "PERMITTED OUTSIDE
PARTIES") in the conduct of its Due Diligence shall be treated as confidential
pursuant to SECTION 10.11 of this Agreement and shall be used only to evaluate
the acquisition of the Property from Seller. Buyer further agrees that within
its organization, or as to the Permitted Outside Parties, the Due Diligence
Items will be disclosed and exhibited only to those persons within Buyer's
organization or to those Permitted Outside Parties who are involved in
determining the feasibility of Buyer's acquisition of the Property. Buyer
further acknowledges that the Due Diligence Items and other information relating
to the leasing arrangements between Seller and any tenants or prospective
tenants are proprietary and confidential in nature. Buyer agrees not to divulge
the contents of such Due Diligence Items or any other information except in
strict accordance with SECTIONS 3.5 and 10.11 of this Agreement. In permitting
Buyer and the Permitted Outside Parties to review the Due Diligence Items and
other information to assist Buyer, Seller has not waived any privilege or claim
of confidentiality with respect thereto, and no third party benefits or
relationships of any kind, either express or implied, have been offered,
intended or created by Seller and any such claims are expressly rejected by
Seller and waived by Buyer and the Permitted Outside Parties, for whom, by its
execution of this Agreement, Buyer is acting as an agent with regard to such
waiver. Notwithstanding anything contained in this Agreement to the contrary,
Buyer shall be permitted (a) to make such disclosures to potential investors in
the Property as may be recommended by Buyer's legal counsel; and (b) to make
such other disclosures as may be recommended by Buyer's legal counsel in order
to comply with all financial reporting, securities laws and other legal
requirements applicable to Buyer. The provisions of this SECTION 3.5 shall
survive the Closing without limitation.
SECTION 3.6 DUE DILIGENCE PERIOD. To the extent Buyer determines to
proceed with the transaction contemplated by this Agreement and so instructs
Escrow Agent to deliver the Initial Deposit to Seller in accordance with SECTION
2.3, Buyer must give Seller written notice on or before the end of the Due
Diligence Period that Buyer intends to proceed with the transaction contemplated
by this Agreement. If before the end of the Due Diligence Period, Buyer fails to
give Seller such written notice, then Buyer shall be deemed to have elected to
terminate this Agreement without further liability except as described in this
SECTION 3.6 and SECTIONS 3.4, 3.5, 9.6 and 10.11. Upon termination or a deemed
termination of this Agreement, Buyer shall provide to Seller, originals of all
third party reports, studies and appraisals relating to the Property in its
possession, without representation or warranty and at no cost to Seller. The
foregoing obligation shall survive any termination of this Agreement. If Buyer
does not elect to
-10-
terminate this Agreement and is not deemed to have terminated this Agreement,
Buyer may, subject to the terms of this Agreement, continue to conduct further
physical Due Diligence or other examinations, inspections, tests, studies and
investigations regarding the Property; provided, however, that except as
otherwise expressly provided in SECTIONS 5.1 and 10.2.2, in no event shall Buyer
have any right to terminate or otherwise modify its obligations hereunder after
the end of the Due Diligence Period as a result of any such further physical Due
Diligence or other examinations, inspections, tests, studies or investigations
regarding the Property, and the provisions of this ARTICLE 3, including, without
limitation, the indemnification provisions, shall continue to apply.
SECTION 3.7 ESTOPPEL CERTIFICATES. Seller shall use good faith efforts
to, obtain and deliver to Buyer estoppel certificates from the Tenants of the
Property in the form of EXHIBIT I attached hereto (a "TENANT ESTOPPEL"). Seller
shall use good faith efforts to obtain and deliver to Buyer a Subordination,
Non-Disturbance and Attornment Agreement (a "SNDA") in such reasonable form as
Buyer's lender may require. Seller shall circulate to each Tenant a Tenant
Estoppel and SNDA within five (5) days of the Effective Date or if Seller has
not been provided with a form of SNDA, within five (5) days of receipt of the
Lender's SNDA. Obtaining a Tenant Estoppel and SNDA shall not, however, be a
condition to the Closing, nor shall Seller incur any liability in connection
with failing to obtain a Tenant Estoppel and SNDA. Buyer's sole remedy, if a
Tenant Estoppel or SNDA is unacceptable or is not delivered is that Buyer may,
by giving Seller and Escrow Agent written notice on or before the end of the Due
Diligence Period, terminate its obligations hereunder without further liability
except as described in SECTIONS 3.4, 3.5, 3.6, 9.6 and 10.11. If, before the end
of the Due Diligence Period, Buyer fails to give Seller such written notice,
then Buyer shall be deemed to have elected to waive its right to terminate this
Agreement pursuant to this SECTION 3.7.
SECTION 3.8 Buyer advised Seller that Buyer must cause to be prepared up
to three (3) years of audited financial statements in respect of the Property in
compliance with the policies of Buyer and certain laws and regulations,
including, without limitation, Securities and Exchange Commission Regulation
S-X, Rule 3-14. Seller agrees to use reasonable efforts to cooperate with
Buyer's auditors in the preparation of such audited financial statements.
Without limiting the generality of the preceding sentence (a) Seller shall,
during normal business hours, allow Buyer's auditors reasonable access to the
books and records maintained by Seller in respect of the Property; (b) Seller
shall use reasonable efforts to provide to Buyer such financial information and
supporting documentation as are necessary for Buyer's auditors to prepare
audited financial statements; and (c) if Seller has audited financial statements
with respect to the Property, Seller shall promptly provide Buyer's auditors
with a copy of such audited financial statements. If after Closing Seller
obtains an audited financial statement in respect of the Property for a fiscal
period in 2004 that was not completed at the time of Closing, then Seller shall
promptly provide Buyer with a copy of such audited financial statement, and the
foregoing covenant shall survive Closing.
ARTICLE 4 - TITLE AND SURVEY
SECTION 4.1 TITLE TO REAL PROPERTY. Seller shall make available to Buyer
not later than five (5) business days after the Effective Date (a) a commitment
to issue an owner's policy of title insurance with respect to the Property
issued by the Title Company (the "TITLE
-11-
COMMITMENT"), (b) copies of all recorded documents referred to on Schedule B of
the Title Commitment as exceptions to coverage (the "TITLE DOCUMENTS"), and (c)
the Survey. Buyer may elect to have the Survey updated (the "UPDATED SURVEY") at
Buyer's sole cost and expense.
SECTION 4.2 CERTAIN EXCEPTIONS TO TITLE. Buyer shall have the right to
object in writing to any title matters that are not Permitted Exceptions (herein
collectively called "LIENS") within ten (10) days after receipt of the later of
the Title Commitment, Survey or Updated Survey. Unless Buyer shall timely object
to the Liens, all such Liens shall be deemed to constitute additional Permitted
Exceptions. Any exceptions which are timely objected to by Buyer shall be herein
collectively called the "TITLE OBJECTIONS." Seller may elect (but shall not be
obligated) to remove or cause to be removed, or insured over, at its expense,
any Title Objections, and shall be entitled to a reasonable adjournment of the
Closing (not to exceed ninety (90) days) for the purpose of such removal, which
removal will be deemed effected by the issuance of title insurance eliminating
or insuring against the effect of the Title Objections. Seller shall notify
Buyer in writing within ten (10) days after receipt of Buyer's notice of Title
Objections whether Seller elects to remove the same. If Seller is unable to
remove or endorse over any Title Objections prior to the Closing, or if Seller
elects not to remove one or more Title Objections, Buyer may elect, as its sole
and exclusive remedy therefore, to either (a) terminate this Agreement by giving
written notice to Seller and Escrow Agent on or before the end of the Due
Diligence Period, in which event the Deposit shall be paid to Buyer and,
thereafter, the parties shall have no further rights or obligations hereunder
except for those obligations which expressly survive the termination of this
Agreement as set forth in SECTIONS 3.4, 3.5, 3.6, 9.6 and 10.11, or (b) waive
such Title Objections, in which event such Title Objections shall be deemed
additional "Permitted Exceptions" and the Closing shall occur as herein provided
without any reduction of or credit against the Purchase Price. If before the end
of the Due Diligence Period, Buyer fails to give Seller and Escrow Agent such
written notice, then Buyer shall be deemed to have elected to waive such Title
Objections and its right to terminate this Agreement pursuant to this SECTION
4.2. Notwithstanding the foregoing, Seller shall be obligated at Closing to
cause the release of the liens of any financing obtained by Seller which is
secured by the Property.
SECTION 4.3 TITLE INSURANCE. At Closing, the Title Company shall issue
to Buyer or be irrevocably committed to issue to Buyer an owner's form title
policy in the amount of the Purchase Price on the then standard TLTA owner's
form insuring Buyer's fee simple title to the Real Property subject only to the
Permitted Exceptions (including, without limitation, the standard printed
exceptions modified as follows: (a) the exception as to the lien for taxes will
be limited to the year in which the Closing occurs; and (b) any exception for
"parties in possession" will be limited to the rights of lessees or tenants
under the Leases, which shall be specifically listed in the title policy) (the
"TITLE POLICY"). Buyer shall be entitled to request that the Title Company
provide such endorsements (or amendments) to the Title Policy as Buyer may
reasonably require, including without limitation the modification of the so
called "survey exception" to read "shortages in area" provided that (a) such
endorsements (or amendments) shall be at no cost to, and shall impose no
additional liability on, Seller, (b) Buyer's obligations under this Agreement
shall not be conditioned upon Buyer's ability to obtain such endorsements and,
if Buyer is unable to obtain such endorsements, Buyer shall nevertheless be
obligated to proceed to close the transaction contemplated by this Agreement
without reduction of or set off against the Purchase Price, and (c) the Closing
shall not be delayed as a result of Buyer's request.
-12-
ARTICLE 5 - REMEDIES AND DEPOSIT INSTRUCTIONS
SECTION 5.1 PERMITTED TERMINATION; SELLER DEFAULT. If the sale of the
Property is not consummated due to the permitted termination of this Agreement
by Buyer as herein expressly provided, the Deposit shall be returned to Buyer
and Buyer will have no liability hereunder except as set forth in SECTIONS 3.4,
3.5, 3.6, 9.6 and 10.11. If the sale of the Property is not consummated due to
Seller's default hereunder, Buyer shall be entitled, as its sole and exclusive
remedy, either (a) terminate this Agreement and receive the return of the
Deposit, or (b) enforce specific performance of this Agreement. Except as
otherwise provided in SECTION 6.2, Buyer expressly waives its rights to seek any
damages in the event of Seller's default hereunder. Buyer shall be deemed to
have elected to terminate this Agreement and receive back the Deposit if Buyer
fails to file suit for specific performance against Seller in a court prescribed
by SECTION 10.5 hereof, on or before thirty (30) days following the date upon
which Closing was to have occurred.
SECTION 5.2 BUYER DEFAULT; LIQUIDATED DAMAGES. IF THE SALE IS NOT
CONSUMMATED DUE TO ANY DEFAULT BY BUYER HEREUNDER, THEN SELLER'S SOLE REMEDY
SHALL BE TO RECEIVE THE DEPOSIT AS LIQUIDATED DAMAGES, WHICH RETENTION SHALL
OPERATE TO TERMINATE THIS AGREEMENT AND RELEASE BUYER FROM ANY AND ALL LIABILITY
HEREUNDER, EXCEPT AS PROVIDED IN SECTIONS 3.4, 3.5, 3.6, 9.6 AND 10.11. THE
PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO
CONSUMMATE THIS SALE DUE TO BUYER'S DEFAULT, WOULD BE EXTREMELY DIFFICULT OR
IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT,
CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE
AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD
INCUR IN SUCH EVENT. BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY
CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY
WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE,
THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THE FOREGOING IS NOT
INTENDED TO LIMIT BUYER'S SURVIVING OBLIGATIONS UNDER SECTIONS 3.4, 3.5, 3.6,
9.6 AND 10.11.
Initials: Seller_______ Buyer _______
SECTION 5.3 DEPOSIT INSTRUCTIONS. The Escrow Agent joins herein below to
evidence its agreement to hold such funds in accordance with the terms and
conditions of this Agreement. Further, the following provisions shall control
with respect to the rights, duties and liabilities of the Escrow Agent.
5.3.1 The Escrow Agent acts hereunder as a depository only and
is not responsible or liable in any manner whatsoever for the (i) sufficiency,
correctness, genuineness or validity of any written instrument, notice or
evidence of a party's receipt of any instruction or
-13-
notice which is received by the Escrow Agent, or (ii) identity or authority of
any person executing such instruction notice or evidence.
5.3.2 The Escrow Agent shall have no responsibility hereunder
except for the performance by it in good faith of the acts to be performed by it
hereunder, and the Escrow Agent shall have no liability except for its own
willful misconduct or gross negligence.
5.3.3 The Escrow Agent shall be reimbursed on an equal basis
by Buyer and Seller for any reasonable expenses incurred by the Escrow Agent
arising from a dispute with respect to the amount held in escrow, including the
cost of any legal expenses and court costs incurred by the Escrow Agent, should
the Escrow Agent deem it necessary to retain an attorney with respect to the
disposition of the amount held in escrow.
5.3.4 In the event of a dispute between the parties hereto
with respect to the disposition of the amount held in escrow, the Escrow Agent
shall be entitled, at its own discretion, to deliver such amount to an
appropriate court of law pending resolution of the dispute.
5.3.5 The Escrow Agent shall invest the amount in escrow in
accounts which are federally insured or which invest solely in government
securities and shall be applied in accordance with the terms of this Agreement.
Interest earned thereon shall be added to the funds deposited by Buyer.
SECTION 5.4 DESIGNATION OF REPORTING PERSON. In order to assure
compliance with the requirements of Section 6045 of the Internal Revenue Code of
1986, as amended (for purposes of this SECTION 5.4, the "CODE"), and any related
reporting requirements of the Code, the parties hereto agree as follows:
(a) Seller and Buyer designate the Escrow Agent, and Escrow
Agent agrees to act, as the person to be responsible for all information
reporting under Section 6045(e) of the Code (the "REPORTING PERSON").
(b) Seller and Buyer hereby agree:
(i) to provide to the Reporting Person all
information and certifications regarding such party, as
reasonably requested by the Reporting Person or otherwise
required to be provided by a party to the transaction described
herein under Section 6045 of the Code; and
(ii) to provide to the Reporting Person such party's
taxpayer identification number and a statement (on Internal
Revenue Service Form W-9 or an acceptable substitute form, or on
any other form the applicable current or future Code sections
and regulations might require and/or any form requested by the
Reporting Person), signed under penalties of perjury, stating
that the taxpayer identification number supplied by such party
to the Reporting Person is correct.
-14-
(c) Each party hereto agrees to retain this Agreement for
not less than four years from the end of the calendar year in which the Closing
occurred, and to produce it to the Internal Revenue Service upon a valid request
therefor.
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF SELLER
SECTION 6.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Subject to the
provisions of SECTIONS 6.2 and 7.4, Seller makes the following representations
and warranties with respect to the Property:
(a) STATUS. Seller is a limited partnership duly organized
or formed, validly existing and in good standing under the laws of the State of
Delaware.
(b) AUTHORITY. The execution and delivery of this Agreement
and the performance of Seller's obligations hereunder have been or will be duly
authorized by all necessary action on the part of Seller, and this Agreement
constitutes the legal, valid and binding obligation of Seller, subject to
equitable principles and principles governing creditors' rights generally.
(c) NON-CONTRAVENTION. The execution and delivery of this
Agreement by Seller and the consummation by Seller of the transactions
contemplated hereby will not, to Seller's knowledge (i) violate any judgment,
order, injunction, decree, regulation or ruling of any court or Governmental
Entity or (ii) conflict with, result in a breach of, or constitute a default
under the organic documents of Seller, any note or other evidence of
indebtedness, any mortgage, deed of trust or indenture, or any lease or other
material agreement or instrument to which Seller is a party or by which Seller
may be bound.
(d) SUITS AND PROCEEDINGS. To Seller's knowledge, there are
no legal actions, suits or similar proceedings pending and served, or threatened
against Seller or the Property which if adversely determined, would adversely
affect the value of the Property, the continued operations thereof, or Seller's
ability to consummate the transactions contemplated hereby.
(e) NON-FOREIGN ENTITY. Seller is not a "foreign person" or
"foreign corporation" as those terms are defined in the Internal Revenue Code of
1986, as amended, and the regulations promulgated thereunder.
(f) CONSENTS. No consent, waiver, approval or authorization
is required from any person or entity (that has not already been obtained) in
connection with the execution and delivery of this Agreement by Seller or the
performance by Seller of the transactions contemplated hereby.
(g) CONDEMNATION. To Seller's knowledge, Seller has not
received any written condemnation notice from any Governmental Entity with
respect to all or part of the Property.
(h) BANKRUPTCY. Seller has not (i) commenced a voluntary
case, or had entered against it a petition, for relief under any federal
bankruptcy act or any similar petition, order or decree under any federal or
state law or statute relative to bankruptcy, insolvency or
-15-
other relief for debtors, (ii) caused, suffered or consented to the appointment
of a receiver, trustee, administrator, conservator, liquidator or similar
official in any federal, state or foreign judicial or non-judicial proceedings,
to hold, administer and/or liquidate all or substantially all of its property,
or (iii) made an assignment for the benefit of creditors.
(i) EMPLOYEES. Seller has no employees with respect to the
Property.
(j) ENVIRONMENTAL. To Seller's knowledge, Seller has or will
deliver to Buyer pursuant to SECTION 3.2 true, correct and complete copies of
all third party environmental audits with respect to the Property in Seller's
possession.
(k) COMMISSIONS. As of the Effective Date, there are no
leasing commissions that are due and payable and no commissions by, through or
under Seller which relate to the Property and may be payable in the future.
SECTION 6.2 LIMITED LIABILITY. The representations and warranties of
Seller set forth in SECTION 6.1, together with Seller's liability for any breach
before Closing of any of Seller's interim operating covenants under ARTICLE 8,
will survive the Closing for a period of twelve (12) months. Buyer will not have
any right to bring any action against Seller as a result of any untruth or
inaccuracy of such representations and warranties, or any such breach, unless
and until the aggregate amount of all liability and losses arising out of any
such untruth or inaccuracy, or any such breach, exceeds $50,000.00. In addition,
in no event will Seller's liability for all such breaches exceed, in the
aggregate, $250,000. Seller shall have no liability with respect to a
representation, warranty or covenant if, prior to the Closing, Buyer has actual
knowledge of a breach of such representation, warranty or covenant of Seller
herein, or Buyer obtains knowledge (from whatever source, including, without
limitation, any tenant estoppel certificates or any of the Due Diligence Items,
as a result of Buyer's Due Diligence, the inclusion of any information in or
written disclosure by Seller or Seller's agents and employees) that contradicts
such representation and warranty herein, and Buyer nevertheless consummates the
transaction contemplated by this Agreement. SECTIONS 3.4, 3.5, 3.6, 9.6 and
10.11 will survive Closing without limitation unless a specified period is
otherwise provided in this Agreement. All other representations, warranties,
covenants and agreements made or undertaken by Seller under this Agreement,
unless otherwise specifically provided herein, will not survive the Closing Date
but will be merged into the Deed and other Closing documents delivered at the
Closing.
SECTION 6.3 SELLER'S KNOWLEDGE. For purposes of this Agreement and any
document delivered at Closing, whenever the phrase "to Seller's knowledge," or
the "knowledge" of Seller or words of similar import are used, they shall be
deemed to refer to facts within the actual knowledge only of Xxxx Xxxxxx and
Xxxx Xxxxxxxx of Seller and no others, at the times indicated only, without duty
of inquiry whatsoever.
SECTION 6.4 LIABILITY OF REPRESENTATIONS AND WARRANTIES. Buyer
acknowledges that the individuals named above are 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
individuals to Buyer. Buyer covenants that it will bring no action of any kind
against such individuals, any shareholder, partner or member of Seller, as
applicable, or related to or arising out of these representations and
warranties.
-16-
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES OF BUYER
SECTION 7.1 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and
warrants to Seller the following:
(a) STATUS. Buyer is a limited partnership duly organized
and validly existing under the laws of the State of Texas.
(b) AUTHORITY. The execution and delivery of this Agreement
and the performance of Buyer's obligations hereunder have been or will be duly
authorized by all necessary action on the part of Buyer and this Agreement
constitutes the legal, valid and binding obligation of Buyer, subject to
equitable principles and principles governing creditors' rights generally.
(c) NON-CONTRAVENTION. The execution and delivery of this
Agreement by Buyer and the consummation by Buyer of the transactions
contemplated hereby will not, to Buyer's knowledge, violate any judgment, order,
injunction, decree, regulation or ruling of any court or Governmental Entity or
conflict with, result in a breach of, or constitute a default under the organic
documents of Buyer, any note or other evidence of indebtedness, any mortgage,
deed of trust or indenture, or any lease or other material agreement or
instrument to which Buyer is a party or by which it is bound.
(d) CONSENTS. No consent, waiver, approval or authorization
is required from any person or entity (that has not already been obtained) in
connection with the execution and delivery of this Agreement by Buyer or the
performance by Buyer of the transactions contemplated hereby.
(e) BANKRUPTCY. Buyer has not (i) commenced a voluntary
case, or had entered against it a petition, for relief under any federal
bankruptcy act or any similar petition, order or decree under any federal or
state law or statute relative to bankruptcy, insolvency or other relief for
debtors, (ii) caused, suffered or consented to the appointment of a receiver,
trustee, administrator, conservator, liquidator or similar official in any
federal, state or foreign judicial or non-judicial proceeding, to hold,
administer and/or liquidate all or substantially all of its property, or (iii)
made an assignment for the benefit of creditors.
(f) SOLVENCY. Buyer will not be rendered insolvent in
connection with, or as a result of, the performance by Buyer of its obligations
hereunder or the consummation of the transactions contemplated hereby.
SECTION 7.2 BUYER'S INDEPENDENT INVESTIGATION.
7.2.1 Buyer has been given, or will be given before the end of
the Due Diligence Period, a full opportunity to inspect and investigate each and
every aspect of the Property, either independently or through agents of Buyer's
choosing, including, without limitation:
(a) All matters relating to title, together with all
governmental and other legal requirements such as taxes, assessments, zoning,
use permit requirements, and building codes;
-17-
(b) The physical condition and aspects of the Property,
including, without limitation, the interior, the exterior, the square footage
within the improvements on the Real Property and within each tenant space
therein, the structure, the paving, the utilities, and all other physical and
functional aspects of the Property, including, without limitation, an
examination for the presence or absence of Hazardous Materials, which shall be
performed or arranged by Buyer at Buyer's sole expense;
(c) Any easements and/or access rights affecting the
Property;
(d) The Leases and all matters in connection therewith,
including, without limitation, the ability of the Tenants to pay Rent;
(e) The Contracts, the Licenses and Permits, the Commission
Agreements and any other documents or agreements of significance affecting the
Property; and
(f) All other matters of material significance affecting the
Property or delivered to Buyer by Seller in accordance with ARTICLE 3 of this
Agreement.
7.2.2 THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN
NEGOTIATED BETWEEN SELLER AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL
AGREEMENT OF SELLER AND BUYER, AND BUYER HAS CONDUCTED, OR WILL CONDUCT, ITS OWN
INDEPENDENT EXAMINATION OF THE PROPERTY. OTHER THAN THE MATTERS REPRESENTED IN
SECTION 6.1 HEREOF AS SUCH MAY BE LIMITED BY SECTION 6.2 HEREOF AND IN THE DEED,
BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY,
ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER'S AGENTS OR
REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE
BEEN MADE. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, (AS LIMITED BY SECTION
6.2) AND IN THE DEED, SELLER SPECIFICALLY DISCLAIMS, AND NEITHER IT NOR ANY
OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO
BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER
EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY BUYER WITH RESPECT TO
THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR
MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED
TO (A) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (B) ANY IMPLIED OR
EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (C) ANY IMPLIED OR EXPRESS
WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (D) ANY RIGHTS OF
BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (E) ANY
CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH
RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (F) THE FINANCIAL
CONDITION OR PROSPECTS OF THE PROPERTY AND (G) THE COMPLIANCE OR LACK THEREOF OF
THE REAL PROPERTY OR THE IMPROVEMENTS WITH
-18-
GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER AND BUYER
THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROPERTY WILL BE
CONVEYED AND TRANSFERRED TO BUYER IN ITS PRESENT CONDITION AND STATE OF REPAIR,
"AS IS" AND "WHERE IS", WITH ALL FAULTS. BUYER REPRESENTS THAT IT IS A
KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED BUYER OF REAL ESTATE, AND THAT IT
IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF BUYER'S CONSULTANTS IN
PURCHASING THE PROPERTY AND THAT IT IS RECEIVING REASONABLY EQUIVALENT VALUE IN
CONSUMMATING THE TRANSACTIONS CONTEMPLATED HEREBY. BUYER ACKNOWLEDGES AND AGREES
THAT IT WILL HAVE THE OPPORTUNITY TO CONDUCT SUCH INSPECTIONS, INVESTIGATIONS
AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS,
INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF,
DURING THE DUE DILIGENCE PERIOD AND, EXCEPT AS SET FORTH IN SECTION 6.1 (AS
LIMITED BY SECTION 6.2) AND IN THE DEED, BUYER WILL RELY UPON SAME AND NOT UPON
ANY STATEMENTS OF SELLER OR OF ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT OR
ATTORNEY OF SELLER. BUYER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY BUYER
WILL BE OBTAINED FROM A VARIETY OF SOURCES AND SELLER WILL NOT BE DEEMED TO HAVE
REPRESENTED OR WARRANTED THE COMPLETENESS, TRUTH OR ACCURACY OF ANY OF THE DUE
DILIGENCE ITEMS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO
BUYER EXCEPT AS SET FORTH IN SECTION 6.1 (AS LIMITED BY SECTION 6.2) AND IN THE
DEED. UPON CLOSING, BUYER WILL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING,
BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE
BEEN REVEALED BY BUYER'S INSPECTIONS AND INVESTIGATIONS. BUYER ACKNOWLEDGES AND
AGREES THAT UPON CLOSING, SELLER WILL SELL AND CONVEY TO BUYER, AND BUYER WILL
ACCEPT THE PROPERTY, "AS IS, WHERE IS," WITH ALL FAULTS. BUYER FURTHER
ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR
REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE PROPERTY, BY SELLER, ANY AGENT
OF SELLER OR ANY THIRD PARTY. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY
ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE
PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER
PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREIN. BUYER
ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE "AS IS, WHERE IS" NATURE OF
THIS SALE AND ANY FAULTS, LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY
BE ASSOCIATED WITH THE PROPERTY. BUYER, WITH BUYER'S COUNSEL, HAS FULLY REVIEWED
THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE
SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE
DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS
AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO BUYER
FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN
THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SUBSECTION 7.2.2 WILL EXPRESSLY
SURVIVE THE CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS
AND WILL BE INCORPORATED INTO THE DEED.
SECTION 7.3 BUYER'S RELEASE OF SELLER.
7.3.1 Seller Released From Liability. Seller is hereby
released from all responsibility and liability to Buyer regarding the condition
(including its physical condition and its compliance with applicable laws, and
the presence in the soil, air, structures and surface and
-19-
subsurface waters, of Hazardous Materials or substances that have been or may in
the future be determined to be toxic, hazardous, undesirable or subject to
regulation and that may need to be specially treated, handled and/or removed
from the Property under current or future federal, state and local laws,
regulations or guidelines), valuation, salability or utility of the Property, or
its suitability for any purpose whatsoever except to the extent that such
responsibility or liability is the result of the material inaccuracy (if any) of
Seller's representations under Section 6.1 or failure to perform Seller's
covenants under SECTION 8.1 hereof.
7.3.2 Buyer's Waiver of Objections. Buyer acknowledges that it
has inspected the Property, observed its physical characteristics and existing
conditions and had, or will have, the opportunity to conduct such investigation
and study on and of said Property and adjacent areas as it deemed necessary, and
subject to Seller's responsibility for any breach of the warranties and
representations contained in SECTION 6.1 of this Agreement, hereby waives any
and all objections to or complaints (including but not limited to actions based
on federal, state or common law and any private right of action under CERCLA,
RCRA or any other state and federal law to which the Property is or may be
subject) regarding physical characteristics and existing conditions, including
without limitation structural and geologic conditions, subsurface soil and water
conditions and solid and hazardous waste and Hazardous Materials on, under,
adjacent to or otherwise affecting the Property. Buyer further hereby assumes
the risk of changes in applicable laws and regulations relating to past, present
and future environmental conditions on the Property, and the risk that adverse
physical characteristics and conditions, including without limitation the
presence of Hazardous Materials or other contaminants, may not be revealed by
its investigation.
7.3.3 Survival. The foregoing waivers and releases by Buyer
shall survive either (a) the Closing and the recordation of the Deed, and shall
not be deemed merged into the Deed upon its recordation, or (b) any termination
of this Agreement.
SECTION 7.4 DISCHARGE. Notwithstanding any other provisions contained
herein, or in any document or instrument delivered in connection with the
transfer contemplated hereby, to the contrary, Buyer hereby acknowledges and
agrees that (a) prior to Closing, Buyer's sole recourse in the event of a breach
by Seller shall be as set forth in SECTION 5.1 hereof, and (b) Seller shall,
upon consummation of Closing, be deemed to have satisfied and fulfilled all of
Seller's covenants, indemnities, and obligations contained in this Agreement and
the documents delivered pursuant hereto, and Seller shall have no further
liability to Buyer or otherwise with respect to this Agreement, the transfers
contemplated hereby, or any documents delivered pursuant hereto, except to the
extent of any obligation or liability Seller may have under (a) SECTIONS 6.1,
8.1, 9.5 or 10.9 as to which Seller's liability, if any, shall be limited as
provided in SECTION 6.2, or (b) Section 9.6 or the warranty of title in the
Deed.
ARTICLE 8 - INTERIM OPERATING COVENANTS
SECTION 8.1 CERTAIN INTERIM OPERATING COVENANTS. From the date hereof
until the Closing or earlier termination of this Agreement, and except as
otherwise consented to or approved by Buyer, Seller covenants and agrees with
Buyer that Seller will: continue to operate, manage and maintain the
Improvements in the ordinary course of Seller's business and substantially in
accordance with Seller's present practice, subject to ordinary wear and tear and
-20-
further subject to SECTION 10.2; and maintain fire and extended coverage
insurance on the Property which is at least equivalent in all material respects
to the insurance policies covering the Land and the Improvements as of the
Effective Date. Seller shall not terminate, modify, amend or renew any Leases
without Buyer's prior written consent. Seller shall promptly provide to Buyer a
copy of any written notices of lawsuits received by Seller that will materially
and negatively affect the ownership and operation of the Property. Seller shall
not affirmatively encumber the Property without Borrower's written consent
except as required by court order, as required by law or for such immaterial
easements or other licenses or occupancy agreements or dedications of a de
minimis nature. From and after the end of the Due Diligence Period until Closing
or earlier termination of this Agreement, Seller shall not enter into any new
contract for the provision of goods or services to or with respect to the
Property other than in the ordinary course of business, or renew, extend, modify
or replace any of the Contracts unless such contract is terminable as of the
Closing Date without payment of any fees or penalty or unless Buyer consents
thereto in writing, which approval shall not be unreasonably withheld, delayed
or conditioned. In addition, Seller shall terminate any leasing and/or
management agreement with the Property Manager with respect to the Property
effective as of the Closing Date and pay any and all costs and expenses of
termination thereof.
ARTICLE 9 - CLOSING AND CONDITIONS
SECTION 9.1 ESCROW INSTRUCTIONS. Upon execution of this Agreement, the
parties hereto shall deposit an executed counterpart of this Agreement with the
Escrow Agent, and this Agreement shall serve as escrow instructions to the
Escrow Agent as the escrow holder for consummation of the purchase and sale
contemplated hereby. Seller and Buyer agree to execute such reasonable
additional and supplementary escrow instructions as may be appropriate to enable
the Escrow Agent to comply with the terms of this Agreement; provided, however,
that in the event of any conflict between the provisions of this Agreement and
any supplementary escrow instructions, the terms of this Agreement shall
control.
SECTION 9.2 CLOSING. The closing hereunder ("CLOSING") shall be held and
delivery of all items to be made at the Closing under the terms of this
Agreement shall be made through escrow at Escrow Agent's office on the date that
is thirty (30) days after the last day of the Due Diligence Period (if such day
is a business day, or if not a business day, on the first day following the 30th
day which is a business day), or such other date and time as Buyer and Seller
may mutually agree upon in writing (the "CLOSING DATE"). Such date may not be
extended without the prior written approval of both Seller and Buyer. No later
than 12:00 p.m. Central Time on the Closing Date, Buyer shall deposit in escrow
with the Escrow Agent the Purchase Price (subject to adjustments described in
Section 9.5), together with all other costs and amounts to be paid by Buyer at
the Closing pursuant to the terms of this Agreement, by Federal Reserve wire
transfer of immediately available funds to an account to be designated by the
Escrow Agent. No later than 1:00 p.m. Central Time on the Closing Date, Buyer
will cause the Escrow Agent to pay to Seller the Purchase Price in the manner
set forth in SECTION 2.2, and (ii) pay all appropriate payees the other costs
and amounts to be paid by Buyer at Closing pursuant to the terms of this
Agreement and Seller will direct the Escrow Agent to pay to the appropriate
payees out of the proceeds of Closing payable to Seller, all costs and amounts
to be paid by Seller at Closing pursuant to the terms of this Agreement. It
shall constitute a condition precedent to Seller's obligations to consummate the
Closing hereunder that all of the material representations,
-21-
warranties, covenants, and agreements of Buyer contained herein shall be true
and correct and/or shall have been performed, as the case may be, in all
material respects. It shall constitute a condition precedent to Buyer's
obligations to consummate the Closing hereunder that all of the material
representations, warranties, covenants, and agreements of Seller contained
herein shall be true and/or shall have been performed, as the case may be, in
all material respects.
SECTION 9.3 SELLER'S CLOSING DOCUMENTS AND OTHER ITEMS. At or before
Closing, Seller shall deposit into escrow the following items:
9.3.1 A duly executed and acknowledged Special Warranty Deed
in the form attached hereto as EXHIBIT C (the "DEED");
9.3.2 Two duly executed counterparts of a Xxxx of Sale in the
form attached hereto as EXHIBIT D (the "XXXX OF SALE");
9.3.3 Two (2) duly executed counterparts of an Assignment and
Assumption of Leases in the form attached hereto as EXHIBIT E (the "ASSIGNMENT
AND ASSUMPTION OF LEASES");
9.3.4 Two (2) duly executed counterparts of an Assignment and
Assumption of Contracts, Warranties and Guaranties, Licenses and Permits and
Other Intangible Property in the form attached hereto as EXHIBIT F (the
"ASSIGNMENT AND ASSUMPTION OF CONTRACTS");
9.3.5 An affidavit pursuant to Section l445(b)(2) of the Code,
and on which Buyer is entitled to rely, stating that Seller is not a "foreign
person" within the meaning of Section l445(f)(3) of the Code;
9.3.6 Notices to each Tenant of the Property, signed by
Seller, that shall disclose that the Property has been sold to Buyer and that,
after the Closing, all rents should be paid to Buyer or Buyer's designee;
9.3.7 Seller shall deliver to Buyer a set of keys to the
Property on the Closing Date (location of any of the items referred to in this
subsection at the Property on the Closing Date shall be deemed to be delivery to
Buyer);
9.3.8 If applicable, duly completed and signed real estate
transfer tax declarations;
9.3.9 Such other documents as may be reasonably required by
the Title Company or as may be agreed upon by Seller and Buyer to consummate the
purchase of the Property as contemplated by this Agreement;
9.3.10 If applicable, with respect to any security deposits
which are letters of credit, Seller shall, if the same are assignable, deliver
to Buyer at the Closing such letters of credit, execute and deliver such other
instruments as the issuers of such letters of credit shall reasonably require,
and cooperate with Buyer to change the named beneficiary under such letters of
credit to Buyer, so long as Seller does not incur any additional liability or
expense in connection therewith;
-22-
9.3.11 Two (2) duly executed counterparts of the Closing
Statement;
9.3.12 Two (2) duly executed counterparts of the Loan
Agreement; and
9.3.13 A certificate, dated as of the date of Closing, stating
that the representations and warranties of Seller contained in SECTION 6.1 are
true and correct in all material respects as of the Closing Date identifying any
representation or warranty which is not, or no longer is, true and correct (and
has not been otherwise modified as permitted by this Agreement) and explaining
the state of facts giving rise to the change. In no event shall Seller be liable
to Buyer for, or be deemed to be in default hereunder, if any representation or
warranty is so identified and is no longer true and correct in all material
respects; provided, however, that in the event the representation or warranty is
so identified and is no longer true and correct for any reason in accordance
with this SECTION 9.3.13 then, such event shall constitute the non-fulfillment
of the condition set forth in SECTION 9.2, entitling Buyer to terminate this
Agreement by written notice to Seller and receive the prompt return of the
Additional Deposit from the Escrow Agent, together with the interest earned
thereon, whereupon Buyer and Seller will have no further rights or obligations
under this Agreement, except as provided in SECTIONS 3.4, 3.5, 3.6, 9.6 and
10.11. If, despite changes or other matters described in such certificate, the
Closing occurs, Seller's representations and warranties set forth in this
Agreement shall be deemed to have been modified by all statements made in such
certificate.
SECTION 9.4 BUYER'S CLOSING DOCUMENTS AND OTHER ITEMS. At or before
Closing, Buyer shall deposit into escrow the following items:
9.4.1 The balance of the Purchase Price, one (1) duly executed
promissory note in the form ascribed in the Loan Agreement and such additional
funds as are necessary to close this transaction;
9.4.2 Two (2) duly executed counterparts of the Xxxx of Sale;
9.4.3 Two (2) duly executed counterparts of the Assignment and
Assumption of Leases;
9.4.4 Two (2) duly executed counterparts of the Assignment and
Assumption of Contracts;
9.4.5 Documentation to establish to Seller's reasonable
satisfaction the due authority of Buyer's acquisition of the Property and
Buyer's delivery of the documents required to be delivered by Buyer pursuant to
this Agreement including, but not limited to, the organizational documents of
Buyer, as they may have been amended from time to time, resolutions of Buyer and
incumbency certificates of Buyer;
9.4.6 If applicable, duly completed and signed real estate
transfer tax declarations;
9.4.7 Such other documents as may be reasonably required by
the Title Company or as may be agreed upon by Seller and Buyer to consummate the
purchase of the Property as contemplated by this Agreement;
-23-
9.4.8 Two (2) duly executed counterparts of the Closing
Statement;
9.4.9 Two (2) duly executed counterparts of such other Loan
Documents as may be required by Seller (or its designee as lender); and
9.4.10 A certificate, dated as of the date of Closing, stating
that the representations and warranties of Buyer contained in SECTION 7.1 are
true and correct in all material respects as of the Closing Date (with
appropriate modification to reflect any changes therein) or identifying any
representation or warranty which is not, or no longer is, true and correct and
explaining the state of facts giving rise to the change.
SECTION 9.5 PRORATIONS AND CLOSING COSTS.
9.5.1 (a) Seller and Buyer agree to adjust, as of 11:59
p.m. on the day immediately preceding the Closing Date (the "PRORATION TIME"),
the following (collectively, the "PRORATION ITEMS"): real estate and personal
property taxes and assessments (subject to the terms of SECTION 9.5.1(B) below),
utility bills (except as hereinafter provided), collected Rents (subject to the
terms of SECTION 9.5.1(B) below) and Operating Expenses (subject to the terms of
SECTION 9.5.1(C) below) payable by the owner of the Property. Seller will be
charged and credited for the amounts of all of the Proration Items relating to
the period up to and including the Proration Time, and Buyer will be charged and
credited for all of the Proration Items relating to the period after the
Proration Time. Such preliminary estimated Closing prorations shall be set forth
on a preliminary closing statement to be prepared by Seller and submitted to
Buyer for Buyer's approval prior to the Closing Date (the "CLOSING STATEMENT").
The Closing Statement, once agreed upon, shall be signed by Buyer and Seller and
delivered to the Escrow Agent for purposes of making the preliminary proration
adjustment at Closing subject to the final cash settlement provided for below.
The preliminary proration shall be paid at Closing by Buyer to Seller (if the
preliminary prorations result in a net credit to Seller) or by Seller to Buyer
(if the preliminary prorations result in a net credit to Buyer) by increasing or
reducing the cash to be delivered by Buyer in payment of the Purchase Price at
the Closing. If the actual amounts of the Proration Items are not known as of
the Proration Time, the prorations will be made at Closing on the basis of the
best evidence then available; thereafter, when actual figures are received (not
to exceed 120 days after closing), re-prorations will be made on the basis of
the actual figures, and a final cash settlement will be made between Seller and
Buyer. No prorations will be made in relation to insurance premiums, and
Seller's insurance policies will not be assigned to Buyer. Final readings and
final xxxxxxxx for utilities will be made if possible as of the Proration Time,
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 Buyer will be obligated to make its own arrangements for
deposits with the utility providers. The provisions of this SECTION 9.5.1(A)
will survive the Closing for a period of twelve (12) months.
(b) Buyer will receive a credit on the Closing
Statement for the prorated amount (as of the Proration Time) of all Rent
previously paid to or collected by Seller and attributable to any period
following the Proration Time. 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 Buyer from
and after Closing from each Tenant will be applied first to Delinquent Rent owed
by such Tenant to Seller
-24-
and then to current amounts owed by such Tenant to Buyer. Any sums due Seller
will be promptly remitted to Seller. Buyer 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 Seller
for periods attributable to Seller's ownership of the Property; provided,
however, Seller (i) shall be required to notify Buyer in writing of Seller's
intention to commence or pursue any legal proceedings; (ii) shall only be
permitted to commence or pursue legal proceedings after the date which is three
(3) months after Closing; and (iii) shall not be permitted to commence or pursue
any legal proceedings against any Tenant seeking eviction of such Tenant or the
termination of the underlying Lease. The provisions of this Section 9.5.1(b)
will survive the Closing for a period of twelve (12) months.
(c) Intentionally omitted.
(d) Intentionally omitted.
(e) Buyer shall receive a credit against Purchase Price at
Closing for all Tenant Deposits then outstanding under the Leases and for all
Rent paid in advance (to the extent not prorated as set forth in (b) above).
(f) Buyer shall receive a credit against the Purchase Price
at Closing for all payments due or owing under any Contracts for periods prior
to the Closing Date, which amounts shall be prorated as of the Proration Time.
If Seller has paid any amounts under any Contracts for periods after the
Proration Time, Buyer shall pay such amounts to Seller at Closing in addition to
the Purchase Price.
9.5.2 Seller shall pay (a) Seller's attorney's fees, (b)
one-half of the Escrow Agent's escrow fee, (c) the base premium for the Title
Policy and (d) any additional costs and charges customarily charged to sellers
in accordance with common escrow practices in the county in which the Property
is located, other than those costs and charges specifically required to be paid
by Buyer hereunder. Buyer shall pay (a) Buyer's attorney's fees, (b) one-half of
the Escrow Agent's escrow fee, (c) all of the costs of any additional coverage
under the Title Policy, including the costs of any endorsements, deletions or
modification of the survey exceptions to "shortages in area" that Buyer may
require in accordance with SECTION 4.3, (d) all premiums and other costs for any
mortgagee policy of title insurance, if any, including but not limited to any
endorsements, deletions or modifications of the survey exception to "shortages
in area", (e) the recording fees required in connection with the transfer of the
Property to Buyer and (f) any additional costs and charges customarily charged
to buyers in accordance with common escrow practices in the county in which the
Property is located, other than those costs and charges specifically required to
be paid by Seller hereunder. In addition to the foregoing, Buyer shall be
responsible for any costs of updating the Survey of the Property or otherwise
conforming the Survey to the requirements for issuance of the Title Policy or
for any new survey that may be required for issuance of the Title Policy.
SECTION 9.6 BROKER. Buyer hereby represents and warrants to Seller that
it did not employ or use any broker or finder to arrange or bring about this
transaction, and that there are no claims or rights for brokerage commissions or
finder's fees in connection with the transactions contemplated by this
Agreement, other than the commission ("BROKER'S
-25-
COMMISSION") required to be paid by Seller to Broker pursuant to a separate
agreement between Seller and Broker. If any person brings a claim for a
commission or finder's fee based upon any contact, dealings, or communication
with Buyer in connection with the transactions contemplated by this Agreement,
other than Broker, then Buyer shall defend Seller from such claim, and shall
indemnify Seller and hold Seller harmless from any and all costs, damages,
claims, liabilities, or expenses (including, without limitation, reasonable
attorneys' fees and disbursements) incurred by Seller with respect to the claim.
Seller hereby represents and warrants to Buyer that Seller has not employed any
broker with respect to this transaction, other than Broker, and Seller shall
only pay the Broker's Commission. If any person brings a claim for a commission
or finder's fee based upon any contact, dealings or communication with Seller in
connection with the transactions contemplated by this Agreement, other than
Broker, then Seller shall defend Buyer from such claims, liabilities, or
expenses (including without limitation, reasonable attorneys' fees and
disbursements) incurred by Buyer with respect to the claim. The provisions of
this SECTION 9.6 shall survive the Closing or, if the purchase and sale is not
consummated, any termination of this Agreement and shall not be subject to the
twelve month limitation set forth in SECTION 6.2.
SECTION 9.7 EXPENSES. Except as provided in SECTIONS 9.5 and 9.6, each
party hereto shall pay its own expenses incurred in connection with this
Agreement and the transactions contemplated hereby, including, without
limitation, in the case of Buyer, all third-party engineering and environmental
review costs and all other Due Diligence costs.
ARTICLE 10 - MISCELLANEOUS
SECTION 10.1 AMENDMENT AND MODIFICATION. Subject to applicable law, this
Agreement may be amended, modified, or supplemented only by a written agreement
signed by Buyer and Seller.
SECTION 10.2 RISK OF LOSS AND INSURANCE PROCEEDS.
10.2.1 Minor Loss. Buyer shall be bound to purchase the
Property for the full Purchase Price as required by the terms hereof, without
regard to the occurrence or effect of any damage to the Property or destruction
of any improvements thereon or condemnation of any portion of the Property,
provided that: (a) the cost to repair any such damage or destruction, or the
diminution in the value of the remaining Property as a result of a partial
condemnation, is $500,000 or less, and (b) upon the Closing, there shall be a
credit against the Purchase Price due hereunder equal to the amount of any
insurance proceeds or condemnation awards collected by Seller as a result of any
such damage or destruction or condemnation, plus the amount of any insurance
deductible, less any sums expended by Seller toward the restoration or repair of
the Property or in collecting such insurance proceeds or condemnation awards. If
the proceeds or awards have not been collected as of the Closing, then such
proceeds or awards shall be assigned to Buyer, except to the extent needed to
reimburse Seller for sums expended prior to the Closing to repair or restore the
Property or to collect any such proceeds or awards.
10.2.2 Major Loss. If the amount of the damage or destruction
or condemnation as specified above exceeds $500,000, then Buyer may at its
option, to be exercised by written notice to Seller within ten (10) business
days of Seller's notice of the occurrence of the damage
-26-
or destruction or the commencement of condemnation proceedings, terminate this
Agreement. Buyer's failure to elect to terminate this Agreement within said ten
business day period shall be deemed an election by Buyer to consummate this
purchase and sale transaction. If Buyer elects to terminate this Agreement
within such ten business day period, the Deposit shall be returned to Buyer and
neither party shall have any further rights or obligations hereunder except as
provided in SECTIONS 3.4, 3.5, 3.6, 9.6 and 10.11. If Buyer elects or is deemed
to have elected to proceed with the purchase, then upon the Closing, there shall
be a credit against the Purchase Price due hereunder equal to the amount of any
insurance proceeds or condemnation awards collected by Seller as a result of any
such damage or destruction or condemnation, plus the amount of any insurance
deductible, less any sums expended by Seller toward the restoration or repair of
the Property or in collecting such insurance proceeds or condemnation awards. If
the proceeds or awards have not been collected as of the Closing, then such
proceeds or awards shall be assigned to Buyer, except to the extent needed to
reimburse Seller for sums expended prior to the Closing to repair or restore the
Property or to collect any such proceeds or awards.
SECTION 10.3 NOTICES. All notices required or permitted hereunder shall
be in writing and shall be served on the parties at the following address:
If to Seller: 98 CUSA Plano, L.P.,
c/x Xxxxxxxxx Real Estate Partners, L.L.C.
00000 Xxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxx Xxxxxx
Facsimile: (000) 000-0000
With copies to: Xxxxxxxxx Real Estate Partners, L.L.C.
00000 Xxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxx, Esq.
Facsimile: (000) 000-0000
and to: Xxxxx Day
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxx, Esq.
Facsimile: (000) 000-0000
-27-
If to Buyer: Realty America (1221 Xxxx Road), L.P.
c/o Realty America Group
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx, III
Facsimile: (000) 000-0000
With copies to: Xxxxxx & Xxxxxxx, L.L.P.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to Escrow Agent: LandAmerica Financial Group, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 0000 X.X. #00
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Any such notices may be sent by (a) certified mail, return receipt requested, in
which case notice shall be deemed delivered five (5) business days after
deposit, postage prepaid in the U.S. mail, (b) a nationally recognized overnight
courier, in which case notice shall be deemed delivered one (1) business day
after deposit for next business day delivery with such courier, or (c) facsimile
transmission, in which case notice shall be deemed delivered on the business day
received if delivered before 5:00 p.m. Eastern (if delivered after such time or
on any day that is not a business day, the notice shall be deemed delivered on
the next business day) following and upon electronic verification that
transmission to the recipients was completed. The above addresses and facsimile
numbers may be changed by written notice to the other party; provided that no
notice of a change of address or facsimile number shall be effective until
actual receipt of such notice. Copies of notices are for informational purposes
only, and a failure to give or receive copies of any notice shall not be deemed
a failure to give notice.
SECTION 10.4 ASSIGNMENT. Buyer and Seller shall not have the right to
assign this Agreement, without the prior written consent of the other party.
Notwithstanding the foregoing, Buyer and Seller may each assign, upon written
notice to the non-assigning party (a) their interests herein to an Affiliate of
such assigning party or to any partnership in which Buyer or any Affiliate of
Buyer is general partner and (b) their rights (but not obligations) herein to
any party which is not an Affiliate for the purposes of effectuating an exchange
of properties under Section 1031 of the Code, provided that any such assignment
does not relieve the assigning party of its obligations hereunder. This
Agreement will be binding upon and inure to the benefit of Seller and Buyer and
their respective successors and permitted assigns, and no other party will be
conferred any rights by virtue of this Agreement or be entitled to enforce any
of the provisions hereof. Whenever a reference is made in this Agreement to
Seller or Buyer, such reference will include the successors and permitted
assigns of such party under this Agreement.
SECTION 10.5 GOVERNING LAW AND CONSENT TO JURISDICTION. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
-28-
LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE
PRINCIPLES OF CONFLICTS OF LAWS. ANY ACTION ARISING OUT OF THIS AGREEMENT MUST
BE COMMENCED BY BUYER OR SELLER IN THE STATE COURTS OF THE STATE OF TEXAS OR IN
U.S. FEDERAL COURT FOR THE NORTHERN DISTRICT OF TEXAS AND EACH PARTY HEREBY
CONSENTS TO THE JURISDICTION OF THE ABOVE COURTS IN ANY SUCH ACTION AND TO THE
LAYING OF VENUE IN THE STATE OF TEXAS. ANY PROCESS IN ANY SUCH ACTION SHALL BE
DULY SERVED IF MAILED BY REGISTERED MAIL, POSTAGE PREPAID, TO THE PARTIES AT
THEIR RESPECTIVE ADDRESS DESCRIBED IN SECTION 10.3 HEREOF.
SECTION 10.6 COUNTERPARTS. This Agreement may be executed in two or more
fully or partially executed counterparts, each of which will be deemed an
original binding the signer thereof against the other signing parties, but all
counterparts together will constitute one and the same instrument.
SECTION 10.7 ENTIRE AGREEMENT. This Agreement and any other document to
be furnished pursuant to the provisions hereof embody the entire agreement and
understanding of the parties hereto as to the subject matter contained herein.
There are no restrictions, promises, representations, warranties, covenants, or
undertakings other than those expressly set forth or referred to in such
documents. This Agreement and such documents supersede all prior agreements and
understandings among the parties with respect to the subject matter hereof.
SECTION 10.8 SEVERABILITY. Any term or provision of this Agreement that
is invalid or unenforceable in any jurisdiction will, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement, or affecting the validity or enforceability of any of the terms or
provisions of this Agreement.
SECTION 10.9 ATTORNEY FEES. If any action is brought by any party to
this Agreement to enforce or interpret its terms or provisions, the prevailing
Party will be entitled to reasonable attorney fees and costs incurred in
connection with such action prior to and at trial and on any appeal therefrom.
SECTION 10.10 PAYMENT OF FEES AND EXPENSES. Each party to this Agreement
will be responsible for, and will pay, all of its own fees and expenses,
including those of its counsel and accountants, incurred in the negotiation,
preparation, and consummation of this Agreement and the transaction contemplated
hereunder.
SECTION 10.11 CONFIDENTIAL INFORMATION. The parties acknowledge that the
transaction described herein is of a confidential nature and shall not be
disclosed except to Permitted Outside Parties or as required by law. No party
shall make any public disclosure of the specific terms of this Agreement, except
as required by law (including SEC regulations and NYSE requirements). In
connection with the negotiation of this Agreement and the preparation for the
consummation of the transactions contemplated hereby, each party acknowledges
that it will have access to confidential information relating to the other
party. Each party shall treat such information as confidential, preserve the
confidentiality thereof, and not duplicate or use such information,
-29-
except to Permitted Outside Parties in connection with the transactions
contemplated hereby. In the event of the termination of this Agreement for any
reason whatsoever, Buyer shall return to Seller, all documents, work papers,
engineering and environmental studies and reports and all other materials
(including all copies thereof obtained from Seller in connection with the
transactions contemplated hereby), and each party shall use its best efforts,
including instructing its employees and others who have had access to such
information, to keep confidential and not to use any such information. Except as
required by applicable law, neither party shall issue any press release or make
any statement to the media without the other party's consent, which consent
shall not be unreasonably withheld. The provisions of this SECTION 10.11 shall
survive the Closing or, if the purchase and sale is not consummated, any
termination of this Agreement and shall not be subject to the twelve (12) month
limitation set forth in SECTION 6.2. Notwithstanding anything contained in this
Agreement to the contrary, Buyer shall be permitted (a) to make such disclosures
to potential investors in the Property as may be recommended by Buyer's legal
counsel; and (b) to make such other disclosures as may be recommended by Buyer's
legal counsel in order to comply with all financial reporting, securities laws
and other legal requirements applicable to Buyer.
SECTION 10.12 NO JOINT VENTURE. Nothing set forth in this Agreement
shall be construed to create a joint venture between Buyer and Seller.
SECTION 10.13 WAIVER OF JURY TRIAL. Each party to this Agreement hereby
expressly waives any right to trial by jury of any claim, demand, action or
cause of action (each, an "Action") (a) arising out of this Agreement, including
any present or future amendment thereof or (b) in any way connected with or
related or incidental to the dealings of the parties or any of them with respect
to this Agreement (as hereafter amended) or any other instrument, document or
agreement executed or delivered in connection herewith, or the transactions
related hereto or thereto, in each case whether such Action is now existing or
hereafter arising, and whether sounding in contract or tort or otherwise and
regardless of which party asserts such Action; and each party hereby agrees and
consents that any such Action shall be decided by court trial without a jury,
and that any party to this Agreement may file an original counterpart or a copy
of this SECTION 10.13 with any court as written evidence of the consent of the
parties to the waiver of any right they might otherwise have to trial by jury.
SECTION 10.14 LIMITED LIABILITY. Neither the members, managers,
employees or agents of Seller, nor the shareholders, officers, directors,
employees or agents of any of them shall be liable under this Agreement and all
parties hereto shall look solely to the assets of Seller for the payment of any
claim or the performance of any obligation by Seller.
SECTION 10.15 TIME OF ESSENCE. Time is of the essence of this Agreement.
SECTION 10.16 NO WAIVER. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver, nor
shall a waiver in any instance constitute a waiver in any subsequent instance.
No waiver shall be binding unless executed in writing by the party making the
waiver.
-30-
ARTICLE 11 - SELLER FINANCING
SECTION 11.1 LOAN.
(a) Seller shall provide a loan (the "SELLER FINANCING
LOAN") to Buyer or its designee, which designee shall be acceptable to Seller in
its sole and absolute discretion (the "BORROWER ENTITY"). The Seller Financing
Loan shall be in the amount of no more than Two Million and NO/100 Dollars
($2,000,000.00).
(b) The Seller Financing Loan shall (i) be secured by a
pledge of the ownership interests of the entity in which Buyer directly holds
the Property (the "FEE OWNER"), (ii) accrue interest at a per annum rate of
fifteen percent (15%), payable monthly and computed on an actual/360-day year
basis, as more particularly set forth in the Loan Documents, and (iii) otherwise
be on the terms set forth in the Loan Documents.
SECTION 11.2 CONDITIONS TO FUNDING. The obligation of Seller (or its
designated affiliate) to fund the Seller Financing Loan shall be subject to the
fulfillment on or before the Closing Date of all of the conditions set forth in
Section 4.1 of the Loan Agreement and this SECTION 11.2 (collectively, the "LOAN
CLOSING CONDITIONS"), any or all of which may be waived by Seller in its sole
discretion:
SECTION 11.3 LOAN DOCUMENTS. The Seller Financing Loan shall be
evidenced and secured by the following documents (collectively, the "LOAN
DOCUMENTS"):
(a) A loan agreement (the "LOAN AGREEMENT"), between the
Borrower Entity and Seller (or its designee as lender), substantially in the
form attached hereto as EXHIBIT H.
(b) A promissory note, substantially in the form attached to
the Loan Agreement, from the Borrower Entity payable to the order of Seller (or
its designee as lender), in the original principal amount of $2,000,000.00 (the
"PROMISSORY NOTE").
(c) Such other ancillary loan documents and financing
statements as may be reasonably required by Seller for the Seller Financing Loan
in a form reasonably acceptable to Seller and the relevant Borrower Entity.
SECTION 11.4 CLOSING DATE. The closing date for the Seller Financing
Loan shall be the Closing Date.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-31-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SELLER: 98 CUSA PLANO, L.P.
a Delaware limited partnership
By: 98 CUSA PLANO GP, L.L.C., a Delaware
limited liability company
By:_____________________________________
Name:___________________________________
Title:__________________________________
BUYER: REALTY AMERICA (1221 XXXX ROAD), L.P.,
a Texas limited partnership
By: ________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
ESCROW AGENT:
The Escrow Agent is executing this Agreement to evidence its agreement
to hold the Deposit and act as escrow agent in accordance with the terms and
conditions of this Agreement.
LAWYERS TITLE INSURANCE CORPORATION
By:__________________________________________
Name:________________________________________
Title:_______________________________________
-32-
EXHIBIT A
Description of Land
-------------------
EXHIBIT B
List of Contracts
-----------------
None.
EXHIBIT C
Form of Special Warranty Deed
-----------------------------
STATE OF TEXAS )
) ss. KNOW ALL BY THESE PRESENTS:
COUNTY OF DALLAS )
THAT 98 Cusa Plano, L.P., a Delaware limited partnership ("GRANTOR"),
for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other
good and valuable consideration paid to Grantor by __________________________
("GRANTEE"), whose current address is ________________________, the receipt and
sufficiency whereof are hereby acknowledged, has GRANTED, SOLD AND CONVEYED, and
by these presents does hereby GRANT, SELL AND CONVEY unto Grantee, all of that
certain real property situated in the City of Plano, Collin County, Texas, more
particularly described in EXHIBIT A attached hereto and incorporated herein by
reference, together with all buildings, improvements and fixtures located
thereon, and all rights, ways, privileges and appurtenances pertaining thereto
(collectively, the "PROPERTY"):
SUBJECT, HOWEVER, to each of the matters set forth in EXHIBIT B attached
hereto and incorporated herein by reference.
TO HAVE AND TO HOLD, the Property, together with all and singular the
rights and appurtenances thereto in anywise belonging subject to the aforesaid
encumbrances, unto Grantee, Grantee's successors and assigns, forever; and
Grantor does hereby bind Grantor and Grantor's successors and assigns to WARRANT
AND FOREVER DEFEND all and singular the Property, subject to the aforesaid
encumbrances, unto Grantee, Grantee's successors and assigns, against every
person whomsoever lawfully claiming or to claim the same or any part thereof,
by, through or under Grantor, but not otherwise.
EXECUTED this ____________ day of ____________________, 2004.
GRANTOR: 98 CUSA PLANO, L.P.
a Delaware limited partnership
By: 98 CUSA PLANO GP, L.L.C., a Delaware
limited liability company
By:_____________________________________
Name:___________________________________
Title:__________________________________
STATE OF )
) ss.
COUNTY OF )
This instrument was acknowledged before me on ____________________,
2004, by ____________________, the ____________________ of 98 Cusa Plano GP,
L.L.C., a Delaware limited liability company, general partner of 98 CUSA Plano,
L.P., a Delaware limited partnership, on behalf of said limited partnership.
_____________________________________________
Notary Public
[SEAL] THE STATE OF ________________________________
My commission expires:_______________________
-2-
EXHIBIT D
Form of Xxxx of Sale
--------------------
For good and valuable consideration, the receipt of which is hereby
acknowledged, 98 CUSA PLANO, L.P., a Delaware limited partnership ("SELLER"),
does hereby sell, transfer, and convey to ______________________, a(n)
___________________ ("BUYER") any and all Personal Property (as defined in the
Purchase Agreement (as hereinafter defined)).
Seller has executed this Xxxx of Sale and BARGAINED, SOLD, TRANSFERRED,
CONVEYED AND ASSIGNED the Personal Property and Buyer has accepted this Xxxx of
Sale and purchased the Personal Property AS IS AND WHEREVER LOCATED, WITH ALL
FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE,
EXPRESS, IMPLIED, OR STATUTORY, EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT
OF SALE AND PURCHASE BETWEEN SELLER AND BUYER, DATED AS OF ____________________,
2004 (THE "PURCHASE AGREEMENT") AND THE WARRANTIES SET FORTH HEREIN, IT BEING
THE INTENTION OF SELLER AND BUYER TO EXPRESSLY NEGATE AND EXCLUDE ALL WARRANTIES
WHATSOEVER, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, ANY IMPLIED OR EXPRESS
WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, ANY RIGHTS OF BUYER
UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, ANY CLAIM BY
BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN WITH RESPECT TO
THE PERSONAL PROPERTY, WARRANTIES CREATED BY AFFIRMATION OF FACT OR PROMISE AND
ANY OTHER WARRANTIES CONTAINED IN OR CREATED BY THE UNIFORM COMMERCIAL CODE AS
NOW OR HEREAFTER IN EFFECT IN THE STATE IN WHICH THE PERSONAL PROPERTY IS
LOCATED, OR CONTAINED IN OR CREATED BY ANY OTHER LAW.
Buyer expressly acknowledges and affirms the provisions of Sections 2.6,
6.2, 7.2 and 7.3 of the Purchase Agreement.
Dated this _______ day of ____________________, 2004.
SELLER: 98 CUSA PLANO, L.P.
a Delaware limited partnership
By: 98 Cusa Plano GP, L.L.C., a Delaware
limited liability company
By:_____________________________________
Name:___________________________________
Title:__________________________________
BUYER: REALTY AMERICA (1221 XXXX ROAD), L.P.,
a Texas limited partnership
By: ________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
-2-
EXHIBIT E
Form of Assignment and Assumption of Leases
-------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "ASSIGNMENT") dated as of
________________, 2004, is between 98 CUSA PLANO, L.P., a Delaware limited
partnership ("ASSIGNOR"), and ____________________, a(n) _________________
("Assignee").
A. Assignor is the lessor under certain leases executed with
respect to that certain real property and improvements thereon known as 0000
Xxxx Xxxx, Xxxxx, Xxxxx, and more particularly described in EXHIBIT A attached
hereto (the "PROPERTY"), which leases are described in SCHEDULE 1 attached
hereto (the "LEASES").
B. Assignor and Assignee entered into an Agreement of Sale and
Purchase dated as of ______________, 2004 (the "PURCHASE AGREEMENT"), pursuant
to which Assignee agreed to purchase the Property from Assignor and Assignor
agreed to sell the Property to Assignee, on the terms and conditions contained
therein.
C. Assignor desires to assign its interest as lessor in the Leases
to Assignee, and Assignee desires to accept the assignment thereof, on the terms
and conditions below.
ACCORDINGLY, the parties hereby agree as follows:
1. Assignor hereby assigns to Assignee all of its right, title, and
interest in and to the Leases, and Assignee hereby accepts such assignment and
(a) assumes all of the lessor's obligations under the Leases arising from and
after the date hereof, and (b) assumes all obligations under the Leases relating
to the physical and environmental condition of the Property regardless of
whether such obligations arise before or after the date hereof.
2. In the event of any dispute between Assignor and Assignee
arising out of the obligations of the parties under this Assignment or
concerning the meaning or interpretation of any provision contained herein, the
losing party shall pay the sole prevailing party's costs and expenses of such
dispute, including, without limitation, reasonable attorneys' fees and costs.
3. Any rental and other payments under the Leases shall be prorated
between the parties as provided in the Purchase Agreement.
4. This Assignment shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
5. This Assignment shall be governed and construed in accordance
with the laws of the State of Texas.
6. This Assignment may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
7. Assignee hereby expressly acknowledges and affirms the
provisions of Sections 2.6, 6.2, 7.2 and 7.3 of the Purchase Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
the day and year first above written.
ASSIGNOR: 98 CUSA PLANO, L.P.
a Delaware limited partnership
By: 98 CUSA PLANO GP, L.L.C., a Delaware
limited liability company
By:_____________________________________
Name:___________________________________
Title:__________________________________
ASSIGNEE: _____________________________________________
a(n) ________________________________________
By:__________________________________________
Name:________________________________________
Title:_______________________________________
-2-
Exhibit A to Assignment and Assumption of Leases
DESCRIPTION OF REAL PROPERTY
Schedule 1 to Assignment and Assumption of Leases
LIST OF LEASES
EXHIBIT F
Form of Assignment and Assumption of Contracts
Warranties and Guaranties, Licenses and Permits and Other Intangible Property
-----------------------------------------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION (this "ASSIGNMENT") dated as of
__________________, 2004, is between 98 CUSA PLANO, L.P., a Delaware limited
partnership ("ASSIGNOR"), and ____________________, a(n) _________________
("ASSIGNEE").
A. Assignor owns certain real property and certain improvements
thereon known as 0000 Xxxx Xxxx, Xxxxx, Xxxxx, and more particularly described
in EXHIBIT A attached hereto (the "PROPERTY").
B. Assignor has entered into certain contracts which are more
particularly described in Schedule l attached hereto (the "CONTRACTS"), which
affect the Property.
C. Assignor and Assignee entered into an Agreement of Sale and
Purchase dated as of _________________, 2004 (the "PURCHASE AGREEMENT"),
pursuant to which Assignee agreed to purchase the Property from Assignor and
Assignor agreed to sell the Property to Assignee, on the terms and conditions
contained therein.
D. Assignor desires to assign to Assignee its interest, if any, and
to the extent assignable, in (a) the Contracts, (b) certain warranties,
guaranties, and intangible personal property with respect to the Property, and
(c) all licenses, permits, approvals, certificates of occupancy, dedications,
subdivision maps and entitlement now or hereafter issued, approved or granted by
any governmental entity in connection with the Property (the "LICENSES AND
PERMITS"), and Assignee desires to accept the assignment thereof, on the terms
and conditions below.
ACCORDINGLY, the parties hereby agree as follows:
1. Assignor hereby assigns to Assignee all of Assignor's right,
title, and interest, if any, in and to the following, from and after the date
hereof, to the extent the same are assignable:
(a) the Contracts;
(b) any warranties and guaranties ("WARRANTIES AND
GUARANTIES") made by or received from any third party with respect to any
improvements owned by Assignor on the Property; and
(c) the Licenses and Permits.
2. Assignee hereby accepts the foregoing assignment by Assignor and
assumes all of the Assignor's obligations under (a) the Contracts arising from
and after the date hereof, (b) the Contracts relating to the physical and
environmental condition of the Property regardless of whether such obligations
arise before or after the date hereof, (c) the Warranties and Guaranties and (d)
the Licenses and Permits arising on or after the date hereof.
3. In the event of any dispute between Assignor and Assignee
arising out of the obligations of the parties under this Assignment or
concerning the meaning or interpretation of any provision contained herein, the
losing party shall pay the sole prevailing party's costs and expenses of such
dispute, including, without limitation, reasonable attorneys' fees and costs.
4. This Assignment shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
5. This Assignment shall be governed and construed in accordance
with the laws of the State of Texas.
6. This Assignment may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
7. Assignee hereby expressly acknowledges and affirms the
provisions of Sections 2.6, 6.2, 7.2 and 7.3 of the Purchase Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement
the day and year first above written.
ASSIGNOR: 98 Cusa Plano, L.p.
a Delaware limited partnership
By: 98 CUSA PLANO GP, L.L.C., a Delaware
limited liability company
By:_____________________________________
Name:___________________________________
Title:__________________________________
ASSIGNEE: _____________________________________________
a(n) ________________________________________
By:__________________________________________
Name:________________________________________
Title:_______________________________________
-2-
Exhibit A to Assignment and Assumption of Contracts, Warranties and Guaranties,
Licenses and Permits and Other Intangible Property
DESCRIPTION OF REAL PROPERTY
Schedule 1 to Assignment and Assumption of Contracts, Warranties and Guaranties,
Licenses and Permits and Other Intangible Property
LIST OF CONTRACTS
EXHIBIT G
Description of Existing Survey
------------------------------
As-Built Survey of 5.035 acres and 7.255 acres situated in the Xxxxxx
XxXxxxx Survey, Abst. Xx. 000, Xxxx xx Xxxxx, Xxxxxx Xxxxxx, Xxxxx, prepared by
Xxxxx X. Xxxxxx PLS #4560 of Rust Xxxxxxxxx/Xxxxxxx, dated August 28, 1998.
EXHIBIT H
Form of Loan Agreement
----------------------
EXHIBIT I
Form of Tenant Estoppel Certificate
-----------------------------------
[TO BE ATTACHED]
SCHEDULE 3.2
Excluded Property Records
-------------------------
None.
