Exhibit 2.1
PURCHASE AND SALE AGREEMENT
FOR BRIDGEPOINT SQUARE, AUSTIN, TEXAS
BETWEEN
HEALTH AND RETIREMENT PROPERTIES TRUST,
A MARYLAND REAL ESTATE INVESTMENT TRUST
AS BUYER
AND
INVESTORS LIFE INSURANCE COMPANY
OF NORTH AMERICA
AND
FAMILY LIFE INSURANCE COMPANY
AS SELLERS
AS OF NOVEMBER 19, 1997
EXHIBITS
Exhibit A Land
Exhibit B-1 Special Warranty Deed of Investors Life Insurance Company
of North America
Exhibit B-2 Special Warranty Deed of Family Life Insurance Company
Exhibit C-1 Special Warranty Xxxx of Sale of Investors Life Insurance
Company of North America
Exhibit C-2 Special Warranty Xxxx of Sale of Family Life Insurance Company
Exhibit D-1 Assignment and Assumption of Leases of Investors Life Insurance
Company of North America
Exhibit D-2 Assignment and Assumption of Leases of Family Life Insurance
Company
Exhibit E Copy of Confidentiality Agreement - Principal
Exhibit F Form of Notice Letter sent to Tenants of
Investors Life Insurance Company of North America
Exhibit F Form of Notice Letter sent to Tenants of Family Life Insurance
Company
Exhibit G Assignment and Assumption of Warranties and Guaranties of
Investors Life Insurance Company of North America
Exhibit G Assignment and Assumption of Warranties and Guaranties of
Family Life Insurance Company
Exhibit H Surveyors Certificate
Schedule 11(b) Personal Property
Schedule 33 Lease Commissions and Unfunded Tenant Improvements
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is entered into as
of November 19, 1997 ("Effective Date"), by and between HEALTH AND RETIREMENT
PROPERTIES TRUST, a Maryland real estate investment trust ("Buyer") and
INVESTORS LIFE INSURANCE COMPANY OF NORTH AMERICA, a Washington corporation
("Investors") and FAMILY LIFE INSURANCE COMPANY, a Washington corporation
("Family Life") (Investors and Family Life are hereinafter referred to jointly
as "Seller" or "Sellers").
RECITALS
Sellers are the owners of Bridgepoint Square, a multiple office
building project ("Project") located at 0000 Xxxxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxxx
Xxxxxx, Xxxxx 00000 on adjoining tracts of land legally described as Xxx Xxx
(0), XXXXXX XXXXXX, XXXXX X, a subdivision in Xxxxxx County, Texas ("Xxx 0,
Xxxxx X") and Lot Two (2), HIDDEN VALLEY, PHASE A, a subdivision in Xxxxxx
County, Texas ("Lot 2, Phase A").
The Project is composed of five office buildings and three parking
garage structures. Bridgepoint One, Bridgepoint Two, Bridgepoint Three,
Bridgepoint Four and two parking garage structures are located on Xxx 0, Xxxxx
X, and are owned by Investors. Bridgepoint Five and one parking garage structure
are located on Xxx 0, Xxxxx X, and are owned by Family Life.
Investors and Family Life are affiliated companies.
Sellers desire to sell and Buyer desires to purchase the Property upon
the terms and conditions hereinafter set forth.
AGREEMENT
In consideration of the mutual promises, covenants and conditions
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Buyer and Sellers hereby
covenant and agree as follows:
1. Conveyance of Property
1.1 On the terms and subject to the conditions set forth in this
Agreement, Sellers will sell, convey and assign to Buyer, and Buyer will buy and
accept from Sellers, all of the following ("Property"):
1.1(a) the land in Austin, Texas, being more specifically
described in the legal description on Exhibit A (the
"Land"), together with all rights and interests
appurtenant thereto, including without limitation,
all (i) adjacent streets, alleys, rights-of-way and
any adjacent strips or gores of real estate; (ii)
buildings, structures and other improvements,
fixtures and landscaping located on the Land (the
"Improvements"); and (iii) rights, titles and
interests appurtenant to the Land and Improvements,
including
without limitation, all easements benefiting the Land
and all reversionary interests in the Land and the
Improvements (the "Appurtenances");
1.1(b) equipment and other tangible personal property
located on and used in connection and associated with
the ownership, maintenance, management and operation
of the Land and Improvements and owned by Sellers
including without limitation those described in
Schedule 1.1(b) attached hereto and made a part
hereof for all purposes, excluding, however, the
Chevrolet Silverado Crew Cab (Dually) one ton pick-up
truck sometimes located on the Land and such other
excluded items as set forth on Schedule 1.1(b) (the
"Personal Property");
1.1(c) any and all of Sellers' right, title and interest in
and to (i) plans, and specifications (the "Plans),
(ii) warranties and guaranties (the "Warranties"),
(iii) licenses, permits and governmental approvals
(the "Licenses") and (iv) the right to enforce any of
the foregoing; and
1.1(d) all right, title interest of Sellers in and to those
lease agreements and any amendments thereto,
affecting or relating to the Land and Improvements
(the "Leases") and to any security deposits held by
Sellers at the Closing.
1.2 All of the Property will be transferred to Buyer at Closing (as
hereinafter defined) free and clear of all liens, claims and encumbrances except
for the Permitted Encumbrances (as hereinafter defined).
1.3 Though Family Life has substantially completed Bridgepoint Five and
has received a temporary occupancy certificate ("TCO") from the City of Austin
for Bridgepoint Five, there are various punch list items and other improvement
that remain incomplete, including, but not limited to, installation of the
marble in the lobby of Bridgepoint Five which has been special ordered and will
not arrive until January, 1998. In addition, though Bridgepoint Two has been
finally completed, the final certificate of occupancy for Bridgepoint Two has
not been received from the City of Austin. As part of the consideration for the
purchase and sale of the Property, Sellers agree to complete construction of
Bridgepoint Five in accordance with the construction contract between Family
Life and Constructors, Inc. and in accordance with the requirements of the Lease
between Family Life, as Landlord, and International Business Machines
Corporation ("IBM"), as Tenant (the "BP Five Lease") (which BP Five Lease has
been assigned by IBM to Tivoli Systems Subsidiary, Inc.) and agrees to fully
complete Bridgepoint Five, pay all amounts properly due to Constructors, Inc.
under the Bridgepoint Five construction contract and obtain a final certificate
of occupancy for Bridgepoint Two and Bridgepoint Five from the City of Austin.
In connection therewith, to the extent Sellers need to retain rights to the
Plans, Warranties, or Licenses to complete such construction, Buyer acknowledges
that Sellers shall retain such rights at Closing, and will complete the
assignment of such rights as soon as the construction has been completed, all
warranties have been issued by the contractors, and all certificates of
occupancy for Bridgepoint Two and Bridgepoint Five have been issued.
2
Sellers and Buyer agree to cooperate with each other in order to accomplish the
foregoing. This provision shall survive Closing.
2. Xxxxxxx Money. Upon the execution of this Agreement, Buyer will deposit with
Heritage Title Company of Austin, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxx Xxxxxx, Xxxxx Attention: Xxx Xxxxx (the "Title Company"), as escrow
agent, a total of Seven Million and No/100 Dollars ($7,000,000.00) in
immediately available funds in consideration for this Agreement and the
Inspection Period (defined below) (the "Xxxxxxx Money"). The Xxxxxxx Money shall
be held by the Title Company in an interest bearing account. All interest earned
on the Xxxxxxx Money shall be credited to Buyer at Closing.
3. Purchase Price
3.1 The purchase price for the Property will be Seventy-eight Million
and No/100 Dollars ($78,000,000.00) (the "Purchase Price"), to be paid in
immediately available funds at Closing, subject to the adjustments described in
this Agreement.
3.2 All rents ("Rents"), real and personal property taxes, owners
association assessments, utility charges and all other expenses related to the
ownership and operation of the Property will be prorated as of 12:01 a.m. on the
Closing Date. All rents for the month of Closing, regardless of whether same
have been collected prior to Closing, will be prorated at the Closing. Final
meter readings will be made as of the Closing Date, and Sellers will arrange for
and pay for final xxxxxxxx through the Closing Date. Buyer will pay Sellers at
Closing for any deposits held by the providers of such utilities to the extent
such deposits will be refundable to Buyer. Sellers will have the right to use
commercially reasonable means in pursuing collection from Southwestern Xxxx
Yellow Pages for delinquent common area maintenance charges and expenses for
1995 and 1996, and to collect the Additional Tenant Improvement Allowances (as
defined in the respective leases) from Silicon Graphics, Inc. (recently billed,
but not yet paid) and International Business Machines Incorporated (and its
subsidiary Tivoli Systems Subsidiary, Inc.) (final amount not yet determined or
billed), including filing lawsuits to obtain money judgments against any such
tenants to recover same; provided, however, Sellers shall not have the right to
seek any equitable remedies to evict such tenants or otherwise terminate any of
the Leases. Sellers agree to keep Buyer reasonably apprised of any collection
efforts made, or litigation filed, by Sellers to collect any delinquent rents,
including copying Buyer on all correspondence and pleadings. At any time, Buyer
shall have the right to purchase any of the aforesaid receivables for the face
amount of such receivable, or such lesser amount as is acceptable to Seller, if
any.
3.3 Attached hereto as Schedule 3.3 is a schedule titled "Lease
Commissions and Unfunded Tenant Improvements", which schedule sets forth the
current status of various Leases, including certain obligations for commissions
and tenant improvements to be allocated between Sellers and Buyer as set forth
therein. The items set forth on Schedule 3.3 shall either constitute adjustments
to the Purchase Price or be real property apportionments as contemplated by
Section 9 of this Agreement.
3
3.4 Sellers hereby disclose to Buyer, and Buyer hereby acknowledges
that Sellers have deposited $73,000.00 with the City of Austin to secure Sellers
obligation to complete the landscaping requirements as set forth in the approved
site plan and building permit for the Property. Buyer hereby acknowledges that
Sellers retain all rights to such deposit, and upon completion of the
landscaping requirements and agreement of the City of Austin to release such
fiscal deposit, such deposit shall be returned to Sellers.
4. Delivery of Documents by Sellers
4.1 Sellers have previously delivered to Buyer a commitment for title
insurance ("Commitment") issued by Heritage Title Company of Austin, Inc., as
agent for Chicago Title Insurance Company, insuring the Property for the
Purchase Price and showing the Buyer as proposed insured, together with copies
of all documents referenced as exceptions in the Commitment.
4.2 Sellers have previously provided or made available to Buyer, or to
the extent not previously provided or made available to Buyer, will, within one
(1) business day following the Effective Date (the "Document Date"), make
available at the Property the following documents and information:
4.2(a) operating statements, including income and expense
statements, in the possession of Sellers with respect
to the operation of the Property for calendar years
1995 and 1996 and January 1, 1997 through October 31,
1997;
4.2(b) a current rent roll ("Rent Roll") as of November 1,
1997, listing the tenants in the Improvements, their
respective locations, approximate square footage
leased, annual rent, security deposits, if any, lease
date, fixed rent and additional rent, unfunded tenant
improvement allowances, if any, and unpaid
commissions, if any, as well as any unleased space in
the Improvements, if any;
4.2(c) a schedule listing the Personal Property that will be
transferred to Buyer and will not be owned by Sellers
after Closing;
4.2(d) copies of all property tax statements for 1997;
4.2(e) copies of all utility bills for the Property for the
years 1996 and 1997 year to date;
4.2(f) copies of all current service and vendor contracts
("Contracts") relating to the Property and all
warranty agreements, if any, in the possession of
Sellers;
4
4.2(g) copies of any environmental reports pertaining to the
Property prepared on behalf of Sellers or otherwise
in the possession of Sellers, if any;
4.2(h) a list of all major Warranties, including roof and
HVAC warranties, and the warranties related to the
construction of Improvements;
4.2(i) UCC 11 search from the Secretary of State of Texas
and the County Clerk of Xxxxxx County, Texas.
4.2(j) estoppel certificates ("Estoppel Certificates") from
the existing tenants of the Property, issued to
Starwood Opportunity Fund IV, L.P.
("Starwood"), in Seller's possession.
4.3 As soon as reasonably possible, Sellers will provide to Buyer
Estoppel Certificates from Tivoli Systems Subsidiary, Inc., Tandem Computers,
Inc., Amherst Securities, Inc. and Texas A&M University in substantially the
same form as the Estoppel Certificates described in Section 4.2(j). In addition,
Sellers will make commercially reasonable efforts to obtain current letters from
the existing tenants confirming that there have been no material changes in such
Estoppel Certificates previously delivered to Sellers. Sellers also agree to
obtain an assignment from Starwood, assigning all of Starwood's right, title and
interest in and to the Estoppel Certificates issued to Starwood.
4.4 Within one (1) day following the Effective Date, Sellers will
deliver to Buyer four (4) copies of a current ALTA survey ("Survey") of the
Property prepared by Xxxxx X. Xxxxxxx, Registered Professional Land Surveyor No.
4549, with the firm of Xxxxxxxxxx-Xxxxx, Inc., together with a certification in
the form attached as Exhibit H.
4.5 Buyer's obligation to consummate the transactions contemplated by
this Agreement shall be subject to the satisfaction of the following conditions
precedent:
4.5(a) No notice of default shall have been given or
received by Sellers under any material agreement
benefitting or affecting the Property in any respect
or under the Leases and all such agreements and the
Leases shall be in full force and effect (Sellers
agreeing to issue default notices in a commercially
reasonable manner consistent with past practices);
and
(b) All material licenses, permits and other
authorizations reasonably necessary for the current
use, occupancy and operation of the Property shall be
in full force and effect; provided, however, Buyer
acknowledges and agrees that at Closing, Seller will
not have obtained a final certificate of occupancy
from the City of Austin for Bridgepoint Two or
Bridgepoint Five, but will have a TCO from the City
of Austin for Bridgepoint Two and Bridgepoint Five
and a certificate from Sellers' architect that
Bridgepoint Two and Bridgepoint Five have been
substantially completed in accordance with the plans
and specifications.
5
5. Right of Entry, Inspection, Termination
5.1 Buyer, at Buyer's sole cost and expense, will have until 12:00 p.m.
Austin, Texas time, on December 5, 1997 (the "Inspection Period") in which to
conduct investigations and inspections of the Property to determine if the
Property is acceptable to Buyer, in Buyer's sole and absolute discretion. During
the Inspection Period, Buyer will obtain such investigation and inspection
reports related to the Property as Buyer deems necessary ("Buyer's Investigation
Reports"). Sellers agree that during the Inspection Period, Buyer and its agents
and representatives will be entitled to enter upon the Property, upon
twenty-four (24) hour's prior telephonic notice to Sellers, or such shorter time
period as is verbally agreed to by Sellers, to conduct Buyer's investigation and
inspection of the Property and to prepare Buyer's Investigation Reports. Buyer
agrees to (a) promptly repair any physical damage to the Property caused by
Buyer, (b) to indemnify, defend and hold Sellers harmless for any damages to the
Property, any personal injury suffered by any person, or any other loss, injury,
liability, claim or damage arising or resulting from Buyer's inspection of the
Property, or otherwise caused by Buyer or Buyer's agents and representatives
during its inspection of the Property, (c) exercise all reasonable efforts to
not interfere with any activities of any tenant of the Property, and (d) if
Buyer terminates this Agreement prior to the expiration of the Inspection
Period, return to Sellers the Commitment, the Survey and all reports, documents
and due diligence information delivered by Seller to Buyer within five (5) days
from such termination. Notwithstanding anything contained in this Agreement to
the contrary, the foregoing indemnity and obligations of Buyer will survive the
Closing of the transaction contemplated hereby or the termination of this
Agreement.
5.2 If prior to the expiration of the Inspection Period, Buyer, in
Buyer's sole and absolute discretion, determines that the Property is not
acceptable to Buyer, then Buyer will be entitled to terminate this Agreement by
giving written notice thereof to Sellers prior to the expiration of the
Inspection Period (the "Termination Notice"), and in such event (i) this
Agreement will automatically terminate, (ii) upon Buyer's completion of Buyer's
Termination Obligations (as hereinafter defined), the Xxxxxxx Money shall be
refunded to Buyer, except for $100.00 which shall be paid to Sellers as
independent consideration for this Agreement, and (iii) the parties will have no
further rights or obligations under this Agreement.
5.3 If Buyer does not timely give Sellers a Termination Notice prior to
the expiration of the Inspection Period, (i) Buyer will be deemed to be
satisfied with the Property in all respects, (ii) Buyer will have no further
right to terminate this Agreement pursuant to this Section 5, and (iii) the
Xxxxxxx Money will become non-refundable, except for the failure of Sellers to
close the sale of the Property in accordance with the terms of this Agreement.
5.4 If Buyer gives Sellers a Termination Notice prior to the expiration
of the Inspection Period, or subsequently fails to close the purchase of the
Property, then Buyer will comply with the following ("Buyer's Termination
Obligations"): (i) repair any damage to the
6
Property caused by Buyer's investigation and inspection of the Property, (ii)
return to Sellers all Title Commitments, Surveys, reports or other documents
delivered by Sellers to Buyer, and (iii) represent to Seller that it has
destroyed all other documents included in Buyer's investigation of the Property.
Notwithstanding anything contained in this Agreement to the contrary, the
agreements and indemnities set forth in this Section will survive the
termination of this Agreement, and Sellers will have the right to enforce
Buyer's Termination Obligations under this Section by specific performance.
5.5 Buyer agrees to maintain strict confidentiality with respect to all
documents and information provided by Sellers to Buyer, and to allow only
limited access to such documents and information only to Buyer's attorneys and
other professional agents who are assisting with the investigation and
inspection of the Property. If Buyer does not close the purchase of the Property
for any reason, Buyer will repair any damage to the Property caused by Buyer's
inspection of the Property, and will deliver to Sellers all the documents and
information provided to Buyer by Sellers (and all copies thereof made by Buyer).
Buyer will indemnify and hold Sellers harmless from and against any loss, claim
or liability (including, without limitation, court costs and reasonable
attorneys' fees, arising or resulting from the inspections made by Buyer or
Buyer's agents pursuant to this Section 5. The provisions of this Section 5.5
will survive Closing or a termination of this Agreement.
5.6 During the term of this Agreement, and as a condition to Buyer or
any of its agents, representatives or consultants entering the Property, Buyer
shall, or shall cause its agents and employees to, obtain and maintain
commercially reasonable insurance.
6. Title and Survey. Until December 3, 1997, Buyer will have the right to object
in writing to any matters reflected by the Survey or the Title Commitment;
provided, however, Buyer shall make all commercially reasonable efforts to
advise Seller as soon as possible of any objections Buyer has to the Survey or
the Title Commitment. All matters to which Buyer so objects are hereby referred
to as "Non-Permitted Encumbrances." All matters reflected by the Survey and the
Title Commitment to which such objection is not made, or any Non-Permitted
Encumbrances which are subsequently waived by Buyer, will be deemed "Permitted
Encumbrances." All liens of any kind (except the lien for current ad valorem
taxes not yet due and payable) will be Non- Permitted Encumbrances, whether or
not Buyer objects to them. Sellers, at their sole cost and expense, will have
the right, but not the obligation, to cure or remove all Non-Permitted
Encumbrances prior to Closing. Sellers, at their sole cost, will be obligated to
cure, remove or bond around, at or before closing, all mortgages, liens and
judgments (except the lien for current ad valorem taxes not yet due and payable)
against the Property. If Seller is unable or unwilling to cure any Non-Permitted
Encumbrance prior to Closing, Buyer, as its sole and exclusive remedies, shall
either (i) terminate this Agreement and receive an immediate refund of the
Xxxxxxx Money and in such event this Agreement shall be null and void and the
parties shall have no further obligation or liability hereunder, except for
Buyer's Termination Obligations, or (ii) waive such objection and such
Non-Permitted Encumbrance shall become a Permitted Encumbrance and Buyer shall
proceed to Closing. Seller and Buyer acknowledge and agree that the Closing Date
shall not be extended for the purposes of curing any of Buyer's objections to
the Survey or the Title Commitment.
7
7. Representations and Warranties; Disclaimer
7.1 Sellers hereby represent and warrant to Buyer that:
7.1(a) Sellers have the full right, power, and authority to
execute, deliver and perform this Agreement without
obtaining any consent or approval from any third
party, and this Agreement constitutes the valid and
binding agreement of Sellers, enforceable against
Sellers in accordance with its terms.
7.1(b) The Property is not subject to any outstanding
agreement(s) of sale, option(s) or other right(s) of
third parties to acquire any interest therein, other
than as tenants pursuant to the Leases. During the
term of this Agreement, Sellers will not offer the
Property for sale or in any way materially adversely
affect the condition of the title of the Property
without the prior written approval of the Buyer.
7.1(c) There are no leases affecting the Property, oral or
written, except the Leases delivered to Buyer
pursuant to Section 3 hereof. All tenant improvements
and lease commissions associated with the existing
Leases are paid or will be paid by the Closing Date,
or adequate provision shall be made therefore at
Closing.
7.1(d) Sellers have delivered to Buyer true, correct and
complete copies of the Leases, with all amendments
thereto which have been executed as of the date of
this Agreement. The Rent Roll delivered by Sellers to
Buyer are true, correct and complete in all material
respects.
7.1(e) There are no actions, suits, arbitrations, claims or
proceedings pending that (i) could materially
adversely affect the ownership or operation of the
Property or Sellers' ability to perform hereunder, or
(ii) would or could alter or be binding on Buyer
and/or the Property following Closing.
7.1(f) Sellers have received no written notice of taking,
condemnation, betterment or assessment, actual or
proposed, with respect to the Property, and none has
occurred.
7.1(g) Neither of the Sellers has received written notice of
and, to Sellers' current actual knowledge, without
inquiry, no action or proceeding is pending or
threatened and no investigation looking toward such
an action or proceeding has begun, which questions
the validity of this Agreement or any action taken or
to be taken pursuant hereto, will result in any
material adverse change in the business, operation,
affairs or condition
8
of the Property, result in or subject the Property to
a material liability, or involves condemnation or
eminent domain proceedings against any part of the
Property.
7.1(h) Other than the Leases listed in the Rent Roll,
neither of the Sellers has entered into any contract
or agreement with respect to the occupancy of the
Property which will be binding on Buyer after the
Closing. The copies of the Leases heretofore
delivered by Sellers to Buyer are true, correct and
complete copies thereof; the Leases have not been
amended except as evidenced by amendments similarly
delivered and constitute the entire agreement between
Sellers and the tenants thereunder. Except as
otherwise set forth in the Leases, the Rent Roll, the
Estoppel Certificates, and in Schedule 3.3, to
Sellers' current actual knowledge, without inquiry;
(i) each of the Leases is in full force and effect on
the terms set forth therein, and Sellers have not
waived any obligation of any Tenant to pay rent or
perform material obligations set forth in the Leases;
(ii) no Tenant has asserted in writing or, has made
any other assertion of any defense to, offsets or
claims against, rent payable by it or the performance
of its other obligations under its Lease; (iii)
Sellers have no outstanding obligation to provide any
Tenant with an allowance to construct, or to
construct at its own expense, any tenant
improvements; (iv) no Tenant is in arrears in the
payment of any sums or in the performance of any
material obligation required of it under its Lease
beyond any applicable grace period, and no Tenant has
prepaid any rent or other charges (except as
disclosed in the Rent Roll); (v) no Tenant has filed
a petition in bankruptcy or for the approval of a
plan of reorganization or management under the
Federal Bankruptcy Code or under any other similar
state law, or made an admission in writing as to the
relief therein provided, or otherwise become the
subject of any proceeding under any federal or state
bankruptcy or insolvency law, or has admitted in
writing its inability to pay its debts as they become
due or made an assignment for the benefit of
creditors, or has petitioned for the appointment of
or has had appointed a receiver, trustee or custodian
for any of its property; (vi) no Tenant has requested
in writing a modification of its Lease, or a release
of its obligations under its Lease in any material
respect or has given written notice terminating its
Lease, or has been released of its obligations
thereunder in any material respect prior to the
normal expiration of the term thereof; (vii) except
as set forth in the Leases, no jr guarantor has been
released or discharged, voluntarily or involuntarily
or by operation of law, from any obligation under or
in connection with any Lease or any transaction
related thereto; (viii) all security deposits paid by
Tenants, are as set forth in the Rent Roll; (ix) all
tenant finish and lease commissions due with respect
to each of the Leases has been paid, except as
otherwise set forth on the Rent Roll or
9
Schedule 3.3; and (x) the other information set forth
in the Rent Roll is true, correct and complete in all
material respects.
7.1(i) Other than the Leases and the Contracts, neither of
the Sellers has entered into any contract or
agreement with respect to the Property which will be
binding on Buyer after the Closing.
7.1(j) Sellers have not received written notice of any
threatened request, application, proceeding, plan or
study which would materially adversely affect the
present use or zoning of any of the Property or which
would modify or realign any adjacent street or
highway.
7.1(k) Except as set forth in the Environmental Site
Assessment prepared by HBC Engineering, Inc. for
Starwood Capital Group, L.P. dated September 16, 1997
(the "Environmental Report"), a copy of which has
been provided by Sellers to Buyer, to Sellers'
current actual knowledge, which knowledge is based
solely on the Environmental Report, there are no
hazardous waste, contaminants, oil, radioactive or
other material on the Property, or any portion
thereof, in violation of any applicable Federal,
state or local statutes, laws, ordinances, rules or
regulations, except any such materials maintained in
accordance with applicable law.
7.1(l) Neither of the Sellers is a "foreign person" within
the meaning of Section 1445 of the United States
Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
Buyer expressly acknowledges and agrees that all of the representations and
warranties made by Sellers in Section 7.1, and all subsections thereof, are
expressly limited as set forth therein. Except as otherwise specifically
provided, the representations and warranties made by Sellers in this Section 7.1
shall survive the Closing for a period of six (6) months from the Closing.
7.2 DISCLAIMER OF WARRANTIES; AS IS PURCHASE. EXCEPT FOR THE SPECIFIC
WARRANTIES AND REPRESENTATIONS SET FORTH IN SECTION 7.1 OF THIS AGREEMENT, BUYER
ACKNOWLEDGES AND AGREES THAT PRIOR TO THE EXPIRATION OF THE INSPECTION PERIOD,
IT WILL HAVE CONDUCTED ITS OWN INDEPENDENT INVESTIGATION AND INSPECTION OF ALL
ASPECTS OF THE PROPERTY, IT WILL BE RELYING ON SUCH INDEPENDENT INVESTIGATION
AND INSPECTION IN PURCHASING THE PROPERTY AND IT WILL NOT BE RELYING ON ANY
INFORMATION PROVIDED BY SELLERS. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT AT
CLOSING, BUYER WILL BE FULLY AND COMPLETELY SATISFIED THAT THE PROPERTY IS
SATISFACTORY IN ALL RESPECTS FOR ITS INTENDED USE AND AFTER CLOSING, EXCEPT AS
EXPRESSLY PROVIDED IN SECTION 7.1, BUYER WILL HAVE NO RECOURSE WHATSOEVER
AGAINST SELLERS IN CONNECTION WITH ANY ASPECT OF THE PROPERTY, OTHER THAN
SELLERS' WARRANTY OF TITLE CONTAINED IN THE
10
DEED. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY PROVIDED IN
SECTION 7.1, SELLERS HAVE NOT MADE, DO NOT MAKE AND SPECIFICALLY DISCLAIM ANY
AND ALL REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL
OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO
THE PROPERTY, INCLUDING, BUT NOT LIMITED TO: (A) THE NATURE, QUALITY OR
CONDITION OF THE PROPERTY, INCLUDING THE STABILITY OF THE SOIL; (B) THE INCOME
TO BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND
ALL ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREON; (D) THE COMPLIANCE OF
THE PROPERTY WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY, INCLUDING, BUT NOT LIMITED TO, ANY STATE OR
FEDERAL ENVIRONMENTAL LAWS; OR (E) THE HABITABILITY, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OF THE PROPERTY, AND BUYER HEREBY WAIVES ANY SUCH
REPRESENTATION, WARRANTY, PROMISE, COVENANT, AGREEMENT OR GUARANTY.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, SELLERS ARE CONVEYING THE
PROPERTY TO BUYER "AS IS, WHERE IS," AND "WITH ALL FAULTS."
THE FOREGOING PROVISION WILL SURVIVE CLOSING IN ALL RESPECTS.
7.3 Buyer hereby represents to Sellers that:
7.3(a) Buyer is a real estate investment trust validly
existing under the laws of the State of Maryland;
7.3(b) Buyer is duly organized and has the power (corporate
or otherwise) to carry out its obligations under this
Agreement.
7.3(c) This Agreement is a valid and legally binding
obligation of Buyer in accordance with its terms.
7.3(d) The execution, delivery and performance by Buyer of
this Agreement does not and will not violate any
provision of law, of any order, judgment or decree of
any court or other governmental authority, or of any
agreement or other instrument to which Buyer is a
party or by which Buyer is bound, and will not result
in a breach of or constitute a default under any
agreement or other instrument which could result in
the creation or imposition of any lien, charge or
encumbrance of any kind upon the Property.
11
7.3(e) The execution, delivery and performance of the
Agreement, and any and all documents to be executed
by or received by it will not constitute a breach or
default under any other agreement to which Buyer is a
party or by which Buyer may be bound or affects, or a
violation of any law or court order which may affect
the Property, any part thereof, any interest therein,
or the use thereof.
7.3(f) The Confidentiality Agreement attached hereto as
Exhibit E is a true and correct copy of the
Confidentiality Agreement executed by M & P Partners,
an affiliate of Buyer, and Buyer agrees to comply
with the terms of such Confidentiality Agreement.
8. Closing
8.1 The closing ("Closing") of the sale of the Property by Sellers to
Buyer will occur on or before December 5, 1997 (the "Closing Date"). Closing
will occur in the offices of the Title Company or at another place and/or time
as mutually agreed upon Sellers and Buyer, commencing at 12:00 p.m. on the
Closing Date. At Buyer's option, Closing may be an escrow closing without the
need for physical presence at the Title Company's office. At Closing, the
following will occur:
8.1(a) Sellers, at their cost and expense, will deliver or
cause to be delivered to Buyer the following (the
"Closing Documents"):
(i) Special Warranty Deed substantially in form
attached hereto as Exhibit B-1 fully
executed and acknowledged by Investors, and
Special Warranty Deed in substantially the
form attached hereto as Exhibit B-2 fully
executed and acknowledged by Family Life,
conveying to Buyer the Land and
Improvements, subject to the Permitted
Encumbrances (collectively the "Special
Warranty Deeds");
(ii) Special Warranty Xxxx of Sale in
substantially the form attached hereto as
Exhibit C-1, fully executed by Investors and
accepted by Buyer, and the Special Warranty
Xxxx of Sale in substantially the form
attached hereto as Exhibit C-2, fully
executed by Family Life and accepted by
Buyer, assigning, conveying and transferring
to Buyer all of the Personal Property
(collectively the "Special Warranty Xxxx of
Sale");
(iii) An Owner's Policy of Title Insurance ("Title
Policy") issued on the form promulgated by
the Texas Department of Insurance in the
full amount of the Purchase Price issued by
the Title Company, as agent for Chicago
Title Insurance Company, naming Buyer as the
insured, and insuring that Buyer is the fee
12
owner of the Land and the Improvements,
subject only to the liens securing Buyer's
loan from Buyer's lender and the Permitted
Encumbrances and otherwise as required by
Buyer prior to the expiration of the
Inspection Period;
(iv) IRC Section 1445 Certification executed and
sworn to by Sellers;
(v) any documents required by the Title Company
necessary to comply with IRC Section 6045;
(vi) the originals, if any, of all Warranties,
Licenses and Plans in the possession of
Sellers;
(vii) originals of all Leases;
(viii) an Assignment and Assumption of Leases in
substantially the form attached hereto as
Exhibit D-1, fully executed by Investors and
Buyer, and an Assignment and Assumption of
Leases in substantially the form attached
hereto as Exhibit D-2, fully executed by
Family Life and Buyer, assigning, conveying
and transferring to Buyer all of the Leases
referred to therein, with Buyer assuming all
of the obligations of the lessor under the
Leases (collectively the "Assignment and
Assumption of Leases");
(ix) a Notice Letter in the form attached hereto
as Exhibit F-1 to be sent to all tenants of
the Property, executed by Investors and
Buyer and a Notice Letter in the form
attached hereto as Exhibit F-2 to be sent to
all tenants of the Property, executed by
Family Life and Buyer; and
(x) all keys to the Improvements in the
possession of Sellers;
(xi) evidence satisfactory to Buyer and Title
Company that the person or persons executing
the Closing Documents on behalf of Sellers
have full right, power and authority to do
so; and
(xii) an affidavit as to debts and liens, if any
existing against the Property.
(xiii) Originals of the Estoppel Certificates
previously provided by Seller to Buyer, or
any updates thereto obtained by Sellers,
together with an assignment by Starwood of
all of its right, title and interest in and
to the Estoppel Certificates, and Estoppel
Certificates from Tivoli Systems Subsidiary,
Inc., Tandem
13
Computers, Inc., Amherst Securities, Inc.
and Texas A&M University.
(xiv) Certificate from Sellers' architect that the
Improvements (excluding Bridgepoint One,
which was not constructed by Sellers) have
been substantially completed in accordance
with the applicable plans and specifications
and the plans and specifications were
prepared are in compliance with all
applicable laws, rules and regulations.
8.1(b) Buyer, at its sole cost and expense, will deliver or
cause to be delivered to Sellers the following:
(i) payment of the Purchase Price, less the
Xxxxxxx Money with interest;
(ii) the Special Warranty Xxxx of Sale accepted
by Buyer;
(iii) the Assignment and Assumption of Leases;
(iv) a Notice Letter in the form attached hereto
as Exhibit F to be sent to all tenants of
the Property, executed by Sellers and Buyer;
and
(v) evidence satisfactory to Sellers and the
Title Company that the person executing the
Closing Documents on behalf of Buyer has
full right, power and authority to do so.
8.1(c) On or prior to the Closing Date, Sellers and Buyer
will each execute and deliver Closing Statements,
such affidavits or statements as may be required by
the Title Company to issue the Title Policy, and any
other instruments and documents which will be
reasonably necessary to complete the sale of the
Property.
8.1(d) Each of the Sellers and Buyer will pay its own legal
fees incurred in connection with this Agreement.
8.1(e) Sellers will pay:
(i) cost of the Survey, the Title Commitment and
the Title Insurance premium (not to exceed
the promulgated rate) necessary to issue the
Title Policy referenced in Section 6 hereof;
(ii) a commission due to CB Commercial pursuant
to separate agreement; and
14
(iii) all other items which are normally paid by
Sellers in real estate transactions in
Austin, Texas.
8.1(f) Buyer will pay:
(i) the additional premium for modification of
the areas and boundaries exception to read
"shortages in area" only, if the same is
requested by Buyer, as well as any premium
for any other endorsement or the cost of any
inspection fee imposed by the Title Company
to delete the exception for "rights of
parties in possession";
(ii) the cost of Buyer's due diligence
inspection; and
(iii) all other items which are normally paid by
Buyers in real estate transactions in
Austin, Texas.
8.1(g) Any other closing costs not listed above in 8.1(e)
and 8.1(f), including but not limited to Escrow Fees
if any, will be paid one-half by Sellers and one-half
by Buyer.
8.1(h) Upon completion of Closing, Sellers will deliver to
Buyer possession of the Property, subject only to the
rights of the tenants in possession pursuant to the
Leases and the Permitted Encumbrances.
9. Real Property Apportionments.
9.1 The following items shall be apportioned at the Closing as of the
close of business on the day immediately preceding the Closing Date:
9.1(a) all items of income and expense normally apportioned
in sales of property in similar situations;
9.1(b) annual rents, common area maintenance charges and
other fixed charges payable under the Leases and
received by Sellers,
9.1(c) other unfixed charges payable under the Leases and
received by Sellers;
9.1(d) fuel, electric, water and other utility costs;
9.1(e) municipal assessments and governmental license and
permit fees;
9.1(f) real estate taxes and assessments other than special
assessments, based on the 1997 rates and assessed
valuation;
15
9.1(g) water rates and charges; and
9.1(h) sewer taxes and rents.
9.2 If any refunds of real property taxes or assessments, water rates
and charges or sewer taxes and rents shall be made after the Closing, the same
shall be held in trust by Sellers or Buyer, as the case may be, and shall first
be applied to the unreimbursed costs incurred in obtaining the same, then to any
required refunds to tenants under the Leases, and the balance, if any, shall be
paid to Sellers (for the period prior to such Closing Date) and to Buyer (for
the period commencing with such Closing Date).
9.3 If, on the Closing Date, the Property shall be or shall have been
affected by any special or general assessment or assessments or real property
taxes payable on a lump sum or which are or may become payable in installments
of which the first installment is then a charge or lien and has become payable,
Sellers shall pay or cause to be paid at the Closing the unpaid installments of
such assessments due up to the Closing Date and Buyer shall be responsible to
pay all installments thereof which are to become due and payable after the
Closing Date.
9.4 No insurance policies of Sellers are to be transferred to Buyer,
and no apportionment of the premiums therefor shall be made.
9.5 At the Closing, Sellers shall transfer to Buyer (or credit to Buyer
against the Allocable Purchase Price) the amount of all unapplied security
deposits held pursuant to the terms of the Leases with respect to the Property.
9.6 If a net amount is owed by Sellers to Buyer pursuant to this
section, such amount shall be credited against the Purchase Price. If a net
amount is owed by Buyer to Sellers pursuant to section, such amount shall be
added to the Purchase Price.
9.7 All adjustments for unpaid leasing commissions and unfunded tenant
improvement allowances shall be apportioned as contemplated by Schedule 3.3.
10. Operation of the Property. From the date hereof until closing, Sellers will
(i) maintain and operate the Property in a manner consistent with Sellers'
maintenance and operation thereof since Sellers acquisition of the Property and
use all reasonable efforts to comply with all requirements of the Leases, (ii)
continue to maintain the insurance coverage with respect to the Property
existing as of the Effective Date, (iii) not enter into any agreement or take
any action that is (a) outside the normal scope of maintaining and operating the
Property or (b) is not terminable on thirty (30) days written notice, (iv) not
remove any items or Personal Property from the Property unless the same is
replaced by Sellers with an article of equal suitability and value, free and
clear of any lien or security interest and (v) not negotiate with or enter into
an agreement to sell the Property to any other prospective purchaser of the
Property.
11. Notices. Any notice or demand provided for or given pursuant to this Lease
shall be in writing and served on the parties at the addresses listed below. Any
notice shall be either (a)
16
personally delivered to the address set forth below, in which case it shall be
deemed delivered on the date of delivery to the addressee; or (b) sent by
registered or certified mail/return receipt requested, in which case it shall be
deemed delivered upon receipt or refusal thereof; (c) sent by a nationally
recognized overnight courier, in which case it shall be deemed delivered upon
receipt or refusal thereof ; or (d) sent by telecommunications ("Fax") in which
case it shall be deemed delivered on the day sent, provided an original is sent
to the addressee by a nationally recognized overnight courier within one (1)
business day of the Fax. The addresses and Fax number listed herein may be
changed by written notice to the other parties, provided, however, that no
notice of a change of address or Fax number shall be effective until date of
delivery of such notice. Copies of notice 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. For purposes of notice, the addresses of the parties
shall be as follows:
If to Buyer: Health and Retirement Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Fax Number: (000) 000-0000
with a copy to: Xxxxxxxx Xxxxx, Esq.
Xxxxxxxx & Worester, LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax Number: (000) 000-0000
and a copy to: Xxxxxx X. Xxxxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Fax Number: (000) 000-0000
If to Sellers: Investors Life Insurance Company of North America
701 Brazos, Suite 1400
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxx
Fax Number: (000) 000-0000
Family Life Insurance Company
000 Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxx
Fax Number: (000) 000-0000
17
with a copy to: Sneed, Vine, & Perry, P.C.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Fax Number: (000) 000-0000
Notice from counsel to all parties entitle to notice as set forth in this
Section 10 shall constitute adequate notice.
12. Commissions. Sellers shall pay to CB Commercial ("Broker") any and all
commissions, fees, or other amounts owed to Broker in connection with the sale
of the Property, which payment shall be made in accordance with the Brokerage
Agreement. Sellers shall defend, indemnify, and hold harmless, Buyer from any
claim by Broker or any other party claiming under Sellers for any brokerage,
commission, finder's or other fees relative to this Agreement or the sale of the
Property, and any court costs, attorneys' fees, or other costs or expenses
arising therefrom, and alleged to be due by authorization of Sellers. Buyer
shall defend, indemnify, and hold harmless Sellers from any claim by any party
other than Broker claiming under Buyer for any brokerage, commission, finder's,
or other fees relative to this Agreement or the sale of the Property, and any
court costs, attorneys' fees, or other costs or expenses arising therefrom and
alleged to be due by authorization of Buyer. This provision shall survive
Closing.
13. Assigns. This Agreement shall inure to the benefit of and be binding on the
parties hereto and their respective heirs, legal representatives, successors and
assigns. Notwithstanding the immediately preceding sentence, this Agreement may
not be assigned by the Buyer without the consent of Seller; provided, however,
this Agreement may be assigned directly or indirectly through one or more
entities or intermediaries to an entity which is controlled by, under control
with or controls Buyer without the consent of Sellers, but in no event shall
Buyer be released from its obligations under this Agreement.
14. Destruction, Damage or Taking Before Closing
14.1 In the event of damage to or destruction of all or any portion of
the Property by fire or other casualty, Sellers shall properly notify Buyer of
the nature and extent of such damage or destruction, and the amount, if any, of
insurance proceeds that are available to make such repairs or restoration. In
the event the cost to repair or reconstruct the damage caused by fire or other
casualty to the Property (the "Repair Cost") does not exceed $250,000.00 in the
reasonable estimation of Sellers, then this Agreement shall remain in full force
and effect. If such damage or destruction has not been repaired to the
reasonable satisfaction of Buyer prior to Closing, Sellers shall assign to Buyer
any and all claims for the insurance proceeds of such damage or destruction of
the Property and pay to Buyer or credit against the Purchase Price the amount of
any deductible, but not to exceed the amount required to repair or replace the
portion of the Property destroyed, and Buyer shall take title to the Property
with the assignment of such proceeds and subject to such damage or destruction
with no reduction of the Purchase Price. If Sellers reasonably estimate that the
Repair Cost exceeds $250,000.00, Buyer shall have the option to terminate this
Agreement in accordance with Section 14. If Buyer does not elect to
18
terminate, this Agreement shall remain in full force and effect, and if such
damage or destruction has not been repaired to the reasonable satisfaction of
Buyer prior to Closing, Sellers shall assign to Buyer any and all claims for the
insurance proceeds of such damage or destruction of the Property and pay to
Buyer or credit against the Purchase Price the amount of any deductible, but not
to exceed the amount required to repair or replace the portion of the Property
destroyed, and Buyer shall take title to the Property with the assignment of
such proceeds subject to such damage or destruction with no reduction of the
Purchase Price.
14.2 In the event of eminent domain taking or the issuance of a notice
of an eminent domain taking with respect to all or any substantial portion of
the Property which materially affects Buyer's use of the Property and the
existing Improvements prior to the Closing Date, Buyer shall have the option to
terminate this Agreement in accordance with Section 13 within ten (10) business
days after Buyer's receipt of written notice from Sellers (but in no event later
than the Closing Date) advising of such taking or proposed taking, which notice
Sellers hereby agree to give promptly upon notice of such taking or proposed
taking. If Buyer shall elect not to exercise its right to terminate this
Agreement, Buyer shall be obligated to consummate this transaction for the full
Purchase Price (subject to the other provisions of this Agreement) and Buyer
shall be entitled to receive all eminent domain awards and, to the extent the
same may be necessary and appropriate, Sellers shall assign to Buyer at Closing
Sellers' rights to such awards. This provision shall survive Closing.
15. Default and Remedies
15.1 Buyer's Defaults; Seller's Remedies. If Buyer fails to complete
the purchase and sale of the Property, except for a permitted right to terminate
this Agreement specifically set forth herein, the Title Company shall pay the
Xxxxxxx Money to Sellers as liquidated damages as Sellers' sole and exclusive
remedy (it being agreed that Sellers shall have no right to enforce specific
performance of this Agreement); and thereafter, this Agreement shall be null and
void and all obligations imposed upon either party shall cease and terminate,
except for Buyer's Termination Obligations. In the event of a default by Buyer,
the parties agree that Sellers' actual damages would be very difficult to
definitively ascertain because of (i) the uncertainties of the real estate
market, (ii) fluctuating property values between the time of this Agreement and
date of breach and (iii) differences of opinion with reference to such matters.
As a result, the parties have agreed upon the liquidated damages as provided
herein.
15.2 Sellers' Defaults; Buyer's Remedies. If Sellers fail to complete
the purchase and sale of the Property for any reason other than those herein
provided in this Agreement, Buyer, as Buyer's sole and exclusive remedies, shall
either (i) receive an immediate refund of the Xxxxxxx Money and in such event
this Agreement shall be null and void and the parties shall have no further
obligation or liability hereunder, except for Buyer's Termination Obligations,
(ii) seek specific performance of this Agreement, or (iii) xxx for damages not
to exceed the lesser of (a) Buyer's actual out-of-pocket costs paid to unrelated
third parties in connection with the negotiation of this Agreement and Buyer's
due diligence related to the Property, or (b) $25,000.00.
19
16. Miscellaneous
16.1 Representations and Warranties Do Not Survive Closing. Except
as specifically set forth herein, any and all representations,
warranties, covenants and agreements of Sellers and Buyer, as
well as any rights and benefits arising hereunder, shall not
survive the Closing, but shall be merged therein.
16.2 Entire Agreement; Modification. This Agreement embodies the
entire agreement of the parties hereto, and cannot, under any
circumstances, be modified orally, and no agreement shall be
effective to waive, change, modify or discharge this Agreement
in whole or in part unless such agreement is in writing and is
signed by both Sellers and Buyer.
16.3 Entire Agreement. This Agreement, including the Exhibits,
contains the entire agreement between Sellers and Buyer
pertaining to the subject matter hereof and fully supersedes
all prior agreements and understanding between Sellers and
Buyer pertaining to such subject matter.
16.4 Further Assurances. Both Sellers and Buyer agree that it will,
without further consideration, execute and deliver such other
documents and take such other action, whether prior to
subsequent to Closing, as may be reasonably requested by the
other party to consummate more effectively the purposes or
subject matter of this Agreement. This provision shall survive
Closing.
16.5 Counterparts; Facsimile Signatures. This Agreement may be
executed in multiple counterparts which, when combined
together, shall constitute an original of this Agreement, and
all such executed counterparts shall constitute the same
Agreement. It shall be necessary to account for only one such
counterpart in proving this Agreement. In addition, facsimile
signatures of the parties shall be effective on all
counterparts of this Agreement.
16.6 Severability. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect
any other provision hereof and this Agreement shall be
construed as if such invalid, illegal or unenforceable
provision had never been contained herein, and the remainder
of this Agreement shall nonetheless remain in full force and
effect.
16.7 Applicable Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Texas without
regard to the principles of conflicts of law. The
enforceability or invalidity of any one or more provisions
hereby shall not affect the enforceability or validity of any
other provision hereof.
16.8 Section Headings. Section headings contained herein are for
convenience only and shall not be deemed to construe or limit
the meaning of the language
20
contained in this Agreement, or be used as interpreting the
meanings and provisions hereof.
16.9 Construction. If the last day of any time period stated herein
shall fall on a Saturday, Sunday or legal holiday, then the
duration of such time period shall be extended so that it
shall end on the next succeeding day which is not a Saturday,
Sunday or legal holiday. Whenever used in this Agreement, the
singular shall include the plural, the plural shall include
the singular, and the use of any gender shall be applicable to
all genders. The parties acknowledge that their attorneys have
reviewed and negotiated the provisions of this Agreement;
therefore, the rule of construction that any ambiguities are
to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any
amendments or exhibits hereto.
16.10 Covenant not to Record. Buyer will not record this Agreement.
Any attempted recording of this Agreement shall constitute a
default hereunder on the part of Buyer and Sellers shall have
the immediate right to terminate this Agreement.
16.11 Binding Effect. Without limiting the effect of Section 12
hereof, this Agreement shall extend to and be binding upon the
successors, assigns, nominees and/or other legal
representatives of the parties hereto.
16.12 Time of Essence. Time is of the essence of this Agreement.
16.13 Effective Date. The "Effective Date" of this Agreement is the
date this Agreement has been fully executed by Sellers and
Buyer.
16.14 Allocation of Liability. It is expressly understood and agreed
that Sellers shall be liable to third parties for any and all
obligations, claims, losses, damages, liabilities, and
expenses arising out of events, contractual obligations, acts,
or omissions of Sellers that occurred in connection with the
ownership or operation of the Property prior to the Closing
and Buyer shall be liable to third parties for any and all
obligations, claims, losses, damages, liabilities and expenses
arising out of events, contractual obligations, acts, or
omissions of Buyer that occur in connection with the ownership
or operation of the Property after the Closing. The provisions
of this section shall survive the Closing.
16.15 Nonliability of Trustees. THE DECLARATION OF TRUST
ESTABLISHING BUYER, A COPY OF WHICH, TOGETHER WITH ALL
AMENDMENTS THERETO (THE "DECLARATION"), IS DULY FILED WITH THE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF
MARYLAND, PROVIDES THAT THE NAME "HEALTH AND RETIREMENT
PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION
COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY,
AND THAT NO TRUSTEE, OFFICER,
21
SHAREHOLDER, EMPLOYEE OR AGENT OF BUYER SHALL BE HELD TO ANY
PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION
OF, OR CLAIM AGAINST, BUYER. ALL PERSONS DEALING WITH BUYER,
IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF BUYER FOR THE
PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION. THE
PROVISIONS OF THIS SECTION SHALL SURVIVE THE CLOSING.
16.16 Financials. Sellers shall provide the Buyer with access to the
books and records of Sellers solely as related to the
Property, for the purpose of allowing Buyer's independent
auditors to prepare audited financial statements for the
Property with respect to the 1996 and 1997 calendar years,
such financial statements to be prepared at the Buyer's sole
cost and expense. The provisions of this section shall survive
the Closing hereunder.
16.17 Publicity. The parties agree that no party shall, with respect
to this Agreement and the transactions contemplated hereby,
contact or conduct negotiations with public officials, make
any public pronouncements, issue press releases or otherwise
furnish information regarding this Agreement or the
transactions contemplated to any third party without the
consent of the other party, which consent shall not be
unreasonably withheld. Sellers shall not trade in the
securities of the Buyer until a public announcement of the
transactions contemplated by this Agreement has been made. No
party shall record this Agreement or any notice thereof.
22
IN WITNESS WHEREOF, Buyer and Sellers have executed this Agreement as
of the date first set forth next to their respective signatures.
SELLERS: INVESTORS LIFE INSURANCE COMPANY OF
NORTH AMERICA, a Washington corporation
Date: November 24, 1997. By: /s/ Xxx X. Xxxxx, President
Xxx X. Xxxxx, President
FAMILY LIFE INSURANCE COMPANY, a
Washington corporation
Date:November 24, 1997. By: /s/ Xxx X. Xxxxx, President
Xxx X. Xxxxx, President
BUYER: HEALTH AND RETIREMENT PROPERTIES
TRUST, a Maryland real estate
investment trust
Date:November 24, 1997. By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, President
23
RECEIPT OF XXXXXXX MONEY DEPOSIT
AND AGREEMENT OF ESCROW AGENT
Escrow Agent hereby acknowledges the receipt of the following:
(i) one (1) fully signed and executed copy of this Agreement; and
(ii) the Xxxxxxx Money deposit in the amount of $7,000,000.00.
Escrow Agent hereby agrees to act as Escrow Agent under and pursuant to the
terms of this Agreement.
ESCROW AGENT:
HERITAGE TITLE COMPANY OF AUSTIN,INC.
By:/s/ Jancox Xxxxx
Title:
Date: November 26, 1997
24
The exhibits to this agreement, which are summarized on the second page of this
document at "EXHIBITS", have been omitted pursuant to Regulation S-K, Item
601(2). A copy of such exhibits will be provided to the Securities and Exchange
Commission upon request.
