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EXHIBIT 2.6
PHASE I
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
DATED
OCTOBER 10, 1996
BY AND BETWEEN
THE PRICE REIT, INC.,
AS BUYER,
AND
LOOP ONE/183, LTD.,
AS SELLER
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PHASE I
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PHASE I PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS ("Agreement") is made and entered into as of October 10, 1996 (the
"Execution Date"), by and between THE PRICE REIT, INC., a Maryland corporation
("Buyer"), and LOOP ONE/183, LTD., a Texas limited partnership ("Seller"), for
the purpose of setting forth the agreement of the parties and of instructing
Heritage Title Company of Austin, Inc. ("Escrow Agent"), with respect to the
transactions contemplated by this Agreement. All capitalized terms used and
not defined in the text of this Agreement shall have the meanings ascribed
thereto on Exhibit "A" attached hereto.
R E C I T A L S
A. Seller is the owner of a fee simple interest in that
certain real property located in the City of Austin, County of Xxxxxx, State of
Texas, as more particularly described on Exhibit "B" attached hereto and upon
which Phase I of the shopping center commonly known as the "Arboretum Crossing
Power Center" is being constructed.
B. Seller desires to sell and Buyer desires to purchase
the Property (as hereinafter defined) upon and subject to the terms and
conditions set forth in this Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants
contained in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Buyer and Seller
hereby agree, and instruct Escrow Agent, as follows:
1. AGREEMENT TO PURCHASE AND SELL.
Seller agrees to sell, transfer and convey to Buyer, and Buyer
agrees to acquire and purchase from Seller, the Property, upon and subject to
the terms and conditions set forth herein.
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2. PURCHASE PRICE.
The Purchase Price shall be determined and payable as follows:
2.1 Deposit.
2.1.1 Initial Deposit. Upon the Opening of Escrow,
Buyer shall deposit into Escrow the Initial Deposit by wire transfer of
immediately available funds payable to the order of Escrow Agent.
2.1.2 Additional Deposit. Upon the later to occur
of the Due Diligence Termination Date and the Board Approval Date, Buyer shall:
(a) deposit into Escrow the Additional Deposit by wire transfer of immediately
available funds payable to the order of Escrow Agent; and (b) either deposit
into Escrow the Letter of Credit or deliver to Seller Buyer's Specific
Performance Notice. If Buyer allows the Due Diligence Termination Date and the
Board Approval Date to pass without terminating this Agreement, but fails to
perform its obligations as set forth in clause (b) of the preceding sentence,
Buyer shall be deemed to have delivered to Seller Buyer's Specific Performance
Notice.
2.1.3 Investment of Deposit. Escrow Agent shall
invest the Deposit in insured money market accounts, certificates of deposit,
United States Treasury Bills or such other instruments as Buyer may instruct
from time to time, provided that such investments are federally issued or
insured and maintained in an account at an institution with offices in Xxxxxx
County, Texas, where such account or accounts will be maintained. At the
Closing, the Deposit shall be paid to Seller and credited against the Initial
Purchase Price. In the event the sale of the Property is not consummated for
any reason, then the Deposit shall be held and disbursed in accordance with
this Agreement.
2.2 Initial Purchase Price. Subject to the terms of Section
2.4.1 hereof, at the Closing, Buyer shall pay to Seller the amount by which the
Initial Purchase Price exceeds the Initial Deposit, by wire transfer of
immediately available federal funds, net of all prorations and adjustments as
provided herein.
2.2.1 Buyer's Recourse Obligation. In the event
that less than 100% of the Property is leased pursuant to Qualified Leases as
of the Closing, Buyer shall deliver to Seller at the Closing, an instrument in
form reasonably satisfactory to Seller evidencing Buyer's recourse obligation
to pay Seller the Deferred Purchase Price on the Deferred Payment Date.
Subject to
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Section 16.5.2, in the event that Buyer's interest in this Agreement is
assigned to another entity on or before the Closing, then, upon such
assignment, The Price REIT, Inc. shall deliver to Seller a guaranty, in a form
approved by Seller (which approval shall not be unreasonably withheld or
delayed), pursuant to which Seller shall guarantee Buyer's recourse obligation
described in this Section 2.2.1.
2.3 Deferred Purchase Price. Subject to the terms of Section
8.1.2 hereof, on the Deferred Payment Date, if any, Buyer shall pay to Seller
the Deferred Purchase Price by wire transfer of federal funds, net of all
prorations and adjustments as provided herein.
2.4 Lease-Up Payments.
2.4.1 Lease-Up Payment. In the event that 95% or
more (but less than 100%) of the Property has been leased pursuant to Qualified
Leases as of the Closing, Seller may elect, by delivering written notice of
such election to Buyer on or before the tenth (10th) Business Day prior to the
Closing, to cause Buyer to pay to Seller at the Closing (in lieu of any future
right to receive the Deferred Purchase Price and the Deferred Lease-Up Payment)
the Lease-Up Payment with respect to the unleased portion of the Property in
addition to the Initial Purchase Price.
2.4.2 Deferred Lease-Up Payment. In the event that
(i) no Lease-Up Payment was paid to Seller at the Closing, (ii) Seller is
entitled to receive the Deferred Purchase Price on the Deferred Payment Date
and (iii) as of the Deferred Payment Date, 95% or more (but less than 100%) of
the Property has been leased pursuant to Qualified Leases, then Seller may
elect, by delivering written notice of such election to Buyer on or before the
tenth (10th) Business Day prior to the Deferred Payment Date, to cause Buyer to
pay to Seller on the Deferred Payment Date the Deferred Lease-Up Payment with
respect to the unleased portion of the Property in addition to the Deferred
Purchase Price.
3. LEASE-UP.
3.1 Seller's Obligation. Seller covenants and agrees that it
shall use good faith, commercially reasonable and diligent efforts (for so long
as this Agreement shall remain in full force and effect and until the Deferred
Payment Date or, if no Deferred Payment Date exists, then until the Closing) to
lease, at Seller's sole cost and expense, those portions of the Property that
remain unleased
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as of the Execution Date, subject to and in accordance with the terms of this
Article 3.
3.2 Leasing Criteria. Seller covenants and agrees that all
New Leases shall satisfy each of the following leasing criteria (collectively,
the "Leasing Criteria") unless otherwise approved (or deemed to be approved) by
Buyer in accordance with Section 3.3 hereof:
(i) the New Leases shall be in substantially the
same form and substance as the Existing Leases;
(ii) the New Leases shall be to tenants approved
(or deemed approved) by Buyer in accordance with the
terms of Section 3.3 hereof;
(iii) the New Leases shall require tenants to pay
for their full pro rata share of common area
maintenance expenses and taxes in accordance with
industry standards applicable to Comparable
Properties, subject to reasonable exceptions found in
comparable transactions or in one or more of the
Existing Leases;
(iv) the New Leases shall include market-based
percentage rental clauses, but only to the extent
that such clauses are used in leases for comparable
tenants at Comparable Properties or in one or more of
the Existing Leases;
(v) any concessions or "free" or "reduced" rent
offered to prospective tenants shall be reasonable
under the circumstances and within industry standards
for items offered to similar tenants for Comparable
Properties (and in no event shall such concessions be
"back-end loaded"); and
(vi) the base rent and rent escalations under the
New Leases shall be reasonable and within industry
standards for Comparable Properties, provided that
each rent escalation under each New Lease shall be no
less than a ten percent (10%) escalation and shall
occur no less frequently than every fifth (5th) lease
year.
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3.3 Buyer's Consent. All prospective New Leases shall be
subject to Buyer's prior written consent, which consent shall not be
unreasonably withheld. Notwithstanding anything to the contrary herein, Buyer
shall not withhold its consent to any New Lease that complies with the Leasing
Criteria and is to a pre-approved tenant described in Section 3.4 hereof.
Buyer covenants and agrees to deliver to Seller a written notice of Buyer's
consent or denial of consent to any prospective New Lease on or before the
fifth (5th) Business Day following Buyer's receipt of Seller's written request
therefor which request shall be accompanied by the proposed form of New Lease
together with a reasonably detailed credit report of the proposed tenant. In
the event that Buyer fails to deliver its response to Seller's consent request
within such five (5) Business Day period, then Buyer shall be deemed to have
consented to such request.
3.4 Pre-Approved Tenants. Attached hereto as Exhibit "C" is
a list of the prospective tenants currently under consideration for New Leases,
which prospective tenants are hereby approved by Buyer, provided that such
approval shall not prevent Buyer from reasonably disapproving of any New Lease
to such prospective tenants in accordance with Section 3.3 hereof if such New
Lease does not satisfy the Leasing Criteria.
3.5 Leasing Reports. On or before the fifth (5th) Business
Day following the Opening of Escrow and, on or before the first (1st) day of
each calendar month prior to the Deferred Payment Date (or, if no Deferred
Payment Date exists, then prior to the Closing), Seller shall provide Buyer
with a report describing the progress of all leasing negotiations. Seller
shall promptly deliver copies of all letters of intent, material correspondence
and other material documentation relative to any on-going lease negotiations
and Seller shall promptly respond to any of Buyer's reasonable requests for
explanations with respect to Seller's leasing negotiations or the status of any
prospective New Lease.
4. CONSTRUCTION.
4.1 Seller's Construction Obligations. Seller hereby
covenants and agrees to use commercially reasonable, good faith and diligent
efforts to commence and prosecute the construction of the Improvements in
accordance with (i) the Construction Documents and (ii) the terms of this
Agreement.
4.2 Buyer's Approval and Inspections. In connection with
Seller's construction of the Improvements, Seller shall obtain Buyer's prior
written approval (which approval shall not be unreasonably withheld or delayed)
in
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connection with any material changes to the Construction Documents or the
identity of the general contractor or construction manager. Upon one (1)
Business Day's advance notice to Seller, Buyer shall have the right to
periodically inspect (or have its representatives periodically inspect) any and
all construction, in order to confirm that the construction is being completed
in accordance with the Construction Documents and the terms of this Agreement,
provided that (i) such inspections do not unreasonably interfere with Seller's
construction efforts and (ii) any such inspections shall be subject to the
indemnification provisions set forth in Section 6.1.1.2 hereof.
4.3 Seller's Indemnification. To the fullest extent
permitted by law, Seller shall indemnify, defend, and hold Buyer and its
employees, agents and representatives, and their respective partners and
affiliates (collectively, the "Indemnified Parties") harmless from and against
any and all claims, damages, losses or expenses (including, without limitation,
reasonable attorneys' fees, charges and disbursements) arising out of or as a
result of the performance of the construction of the Improvements, unless such
claim, damage, loss or expense is the result of Buyer's (or its agents' or
contractors') gross negligence or willful misconduct. Seller shall be notified
within a reasonable period of time after any claim is made against any of the
Indemnified Parties and shall be given such reasonable information and
assistance as Seller may request to perform its obligations as set forth in
this Section 4.3. Notwithstanding the foregoing: (i) Seller's indemnification
obligations under this Section 4.3 relating to the Improvements constructed on
or before the Closing Date shall only apply to claims, damages, losses or
expenses of which Seller has been notified within, on or before the first
anniversary of the Closing Date; and (ii) Seller's indemnification obligations
under this Section 4.3 relating to the Improvements constructed after the
Closing Date and on or before the Deferred Payment Date shall only apply to
claims, damages, losses or expenses of which Seller has been notified within,
on or before the first anniversary of the Deferred Payment Date.
4.4 Seller's Insurance.
4.4.1 Types of Insurance. Seller shall purchase and
maintain, at its sole cost and expense, the following insurance as will protect
it and the Indemnified Parties from the claims set forth below which may arise
out of or as a result of Seller's performance under this Agreement (including
the performance of any contractor or any party directly or indirectly employed
by such contractor, or by any party whose acts they may be liable for):
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(i) Worker's Compensation/Employer's
Liability/Disability Insurance protecting against (a) claims under worker's
compensation, disability benefits and other similar employee benefit acts which
are applicable to the construction to be performed and (b) claims for damages
because of bodily injury, occupational sickness or disease, or death of it's
employees under any applicable employer's liability law in an amount not less
than $1,000,000;
(ii) Comprehensive Automobile Liability Insurance
protecting against claims for damages because of bodily injury or death of any
person or property damage arising out of ownership, maintenance or use of any
motor vehicle in an amount not less than $1,000,000 Combined Single Limit,
which coverage shall include Employer's Non-Owned and Hired Car Coverage;
(iii) Commercial General Liability Insurance
protecting against (a) claims for damages due to bodily injury or death of any
person other than Seller's employees and (b) claims for damages other than to
the Property itself, due to injury to, or destruction of, tangible property,
including loss of use therefrom, all of which shall be written on an occurrence
form with limits of $1,000,000 Combined Single Limit each occurrence and
$2,000,000 from the aggregate of all occurrences within each policy year per
site, including, without limitation, Comprehensive Form, Premises-Operation,
Explosion, Collapse, Underground Hazard, Products/Completed Operations Hazard,
(two (2) year's extension beyond completion of construction), Blanket
Contractual Coverage (including coverage for the indemnification set forth in
Section 4.3 hereof), Broad Form Property damage, Independent Contractors, and
Personal Injury (with the employees exclusion deleted); and
(iv) Excess (Umbrella) Liability Insurance with
total limits of $10,000,000 each occurrence and in the aggregate per site in
excess of the above noted insurance policies.
4.4.2 Additional Insureds. The insurance policies
described in this Section 4.4 shall name the Buyer as an additional insured.
Buyer agrees that, unless Buyer or its employees, agents, representatives or
affiliates is named as a defendant in an action for a liability or otherwise
suffers a loss covered by the insurance prescribed by this Section 4.4, Buyer
shall not interfere with any adjustment or claim made by Seller in connection
with such insurance.
4.4.3 Insurance Certificates. Promptly following
the Execution Date, Seller shall deliver to Buyer certificates showing the
existence of
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the policies required under this Section 4.4 and evidence that the insurer is
required to deliver a cancellation notice to Buyer ten (10) Business Days prior
to any cancellation.
4.4.4 Insurance Company Standards. All insurance
policies required under this Section 4.4 shall be maintained with reputable
insurance companies licensed to do business in the State of Texas and rated A:X
or better in the then most recent "Best's Insurance Guide" or which are
otherwise reasonably acceptable to Buyer.
4.5 Waiver of Subrogation. Each policy of insurance procured
pursuant to Section 4.4 hereof shall contain, either (i) a waiver of
subrogation against either party hereto for the negligence of such party or
(ii) a statement that the insurance shall not be invalidated should any insured
waive prior to a loss any or all right of recovery against any party for the
loss described in such insurance policy. Buyer (on behalf of itself and the
other Indemnified Parties) and Seller (on behalf of itself and each contractor,
to the extent Seller has the legal right to bind its contractors) hereby waives
any and all rights of recovery against the other for any loss or damage to the
waiving party or its property or the property of others under its control,
arising from any cause insured against under the insurance policies required to
be carried pursuant to Section 4.4 hereof or under any other policy of
insurance carried by them.
5. OPENING OF ESCROW.
On or before the third (3rd) Business Day after the Execution
Date, Buyer and Seller shall cause a purchase and sale escrow ("Escrow") to be
opened with Escrow Agent (the "Opening of Escrow") by delivery to Escrow Agent
of the following: (i) two (2) fully executed copies of this Agreement and (ii)
the Initial Deposit. Escrow Agent shall promptly deliver to Buyer and Seller
written notice of the date of the Opening of Escrow. This Agreement shall
constitute escrow instructions to Escrow Agent as well as the agreement of the
parties. Escrow Agent is hereby appointed and designated to act as the Escrow
Agent and instructed to deliver, pursuant to the terms of this Agreement, the
documents and funds to be deposited into Escrow as herein provided.
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6. ACTIONS PENDING CLOSING.
6.1 Due Diligence Period.
6.1.1 Due Diligence.
6.1.1.1 Property Documents. On or before
the fifteenth (15th) Business Day after the Opening of Escrow, Seller shall
deliver or cause to be delivered to Buyer, at Seller's sole cost and expense,
at its address set forth in Section 16.3 hereof, true, correct and complete
copies of all of the Construction Documents, the Property Studies and the
Leases. In addition, at all times following the execution of this Agreement,
Seller shall make available at its offices (at the address set forth in Section
16.3 hereof) true correct and complete copies of the Property Records available
for Buyer's review and copying during normal business hours upon one (1)
business days' prior notice.
6.1.1.2 Diligence Tests. At all reasonable
times during the Due Diligence Period, Buyer, its agents and representatives
shall be entitled at Buyer's sole cost and expense to: (i) enter onto the
Property during normal business hours and upon reasonable advance notice to
Seller, to perform any inspections, investigations, studies and tests of the
Property, including, without limitation, physical, structural, mechanical,
architectural, engineering, soils, geotechnical and environmental tests that
Buyer deems reasonable; (ii) cause an environmental assessment of the Property
to be performed, upon reasonable notice to Seller; and (iii) review all
Property Documents and examine and copy any and all books and records
maintained by Seller or its agents relating to the Property (including, without
limitation, all documents relating to utilities, zoning, and the access,
subdivision and appraisal of the Property). Buyer shall indemnify, defend and
hold harmless Seller from all claims (including, without limitation, any claim
for a mechanic's lien or materialman's lien), causes of action, costs, losses,
damages and reasonable attorneys' fees incurred by Seller in connection with or
arising out of any inspections carried on, by or on behalf of Buyer pursuant to
this Section 6.1.1.2; provided, however, that Buyer shall not indemnify Seller
for any claim, loss or cause of action caused by Seller's gross negligence or
willful misconduct or any physical condition existing on the Property prior to
Buyer's entry thereon. The provisions of this Section 6.1.1.2 shall survive
the Closing (and the Deferred Payment Date, if any) or the earlier termination
of this Agreement.
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6.1.2 Termination Right. Buyer shall have the right
at any time on or before the Due Diligence Termination Date to terminate this
Agreement if Buyer determines in its sole and absolute discretion that the
Property is not acceptable to Buyer. In the event that Buyer fails to deliver
a written notice to Seller and Escrow Agent unconditionally waiving its
termination right hereunder on or before the Due Diligence Termination Date,
then (i) Escrow Agent shall return the Initial Deposit to Buyer, (ii) the
parties shall equally share the cancellation charges of Escrow Agent and Title
Company, and (iii) this Agreement shall automatically terminate and be of no
further force or effect and neither party shall have any further rights or
obligations hereunder, other than pursuant to any provision hereof which
expressly survives the termination of this Agreement.
6.2 Title.
6.2.1 Deliveries by Seller. On or before the tenth
(10th) Business Day after the Opening of Escrow, Seller shall deliver or cause
to be delivered to Buyer the following: (a) a Texas form of commitment for an
owner's policy of title insurance (the "PTR") issued by the Title Company,
together with legible copies of all documents referenced as exceptions therein
(the "Underlying Documents"); (b) a current Texas Land Surveyors Category 1A
Condition II land title boundary survey of the Property excluding improvements
(the "Survey"), in form reasonably satisfactory to Buyer and Title Company,
prepared and certified to Buyer, Seller, Title Company, and such other persons
or entities as Buyer may, in its discretion, request, by a surveyor licensed in
the State of Texas, showing any and all matters which Buyer may reasonably
require, including, without limitation, all easements, all roads, all utilities,
the number of parking spaces, access to and from the Land, and drainage ditches,
set-back lines, protrusions, encroachments and encumbrances affecting the same,
and showing that the different parcels of the Property, if any, are contiguous
to each other; and (c) a UCC Search with regard to the Personal Property (the
"UCC Search").
6.2.2 Buyer's Review of Title. Buyer shall have
twenty (20) Business Days after its receipt of all of the Title Documents to
notify Seller and Escrow Agent in writing ("Buyer's Objection Letter") of any
objection which Buyer may have to any matters reported or shown in the Title
Documents (provided, however, that if any updates to the Title Documents are
subsequently received by Buyer which reflect new items not shown on the
original versions thereof other than lien waivers and other similar documents
to be routinely obtained and filed of record from time to time by Seller
throughout the course of
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its construction and any easements, restrictive covenants or other agreements
previously approved by Buyer (to the extent Buyer's approval thereof is
required hereunder), Buyer shall have an additional ten (10) Business Days,
regardless of the Due Diligence Termination Date, following Buyer's receipt of
such update and legible copies of all new documents referenced therein to
notify Seller and Escrow Agent of objections to new items shown on any such
update). Buyer's Objection Letter shall include a description of each specific
objection and Buyer's desired cure for each objection. Matters reported in or
shown by the Title Documents (or any updates thereof) and not objected to by
Buyer as provided above shall be deemed to be "Permitted Exceptions." Seller
shall have no obligation to cure or correct any matter objected to by Buyer,
other than any Liens. However, on or before the twentieth (20th) Business Day
following Seller's receipt of Buyer's Objection Letter, Seller may elect, by
delivering written notice of such election to Buyer and Escrow Agent ("Seller's
Response"), to either remove or, to Buyer's reasonable satisfaction, insure
over any matters objected to in Buyer's Objection Letter. If Seller fails to
provide Seller's Response, it shall not be deemed to be a default by Seller
hereunder, but such failure shall be deemed to be an expression of Seller's
unwillingness or inability to cure the objections set forth in Buyer's
Objection Letter. If Seller fails to remove or satisfactorily insure over any
exceptions or matters objected to by Buyer, then Buyer must elect by delivering
written notice of such election to Seller and Escrow agent on or prior to the
earlier to occur of (i) the twentieth (20th) Business Day following Buyer's
receipt of Seller's Response or (ii) if no Seller Response is received by
Buyer, the twentieth (20th) Business Day following the date on which Seller
shall have been deemed to have responded, as provided above, to: (a) terminate
this Agreement (in which case Escrow Agent shall return the Deposit to Buyer,
the parties shall equally share the cancellation charges of Escrow Agent and
Title Company, and neither party shall thereafter have any rights or
obligations to the other hereunder, other than pursuant to any provision hereof
which expressly survives the termination of this Agreement); (b) discharge, at
the Closing, any objected to liens affecting the Property which secure an
obligation to pay money other than installments of real estate taxes or
assessments not delinquent as of the Closing (collectively, the "Liens") and
deduct from the Purchase Price the amount necessary to do so; (c) extend the
Closing Date to allow Seller a reasonable period of time to remove such
objected to exceptions or matters (if Seller is willing to remove such objected
to exceptions or matters); or (d) proceed to a timely Closing whereupon such
objected to exceptions or matters shall be deemed to be Permitted Exceptions.
In the event that Buyer fails to make such election on a timely basis, then
Buyer shall be deemed to have elected to proceed to a timely Closing in
accordance with the preceding clause (d). Notwithstanding anything to
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the contrary contained herein, Seller shall be required to discharge and remove
any and all Liens and, even though Buyer does not expressly disapprove such
Liens, such Liens shall not be Permitted Exceptions. Notwithstanding anything
to the contrary contained herein, the term "Liens" shall not include Road
District assessment liens to the extent that, pursuant to the Leases, the
Tenants are obligated to reimburse the "landlord" under the Leases the amount
of the assessments secured by such liens, or any portion thereof.
6.2.3 Condition of Title at Closing. At the
Closing, Seller shall sell, transfer and convey to Buyer indefeasible fee
simple title to the Property by a duly executed and acknowledged special
warranty deed in the form of Exhibit "D" attached hereto (the "Deed"), subject
only to the Permitted Exceptions. Except as otherwise expressly provided in
Sections 3.3, 6.2.2 and 11.1 hereof, prior to the Closing, Seller shall not
take any action or commit or suffer any acts which would give rise to a
variance from the current legal description of the Property, or cause the
creation of any exception or encumbrance against or respecting the Property,
without the prior written consent of Buyer, which consent may be withheld in
Buyer's sole and absolute discretion. Nothing in this Section 6.2.3 shall
preclude Buyer from disapproving title matters in accordance with the
provisions of Section 6.2.2 above. Prior to the Closing Date, Seller shall
deliver an "as- built" survey with respect to the Property, which survey shall
be subject to Buyer's review and approval, which approval shall not be withheld
provided that such survey does not reveal any unpermitted encroachment of
improvements on to easement areas or adjacent properties.
6.3 Buyer's Board Approval Contingency. Buyer shall have
until the Board Approval Date to obtain the approval of Buyer's Board of
Directors with respect to the transactions contemplated herein and, in the
event that Buyer does not obtain such approval, Buyer shall have the right to
terminate this Agreement. In the event that Buyer fails to deliver a written
notice to Seller and Escrow Agent unconditionally waiving its termination right
hereunder on or before the Board Approval Date, then (i) Escrow Agent shall
return the Initial Deposit to Buyer, (ii) the parties shall equally share the
cancellation charges of Escrow Agent and Title Company, and (iii) this
Agreement shall automatically terminate and be of no further force or effect
and neither party shall have any further rights or obligations hereunder, other
than pursuant to any provision hereof which expressly survives the termination
of this Agreement.
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7. CONDITIONS PRECEDENT TO CLOSING.
7.1 Buyer's Conditions. At the Closing, the obligation of
Buyer to purchase the Property in accordance with this Agreement is subject to
the following conditions precedent (and conditions concurrent, with respect to
deliveries to be made by the parties at the Closing) (the "Closing
Conditions"), which conditions may be waived, or the time for satisfaction
thereof extended, by Buyer only in a writing executed by Buyer (provided,
however, that (i) Buyer's acceptance of the Deed shall be deemed a waiver of
any unsatisfied conditions regardless of whether Buyer executes a separate
written instrument to that effect at the Closing and (ii) such waiver shall not
affect Buyer's ability to pursue any remedy it may have with respect to any
breach hereunder by Seller to the extent such remedy is expressly provided for
in this Agreement):
7.1.1 Title. At the Closing, Title Company shall be
prepared and committed (which commitment shall be evidenced by the Title
Company's issuance of a final PTR for the Property at the Closing, subject only
to the Permitted Exceptions) to issue to Buyer: (i) a Texas form of owner's
policy of title insurance in favor of Buyer in an amount equal to the Initial
Purchase Price, showing indefeasible fee simple title to the Property vested in
Buyer, with those endorsements reasonably requested by Buyer to the extent
available in Texas, subject only to the Permitted Exceptions (collectively, the
"Owner's Title Policy"); and (ii) an endorsement to the Owner's Title Policy
(the "Deferred Payment Endorsement") to be issued, if applicable, on the
Deferred Payment Date, if any, which Deferred Payment Endorsement shall
increase the amount of title insurance by an amount equal to the Deferred
Purchase Price.
7.1.2 Seller's Due Performance. All of the
representations and warranties of Seller set forth in Section 9 hereof shall be
true and correct as of the Closing Date, subject to Section 9.26 hereof, and
Seller, on or prior to the Closing Date, shall have complied with and/or
performed all of the obligations, covenants and agreements required on the part
of Seller to be complied with or performed pursuant to the terms of this
Agreement (subject to the last sentence of Section 13.2 hereof). On the
Closing Date and subject to Section 9.26 hereof, Seller shall deliver to Buyer
a certificate, in the form of Exhibit "E" attached hereto (the "Seller's
Certificate").
7.1.3 Construction and Physical Condition of the
Real Property. Subject to the provisions of Sections 4 and 12 hereof, the
physical condition of the Real Property shall be substantially the same on the
Closing Date
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as on the Execution Date, except for the completion of construction, ordinary
wear and tear and any damages due to any act of Buyer or Buyer's
representatives. On or before the Closing, Seller shall complete construction
of the Property to be transferred, in accordance with the Construction
Documents and applicable Laws, which completion shall be evidenced by a final
certificate of occupancy and a certificate from Seller's architect and general
contractor stating that the construction of the transferred Improvements has
been completed in accordance with the Construction Documents and applicable
Laws.
7.1.4 Bankruptcy. No action or proceeding shall
have been commenced by or against Seller under the federal bankruptcy code or
any state law for the relief of debtors or for the enforcement of the rights of
creditors and no attachment, execution, lien or levy (other than Liens to be
discharged by Seller prior to Closing) shall have attached to or been issued
with respect to the Property or any portion thereof.
7.1.5 Leases. At the Closing, Seller shall assign
to Buyer all of Seller's rights and remedies under the Leases, including,
without limitation, the right to any security deposits and prepaid rent,
pursuant to an assignment and assumption of leases and security deposits (the
"Assignment of Leases") in the form of Exhibit "F" attached hereto.
7.1.6 Assignment of REA. Subject to the terms of
Section 11.3 hereof, at the Closing, Seller shall assign to Buyer all of
Seller's right, title and interest in, to and under the REA (as and to the
extent that such right, title and interest pertain to or benefit the Property),
pursuant to an assignment of reciprocal easement agreement (an "Assignment of
REA") in the form of Exhibit "G" attached hereto.
7.1.7 Xxxx of Sale. At the Closing, Seller shall
deliver to Buyer a xxxx of sale and assignment (the "Xxxx of Sale and
Assignment"), by which Seller shall transfer to Buyer all of Seller's interest
in the Personal Property and Intangible Property, including, without
limitation, the Property Documents, but excluding the Leases, in each case free
of all liens and encumbrances (other than the Permitted Exceptions), in the
form of Exhibit "H" attached hereto.
7.1.8 Estoppel Certificates.
7.1.8.1 Tenant Estoppels. Seller shall use
its good faith, commercially reasonable and diligent efforts to obtain, no
later than ten
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(10) Business Days prior to the Closing, an estoppel certificate from each
Tenant, which certificate shall be in substantially the same form as Exhibit
"I" attached hereto (each, a "Tenant Estoppel"). Seller shall promptly, upon
its receipt of any and all executed Tenant Estoppels, deliver copies thereof to
Buyer for Buyer's review and approval. Buyer will have an obligation to
approve each executed Tenant Estoppel to the extent the same corresponds to the
substantive terms and provisions contained in the Lease to which it relates and
is otherwise in substantially the same form as Exhibit "I". If Seller has not
received Buyer's written objection to the form and/or content of any executed
Tenant Estoppel on or before the fifth (5th) Business Day following Buyer's
receipt of such Tenant Estoppel, then Buyer shall be deemed to have reviewed
and approved such Tenant Estoppel.
7.1.8.2 Seller Estoppels. Subject to Section
7.1.8.3 hereof, if at the Closing, Seller has failed (after using good faith,
commercially reasonable and diligent efforts) to obtain an executed Tenant
Estoppel from each Tenant, then Seller shall, in lieu of procuring a Tenant
Estoppel from such Tenants, execute and deliver to Buyer not later than two (2)
Business Days prior to the Closing, a substitute estoppel certificate on behalf
of the applicable Tenants in substantially the same form as Exhibit "J"
attached hereto (each, a "Seller Estoppel"). If Seller has not received
Buyer's written objection to the form and/or content of any executed Seller
Estoppel on or before the Closing, then Buyer shall be deemed to have reviewed
and approved such Seller Estoppel.
7.1.8.3 Minimum Estoppel Requirement.
Notwithstanding anything to the contrary herein, at the Closing, Seller shall
deliver to Buyer a Tenant Estoppel from (i) all Credit Tenants and (ii) not
less than eighty percent (80%) (determined on the basis of leasable floor area)
of all Non-Credit Tenants, which Tenant Estoppels shall be approved (or deemed
to be approved) by Buyer in accordance with Section 7.1.8.1 hereof
(hereinafter, the "Minimum Estoppel Requirement"). Seller shall not be in
default under this Section 7.1.8.3, provided that Seller shall have used good
faith, commercially reasonable and diligent efforts to satisfy the Minimum
Estoppel Requirement, however, the satisfaction of the Minimum Estoppel
Requirement shall be a condition to Closing, which may or may not be waived by
Buyer in accordance with Section 7.2.
7.1.8.4 REA Estoppel. Seller shall use its
good faith, commercially reasonable and diligent efforts to obtain, no later
than ten (10) Business Days prior to the Closing, an estoppel certificate,
substantially in
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the form of Exhibit "K" attached hereto, executed by each party to the REA. If
at the Closing, Seller has failed (after using good faith, commercially
reasonable and diligent efforts) to obtain an executed estoppel certificate
from each party to the REA, then Seller shall, in lieu of procuring such
estoppel certificate from such parties, execute and deliver to Buyer not later
than two (2) Business Days prior to the Closing, a substitute estoppel
certificate on behalf of the applicable parties in substantially the same form
as Exhibit "L" attached hereto (the "Seller's REA Estoppel Certificate").
7.1.9 Non-Foreign Affidavit. On or before the
Closing, Seller shall deliver to Buyer a Non-Foreign Affidavit (the
"Non-Foreign Affidavit") in the form of Exhibit "M" attached hereto, executed
by Seller.
7.1.10 No Moratoria. No moratorium, statute,
regulation, ordinance, or federal, state, county or local legislation, or
order, judgment, ruling or decree of any governmental agency or of any court
directed specifically at the Property shall have been enacted, adopted, issued,
entered or pending which would have a material adverse impact on the use of the
Property as a shopping center.
7.1.11 Occupancy. On or before the Closing, at
least 90% of the Property shall have been leased pursuant to Qualified Leases.
Notwithstanding the foregoing, Seller's failure to achieve the required
occupancy rate for Qualified Leases as set forth in this Section 7.1.11, shall
not be deemed to be a breach by Seller of its obligations hereunder so long as
Seller uses its good faith, commercially reasonably and diligent efforts to
lease the Property as required hereunder; provided, however, that Seller's
failure to achieve the requisite occupancy rate as prescribed herein will
nonetheless be a condition to Buyer's performance of its obligations hereunder.
7.2 Failure of Closing Conditions. Subject to Buyer's rights
hereunder, if any of the Closing Conditions have not been fulfilled within the
applicable time periods, Buyer may:
(a) waive the Closing Condition and close in accordance
with this Agreement, without adjustment or abatement of the Purchase Price,
except as otherwise expressly provided herein; or
(b) cure or discharge any Liens in accordance with the
terms of Section 6.2.2 hereof; or
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(c) terminate this Agreement by written notice to Seller
and to Escrow Agent, in which event Escrow Agent shall return the Deposit (to
the extent not theretofore disbursed by Escrow Agent in accordance with the
terms of this Agreement) to Buyer, Seller shall pay for all of the cancellation
charges of Title Company and Escrow Agent, and, to the extent the failure of
any applicable Closing Condition is caused by a Seller default, Buyer shall be
entitled to pursue its rights and remedies pursuant to Section 13.2 hereof.
8. CLOSING.
8.1 Closing Dates.
8.1.1 Closing Date. Subject to the provisions of
this Agreement, the Closing shall take place on the date selected by Buyer in
Buyer's sole and absolute discretion and designated by Buyer in Buyer's Closing
Notice, which date shall be (i) at least thirty (30) days after the date that
Seller receives Buyer's Closing Notice and (ii) during the Closing Period.
Notwithstanding the foregoing, in the event that Buyer fails to deliver Buyer's
Closing Notice to Seller, the Closing shall take place on the last day of the
Closing Period.
8.1.2 Deferred Payment Date. In the event (and only
in the event) that (i) less than 100% of the Property is leased pursuant to
Qualified Leases as of the Closing and (ii) no Lease-Up Payment was made at the
Closing, then, subject to the provisions of this Agreement, Buyer shall be
required to deliver the Deferred Purchase Price to Seller on the earlier to
occur of the following (the "Deferred Payment Date"): (i) the date which is
270 days following the Closing Date or (ii) provided that the Deferred
Substantial Completion Date has occurred, such date as Seller may designate by
giving not less than ten (10) Business Days' written notice of such designation
to Buyer.
8.2 Deliveries by Seller. Not less than two (2) Business
Days prior to the Closing Date (unless otherwise provided herein), Seller, at
its sole cost and expense, shall deliver or cause to be delivered into Escrow
the following documents and instruments, each dated as of the Closing Date, in
addition to the other items and payments required by this Agreement to be
delivered by Seller:
8.2.1 Deed. The original executed and acknowledged
Deed conveying the Property to Buyer or, subject to Section 16.5.2 hereof, its
nominee;
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8.2.2 Non-Foreign Affidavit. The original executed
Non-Foreign Affidavit;
8.2.3 Assignment of Leases. Four (4) original
executed counterparts of the Assignment of Leases;
8.2.4 Assignment of REA. Four (4) original executed
and acknowledged counterparts of the Assignment of REA;
8.2.5 Xxxx of Sale and Assignment. Four (4)
original executed counterparts of the Xxxx of Sale and Assignment;
8.2.6 Seller's Certificate. Four (4) original
executed Seller's Certificates;
8.2.7 Proof of Authority. Such proof of Seller's
authority and authorization to enter into this Agreement and the transaction
contemplated hereby, and such proof of the power and authority of the
individual(s) executing or delivering any instruments, documents or
certificates on behalf of Seller to act for and bind Seller as may be
reasonably required by the Title Company; and
8.2.8 Other. Such other documents and instruments,
signed and properly acknowledged by Seller, if appropriate, as may be
reasonably required by the Title Company or otherwise in order to effectuate
the provisions of this Agreement and the Closing of the transactions
contemplated herein.
8.3 Deliveries by Buyer. On or before the Closing, Buyer
shall deliver or cause to be delivered into Escrow the following: (i) the
Initial Purchase Price (and the Lease-Up Payment if Seller elects to receive it
in accordance with Section 2.4.1 hereof) as required pursuant to Section 2
hereof and Buyer's share of prorations and Closing Costs, as provided in
Sections 8.5 and 8.6 hereof, respectively; (ii) four (4) original executed
counterparts of the Assignment of Leases; (iii) four (4) original executed and
acknowledged counterparts of the Assignment of REA; and (iv) such other
documents and instruments, signed and properly acknowledged by Buyer, if
appropriate, as may reasonably be required by Escrow Agent or otherwise in
order to effectuate the provisions of this Agreement and the Closing of the
transactions contemplated herein.
8.4 Actions by Escrow Agent. Provided that Escrow Agent
shall not have received written notice from Buyer or Seller of the failure of
any
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condition to the Closing or of the termination of the Escrow and this
Agreement, when Buyer and Seller have deposited into Escrow the documents and
funds required by this Agreement for the Closing (or upon the Deferred Payment
Date, as applicable), and when Title Company is committed to issue the Owner's
Title Policy and the Deferred Payment Endorsement concurrently with the Closing
(in accordance with Section 7.1.1 hereof), Escrow Agent shall, in the order and
manner herein below indicated, take the following actions:
8.4.1 Recording. Following Title Company's
acknowledgement that it is prepared and committed to issue to Buyer the Owner's
Title Policy and the Deferred Payment Endorsement, cause the Deed (if
applicable) and/or any other documents which the parties hereto may mutually
direct to be recorded in the Official Records and obtain conformed copies
thereof for distribution to Buyer and Seller.
8.4.2 Funds. Upon receipt of confirmation of the
recordation of the Deed (if applicable) and/or such other documents as were
recorded pursuant to Section 8.4.1 hereof, disburse all funds deposited with it
by Buyer as follows:
(a) pursuant to the respective Closing Statement,
retain for Escrow Agent's own account all applicable escrow fees and costs,
disburse to Title Company the fees and expenses incurred in connection with the
issuance of the Owner's Title Policy or the Deferred Payment Endorsement (as
applicable), and disburse to any other persons or entities entitled thereto the
amount of any other Closing Costs;
(b) disburse to Seller an amount equal to the
applicable portion of the Purchase Price, less or plus the net debit or credit
to Seller by reason of the prorations and allocation of respective Closing
Costs provided for in this Section 8. Seller's portion (as provided in Section
8.6 below) of the respective escrow fees, title fees and other respective
Closing Costs shall be paid pursuant to clause (a) above; and
(c) disburse to Buyer any remaining funds in the
possession of Escrow Agent after payments pursuant to (a) and (b) above have
been completed.
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8.4.3 Delivery of Documents. Deliver to Buyer and
Seller each two (2) originals of all documents, other than the Deed and the
Non-Foreign Affidavit, deposited into Escrow.
8.4.4 Title Policy. Cause Title Company to issue to
Buyer the Owner's Title Policy or the Deferred Payment Endorsement (as
applicable), within ten (10) Business Days following the Closing or the
Deferred Payment Date, as the case may be.
8.5 Prorations.
8.5.1 Rentals, revenues, and other income, if any,
from the Property, taxes, assessments, improvement bonds, service or other
contract fees, utility costs, and other expenses affecting the Property shall
be prorated between Buyer and Seller as of the Closing Date based on a 365-day
year. For purposes of calculating prorations, Buyer shall be deemed to be
title holder of the Property, and therefore entitled to the income and
responsible for the expenses, after 12:01 a.m. on the Closing Date.
Notwithstanding the foregoing, with respect to percentage rent under the Leases
assigned to Buyer at the Closing Date, prorations shall be made following the
end of the calendar years in which the Closing occurs so that all percentage
rents received by Buyer with respect to such calendar years shall be prorated
between Buyer and Seller as of the Closing Date. Delinquent rentals as of the
Closing Date shall not be prorated, but when paid to Buyer shall be delivered
by Buyer to Seller (provided that all current rent has then been paid with
respect to such Leases). After the Closing, Buyer shall use commercially
reasonable efforts to collect delinquent rents on behalf of Seller, provided
that with respect to such efforts Seller shall reimburse Buyer for its
reasonable costs and expenses. After the Closing, Seller shall have no right
to proceed in any manner or make any claim against any Tenant for rents that
were delinquent as of the Closing Date. On the Closing Date, Buyer shall
receive as a credit to the Initial Purchase Price an amount equal to the sum
of: (i) security deposits which were paid by Tenants to Seller, (ii) expenses
and other sums owed by Seller to Tenants for work which occurred prior to the
Closing Date and (iii) rentals already received by Seller attributable to
periods after the Closing Date. In the event that Seller is bound by any
agreement (expressed or implied) prior to the Closing requiring Seller or its
successor to pay any leasing commissions or fees in connection with the
post-Closing exercise of any extension or expansion options of Leases in effect
on or before the Closing, then Seller shall be responsible for the payment of
such commissions and/or fees when and if they become due. In no event shall
Seller be liable for any leasing commission and/or fees
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due in connection with brokerage agreements (expressed or implied) entered into
by Buyer after the Closing.
8.5.2 In the event that any dispute arises between
Seller and any Tenant on or before the Closing (other than disputes regarding
the payment of rent, which shall be governed by Section 8.5.1 hereof), then, at
the Closing, the Escrow Agent shall hold back in Escrow from the Initial
Purchase Price to be disbursed to Seller an amount equal to 125% of (i) the
amount claimed by the Tenant to be owed by Seller to the Tenant, its affiliates
or agents or (ii) if such amount is not reasonably ascertainable, the amount
Buyer reasonably determines to be in dispute. Upon the resolution of any
Tenant dispute for which amounts were held in Escrow at Closing, Seller and
Buyer shall promptly instruct the Escrow Agent in writing to disburse the
amounts held in Escrow with respect to such dispute as follows: (i) to Buyer,
the amount, if any, determined to be payable to the Tenant in connection with
such dispute (and Buyer shall be responsible for the payment of such amounts to
the Tenant) and (ii) to Seller, the amount, if any, remaining in Escrow after
any amounts are disbursed in accordance with clause (i). Nothing in this
Section 8.5.2 shall limit Seller's liability to Buyer under Section 15 hereof
for any amounts due to Tenants in excess of escrowed amounts.
8.5.3 All non-delinquent real estate taxes or
assessments on the Property (including, without limitation, Road District
assessment liens) shall be prorated based on the actual current tax xxxx, but
if such tax xxxx has not yet been received by Seller by the Closing Date or if
supplemental taxes are assessed after the Closing for the periods prior to the
Closing, the parties shall make any necessary adjustment after the Closing by
cash payment to the party entitled thereto so that Seller shall have borne all
real property taxes, including all supplemental taxes, allocable to the periods
prior to the Closing and Buyer shall bear all real property taxes, including
all supplemental taxes, allocable to the periods from and after the Closing.
If any expenses attributable to the Property and allocable to the periods prior
to the Closing are discovered or billed after the Closing, the parties shall
make any necessary adjustment after the Closing by cash payment to the party
entitled thereto so that Seller shall have borne all expenses allocable to the
periods prior to the Closing and Buyer shall bear all expenses allocable to the
periods from and after the Closing. With respect to the Road District
assessment: (i) Seller and Buyer acknowledge that Seller (or its predecessors)
has/have elected to pay such assessment in installments as permitted by the
Road District; and (ii) to the extent that, pursuant to the Leases, the Tenants
are obligated to reimburse the "landlord" under the Leases the amount of
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such installments, or any portion thereof, Seller shall be responsible for the
payment, at or prior to the Closing, of any installments of such Road District
assessment which have become due and payable on or prior to the Closing Date
(provided that the assessment installment applicable to the year in which the
Closing occurs shall be prorated between Seller and Buyer in accordance with
the provisions of the first sentence of this Section 8.5.3), and Buyer shall
assume, and thereafter be responsible for paying, all installments of the Road
District assessment becoming due subsequent to the Closing Date.
8.5.4 Ten (10) days prior to the Closing and ten
(10) days prior to the Deferred Payment Date, Escrow Agent shall deliver to
each of the parties for their review and approval a preliminary closing
statement (the "Preliminary Closing Statement") based on an income expense
statement prepared by Seller, approved by Buyer (which approval shall not be
unreasonably withheld or delayed), and delivered to Escrow Agent prior to said
date, setting forth (i) the proration amounts allocable to each of the parties
pursuant to this Section 8.5 and (ii) the Closing Costs allocable to each of
the parties pursuant to Section 8.6 hereof. Based on each of the party's
comments, if any, regarding any Preliminary Closing Statement, Escrow Agent
shall revise such Preliminary Closing Statement and deliver a final, signed
version of a closing statement to each of the parties at the Closing or the
Deferred Payment Date, as the case may be (the "Closing Statement").
8.5.5 The provisions of this Section 8.5 shall
survive the Closing and the Deferred Payment Date.
8.6 Closing Costs. Each party shall pay its own costs and
expenses arising in connection with the Closing and the Deferred Payment Date
(including, without limitation, its own attorney and advisor fees), except the
following costs (the "Closing Costs"), which shall be allocated between the
parties, for the Closing and the Deferred Payment Date, as applicable, as
follows:
(i) Seller shall pay any and all documentary
transfer, stamp, sales and other taxes related to the transfer of the Property,
one-half ( 1/2) of Escrow Agent's escrow fees and costs, the cost of the Survey
(if not already paid), the cost of the standard portion of the Owner's Title
Policy (or, as applicable, the cost of the Deferred Payment Endorsement), and
all recording fees.
(ii) Buyer shall pay one-half ( 1/2) of Escrow
Agent's escrow fees and costs, the cost of the modification of the "survey
exception" to the
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Owner's Title Policy, and the cost of all endorsements to the Owner's Title
Policy (other than the Deferred Payment Endorsement).
8.7 Deliveries Outside of Escrow. Seller shall deliver
possession of the Property, subject to the Leases, to Buyer upon the Closing.
Furthermore, Seller hereby covenants and agrees to deliver to Buyer, on or
prior to the Closing, the following items to the extent the same are in Seller
or Seller's agents' possession or control or are readily available to Seller:
8.7.1 Approvals. Originals of the Approvals;
8.7.2 Intangible Property. The Intangible Property,
including, without limitation, the original Property Documents and the original
Leases; and
8.7.3 Personal Property. The Personal Property,
including, without limitation, all keys, pass cards, remote controls, security
codes, computer software and other devices relating to access to the
Improvements.
8.7.4 Notices.
8.7.4.1 Notice to Tenants. A letter for
each Tenant in the form attached hereto as Exhibit "N," duly executed by Seller
and Buyer, dated as of the Closing Date and addressed to the Tenants, informing
such Tenants of the transfer of the Property and the assignment of the Leases
to Buyer together with an instruction to pay all amounts due under the Leases
following the Closing Date to Buyer.
8.7.4.2 Notice to Vendors. A letter for
each of the vendors of the Service Contracts in the form attached hereto as
Exhibit "O," duly executed by Seller, dated as of the Closing Date and
addressed to each Service Contract vendor, informing said vendors of the
assignment of the Service Contracts to Buyer.
9. SELLER'S REPRESENTATIONS AND WARRANTIES.
Subject to the terms of Sections 3 and 4 hereof, Seller
represents and warrants to and agrees with Buyer, as of the Execution Date to
Seller's current, actual knowledge and, subject to Seller's right to supplement
its representations and warranties as herein set forth and except as may
otherwise be dis-
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closed in the Title Documents, the Property Documents or the Leases, as of the
Closing, as follows:
9.1 Title. Seller is the legal and equitable owner of the
Property.
9.2 Leases.
9.2.1 Lease Schedule. The schedule attached hereto
as Exhibit "P" (the "Lease Schedule") is true, correct and complete with
respect to: (i) the Leases now in effect at the Property; (ii) the identities
of the Tenants; (iii) the space to be occupied by the Tenants and the rentable
area thereof; (iv) the commencement and expiration dates of the Leases; (v) the
security and other deposits maintained, if any, with respect to the Leases;
(vi) the current rents; (vii) all contributions to common area maintenance,
operating expenses and insurance under the Leases; and (viii) any and all
advances, concessions, allowances, credits, rebates, offsets or other cases for
relief or adjustment, including, without limitation, any unpaid reimbursements
for Tenant improvements and any "free" or "reduced" rent.
9.2.2 Delivery of Leases. True, correct and
complete copies of all Leases shall be delivered to Buyer in accordance with
Section 6.1.1 hereof.
9.2.3 Security Deposits. Except as set forth on the
Lease Schedule, there are no security deposits held by the landlord under any
of the Leases.
9.2.4 No Pre-paid Rent. No Tenant has paid any rent
for more than one (1) month in advance except as may otherwise be set forth in
the Lease Schedule.
9.2.5 No Broker's Commissions. There will be no
brokerage or other leasing commissions payable in connection with any of the
Leases or any amendments thereto; provided, however, that to the extent, and
only to the extent, that broker commissions may be due in connection with
pre-Closing commitments made by Seller with respect to the post-Closing
exercise of any extension or expansion options that may exist under the Leases,
such commissions, if any, shall be payable by Seller in accordance with Section
8.5.1 hereof.
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9.2.6 No Lease Amendments. Seller shall not extend,
renew or amend any Lease, without Buyer's prior written consent, which consent
shall not be unreasonably withheld. Buyer's consent shall not be required in
connection with any amendments that do not impact the economic terms or have
any material adverse affect on any other terms of any Lease.
9.2.7 Assignment. All of the Leases are assignable
to Buyer in connection with its purchase of the Property without the necessity
for any approval, consent or additional payment.
9.3 REA. The REA is in full force and effect and has not
been assigned, modified, supplemented or amended, except in accordance with the
terms of Section 11.3 hereof. No party to the REA is in default of its
obligations thereunder or would be in default with the giving of notice or
passage of time or both.
9.4 Condition of Property. To Seller's knowledge and subject
to the construction which is underway in accordance with the Construction
Documents, the Real Property constructed to date has been constructed in a good
and workmanlike manner substantially in accordance with the Construction
Documents and is in good condition and repair and free from any defects that
would materially interfere with the use of any portion of the Property for the
purpose for which it is intended.
9.5 Special Assessments or Condemnation. There are not
presently pending (i) any special assessments (other than non- delinquent Road
District assessments) or (ii) condemnation actions against the Property or any
part, and Seller has no knowledge of any threatened, contemplated or pending
special assessments or eminent domain proceedings that would affect the
Property or any part thereof in any way whatsoever.
9.6 Utilities. Seller has no knowledge of any basis on which
access to adequate water, sewer, electric, gas, telephone, drainage and other
utilities would not be available to the Property after the Closing.
9.7 Service Contracts. There are no service, maintenance,
repair, management, leasing, or supply contracts or other contracts (including,
without limitation, janitorial, elevator, equipment, brokerage, and landscaping
agreements) (the "Service Contracts") affecting the Property, oral or written,
other than Service Contracts which are cancelable without cost at the option of
Seller or
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the then owner of the Property upon not more than thirty (30) days' prior
written notice. All of the Service Contracts are assignable to Buyer in
connection with its purchase of the Property without the necessity for any
approval, consent or additional payment. True, correct and complete copies of
all Service Contracts shall be delivered to Buyer in accordance with Section
6.1.1 hereof.
9.8 Employees. There are no employees of Seller employed in
connection with the use, management, maintenance or operation of any portion of
the Property whose employment will continue after the Closing Date. There is
no bargaining unit or union contract relating to any employees of Seller.
9.9 Consents and Releases. Seller has obtained (or will
obtain in due course prior to the Closing) all required consents, releases, and
permissions to convey good and indefeasible title to Buyer.
9.10 Authority. This Agreement and all other documents
delivered prior to or at the Closing (i) have been duly authorized, executed,
and delivered by Seller; (ii) are binding obligations of Seller; (iii) are
collectively sufficient to transfer all of Seller's rights to the Property; and
(iv) do not violate the formation documents of Seller. Seller further
represents that it is a limited partnership duly organized and existing in good
standing under the laws of the State of Texas with its principal place of
business in the State of Texas.
9.11 Bankruptcy. No filing or petition under the United
States Bankruptcy Law or any insolvency laws, or any laws for composition of
indebtedness or for the reorganization of debtors has been filed with regard to
Seller.
9.12 Foreign Investment in Real Property Tax Act. Seller is
not a foreign person within the meaning of 42 USCS Section 1445(f)(3).
9.13 Existing Approvals. To Seller's knowledge, the
documents set forth on Exhibit "Q" attached hereto (collectively, the
"Approvals") are in full force and effect and constitute all necessary or
appropriate certifications, approvals, consents, authorizations, waivers,
licenses, variances, permits, easements and rights of way, including proofs of
dedication, which are required by any governmental authority in connection with
the ownership, development, management, use and maintenance of the Property.
To Seller's knowledge, none of the Approvals has been assigned or encumbered
except to Mortgage Lender. All of the Approvals are transferable to Buyer
without the necessity of any approval or consent or additional pay-
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ment and no such transfer will affect the validity thereof. Seller has no
knowledge of any governmental action to suspend or revoke any of the Approvals.
9.14 Insurance. As of the Execution Date, there will be in
effect such insurance policies as are customarily maintained with respect to
similar properties. All premiums due on such insurance policies will be paid
by Seller and Seller will maintain such insurance policies from the Execution
Date through the Closing Date or earlier termination of this Agreement. Seller
hereby covenants to name Buyer as an additional insured during the period prior
to the Closing; provided, however, that in no event shall Buyer interfere or
participate in any claim made by Seller in connection with such insurance
policies except as expressly provided in Section 12.2 hereof.
9.15 Taxes. Seller will use reasonable efforts to obtain and
deliver to Buyer (as part of the Property Documents pursuant to Section 6.1.1
hereof) true, correct and complete copies of the bills for the real estate
taxes and assessments against the Property for the last three (3) years.
Seller is not prosecuting any appeals of any taxes or assessments affecting the
Property. To Seller's knowledge, except as disclosed herein, there are no
special assessments currently pending against the Property (other than
non-delinquent Road District assessments).
9.16 Litigation. Except as set forth on the schedule
attached hereto as Exhibit "R", there are no actions, suits or proceedings
before any judicial or quasi-judicial body, by any governmental authority or
other third party, pending, or to Seller's knowledge, threatened, against or
affecting all or any portion of the Property and to Seller's knowledge, there
is no basis for any such action. There are no actions, suits or proceedings
pending, contemplated or threatened by Seller in connection with all or any
portion of the Property or Seller's ownership, rights, use, development or
maintenance thereof, including, without limitation, tax reduction proceedings;
and from and after the date hereof, Seller shall not commence or allow to be
commenced on its behalf any action, suit or proceeding with respect to all or
any portion of the Property without the prior written consent of Buyer. No
attachments, execution proceedings, assignments for the benefit of creditors,
insolvency, bankruptcy, reorganization or other proceedings are pending, or, to
Seller's knowledge, threatened, against Seller. To Seller's knowledge, there
are no outstanding or unpaid judgements affecting the Property.
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9.17 Compliance with Laws. Seller has received no written
notice of, and has no knowledge of, any condition currently or previously
existing on the Property or any portion thereof which may give rise to any
violation of any existing Law applicable to the Property if it were disclosed
to the authorities having jurisdiction over the Property.
9.18 Zoning. Seller has previously provided, or will provide
within five (5) Business Days after the Opening of Escrow, a true and correct
copy of Seller's Site Development Permit issued by the City of Austin with
respect to the improvements Seller is presently constructing on the Property.
To Seller's knowledge, the Land is presently zoned so as to permit (i) the full
and complete construction of the Improvements as contemplated in the
Construction Documents and (ii) the operation of the Shopping Center following
the completion of construction. Seller has no knowledge of any pending or
threatened proceedings to alter or restrict the zoning or other use
restrictions applicable to the Property. Except with respect to the Xxxxxxx
Aquifer Recharge Zone and the Xxxxxxxxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx Xx.0, the
Property is not located in any flood, conservation, historic or other special
district.
9.19 Toxic or Hazardous Materials. Except for any
disclosures set forth in (i) that certain Environmental Site Assessment dated
July 27,1995, prepared by HBC Engineering, Inc. ("Seller's Environmental
Report"), and (ii) any environmental report prepared for Buyer in connection
with its due diligence with respect to the Property, Seller has no knowledge of
(1) the presence of any underground storage tanks at or under the Property, (2)
any Material of Environmental Concern located on or at, or being released to or
from, the Property in quantities sufficient to incur liability, or to require
reporting or remedial work, under any Environmental Law or (3) any
Environmental Claim pending or threatened with regard to the Property. Seller
will construct the Improvements in accordance with the requirements of all
applicable Environmental Laws.
9.20 No Restriction on Access. Seller has no knowledge of
any fact or condition which would prohibit or adversely affect any right of
access to or from the Property from or to the existing highways and roads as
contemplated in the Construction Documents (subject to the customary
requirements of the City of Austin and the Texas Department of Highways and
Transportation) and Seller has no knowledge of any pending or threatened
restriction or denial, governmental or otherwise, with respect to such ingress
and egress.
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9.21 Storm Drainage. To Seller's knowledge, all storm water
flowing from the Property drains either into a public system or onto a
permitted location and through easements for the benefit of the Property.
9.22 Soils; Floods. Except as may be disclosed in (i)
Seller's Environmental Report, (ii) any soils report to be made available for
Buyer's review and examination as part of the Property Documents or (iii) any
soils report prepared for Buyer in connection with its due diligence with
respect to the Property, Seller has no knowledge of any unusual or peculiar
soil conditions at the Property which would preclude the utilization of
construction techniques typically and customarily utilized in the Xxxxxx,
Xxxxxx County, Texas area for construction of improvements similar in character
to the Improvements. To Seller's knowledge, no part of the Real Property is in
an area identified by any agency or department of the federal, state or local
government as having special flood or mud slide hazards.
9.23 No Conflicts. The execution and delivery of this
Agreement, the consummation of the transactions herein contemplated, and
compliance with the terms of this Agreement will not conflict with, or, with or
without notice or the passage of time or both, result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, deed of
trust, mortgage, loan agreement, or other document, or instrument or agreement,
oral or written, to which Seller is a party or by which Seller or the Property
is bound, or any applicable regulation of any governmental agency, or any
judgment, order or decree of any court having jurisdiction over Seller or all
or any portion of the Property.
9.24 Ownership of Intangible and Personal Property. Seller
is (or will be prior to the Closing) the legal and equitable owner of all of
the Personal Property and Intangible Property necessary to properly operate the
Property as a Shopping Center. As of the Closing, Seller shall own such
Personal Property and Intangible Property free and clear of all options, liens,
claims, encumbrances, covenants, conditions, restrictions, and any other
matters affecting title. Seller has the full right to convey the Personal
Property and the Intangible Property.
9.25 Disclosure. The Property Documents, the Leases and the
Title Documents constitute all of the information and documents, which
specifically concern the Property, of which Seller has knowledge that could
have a material effect on Buyer's decision to purchase the Property.
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9.26 Seller's Right To Supplement; Effect of Incorrectness;
Survival. If, prior to the Closing, Seller becomes aware that any
representation or warranty set forth in this Agreement which was true and
correct on the Execution Date has become incorrect due to changes in conditions
outside of the control of Seller or the discovery by Seller of information of
which Seller was unaware on the Execution Date, the same shall not constitute a
breach by Seller of any of its representations or warranties set forth herein
or be deemed to be a default by Seller in its obligations under this Agreement,
but Seller shall immediately notify Buyer thereof and the representations and
warranties set forth herein which are to be remade and reaffirmed by Seller at
the Closing shall be supplemented by such new information in the Seller's
Certificate. Notwithstanding anything to the contrary herein, if, pursuant to
the preceding sentence, Seller becomes aware that any representation or
warranty set forth in this Agreement which was true and correct on the
Execution Date has become materially incorrect due to changes in conditions or
the discovery of information by Seller of which Seller was unaware on the
Execution Date and notifies Buyer of such fact prior to Closing, and Seller is
unable to alleviate any potential material adverse effect upon Buyer or the
Property by reason thereof prior to Closing, then Buyer shall have the right to
proceed in accordance with Section 7.2 hereof. The representations and
warranties of Seller set forth herein (as the same are to be remade, reaffirmed
and/or supplemented in Seller's Certificate) shall be deemed to be repeated at
and as of the Closing Date without the necessity of a separate certificate with
respect thereto and shall survive the delivery of the Deed and other closing
instruments and documents for a period of one (l) year following the Closing
(such period of time being referred to herein as the "Survival Period").
9.27 Seller's Knowledge. In making the representations and
warranties set forth in this Agreement and/or in any of the closing documents
to be executed and delivered by Seller at Closing, including, if applicable,
any Seller Estoppel and the Seller's REA Estoppel Certificate which may be
executed by Seller at Closing, Seller's representative, Xxxxxx X. Xxxxxx, has
taken the following actions (the "Investigation"), and no other actions: (a)
reviewed all relevant files presently in the physical possession of Seller
relating to the Property and (b) confirmed the accuracy of such representations
and warranties with Xxx Xxxxxx and Xxxx Xxxxxxxx. Whenever the phrase
"Seller's knowledge" or any similar phrase is used in this Agreement or any
document subsequently executed by Seller in connection with this Agreement
(including Seller's Certificates), the same shall be deemed to mean and refer
to the then current actual knowledge of Xxxxxx X. Xxxxxx after undertaking the
above Investigation, and does not include (nor shall it be deemed to include)
any constructive knowledge or inquiry
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knowledge of Seller beyond that revealed solely by the Investigation. In no
event will the knowledge or information possessed or obtained by Broker or
Financial Advisor (or any agent, employee or representative of Broker or
Financial Advisor) be imputed to Seller. Notwithstanding the foregoing, any
claim for breach of the representations and warranties herein shall be made
against Seller and not against Xxxxxx X. Xxxxxx (or Xxx Xxxxxx or Xxxx Xxxxxxxx)
personally. Seller represents that Xxxxxx X. Xxxxxx is the person employed by
Seller in an executive or overseeing management capacity who is most familiar
with the condition, construction and leasing of the Property.
9.28 No Other Warranties Or Representations. EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THE FORE- GOING
PROVISIONS OF THIS ARTICLE 9 OR ELSEWHERE IN THIS AGREEMENT, OR IN ANY OF THE
WRITTEN CLOSING DOCUMENTS TO BE EXECUTED BY SELLER AT CLOSING, AND THEN ONLY TO
THE EXTENT EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE APPLICABLE WRITTEN
CLOSING DOCUMENTS (IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT NO
REPRESENTATIONS, WARRANTIES OR COVENANTS OF SELLER MAY BE IMPLIED OR INFERRED
BEYOND THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN SUCH WRITTEN CLOSING
DOCUMENTS AND THAT SELLER SHALL NOT BE BOUND BY NOR HELD ACCOUNTABLE FOR ANY
STATEMENTS, ASSURANCES OR OTHER COMMUNICATIONS, WHETHER WRITTEN OR ORAL AND
REGARDLESS OF WHETHER THE SAME MIGHT BE INTERPRETED AS REPRESENTATIONS,
WARRANTIES OR COVENANTS, MADE OR OFFERED BY BROKER OR ANY THIRD PARTY), SELLER
HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR
WRITTEN, EXPRESS, IMPLIED OR STATUTORY, PAST, PRESENT OR FUTURE, OF, AS TO, OR
CONCERNING (i) THE NATURE AND CONDITION OF THE PROPERTY, IN- CLUDING, WITHOUT
LIMITATION, THE WATER, SOIL AND GEOLOGY, THE SUITABILITY THEREOF AND OF THE
PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY ELECT TO CONDUCT;
(ii) THE EXISTENCE OF ANY ENVIRONMENTAL HAZARDS OR CONDITIONS (INCLUDING, BUT
NOT LIMITED TO, THE PRESENCE OF ASBESTOS OR OTHER HAZARDOUS MATERIALS), OR
COMPLIANCE WITH APPLICABLE ENVIRONMENTAL LAWS, RULES OR REGULATIONS; (iii) THE
NATURE AND EXTENT OF ANY RIGHT-OF-WAY, EASEMENT, LEASE, POSSESSION, LIEN,
ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR RESTRICTION; AND/OR (iv) THE
COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH ANY
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LAWS, ORDINANCES OR REGULATIONS OF ANY GOVERNMENTAL ENTITY OR BODY. BUYER
ACKNOWLEDGES AND AGREES THAT IT WILL INSPECT THE PROPERTY. THE SALE OF THE
PROPERTY IS MADE ON AN "AS IS," "WHERE IS" AND "WITH ALL FAULTS" BASIS, AND
BUYER EXPRESSLY ACKNOWLEDGES AND AGREES, FOR THE BENEFIT OF THE SELLER, THAT,
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH ABOVE IN THIS
ARTICLE 9 OR ELSEWHERE IN THIS AGREEMENT, OR IN ANY OF THE WRITTEN CLOSING
DOCUMENTS TO BE EXECUTED BY SELLER AT CLOSING, THE SELLER MAKES NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, OR IMPOSED BY STATUTE OR OTHERWISE ARISING
BY OPERATION OF LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF CONDITION,
TITLE (OTHER THAN THE SPECIAL WARRANTY OF TITLE OF SELLER TO BE CONTAINED IN
THE DEED), HABITABILITY, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE WITH RESPECT TO THE PROPERTY OR ANY PORTION THEREOF.
ALTHOUGH THE ABOVE DISCLAIMERS, AGREEMENTS, WAIVERS AND OTHER MATTERS SHALL NOT
BE SET FORTH IN THE DEEDS, IT IS EXPRESSLY UNDERSTOOD AND AGREED,
NOTWITHSTANDING ANY PROVISION CONTAINED ELSEWHERE IN THIS AGREEMENT WHICH MIGHT
BE CONSTRUED OTHERWISE, THAT ALL OF THE DISCLAIMERS, AGREEMENTS, WAIVERS AND
OTHER MATTERS SET FORTH IN THIS SECTION SHALL SURVIVE THE CLOSING FOR AN
UNLIMITED PERIOD OF TIME. THE PROVISIONS OF THIS SECTION 9.28 ARE A MATERIAL
INDUCEMENT TO SELLER'S ENTERING INTO THIS AGREEMENT.
10. BUYER'S REPRESENTATIONS AND WARRANTIES.
Buyer represents and warrants to and agrees with Seller as of
the Execution Date and as of the Closing, as follows:
10.1 No Conflicts. The execution and delivery of this
Agreement, the consummation of the transactions herein contemplated, and
compliance with the terms of this Agreement will not conflict with, or, with or
without notice or the passage of time or both, result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, deed of
trust, mortgage, loan agreement, or other document or instrument to which Buyer
is a party or by which Buyer is bound, or any applicable regulation of any
governmental agency,
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or any judgment, order or decree of any court having jurisdiction over Buyer or
all or any portion of the Property.
10.2 Due Organization; Consents. Buyer is a corporation duly
organized and existing in good standing under the laws of the State of Maryland
with its principal place of business in the State of California. Subject to
terms of Section 6.3 hereof, (i) all requisite corporate action has been taken
by Buyer in connection with entering into this Agreement, and will be taken
prior to the Closing in connection with the execution and delivery of the
instruments referenced herein and the consummation of the transactions
contemplated hereby; and (ii) no consent of any partner, shareholder,
beneficiary, creditor, investor, judicial or administrative body, governmental
authority or other party is required in connection herewith which has not been
obtained.
10.3 Buyer's Authority; Validity of Agreements. Subject to
terms of Section 6.3 hereof, (i) Buyer has full right, power and authority to
purchase the Property from Seller as provided in this Agreement and to carry
out its obligations hereunder; (ii) the individual(s) executing this Agreement
and the instruments referenced herein on behalf of Buyer have the legal power,
right and actual authority to bind Buyer to the terms hereof and thereof; and
(iii) this Agreement is and all other documents and instruments to be executed
and delivered by Buyer in connection with this Agreement shall be duly
authorized, executed and delivered by Buyer and shall be valid, binding and
enforceable obligations of Buyer.
10.4 Buyer's Financial Ability to Perform. Buyer either (i)
has assets of $25,000,000.00 or more or (ii) is owned or controlled by a
corporation or other entity with assets of $25,000,000.00 or more.
11. ADDITIONAL COVENANTS OF SELLER.
In addition to the covenants and agreements of Seller set
forth elsewhere in this Agreement, Seller covenants and agrees that, except as
expressly provided herein, between the Execution Date and the Deferred Payment
Date (or, if no Deferred Payment Date exists, then until the Closing):
11.1 Title. Seller shall not directly or indirectly sell,
assign or create any right, title or interest whatsoever in or to the Property,
or create or permit to exist thereon any lien, charge or encumbrance other than
the Permitted Exceptions, or enter into any agreement to do any of the
foregoing, without the
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prior written consent of Buyer, which consent shall not be unreasonably
withheld or delayed, it being understood and agreed that if Buyer does not
provide a written objection to Seller within five (5) Business Days following
Seller's written request to Buyer for approval of any particular proposed
agreement or encumbrance concerning title to the Property, Buyer shall be
deemed to have approved of the particular agreement or encumbrance and Seller
shall be free to execute and/or record the same with the effect that, upon such
recordation, such agreement or encumbrance shall be deemed to be a "Permitted
Exception" hereunder.
11.2 Leases. Seller shall not directly or indirectly enter
into any New Leases (or any renewals, modifications or extensions of any
Leases) except as provided in Article 3 hereof.
11.3 Operating Agreements. Seller shall not directly or
indirectly enter into (i) any operating agreement or reciprocal easement
agreement or (ii) any renewal, amendment, modification, extension, termination
or restatement of the REA, without Buyer's prior written consent, which consent
shall not be unreasonably withheld or delayed, it being understood and agreed
that if Buyer does not provide a written objection to Seller within five (5)
Business Days following Seller's written request to Buyer for approval of any
particular proposed operating or reciprocal easement agreement, or amendment
concerning the Property, Buyer shall be deemed to have approved of the
particular agreement or amendment and Seller shall be free to execute and/or
record the same with the effect that, upon such recordation, such agreement or
amendment shall be deemed to be a "Permitted Exception" hereunder.
11.4 Service, Management and Employment Contracts. Seller
shall not directly or indirectly (i) enter into any new service contracts (or
renewals, modifications or extensions of any Service Contracts) or (ii) enter
into, extend, renew or replace any existing property management or employment
contracts in respect of the Property, without the prior written consent of
Buyer (which consent shall not be unreasonably withheld or delayed, it being
understood and agreed that if Buyer does not provide a written objection to
Seller within five (5) Business Days following Seller's written request to
Buyer for approval of any particular proposed agreement or contract concerning
the Property, Buyer shall be deemed to have approved of the particular
agreement or contract and Seller shall be free to execute the same), unless the
same shall be cancellable without penalty or premium, upon not more than thirty
(30) days' notice from the owner of the Property.
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11.5 No Pre-paid Rent. Seller shall not accept any rent from
any Tenant (or any new tenant under any New Lease) for more than two (2) months
in advance of the payment date in addition to any security deposits required
under any of the Leases.
11.6 No Defaults; Maintenance of Property. Seller shall not
default with respect to the performance of any material obligation relating to
the Property, including, without limitation, the payment of all amounts due and
the performance of all obligations with respect to the Leases, any REA, the
Service Contracts, and any construction or existing indebtedness relating to
the Property. Seller shall operate and maintain the Property in accordance
with Seller's past practice and all applicable Laws, rules and regulations
affecting the Property or any portion thereof.
11.7 Exclusive Negotiations. From and after the Opening of
Escrow and for so long thereafter as this Agreement remains in full force and
effect, Seller shall (i) remove the Property from the market, (ii) cease and
refrain from any and all negotiations with any other prospective optionees or
purchasers of the Property, and (iii) subject to the terms of Section 3 hereof,
advise Buyer of (and keep Buyer fully informed with respect to) any
negotiations with Tenants or potential tenants of the Property.
11.8 Litigation. From and after the date hereof, Seller
shall not commence or allow to be commenced on its behalf any action, suit or
proceeding with respect to all or any portion of the Property without the prior
written consent of Buyer, which consent shall not be unreasonably withheld or
delayed, it being understood and agreed that if Buyer does not provide a
written objection to Seller within five (5) Business Days following Seller's
written request to Buyer for approval of any particular proposed action, suit
or proceeding, Buyer shall be deemed to have approved of the particular action,
suit or proceeding and Seller shall be free to commence the same. In the event
that any proceeding of the character described in Section 9.16 hereof is
initiated prior to the Closing, Seller shall promptly advise Buyer in writing.
Seller hereby agrees to forever indemnify, defend and hold harmless Buyer from
and against any and all loss, cost, damage and expense (including, without
limitation, reasonable attorneys' fees, charges and disbursements) accruing
from any presently pending litigation with respect to the Property.
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11.9 Zoning. Except as expressly approved by Buyer in
writing, Seller shall not seek any change in the zoning of the Real Property
and shall take all actions necessary to maintain the present zoning of the Real
Property.
11.10 Mortgage Lender's Consent. Seller shall use its best
efforts to obtain on or before the thirtieth (30th) day following the Execution
Date, the Mortgage Lender's (i) consent to the execution of this Agreement and
(ii) agreement to sell the Property to Buyer in accordance with the terms of
this Agreement, in the event that the Mortgage Lender forecloses upon the
Property or any portion thereof.
12. RISK OF LOSS.
12.1 Condemnation. If, prior to the Closing, all or any
material portion of the Property is taken by condemnation or eminent domain (or
is the subject of a pending or contemplated taking which has not been
consummated), Seller shall immediately notify Buyer of such fact. In such
event, Buyer shall have the option to terminate this Agreement upon written
notice to Seller given not later than thirty (30) days after Buyer's receipt of
such notice from Seller. Upon such termination, Escrow Agent shall return the
Deposit then held by Escrow Agent to Buyer, the parties shall equally share the
cancellation charges of Escrow Agent and Title Company, and neither party shall
have any further rights or obligations hereunder, other than pursuant to any
provision hereof which expressly survives the termination of this Agreement.
Buyer shall have no right to terminate this Agreement as a result of any
nonmaterial taking of the Property. If Buyer does not elect or has no right to
terminate this Agreement, Seller shall assign and turn over to Buyer at the
Closing, and Buyer shall be entitled to receive and keep, all awards for the
taking by condemnation and Buyer shall be deemed to have accepted the Property
subject to the taking without reduction in the Purchase Price.
12.2 Casualty. Prior to the Closing and notwithstanding the
pendency of this Agreement, the entire risk of loss or damage by earthquake,
flood, landslide, fire, hurricane, tornado or other casualty to the Property
shall be borne and assumed by Seller. If, prior to the Closing any material
part of the Property is damaged or destroyed by earthquake, flood, landslide,
fire, hurricane, tornado or other casualty, Seller shall immediately notify
Buyer of such fact. In such event, Buyer shall have the option to terminate
this Agreement in the same manner as provided in Section 12.1 hereof upon
written notice to Seller given not later than thirty (30) days after receipt of
any such notice from Seller. Buyer
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shall have no right to terminate this Agreement as a result of any nonmaterial
damage or destruction of the Property. If Buyer does not elect or has no right
to terminate this Agreement, Seller shall assign and turn over to Buyer at the
Closing, and Buyer shall be entitled to receive and keep, all insurance
proceeds payable with respect to such damage or destruction (which shall then
be repaired or not at Buyer's option and cost) and Buyer shall receive as a
credit against the Purchase Price an amount equal to the deductible amount with
respect to the insurance and the parties shall proceed to the Closing pursuant
to the terms hereof without modification of the terms of this Agreement. If
Buyer does not elect or has no right to terminate this Agreement by reason of
any casualty, Buyer shall have the right to participate in any adjustment of
the insurance claim.
12.3 Materiality. As used in Sections 12.l and 12.2 hereof,
the term "material" shall mean and refer to any portion of the Property taken
by condemnation or eminent domain or damaged by an uninsured casualty, as the
case may be, valued at $150,000.00 or more, as determined by an independent
contractor mutually selected by Seller and Buyer. As used in Section 12.2
hereof, the term "material" shall mean and refer to any portion of the Property
damaged by an insured casualty valued at $250,000.00 or more, as determined by
an independent contractor mutually selected by Seller and Buyer.
13. REMEDIES.
13.1 Buyer Default.
13.1.1 In the event that (i) Buyer elects to deposit
(and does deposit) the Letter of Credit into Escrow in accordance with Section
2.1.2 hereof, (ii) the Closing fails to occur solely as a result of Buyer's
default and (iii) Escrow Agent receives written notice of such Buyer's default
from Seller ("Seller's Default Notice"), then Escrow Agent shall draw upon the
Letter Credit in an amount equal to the full face amount of the Letter of
Credit, without the need for any approval or consent of Buyer, and regardless
of any potential objection by Buyer, it being expressly agreed and understood
among Seller, Buyer and Escrow Agent that Escrow Agent may conclusively rely
upon Seller's Default Notice in drawing upon the Letter of Credit and that
Buyer's sole remedy in connection with such draw, if Seller's Default Notice is
incorrect, shall be against Seller and not Escrow Agent. Once there has been a
draw upon the Letter of Credit in accordance with the terms hereof, (i) the
full amount of such draw shall be held by Escrow Agent as part of the Deposit
in accordance with Section 13.1.3 hereof and (ii) Escrow Agent shall deliver to
Buyer a copy of
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Seller's Default Notice together with a written notice indicating that there
has been a draw upon the Letter of Credit (collectively, "Escrow's Draw
Deliveries"). In the event that Buyer disputes the alleged Buyer's default
identified in Seller's Default Notice, Buyer shall deliver written notice of
such dispute to Seller and Escrow Agent on or before the fifth (5th) Business
Day following Buyer's receipt of Escrow's Draw Deliveries, in which event
Escrow Agent shall hold the Deposit in Escrow pending the final resolution of
such dispute. If Buyer fails to deliver such written notice within such five
(5) day period, Escrow Agent may distribute the Deposit in accordance with
Section 13.1.3 hereof, without the need for any approval or consent of Buyer,
it being expressly agreed and understood among Seller, Buyer and Escrow Agent
that Buyer's sole remedy in such event, if Seller's Default Notice is
incorrect, shall be against Seller and not Escrow Agent.
13.1.2 In the event that (i) the Closing fails to
occur solely as a result of Buyer's default and (ii) Buyer shall have delivered
to Seller Buyer's Specific Performance Notice in accordance with Section 2.1.2
hereof, then Seller shall have the right to pursue its specific performance
remedy in accordance with Section 13.1.4 hereof, by delivering to Buyer written
notice of its election to pursue specific performance (the "Specific
Performance Election"), within ninety (90) days following the occurrence of
such Buyer's default. In the event that Seller fails to deliver the Specific
Performance Election to Buyer within such ninety (90) day period, then Seller's
sole and exclusive remedy hereunder shall be the receipt of liquidated damages
in accordance with Section 13.1.3 hereof.
13.1.3 IN THE EVENT THAT THE CLOSING FAILS TO OCCUR
SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS
OBLIGATIONS UNDER THIS AGREEMENT AND SELLER HAS NOT DELIVERED (OR IS NOT DEEMED
TO HAVE DELIVERED) THE SPECIFIC PERFORMANCE ELECTION TO BUYER, BUYER AND SELLER
AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY
DIFFICULT TO FIX. THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT THE
CLOSING FAILS TO OCCUR SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE
PERFORMANCE OF ITS OBLIGATIONS HEREUNDER AND SELLER HAS NOT DELIVERED (OR IS
NOT DEEMED TO HAVE DELIVERED) THE SPECIFIC PERFORMANCE ELECTION TO BUYER,
SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED
DAMAGES IN THE AMOUNT OF THE DEPOSIT (INCLUDING ANY AND ALL INTEREST AND
DIVIDENDS EARNED THEREON) THEN HELD BY ESCROW AGENT. IN THE EVENT THAT THE
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CLOSING FAILS TO OCCUR SOLELY AS A RESULT OF BUYER'S DEFAULT AND SELLER HAS NOT
DELIVERED (OR IS NOT DEEMED TO HAVE DELIVERED) THE SPECIFIC PERFORMANCE
ELECTION TO BUYER, THEN (1) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (2)
ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY
TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED
THE SAME, (3) ESCROW AGENT SHALL DELIVER THE DEPOSIT (INCLUDING ANY AND ALL
INTEREST AND DIVIDENDS EARNED THEREON) THEN HELD BY ESCROW AGENT TO SELLER
PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND
LIQUIDATED DAMAGES, AND (4) ALL TITLE AND ESCROW CANCELLATION CHARGES SHALL BE
CHARGED TO BUYER.
SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND
UNDERSTAND THE PROVISIONS OF THIS SECTION 13.1.3, AND BY THEIR INITIALS
IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
[init.] [init.]
---------- ----------
Seller's Initials Buyer's Initials
13.1.4 In the event that (i) Buyer shall have
delivered Buyer's Specific Performance Notice to Seller in accordance with
Section 2.1.2 hereof, (ii) Seller delivers the Specific Performance Election to
Buyer and (iii) the Closing fails to occur solely as a result of Buyer's
default, then Seller shall, as its sole and exclusive remedy, have the right to
seek the specific performance of this Agreement.
13.2 Default by Seller. In the event that the Closing of the
transactions contemplated in this Agreement does not occur by reason of any
default by Seller, then (i) Escrow Agent shall return the Deposit then held by
Escrow Agent to Buyer and (ii) Buyer shall, as its sole remedy, elect to either
(1) terminate this Agreement, in which event Seller shall reimburse Buyer for
its reasonable out-of-pocket expenses (including, without limitation,
reasonable attorneys' fees, charges and disbursements) incurred in connection
with the negotiation of this Agreement and Buyer's due diligence efforts or (2)
seek the specific performance of this Agreement. Notwithstanding anything to
the contrary
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hereunder, Seller shall not be in default with respect to any of its
obligations hereunder unless and until (i) it receives written notice from
Buyer specifying such default and (ii) it fails to cure such default within
five (5) Business Days after receipt of such notice.
13.3 Breach of Representation or Warranty. Notwithstanding
anything to the contrary herein, in the event that (i) Seller is in breach of
any representation or warranty set forth in this Agreement (as opposed to a
situation where there is a change in conditions or the discovery of information
of which Seller was unaware on the Execution Date thereby giving rise to
Seller's ability to supplement its representations and warranties set forth in
this Agreement in accordance with the provisions of Section 9.26 hereof) prior
to Closing and (ii) Buyer discovers or otherwise learns at or prior to Closing
that Seller is in breach of any of its representations and warranties set forth
in this Agreement and nonetheless proceeds to close, then Buyer shall be deemed
to have waived its right to xxx Seller for damages for any such breach by
Seller that was known by Buyer at or prior to Closing. In the event that Buyer
discovers a breach of Seller's representations and warranties after the
Closing, then as Buyer's sole and exclusive remedy, Seller shall reimburse
Buyer for (i) the costs incurred by Buyer in connection with the remedy of the
condition giving rise to such breach and (ii) Buyer's actual damages incurred
as a result of such breach. Notwithstanding the foregoing, in the event that
Seller's breach involves fraud or bad faith on the part of Seller nothing
herein shall limit Buyer from pursuing any remedy available to it hereunder, at
law or in equity. The provisions of this Section 13.3 shall survive the
Closing and shall not merge therein.
13.4 Cross-Default. In the event that (i) Buyer or Seller
default under this Agreement and (ii) the Closing (as defined in the Phase II
Purchase Agreement) shall not have already occurred, then such default shall
also be deemed to be a default by such party under the Phase II Purchase
Agreement. In addition, in the event that (i) Buyer or Seller default under
the Phase II Purchase Agreement and (ii) the Closing (as defined in this
Agreement) shall not have already occurred, then such default shall also be
deemed to be a default by such party under this Agreement.
14. BROKERS.
Buyer and Seller each hereby represent, warrant to and agree
with each other that it has not had, and shall not have, any dealings with any
third party to whom the payment of any Commission shall or may become due or
pay-
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able in connection with the transaction contemplated hereby, other than with
the Broker and the Financial Advisor. Seller hereby agrees to pay the Broker a
Commission and the Financial Advisor a financial advisory fee through Escrow
pursuant to separate agreements among the Broker, the Financial Advisor and the
Seller, in connection with the transaction contemplated hereby. Seller shall
indemnify, defend and hold Buyer harmless from and against any and all claims,
losses, damages, costs and expenses (including reasonable attorneys' fees,
charges and disbursements) incurred by Buyer by reason of any breach or
inaccuracy of the representation, warranty and agreement of Seller contained in
this Section 14. Buyer shall indemnify, protect, defend and hold Seller
harmless from and against any and all claims, losses, damages, costs and
expenses (including reasonable attorneys' fees, charges and disbursements)
incurred by Seller by reason of any breach or inaccuracy of the representation,
warranty and agreement of Buyer contained in this Section 14. The provisions
of this Section 14 shall survive the Closing (and the Deferred Payment Date, if
any) or the earlier termination of this Agreement.
15. INDEMNIFICATION.
Buyer hereby agrees to indemnify, defend and hold Seller
harmless from and against any claims, demands, obligations, losses, costs,
damages, liabilities, judgments or expenses (including reasonable attorneys'
fees, charges and disbursements) arising out of or in connection with the
ownership, operation or maintenance of the Property after the Closing. Seller
hereby agrees to indemnify, defend and hold Buyer harmless from and against any
claims, demands, obligations, losses, costs, damages, liabilities, judgments or
expenses (including reasonable attorneys' fees, charges and disbursements)
arising out of or in connection with (i) the ownership, operation or
maintenance of the Property prior to the Closing or (ii) the breach of any
representation, warranty or agreement of Seller set forth in either Section 9
hereof or the Seller's Certificate, to the extent written notice thereof is
delivered to Seller by Buyer during the Survival Period. Each party shall do,
execute and deliver, or shall cause to be done, executed and delivered, all
such further acts and instruments which the other party may reasonably request
in order to more fully effectuate the indemnifications provided for in this
Agreement. The provisions of this Section 15 shall survive the Closing (and
the Deferred Payment Date, if any).
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16. MISCELLANEOUS PROVISIONS.
16.1 Governing Law. This Agreement and the legal relations
between the parties hereto shall be governed by and construed and enforced in
accordance with the laws of the State of Texas, without regard to its
principles of conflicts of law.
16.2 Entire Agreement; Modifications; Waiver.
16.2.1 Entire Agreement. This Agreement, including
the exhibits and schedules attached hereto, constitutes the entire agreement
between Buyer and Seller pertaining to the subject matter hereof and supersedes
all prior agreements, understandings, letters of intent, negotiations and
discussions, whether oral or written, of the parties, and there are no
warranties, representations or other agreements, express or implied, made to
either party by the other party in connection with the subject matter hereof
except as specifically set forth herein or in the documents delivered pursuant
hereto or in connection herewith. Without limiting the foregoing, upon the
execution of this Agreement, that certain letter, dated as of April 9, 1996, by
and between Buyer and Seller, shall terminate and be of no further force or
effect.
16.2.2 Modification. No supplement, modification,
waiver or termination of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any provision of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar), nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
16.3 Notices. All notices, consents, requests, reports,
demands or other communications hereunder (collectively, "Notices") shall be in
writing and may be given personally, by registered or certified mail, or by
Federal Express (or other reputable overnight delivery service).
To Buyer: The Price REIT, Inc.
000 X. Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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With A Copy To: Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Seller: Loop 1/183, Ltd.
c/o Cencor Realty Services, Inc.
000 Xxxx Xxxxx Xxxxxx, Xxx. 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With A Copy To: Drenner & Stuart, L.L.P.
000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Escrow Heritage Title Company of Austin, Inc.
00 Xxx Xxxxxxx Xxxxxxxxx, Xxx. 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or such other person as the addressee party shall have
last designated by notice to the other party. All Notices shall be deemed to
have been given when received.
16.4 Expenses. Subject to the allocation of Closing Costs
provided in Section 8.6 hereof, whether or not the transactions contemplated by
this Agreement shall be consummated, all fees and expenses incurred by any
party hereto in connection with this Agreement shall be borne by such party.
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16.5 Assignment.
16.5.1 Seller's Right to Assign. Seller shall not
have the right, power, or authority to assign or pledge this Agreement (other
than to the Mortgage Lender, subject to the provisions of Section 11.10 hereof)
or any portion of this Agreement, or to delegate any duties or obligations
arising under this Agreement, voluntarily, involuntarily, or by operation of
law, without Buyer's prior written consent.
16.5.2 Buyer's Right to Assign. Buyer may not
assign this Agreement, in whole or in part, without Seller's prior written
consent. Notwithstanding the foregoing, Buyer shall have the right, power and
authority to assign this Agreement or any portion of this Agreement or to
delegate any duties or obligations arising under this Agreement to an entity
owned or controlled by Buyer, without Seller's consent. No assignment or
delegation shall relieve Buyer of its obligations or liabilities under this
Agreement.
16.6 Severability. Any provision or part of this Agreement
which is invalid or unenforceable in any situation in any jurisdiction shall,
as to such situation and such jurisdiction, be ineffective only to the extent
of such invalidity and shall not affect the enforceability of the remaining
provisions hereof or the validity or enforceability of any such provision in
any other situation or in any other jurisdiction.
16.7 Successors and Assigns; Third Parties. Subject to and
without waiver of the provisions of Section 16.5 hereof, all of the rights,
duties, benefits, liabilities and obligations of the parties shall inure to the
benefit of, and be binding upon, their respective successors and assigns.
Except as specifically set forth or referred to herein, nothing herein
expressed or implied is intended or shall be construed to confer upon or give
to any person or entity, other than the parties hereto and their successors or
permitted assigns, any rights or remedies under or by reason of this Agreement.
16.8 Counterparts. This Agreement may be executed in as many
counterparts as may be deemed necessary and convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original, but all such counterparts shall constitute one and the
same instrument.
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16.9 Headings. The Section headings of this Agreement are
for convenience of reference only and shall not be deemed to modify, explain,
restrict, alter or affect the meaning or interpretation of any provision
hereof.
16.10 Time of Essence. Time shall be of the essence with
respect to all matters contemplated by this Agreement.
16.11 Further Assurances. In addition to the actions recited
herein and contemplated to be performed, executed and/or delivered by Seller
and Buyer, Seller and Buyer agree to perform, execute and/or deliver or cause
to be performed, executed and/or delivered at Closing or after Closing any and
all such further acts, instruments, deeds and assurances as may be reasonably
required to consummate the transactions contemplated hereby.
16.12 Number and Gender. Whenever the singular number is
used, and when required by the context, the same includes the plural, and the
masculine gender includes the feminine and neuter genders.
16.13 Construction. This Agreement shall not be construed
more strictly against one party hereto than against any other party hereto
merely by virtue of the fact that it may have been prepared by counsel for one
of the parties.
16.14 Post-Closing Access to Records. Upon receipt by Seller
of Buyer's reasonable written request at anytime and from time to time within a
period of three (3) years after the last Closing, Seller shall, at Seller's
principal place of business, during Seller's normal business hours, make all of
Seller's records relating to the Property available to Buyer for inspection and
copying (at Buyer's sole cost and expense).
16.15 Exhibits. All exhibits attached hereto are hereby
incorporated by reference as though set out in full herein.
16.16 Attorneys' Fees. In the event that either party hereto
brings an action or proceeding against the other party to enforce or interpret
any of the covenants, conditions, agreements or provisions of this Agreement,
the prevailing party in such action or proceeding shall be entitled to recover
all costs and expenses of such action or proceeding, including, without
limitation, attorneys' fees, charges, disbursements and the fees and costs of
expert witnesses.
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16.17 Business Days. In the event that the date for the
performance of any covenant or obligation under this Agreement shall fall on a
Saturday, Sunday or legal holiday, the date for performance thereof shall be
extended to the next Business Day.
16.18 DPTA Waiver. Buyer hereby waives all rights that it
may have under the Texas Deceptive Trade Practices and Consumer Protection Act
(Section 17.41 et seq. of the Texas Business and Commerce Code), except Section
17.555 thereof. Buyer warrants and represents to Seller that Buyer is not in a
significantly disparate bargaining position, that it is a business consumer
with assets of $5,000,000.00 or more according to its most recent financial
statement prepared in accordance with generally accepted accounting principles
and that Buyer has knowledge and experience in financial and business matters
that enable it to evaluate the merits and risks of a transaction. Buyer
further represents and warrants that it has been represented by legal counsel
of its own selection with respect to the transaction contemplated by this
Agreement and such legal counsel has not been directly or indirectly
identified, suggested or selected by Seller or an agent of Seller; therefore:
WAIVER OF CONSUMER RIGHTS
BUYER WAIVES ITS RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION
ACT, SECTION 17.41 ET SEQ., TEXAS BUSINESS AND COMMERCE CODE, A LAW THAT GIVES
CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY
OF BUYER'S OWN SELECTION, BUYER VOLUNTARILY CONSENTS TO THIS WAIVER.
16.19 Texas Real Estate License Act. The Texas Real Estate
License Act requires written notice to Buyer that it should have an attorney
examine an abstract of title to the property being purchased or obtain a title
insurance policy. Notice to that effect is, therefore, hereby given by Broker
to Buyer.
16.20 Broker Disclosure. Certain of the principals of Seller
may be affiliated with the Broker and thus may derive benefit from any
brokerage compensation paid to the Broker in connection with this transaction.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
BUYER:
THE PRICE REIT, INC.,
a Maryland corporation
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxxx
Its: Pres./CEO
SELLER:
LOOP 1/183, LTD.,
a Texas limited partnership
By: Loop 1/183 One, L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
Manager
49
ESCROW AGENT
The undersigned Escrow Agent accepts the foregoing Agreement of Purchase and
Sale and Joint Escrow Instructions and agrees to act as Escrow Agent under this
Agreement in strict accordance with its terms and acknowledges receipt of two
(2) fully executed copies of this Agreement together with the Initial Deposit.
HERITAGE TITLE COMPANY OF AUSTIN, INC.,
a Texas corporation,
By: _____________________________
Name:
Its:
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ATTORNEY JOINDER
The undersigned have executed this Agreement in order to satisfy the
waiver requirements set forth in Section 17.42(a)(3) of the Texas Business and
Commerce Code.
COUNSEL FOR SELLER:
XXXXXXX & XXXXXX, L.L.P.
By: /s/ XXXX X. XXXXXXX
------------------------------
Xxxx X. Xxxxxxx
Partner
COUNSEL FOR BUYER:
SKADDEN, ARPS, SLATE, XXXXXXX & XXXX
By: /s/ XXXXX X. XXXXXXXX
------------------------------
Xxxxx X. Xxxxxxxx
Partner
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LIST OF EXHIBITS
EXHIBIT "A" DEFINITIONS
EXHIBIT "B" LEGAL DESCRIPTION
EXHIBIT "C" PRE-APPROVED TENANTS
EXHIBIT "D" DEED
EXHIBIT "E" SELLER'S CERTIFICATE
EXHIBIT "F" ASSIGNMENT OF LEASES
EXHIBIT "G" ASSIGNMENT OF REA
EXHIBIT "H" XXXX OF SALE AND ASSIGNMENT
EXHIBIT "I" TENANT ESTOPPEL CERTIFICATE
EXHIBIT "J" SELLER ESTOPPEL CERTIFICATE
EXHIBIT "K" REA ESTOPPEL CERTIFICATE
EXHIBIT "L" SELLER'S REA ESTOPPEL CERTIFICATE
EXHIBIT "M" NON-FOREIGN AFFIDAVIT
EXHIBIT "N" NOTICE TO TENANTS
EXHIBIT "O" NOTICE TO VENDORS
EXHIBIT "P" LEASE SCHEDULE
EXHIBIT "Q" APPROVALS
EXHIBIT "R" LITIGATION
EXHIBIT "S" LEASE-UP PAYMENT SCHEDULE
EXHIBIT "T" SCHEDULE OF PERSONAL PROPERTY
EXHIBIT "U" SITE PLAN
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EXHIBIT "A"
DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
"Additional Deposit" shall mean the additional sum of ONE HUNDRED
THOUSAND DOLLARS ($100,000.00), together with (i) any and all interest and
dividends earned thereon and (ii) upon delivery of the Letter of Credit into
Escrow, the Letter of Credit and any amounts held by Escrow Agent pursuant to
any draw on the Letter of Credit.
"Agreement" shall have the meaning ascribed thereto in the preamble of
this Agreement.
"Approvals" shall have the meaning ascribed thereto in Section 9.13 of
this Agreement.
"Assignment of Leases" shall have the meaning ascribed thereto in
Section 7.1.5 of this Agreement.
"Assignment of REA" shall have the meaning ascribed thereto in Section
7.1.6 of this Agreement.
"Xxxx of Sale and Assignment" shall have the meaning ascribed thereto
in Section 7.1.7 of this Agreement.
"Board Approval Date" shall mean November 25, 1996.
"Broker" shall mean The Weitzman Group.
"Business Day" shall mean a day that is not a Saturday, Sunday or
legal holiday.
"Buyer" shall have the meaning ascribed thereto in the preamble of
this Agreement.
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"Buyer's Closing Notice" shall mean a written notice that Buyer
delivers to Seller in accordance with the terms of Section 8.1.1 of this
Agreement, stating the date on which the Closing shall occur.
"Buyer's Objection Letter" shall have the meaning ascribed thereto in
Section 6.2.2 of this Agreement.
"Buyer's Specific Performance Notice" shall mean a written notice of
Buyer's election to grant to Seller the remedy of specific performance in
accordance with the terms of this Agreement.
"Closing" shall mean the recordation of the Deed in the Official
Records.
"Closing Conditions" shall have the meaning ascribed thereto in
Section 7.1 of this Agreement.
"Closing Costs" shall have the meaning ascribed thereto in Section 8.6
of this Agreement.
"Closing Date" shall mean the date upon which the Closing actually
occurs.
"Closing Period" shall mean a period commencing on January 6, 1997 and
ending on the Final Closing Date.
"Closing Statement" shall have the meaning ascribed thereto in Section
8.5 of this Agreement.
"Commission" shall mean any broker's fee, finder's fee, commission or
other similar compensation.
"Comparable Properties" shall mean first-class "power centers" in
Xxxxxx County, Texas of a quality that is comparable to the Property following
the completion of construction in accordance with the Construction Documents.
"Construction Documents" shall mean all site plans, plans,
specifications and construction documents relating to the Improvements under
construction or to be constructed at the Property.
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"Credit" shall mean an amount equal to the sum of: (a) the following
amounts, (i) 7.5% of both Scheduled Base Rent and Expense Recoveries for all of
the Non-Credit Tenants leasing space at the Property, to the extent the same
are payable during or attributable to the first twelve (12) months of the lease
term, and (ii) all common area maintenance expenses equal to One Dollar ($1.00)
per square foot of the Property, all ad valorem taxes equal to Two Dollars
($2.00) per square foot of the Property and all property insurance expenses
equal to Twenty-Five Cents ($.25) per square foot of the Property, to the
extent the same are payable during or attributable to the first twelve (12)
months following the Closing Date; (b) a maintenance reserve equal to fifteen
cents ($0.15) per square foot of the Property; and (c) a management fee equal
to two percent (2%) of the gross income of the Property for the first twelve
(12) months of the term of each Qualified Lease.
"Credit Tenants" shall mean Circuit City, Baby Superstore, Cost Plus,
Mikasa, Designer Shoe Warehouse, Just for Feet and any other future Tenant that
has a lease term of at least fifteen (15) years and a net worth of more than
seventy-five million dollars ($75,000,000.00).
"Deed" shall have the meaning ascribed thereto in Section 6.2.3 of
this Agreement.
"Deferred Lease-Up Payment" shall mean (i) the amount obtained by
calculating the Deferred Purchase Price for the unleased portion of the
Property (provided, however, that for the purposes of such calculation the
annual base rent payable with respect to such space shall be deemed to be
eighty percent (80%) of the amount set forth for the subject space on Exhibit
"S" attached hereto) less (ii) an amount equal to $18.00 per each square foot
with respect to which the Deferred Lease-Up Payment is paid.
"Deferred Payment Date" shall have the meaning ascribed thereto in
Section 8.1.2 of this Agreement.
"Deferred Payment Endorsement" shall have the meaning ascribed thereto
in Section 7.1.1 of this Agreement.
"Deferred Purchase Price" shall mean the difference obtained by
subtracting (i) the Initial Purchase Price from (ii) the quotient obtained by
dividing the NOI determined as of the Deferred Payment Date by .10475.
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"Deferred Substantial Completion Date" shall mean the date designated
as the Deferred Payment Date pursuant to a written notice delivered by Seller
to Buyer (which date shall be at least fifteen (15) Business Days after the
date on which Seller delivers such notice); provided, however, that as of the
date on which Seller delivers such notice (i) at least 90% of the buildings to
be constructed on the Property must have been constructed in accordance with
the Construction Documents and leased pursuant to Qualified Leases and (ii)
valid certificates of occupancy must have been issued in connection therewith.
"Deposit" shall mean, collectively, the Initial Deposit and the
Additional Deposit.
"Due Diligence Period" shall mean a period commencing on the Opening
of Escrow and ending on the Due Diligence Termination Date.
"Due Diligence Termination Date" shall mean November 25, 1996.
"Environmental Claim" shall mean any claim, action, cause of action,
investigation or notice (written or oral) by any person or entity alleging
potential liability (including, without limitation, potential liability for
investigatory costs, cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, or penalties) arising
out of, based on or resulting from (i) the manufacture, treatment, processing,
distribution, use, transport, handling, deposit, storage, disposal, leaking or
other presence, or release into the environment of any Material of
Environmental Concern in, at, on, under or about any location, whether or not
owned or operated by Seller or (ii) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
"Environmental Laws" shall mean all federal, state, local and foreign
laws and regulations relating to pollution or protection of human health or the
environment, including, without limitation, laws and regulations relating to
emissions, discharges, releases or threatened releases of Materials of
Environmental Concern, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern.
"Escrow" shall have the meaning ascribed thereto in Section 5 of this
Agreement.
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"Escrow Agent" shall have the meaning ascribed thereto in the preamble
of this Agreement.
"Escrow's Draw Deliveries" shall have the meaning ascribed thereto in
Section 13.1.1 of this Agreement.
"Execution Date" shall have the meaning ascribed thereto in the
preamble of this Agreement.
"Existing Leases" shall mean all leases, licenses, tenancies,
concession agreements, subleases, and other occupancy agreements to which
Seller is a party relating to the Property, which were executed on or before
the Execution Date, including, without limitation, all amendments,
modifications and guarantees thereof and options to renew or extend the term
thereof, whether oral or written.
"Expense Recoveries" shall mean all expenses of the Property that are
attributable to the first twelve (12) months of the lease term and would be
properly billed to Tenants by Seller, as the landlord, pursuant to and in
accordance with the Leases; such amount shall be calculated based on One Dollar
($1.00) per square foot for common area maintenance expenses, Two Dollars
($2.00) per square foot for property tax expenses and Twenty-Five Cents ($.25)
per square foot for property insurance expenses.
"Final Closing Date" shall mean April 15, 1997; provided, however,
that if, as of such date (or, if earlier, the date specified in Buyer's Closing
Notice), less than ninety percent (90%) of the Property is leased pursuant to
Qualified Leases, then either party may elect to extend the Final Closing Date
until the earlier to occur of (i) the tenth (10th) Business Day following the
Substantial Completion Date or (ii) October 15, 1997, by delivering written
notice of such extension to the other party not later than April 15, 1997. If
neither party elects to exercise its right to extend the Final Closing Date, or
if either party extends the Final Closing Date but the ninety percent (90%)
Qualified Lease occupancy rate threshold has not been achieved by the date of
the extended Final Closing Date, then, unless the condition set forth in
Section 7.1.11 of this Agreement is waived by both Buyer and Seller, this
Agreement shall terminate pursuant to Section 7.2(c) of this Agreement.
"Financial Advisor" shall mean Texas Commerce Realty Advisors, Inc.
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"Improvements" shall mean all buildings, improvements, structures and
fixtures now or hereafter located on or in the Land, including, without
limitation, those certain buildings and structures being used (or to be used)
for the operation of the Shopping Center.
"Indemnified Parties" shall have the meaning ascribed thereto in
Section 4.3 of this Agreement.
"Initial Deposit" shall mean the sum of ONE HUNDRED THOUSAND DOLLARS
($100,000.00), together with any and all interest and dividends earned thereon.
"Initial Purchase Price" shall mean an amount equal to the quotient
obtained by dividing the NOI determined as of the Closing Date by .10475.
"Intangible Property" shall mean all of that certain intangible
property owned by Seller and used by Seller in connection with the Real
Property and/or the Personal Property, including, without limitation, (i) all
Leases, contract rights, books, records, reports, test results, environmental
assessments, as-built plans, specifications and other similar documents and
materials relating to the use, operation, maintenance, repair, construction or
fabrication of the Real Property or the Personal Property; (ii) Seller's right,
if any, in and to all trademarks and trade names, including, without
limitation, all rights in and to the name "Arboretum Crossing Power Center;"
(iii) all transferable business licenses, architectural, site, landscaping or
other permits, applications, approvals, authorizations and other entitleme- nts
affecting the Real Property; and (iv) all transferable guarantees, warranties
and utility contracts relating to the Real Property.
"Issuer" shall mean National Bank of California.
"Land" shall mean that certain real property located in the City of
Austin, County of Xxxxxx, State of Texas, as more particularly described on
Exhibit "B" attached to this Agreement.
"Laws" shall mean all existing laws, rules, regulations, ordinances
and orders of all applicable federal, state, city and other governmental
authorities in effect as of the date of this Agreement.
"Leases" shall mean, collectively, the Existing Leases and the New
Leases.
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"Lease Schedule" shall have the meaning ascribed thereto in Section
9.2.1 of this Agreement.
"Lease-Up Payment" shall mean (i) the amount obtained by calculating
the Initial Purchase Price for the unleased portion of the Property (provided,
however, that for the purposes of such calculation it shall be assumed that the
unleased portion of the Property has been leased pursuant to Qualified Leases
and the annual base rent payable with respect to such space shall be deemed to
be the amount set forth for the subject space on Exhibit "S" attached to this
Agreement) less (ii) an amount equal to $18.00 per each square foot with
respect to which the Lease-Up Payment is paid.
"Leasing Criteria" shall have the meaning ascribed thereto in Section
3.2 of this Agreement.
"Letter of Credit" shall mean an irrevocable, unconditional letter of
credit in an amount equal to Eight Hundred Thousand Dollars ($800,000.00),
issued by Issuer, in favor of Escrow Agent, which letter of credit can be drawn
upon in Los Angeles, California, in accordance with the terms of this
Agreement, by presentation to Issuer of only (i) Escrow Agent's sight draft and
(ii) a sworn, written statement from Escrow Agent stating that Seller has
notified Escrow Agent of Buyer's default and Seller's entitlement to the
Deposit pursuant to the terms of this Agreement.
"Liens" shall have the meaning ascribed thereto in Section 6.2.2 of
this Agreement.
"Materials of Environmental Concern" shall mean chemicals, pollutants,
contaminants, wastes, toxic substances, petroleum and petroleum products.
"Mortgage Lender" shall mean Texas Commerce Bank National Association
and any other party that is the holder of a lien against the Property which
secures a monetary obligation.
"New Leases" shall mean all leases, licenses, tenancies, concession
agreements, subleases, and other occupancy agreements to which Seller is a
party relating to the Property, which were executed after the Execution Date,
including, without limitation, all amendments, modifications and guarantees
thereof and options to renew or extend the term thereof, whether oral or
written.
X-0
00
"XXX" shall mean an amount equal to the difference between (i) the sum
of the Scheduled Base Rent and all Expense Recoveries with respect to 100% of
the leasable area of the Property (irrespective of whether such space is leased
or such amounts are collected) and (ii) the Credit.
"Non-Credit Tenants" shall mean all Tenants other than the Credit
Tenants.
"Non-Foreign Affidavit" shall have the meaning ascribed thereto in
Section 7.1.9 of this Agreement.
"Notices" shall have the meaning ascribed thereto in Section 16.3 of
this Agreement.
"Official Records" shall mean the Official Public Records of Real
Property of Xxxxxx County, Texas.
"Opening of Escrow" shall have the meaning ascribed thereto in Section
5 of this Agreement.
"Owner's Title Policy" shall have the meaning ascribed thereto in
Section 7.1.1 of this Agreement.
"Permitted Exceptions" shall have the meaning ascribed thereto in
Section 6.2.2 of this Agreement.
"Personal Property" shall mean all of that certain tangible personal
property, equipment and supplies owned by Seller and either situated at the
Real Property or used by Seller in connection with the use, operation,
maintenance, construction or repair of the Real Property, including, without
limitation, all personal property described on Exhibit "T" attached to this
Agreement.
"Phase II Purchase Agreement" shall mean that certain Phase II
Purchase and Sale Agreement and Joint Escrow Instructions, dated as of the
Execution Date, by and between Buyer and Seller.
"Preliminary Closing Statement" shall have the meaning ascribed
thereto in Section 8.5 of this Agreement.
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60
"Property" shall mean, collectively, the Land, the Improvements, the
balance of the Real Property, the Personal Property and the Intangible
Property.
"Property Documents" shall mean, collectively, the Construction
Documents, the Property Studies and the Property Records.
"Property Records" shall mean all files, records, reports, documents,
correspondence and other written materials, which are material to Buyer's
evaluation of the physical and financial condition of the Property to the
extent the same are in the possession or the control of Seller or its agents or
otherwise readily available to Seller.
"Property Studies" shall mean all environmental assessments, studies
and reports, all soils reports and all other studies of the physical condition
of the Real Property prepared by or for Seller.
"PTR" shall have the meaning ascribed thereto in Section 6.2.1 of this
Agreement.
"Purchase Price" shall mean, collectively, the Initial Purchase Price
(and, if applicable, the Lease-Up Payment) and the Deferred Purchase Price
(and, if applicable, the Deferred Lease-Up Payment).
"Qualified Leases" shall mean Leases that satisfy the following
criteria: (i) the Tenant is in possession of, and open for business at, the
premises leased thereunder; (ii) the Tenant has paid at least the first month's
rent payable thereunder; (iii) the Tenant is not in default thereunder beyond
the expiration of any applicable cure period afforded such Tenant under the
terms of its Lease; and (iv) all tenant improvement allowances or other
concessions to be paid to the Tenant in connection with such Lease have
theretofore been paid in full.
"REA" shall mean that certain Reciprocal Easement Agreement, dated as
of April 11, 1996, by and between Seller and Z-K Real Estate, Ltd., a Texas
limited partnership.
"Real Property" shall mean, collectively, (i) the Land, (ii) the
Improvements, (iii) all apparatus, equipment and appliances used in connection
with the operation or occupancy of the Land and the Improvements (such as
heating, air conditioning or mechanical systems and facilities used to provide
any utility services, refrigeration, ventilation, waste disposal or other
services) and now or
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hereafter located on or in the Land or the Improvements, and (iv) all of the
rights, privileges and easements appurtenant to or used in connection with the
Land and the Improvements, including, without limitation, all minerals, oil,
gas and other hydrocarbon substances, all development rights, air rights,
water, water rights, waste water capacity and water stock relating to the Land,
all strips and gores, all of Seller's right, title and interest in and to any
streets, alleys, easements, rights-of-way, public ways, or other rights
appurtenant, adjacent or connected to the Land.
"Scheduled Base Rent" shall mean an amount equal to the annual base
rent payable during the first twelve (12) months of the lease term under
Qualified Leases of any portion of the Property, which amount shall be reduced
by the amount of free rent amortized over the life of the Lease.
"Seller" shall have the meaning ascribed thereto in the preamble of
this Agreement.
"Seller Estoppel" shall have the meaning ascribed thereto in Section
7.1.8.2 of this Agreement.
"Seller's Certificate" shall have the meaning ascribed thereto in
Section 7.1.2 of this Agreement.
"Seller's Default Notice" shall have the meaning ascribed thereto in
Section 13.1.1 of this Agreement.
"Seller's REA Estoppel Certificate" shall have the meaning ascribed
thereto in Section 7.1.8.4 of this Agreement.
"Seller's Response" shall have the meaning ascribed thereto in Section
6.2.2 of this Agreement.
"Service Contracts" shall have the meaning ascribed thereto in Section
9.7 of this Agreement.
"Shopping Center" shall mean the shopping center located (or to be
located) on the Real Property and commonly known as "Arboretum Crossing Power
Center."
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"Specific Performance Election" shall have the meaning ascribed
thereto in Section 13.1.2 of this Agreement.
"Substantial Completion Date" shall mean the date on which (i) at
least 90% of the buildings to be constructed on the Property have been
constructed in accordance with the Construction Documents and leased pursuant
to Qualified Leases and (ii) valid certificates of occupancy have been issued
in connection therewith.
"Suite B" shall mean that portion of the Property, as defined on the
site plan attached to this Agreement as Exhibit "U".
"Suite C" shall mean that portion of the Property, as defined on the
site plan attached to this Agreement as Exhibit "U".
"Suite D" shall mean that portion of the Property, as defined on the
site plan attached to this Agreement as Exhibit "U".
"Survey" shall have the meaning ascribed thereto in Section 6.2.1 of
this Agreement.
"Survival Period" shall have the meaning ascribed thereto in Section
9.26 of this Agreement.
"Tenants" shall mean all of the tenants under the Leases.
"Tenant Estoppels" shall have the meaning ascribed thereto in Section
7.1.8.1 of this Agreement.
"Title Company" shall mean Heritage Title Company of Austin, Inc.
(using Chicago Title Company as its underwriter).
"Title Documents" shall mean, collectively, the PTR, the Underlying
Documents, the Survey and the UCC Search.
"UCC Search" shall have the meaning ascribed thereto in Section 6.2.1
of this Agreement.
"Underlying Documents" shall have the meaning ascribed thereto in
Section 6.2.1 of this Agreement.
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EXHIBIT "B"
LEGAL DESCRIPTION
Xxx 0, xx XXXXXXXXX XXXXXXXX, a subdivision in the City of Xxxxxx,
Xxxxxx County, Texas, according to the map or plat thereof recorded in Volume
96, Pages 296-297, of the Plat Records of Xxxxxx County, Texas.
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EXHIBIT "C"
PRE-APPROVED TENANTS
HomePlace
Sports Authority
Office Depot
XX Xxxxx
Office Max
Reading China
Marshalls
Ross
Pets Mart
Petco
Orvis
Computer City
Xxxxx Mart
Xxxxx'x Sporting Goods
Sears Hardware
Service Merchandise
Home Front
Xxxxxx'x Sofa Factory
David's Bridal
Crown Books
Kinko's
Wolf Camera
Eye Masterrs
American Tourister
Toy Works
Dress Barn
Ultra III
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EXHIBIT "D"
SPECIAL WARRANTY DEED
THE STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF XXXXXX )
THAT LOOP ONE/183, LTD., a Texas limited partnership ("Grantor"), for
TEN DOLLARS ($10.00) and other good and valuable consideration paid to Grantor
by THE PRICE REIT, INC., a Maryland corporation ("Grantee"), the receipt and
sufficiency of which consideration are hereby acknowledged and confessed by
Grantor, has GRANTED, BARGAINED, SOLD, and CONVEYED, and by these presents does
GRANT, BARGAIN, SELL, and CONVEY, unto Grantee, that certain parcel of real
property together with all improvements situated thereon located in Xxxxxx
County, Texas, and more particularly described on Exhibit "A", attached hereto
and made a part hereof for all purposes (the "Property").
This Special Warranty Deed (this "Deed") is expressly made subject to
the matters described on Exhibit "B", attached hereto and made a part hereof
for all purposes to the extent, and only to the extent the same are valid and
subsisting and affect all or any part of the Property.
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereunto in anywise belonging, unto Grantee,
Grantee's successors and assigns, forever; and Grantor does hereby bind
Grantor, Grantor's successors and assigns, to WARRANT and FOREVER DEFEND all
and singular the Property 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; subject, however,
to the matters set forth herein.
Grantor warrants payment of all ad valorem taxes on the Property
through calendar year 1995. Such taxes for the current year have been prorated
as of the date of delivery hereof and Grantee assumes and agrees to pay such ad
valorem taxes in full.
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EXECUTED on the date of the acknowledgement set forth below, to be
effective however as of the ___ day of __________, 1996.
Grantee's Address:
The Price REIT, Inc.
000 Xxxxx Xxxxxxx Avenue, 4th Floor
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxxx
GRANTOR:
LOOP ONE/183, LTD.,
a Texas limited partnership
By: Xxxx 0/000 Xxx, X.X.,
General Partner
By: ________________________________
Xxxxxx X. Xxxxxx
Manager
GRANTEE:
THE PRICE REIT, INC.,
a Maryland corporation
By: ______________________________________
Name:
Its:
X-0
00
XXX XXXXX XX XXXXX )
)
COUNTY OF XXXXXX )
This instrument was acknowledged before me on the _____ day of
_________, 1996, by _________________________________________________,
____________________________________________________________________ on behalf
of Loop One/183, Ltd., a Texas limited partnership.
(SEAL)
________________________________________
Notary Public in and for
the State of Texas
________________________________________
(Printed Name of Notary)
My commission expires:____________________
X-0
00
XXXXX XX XXXXXXXXXX )
: ss.
COUNTY OF LOS ANGELES )
On the ______ day of ________, 1996, before me, __________________
______________________________________________, personally appeared
____ [ ]personally known to me or [ ]proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
________________________________
(SEAL)
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EXHIBIT "E"
SELLER'S CERTIFICATE
The undersigned hereby certifies as follows:
1. To the knowledge of Loop One/183, Ltd., a Texas limited
partnership ("Seller"), all conditions to the close of escrow which were to be
satisfied or performed by Seller as provided in that certain Phase I Purchase
and Sale Agreement and Joint Escrow Instructions, dated as of ______, 1996 (the
"Purchase Agreement"), by and between Seller and The Price REIT, Inc., a
Maryland corporation ("Buyer"), have either been satisfied, performed or
waived.
2. All representations, covenants, and warranties made in or
pursuant to the Purchase Agreement, by Seller, including, without limitation,
those set forth in Sections 9 and 11 of the Purchase Agreement, are materially
true, accurate, correct and complete as of the date of this certificate.
3. Buyer is entitled to rely on this certificate in connection
with the Closing (as defined in the Purchase Agreement).
Seller has executed this certificate effective as of _____________, 1996.
SELLER:
LOOP ONE/183, LTD.,
a Texas limited partnership
By: Xxxx 0/000 Xxx, X.X.,
General Partner
By: ________________________________
Xxxxxx X. Xxxxxx
Manager
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EXHIBIT "F"
ASSIGNMENT OF LEASES AND SECURITY DEPOSITS
THIS ASSIGNMENT OF LEASES AND SECURITY DEPOSITS
("Assignment") is made and entered into as of the _______ day of ______, 1996,
by and between LOOP ONE/183, LTD., a Texas limited partnership ("Assignor"),
and THE PRICE REIT, INC., a Maryland corporation ("Assignee").
R E C I T A L S
_________WHEREAS, Assignor, as landlord, has entered into those certain leases
identified on Exhibit "A" attached hereto and incorporated herein by reference
(collectively, together with all amendments, modifications, supplements,
restatements and guarantees thereof, the "Leases"), for certain property
located in the City of Austin, County of Xxxxxx, State of Texas;
WHEREAS, Assignor and Assignee have entered into that certain Phase I
Purchase and Sale Agreement and Joint Escrow Instructions, dated as of ______,
1996 (the "Purchase Agreement"); and
WHEREAS, the Purchase Agreement requires Assignor and Assignee to
execute this Assignment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee hereby
agree as follows:
A G R E E M E N T
1. Assignment and Assumption. From and after the date hereof for
the remainder of the term of each of the Leases, Assignor hereby irrevocably
assigns, sets over, transfers and conveys to Assignee all of Assignor's right,
title and interest in and to (i) the Leases and (ii) all security deposits made
under the Leases (the "Security Deposits"). Subject to the terms and
conditions of the Purchase Agreement, Assignee hereby accepts this Assignment
of the Leases and Security Deposits and the rights granted herein. Assignee
hereby expressly assumes, for itself and its successors, assigns and legal
representatives, the Leases and all of the obligations and liabilities, fixed
and contingent, of Assignor
F-1
71
thereunder accruing from and after the date hereof with respect to the Leases
(including the obligation to account for the Security Deposits) and agrees to
(a) be fully bound by all of the terms, covenants, agreements, provisions,
conditions, obligations and liability of Assignor thereunder, which accrue from
and after the date hereof, and (b) keep, perform and observe all of the
covenants and conditions contained therein on the part of Assignor to be kept,
performed and observed, from and after the date hereof.
2. General Provisions.
a. Successors. This Assignment shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
legal representatives, successors and assigns.
b. Counterparts. This Assignment may be executed in as
many counterparts as may be deemed necessary and convenient, and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute one and the same instrument.
c. Governing Law. This Assignment and the legal
relations of the parties hereto shall be governed by and construed and enforced
in accordance with the laws of the State of Texas, without regard to its
principles of conflicts of law.
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72
IN WITNESS WHEREOF, this Assignment was made and executed as of the
date first above written.
ASSIGNOR:
LOOP ONE/183, LTD.,
a Texas limited partnership
By: Xxxx 0/000 Xxx, X.X.,
General Partner
By: ________________________________
Xxxxxx X. Xxxxxx
Manager
ASSIGNEE:
THE PRICE REIT, INC.,
a Maryland Corporation
By: ______________________________________
Name:
Its:
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73
EXHIBIT "A"
(to Exhibit "F" -- Assignment of Leases)
LIST OF LEASES
[TO BE PROVIDED BY SELLER]
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74
EXHIBIT "G"
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Xxxxx X. Xxxxxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
____________________________________________________________________
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
ASSIGNMENT OF RECIPROCAL EASEMENT AGREEMENT
THIS ASSIGNMENT OF RECIPROCAL EASEMENT AGREEMENT ("Assignment") is
made and entered into as of the ____ day of _____, 1996, by and between LOOP
ONE/183, LTD., a Texas limited partnership ("Assignor"), and THE PRICE REIT,
INC., a Maryland corporation ("Assignee").
R E C I T A L S
WHEREAS, Assignor, has entered into that certain Reciprocal Easement
Agreement, dated as of __________ and recorded in the Official Records of
Xxxxxx County, Texas, on __________ as Instrument No. ________ (the "REA"), by
and between Assignor and ____________, in connection with certain property
located in the City of Austin, County of Xxxxxx, State of Texas as more
particularly described on Exhibit "A" attached hereto (the "Property");
WHEREAS, Assignor and Assignee have entered into that certain Phase I
Purchase and Sale Agreement and Joint Escrow Instructions, dated as of
___________, 1996 (the "Purchase Agreement"); and
WHEREAS, the Purchase Agreement requires Assignor and Assignee to
execute this Assignment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee hereby
agree as follows:
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75
A G R E E M E N T
1. Assignment and Assumption. From and after the date hereof for
the remainder of the term of the REA, Assignor hereby irrevocably assigns, sets
over, transfers and conveys to Assignee all of Assignor's right, title and
interest in and to the REA as and to the extent that such right, title and
interest pertain to or benefit the Property. Subject to the terms and
conditions of the Purchase Agreement, Assignee hereby accepts this Assignment
of the REA and the rights granted herein. Assignee hereby expressly assumes,
for itself and its successors, assigns and legal representatives, the REA and
all of the obligations and liabilities, fixed and contingent, of Assignor
thereunder accruing from and after the date hereof with respect to the REA and
agrees to (a) be fully bound by all of the terms, covenants, agreements,
provisions, conditions, obligations and liability of Assignor thereunder, which
accrue from and after the date hereof, and (b) keep, perform and observe all of
the covenants and conditions contained therein on the part of Assignor to be
kept, performed and observed, from and after the date hereof.
2. General Provisions.
a. Successors. This Assignment shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
legal representatives, successors and assigns.
b. Counterparts. This Assignment may be executed in as
many counterparts as may be deemed necessary and convenient, and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute one and the same instrument.
c. Governing Law. This Assignment and the legal
relations of the parties hereto shall be governed by and construed and enforced
in accordance with the laws of the State of Texas, without regard to its
principles of conflicts of law.
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IN WITNESS WHEREOF, this Assignment was made and executed as of the
date first above written.
ASSIGNOR:
LOOP ONE/183 LTD.,
a Texas limited partnership
By: Xxxx 0/000 Xxx, X.X.,
General Partner
By: ________________________________
Xxxxxx X. Xxxxxx
Manager
ASSIGNEE:
THE PRICE REIT, INC.,
a Maryland corporation
By: ______________________________________
Name:
Its:
X-0
00
XXX XXXXX XX XXXXX )
)
COUNTY OF XXXXXX )
This instrument was acknowledged before me on the ________ day of
___________, 1996, by _______________________________________________,
____________________________________________________________________ on behalf
of Loop One/183, Ltd., a Texas limited partnership.
(SEAL)
______________________________________
Notary Public in and for
the State of Texas
______________________________________
(Printed Name of Notary)
My commission expires: _________________
X-0
00
XXXXX XX XXXXXXXXXX )
: ss.
COUNTY OF LOS ANGELES )
On the _____ day of _________, 1996, before me, ___________________
, personally appeared
__________________________________________________________________ , [
]personally known to me or [ ]proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
____________________________
(SEAL)
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79
EXHIBIT "H"
XXXX OF SALE AND ASSIGNMENT
THIS XXXX OF SALE AND ASSIGNMENT ("Xxxx of Sale") is made and entered
into as of the ________ day of _______, 1996, by LOOP ONE/183 LTD., a Texas
limited partnership ("Seller"), for the benefit of THE PRICE REIT, INC., a
Maryland corporation ("Buyer").
R E C I T A L S
WHEREAS, Seller is the owner of that certain real property located in
the City of Austin, County of Xxxxxx, State of Texas (the "Real Property"), as
more particularly described on Exhibit "A" attached hereto and incorporated
herein by reference;
WHEREAS, Buyer and Seller have entered into that certain Phase I
Purchase and Sale Agreement and Joint Escrow Instructions, dated as of
___________, 1996 (the "Purchase Agreement"), with respect to, among other
things, the acquisition of the "Personal Property" and the "Intangible
Property" (each as defined below), and certain other property; and
WHEREAS, the Purchase Agreement requires Seller to convey all of the
Seller's right, title and interest in, to and under the Personal Property and
the Intangible Property to Buyer.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller hereby agrees as follows:
A G R E E M E N T
1. Unless the context otherwise requires, all capitalized terms
used but not otherwise defined herein shall have the respective meanings
ascribed thereto in the Purchase Agreement.
2. Seller does hereby unconditionally, absolutely, and
irrevocably grant, bargain, sell, transfer, assign, convey, set over and
deliver unto Buyer all of Seller's right, title and interest in and to:
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80
a. all of that certain tangible personal property,
equipment and supplies owned by Seller and either situated at the Real Property
or used by Seller in connection with the use, operation, maintenance,
construction or repair of the Real Property, including, without limitation, all
personal property described on Exhibit "R" attached to the Purchase Agreement
(collectively, the "Personal Property"); and
b. all of that certain intangible property owned by
Seller and used by Seller in connection with the Real Property and/or the
Personal Property, including, without limitation, (i) all contract rights,
books, records, reports, test results, environmental assessments, as-built
plans, specifications and other similar documents and materials relating to the
use, operation, maintenance, repair, construction or fabrication of the Real
Property or the Personal Property; (ii) Seller's right, if any, in and to all
trademarks and trade names, including, without limitation, all rights in and to
the name "Arboretum Crossing Power Center;" (iii) all transferable business
licenses, architectural, site, landscaping or other permits, applications,
approvals, authorizations and other entitlements affecting the Real Property;
and (iv) all transferable guarantees, warranties and utility contracts relating
to the Real Property (collectively, the "Intangible Property" and, together
with the Personal Property, the "Property").
3. Seller represents and warrants, to the best of its knowledge
(as defined in the Purchase Agreement), that the Property is free and clear of
all options, liens, claims, encumbrances, covenants, conditions, restrictions
and any other matters affecting title, other than the Permitted Exceptions.
4. This Xxxx of Sale shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns.
5. This Xxxx of Sale and the legal relations of the parties
hereto shall be governed by and construed and enforced in accordance with the
laws of the State of Texas, without regard to its principles of conflicts of
law.
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IN WITNESS WHEREOF, this Xxxx of Sale was made and executed as of the
date first above written.
SELLER:
LOOP ONE/183, LTD.,
a Texas limited partnership
By: Xxxx 0/000 Xxx, X.X.,
General Partner
By: ________________________________
Xxxxxx X. Xxxxxx
Manager
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EXHIBIT "I"
TENANT ESTOPPEL CERTIFICATE
THIS TENANT ESTOPPEL CERTIFICATE ("Certificate"), dated as of _______,
1996, is executed by __________________ ("Tenant") in favor of The Price REIT,
Inc., a Maryland corporation, or its nominee (collectively, "Buyer").
R E C I T A L S
_________
A. Buyer and Loop One/183, Ltd., a Texas limited partnership
("Landlord"), have entered into that certain Phase I Purchase and Sale
Agreement and Joint Escrow Instructions, dated as of _________, 1996 (the
"Purchase Agreement"), whereby Buyer has agreed to purchase, among other
things, the improved real property located in the City of Austin, County of
Xxxxxx, State of Texas, more particularly described on Exhibit "__" attached to
the Purchase Agreement (the "Property").
B. Tenant and Landlord have entered into that certain Lease
Agreement, dated as of ____________ (together with all amendments,
modifications, supplements, guarantees and restatements thereof, the "Lease"),
for a portion of the Property.
C. Pursuant to the Lease, Tenant has agreed that upon the request
of Landlord, Tenant would execute and deliver an estoppel certificate
certifying the status of the Lease.
D. In connection with the Purchase Agreement, Landlord has
requested that Tenant execute this Certificate.
NOW, THEREFORE, Tenant certifies, warrants, and represents to Buyer as
follows:
A G R E E M E N T
SECTION 1. LEASE.
Attached hereto as Exhibit "A" is a true, correct, and complete copy
of the Lease, including the following amendments, modifications, supplements,
guarantees and restatements thereof, which together represent all of the amend-
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83
ments, modifications, supplements, guarantees and restatements thereof:
____________________________________________________________________
__________________________________________________________________ . (If none,
please state "None.")
SECTION 2. LEASED PREMISES.
Pursuant to the Lease, Tenant leases those certain premises (the
"Leased Premises") consisting of approximately __________________ (___________)
rentable square feet within the Property, as more particularly described in the
Lease. In addition, pursuant to the terms of the Lease, Tenant has the
non-exclusive right to use the parking area located on the Property during the
term of the Lease.
SECTION 3. FULL FORCE OF LEASE.
The Lease is in full force and effect, has not been terminated, and is
enforceable in accordance with its terms.
SECTION 4. COMPLETE AGREEMENT
The Lease constitutes the complete agreement between Landlord and
Tenant for the Leased Premises and the Property.
SECTION 5. ACCEPTANCE OF LEASED PREMISES.
Tenant has accepted and is currently occupying the Leased Premises.
SECTION 6. LEASE TERM.
The term of the Lease commenced on _____________ and ends on
_____________________, subject to the following options to extend:
__________________________________________________________________ . (If none,
please state "None.")
SECTION 7. PURCHASE RIGHTS.
Tenant has no option, right of first refusal, right of first offer, or
other right to purchase all or any portion of the Leased Premises or all or any
portion of the Property, except as follows:
______________________________________
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84
__________________________________________________________________ .
(If none, please state "None.")
SECTION 8. RIGHTS OF TENANT.
Except as expressly stated in this Certificate, Tenant:
(a) has no right to renew or extend the term of the Lease; and
(b) has no right, title, or interest in the Leased Premises, other
than as Tenant under the Lease.
SECTION 9. RENT.
(a) The rent under the Lease is current, and Tenant is not in default
in the performance of any of its obligations under the Lease.
(b) Tenant is currently paying base rent under the Lease in the
amount of ___________________ Dollars ($__________) per month. Tenant has not
received and is not, presently, entitled to any abatement, refunds, rebates,
concessions or forgiveness of rent or other charges, free rent, partial rent,
or credits, offsets or reductions in rent, except as follows:
_____________________
__________________________________________________________________ . (If none,
please state "None.")
(c) Tenant's estimated share of operating expenses, common area
charges, insurance, real estate taxes and administrative and overhead expenses
is __________ percent (______%) and is currently being paid at the rate of
_____________________ Dollars ($__________) per month, payable to
__________________________________________________________________ .
(d) There are no existing defenses or offsets against rent due or to
become due under the terms of the Lease, and there presently is no default or
other wrongful act or omission by Landlord under the Lease or otherwise in
connection with Tenant's occupancy of the Leased Premises, except as follows:
__________________________________________________________
__________________________________________________________________ . (If none,
please state "None.")
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SECTION 10. SECURITY DEPOSIT.
The amount of Tenant's security deposit held by Landlord under the
Lease is _________________ Dollars ($ __________).
SECTION 11. PREPAID RENT.
The amount of prepaid rent, separate from the security deposit, is
__________________________ Dollars ($___________), covering the period from
__________ to __________ .
SECTION 12. INSURANCE.
All insurance, if any, required to be maintained by Tenant under the
Lease is presently in effect.
SECTION 13. PENDING ACTIONS.
There are no actions, whether voluntary or otherwise, pending against
the Tenant (or any guarantor of the Tenant's obligations under the Lease)
pursuant to the bankruptcy or insolvency laws of the United States or any state
thereof.
SECTION 14. LANDLORD'S OBLIGATIONS
As of the date of this Certificate, Landlord has performed all
obligations required of Landlord pursuant to the Lease; no offsets,
counterclaims, or defenses of Tenant under the Lease exist against Landlord;
and no events have occurred that, with the passage of time or the giving of
notice, would constitute a basis for offsets, counterclaims, or defenses
against Landlord, except as follows:
__________________________________________________________________ . (If none,
please state "None.")
SECTION 15. ASSIGNMENTS BY LANDLORD.
Tenant has received no written notice of any assignment, hypothecation
or pledge of the Lease or rentals under the Lease by Landlord.
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SECTION 16. ASSIGNMENTS BY TENANT.
Tenant has not sublet or assigned the Leased Premises or the Lease or
any portion thereof to any sublessee or assignee. No one except Tenant and its
employees will occupy the Leased Premises. The address for notices to be sent
to Tenant is as set forth in the Lease.
SECTION 17. ENVIRONMENTAL MATTERS.
The operation and use of the Leased Premises does not involve the
generation, treatment, storage, disposal or release into the environment of any
hazardous materials, regulated materials and/or solid waste, except those used
in the ordinary course of operating a retail store or otherwise used in
accordance with all applicable laws.
Tenant makes this Certificate with the knowledge that it will be
relied upon by Buyer in agreeing to purchase the Property.
Tenant has executed this Certificate as of the date first written
above by the person named below, who is duly authorized to do so.
TENANT
___________________________________________
By: ______________________________
Name:
Its:
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EXHIBIT "J"
SELLER ESTOPPEL CERTIFICATE
THIS SELLER ESTOPPEL CERTIFICATE ("Certificate"), dated as of _______,
1996, is executed by LOOP ONE/183, LTD., a Texas limited partnership
("Landlord") in favor of The Price REIT, Inc., a Maryland corporation, or its
nominee (collectively, "Buyer").
R E C I T A L S
A. Buyer and Landlord have entered into that certain Phase I
Purchase and Sale Agreement and Joint Escrow Instructions, dated as of
_________, 1996 (the "Purchase Agreement"), whereby Buyer has agreed to
purchase, among other things, the improved real property located in the City of
Austin, County of Xxxxxx, State of Texas, more particularly described on
Exhibit "__" attached to the Purchase Agreement (the "Property").
B. Landlord has entered into that certain Lease Agreement, dated
as of ____________ (together with all amendments, modifications, supplements,
guarantees and restatements thereof, the "Lease"), with _______________
("Tenant") for a portion of the Property.
C. Pursuant to the Purchase Agreement, Landlord has agreed to
execute and deliver an estoppel certificate certifying the status of the Lease.
NOW, THEREFORE, Landlord certifies, warrants, and represents to Buyer
as follows:
A G R E E M E N T
SECTION 1. LEASE.
Attached hereto as Exhibit "A" is a true, correct, and complete copy
of the Lease, including the following amendments, modifications, supplements,
guarantees and restatements thereof, which together represent all of the
amendments, modifications, supplements, guarantees and restatements thereof:
____________________________________________________________________
__________________________________________________________________ . (If none,
please state "None.")
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SECTION 2. LEASED PREMISES.
Pursuant to the Lease, Tenant leases those certain premises (the
"Leased Premises") consisting of approximately __________________ (___________)
rentable square feet within the Property, as more particularly described in the
Lease. In addition, pursuant to the terms of the Lease, Tenant has the
non-exclusive right to use the parking area located on the Property during the
term of the Lease.
SECTION 3. FULL FORCE OF LEASE.
The Lease is in full force and effect, has not been terminated, and
(subject to principles of equity which may limit the availability of certain
equitable remedies and bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and other laws applicable to creditors' rights or the
collection of debtors' obligations generally) is enforceable in accordance with
its terms.
SECTION 4. COMPLETE AGREEMENT
The Lease constitutes the complete agreement between Landlord and
Tenant for the Leased Premises and the Property.
SECTION 5. ACCEPTANCE OF LEASED PREMISES.
Tenant has accepted and is currently occupying the Leased Premises.
SECTION 6. LEASE TERM.
The term of the Lease commenced on _____________ and ends on
_____________________, subject to the following options to extend:
__________________________________________________________________ . (If none,
please state "None.")
SECTION 7. PURCHASE RIGHTS.
Tenant has no option, right of first refusal, right of first offer, or
other right to purchase all or any portion of the Leased Premises or all or any
portion of the Property, except as follows:
______________________________________
__________________________________________________________________ . (If none,
please state "None.")
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SECTION 8. RIGHTS OF TENANT.
Except as expressly stated in the Lease, Tenant:
(a) has no right to renew or extend the term of the Lease; and
(b) has no right, title, or interest in the Leased Premises, other
than as Tenant under the Lease.
SECTION 9. RENT.
(a) The rent under the Lease is current, and Tenant is not in default
in the performance of any of its obligations under the Lease.
(b) Tenant is currently paying base rent under the Lease in the
amount of ___________________ Dollars ($__________) per month. Tenant has not
received and is not, presently, entitled to any abatement, refunds, rebates,
concessions or forgiveness of rent or other charges, free rent, partial rent,
or credits, offsets or reductions in rent, except as follows:
_____________________
__________________________________________________________________ . (If none,
please state "None.")
(c) Tenant's estimated share of operating expenses, common area
charges, insurance, real estate taxes and administrative and overhead expenses
is __________ percent (______%) and is currently being paid at the rate of
_____________________ Dollars ($__________) per month, payable to
__________________________________________________________________ .
(d) There are no existing defenses or offsets against rent due or to
become due under the terms of the Lease and there presently is no default or
other wrongful act or omission by Landlord under the Lease or otherwise in
connection with Tenant's occupancy of the Leased Premises, except as follows:
_____________________________________
__________________________________________________________________ . (If none,
please state "None.")
SECTION 10. SECURITY DEPOSIT.
The amount of Tenant's security deposit held by Landlord under the
Lease is _________________ Dollars ($ __________).
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SECTION 11. PREPAID RENT.
The amount of prepaid rent, separate from the security deposit, is
__________________________ Dollars ($___________), covering the period from
__________ to __________ .
SECTION 12. INSURANCE.
To Landlord's knowledge, all insurance, if any, required to be
maintained by Tenant under the Lease is presently in effect.
SECTION 13. PENDING ACTIONS.
To Landlord's knowledge, there are no actions, whether voluntary or
otherwise, pending against the Tenant (or any guarantor of the Tenant's
obligations under the Lease) pursuant to the bankruptcy or insolvency laws of
the United States or any state thereof.
SECTION 14. LANDLORD'S OBLIGATIONS.
As of the date of this Certificate, Landlord has performed all
obligations required of Landlord pursuant to the Lease; no offsets,
counterclaims, or defenses of Tenant under the Lease exist against Landlord;
and no events have occurred that, with the passage of time or the giving of
notice, would constitute a basis for offsets, counterclaims, or defenses
against Landlord, except as follows:
__________________________________________________________________ . (If none,
please state "None.")
SECTION 15. ASSIGNMENTS BY LANDLORD.
Landlord has not assigned, hypothecated or pledged the Lease or the
rentals under the Lease, other than to Landlord's lender (Texas Commerce Bank
National Association), which assignment was made in connection with Landlord's
securing funds for the acquisition of the Property and construction of certain
improvements thereon, and which will be released as of the Closing (as defined
in the Purchase Agreement).
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SECTION 16. ASSIGNMENTS BY TENANT.
Tenant has not sublet or assigned the Leased Premises or the Lease or
any portion thereof to any sublessee or assignee. The address for notices to
be sent to Tenant is as set forth in the Lease.
SECTION 17. ENVIRONMENTAL MATTERS.
The operation and use of the Leased Premises does not involve the
generation, treatment, storage, disposal or release into the environment of any
hazardous materials, regulated materials and/or solid waste, except those used
in the ordinary course of operating a retail store or otherwise used in
accordance with all applicable laws.
SECTION 18. LANDLORD'S KNOWLEDGE.
Whenever the phrase "Landlord's knowledge" or any similar phrase is
used in this Certificate, the meaning thereof is intended to have, and shall
have, the same meaning as the phrase "Seller's knowledge" set forth in Section
9.27 of the Purchase Agreement.
Tenant makes this Certificate with the knowledge that it will be
relied upon by Buyer in agreeing to purchase the Property.
Tenant has executed this Certificate as of the date first written
above by the person named below, who is duly authorized to do so.
LANDLORD
LOOP ONE/183, LTD.,
a Texas limited partnership
By: Xxxx 0/000 Xxx, X.X.,
General Partner
By: ________________________________
Xxxxxx X. Xxxxxx
Manager
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EXHIBIT "K"
REA ESTOPPEL CERTIFICATE
THIS REA ESTOPPEL CERTIFICATE ("Certificate"), dated as of __________,
1996, is executed by __________________ (the "Undersigned") in favor of The
Price REIT, Inc., a Maryland corporation ("Buyer").
R E C I T A L S
A. Buyer and Loop One/183, Ltd., a Texas limited partnership
("Seller"), have entered into that certain Phase I Purchase and Sale Agreement
and Joint Escrow Instructions, dated as of ________, 1996 (the "Purchase
Agreement"), whereby Buyer has agreed to purchase, among other things, the
improved real property located in the City of Austin, County of Xxxxxx, State
of Texas, more particularly described on Exhibit "__" attached to the Purchase
Agreement (the "Property").
B. The Undersigned and Seller are parties to that certain
Reciprocal Easement Agreement, dated as of _______ (together with all
amendments, modifications, supplements and restatements thereof, the "REA"),
for a portion of the Property. The Undersigned owns that certain improved real
property located in the City of Austin, County of Xxxxxx, State of Texas, more
particularly described on Exhibit "__" to the REA (the "Adjacent Property").
C. In connection with the Purchase Agreement, Seller has
requested that the Undersigned execute this Certificate.
NOW, THEREFORE, the Undersigned certifies, warrants, and represents to
Buyer as follows:
A G R E E M E N T
SECTION 1. REA.
Attached hereto as Exhibit "A" is a true, correct and complete copy of
the REA, including the following amendments, modifications, supplements and
restatements thereof, which together represent all of the amendments,
modifications, supplements and restatements thereof:
___________________________________________________________________. (If none,
please state "None.")
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SECTION 2. FULL FORCE OF REA.
The REA is in full force and effect, has not been terminated, and is
enforceable in accordance with its terms.
SECTION 3. COMPLETE AGREEMENT.
The REA constitutes the complete agreement between Seller and the
Undersigned for the Adjacent Property and the Property.
SECTION 4. OCCUPATION.
The Undersigned is currently occupying the Adjacent Property and
Seller is currently occupying the Property.
SECTION 5. REA TERM.
The term of the REA commenced on ____________________ and is
[perpetual/ends on _________________].
SECTION 6. PURCHASE RIGHTS.
The Undersigned has no option, right of first refusal, right of first
offer, or other right to purchase all or any portion of the Property, except as
follows: __________________________________________________________________ .
(If none, please state "None.")
SECTION 7. RIGHTS OF THE UNDERSIGNED.
Except as expressly stated in this Certificate, the Undersigned:
(a) has no right to renew or extend the term of the REA; and
(b) has no right, title, or interest in the Property, other than
pursuant to the REA.
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SECTION 8. THE UNDERSIGNED'S OBLIGATIONS
(a) The undersigned has been paying its monetary obligations, if
any, under the REA in accordance with the time periods set forth in the REA and
the Undersigned is not in default in the performance of any of its other
obligations under the REA.
(b) The Undersigned's estimated share of any and all expenses for
____________- (list types of expenses) is currently being paid at the rate of
$_________ per month, payable to Seller. (If none, please state "None.")
(c) There are no existing defenses or offsets against the monetary
obligations, if any, due or to become due under the terms of the REA and there
has been no default or other wrongful act or omission by Seller under the REA,
except as follows: ____________-
__________________________________________________________________ . (If none,
please state "None.")
SECTION 9. INSURANCE.
All insurance, if any, required to be maintained by the Undersigned
under the REA is presently in effect.
SECTION 10. PENDING ACTIONS.
There are no actions, whether voluntary or otherwise, pending against
the Undersigned pursuant to the bankruptcy or insolvency laws of the United
States or any state thereof.
SECTION 11. SELLER'S OBLIGATIONS.
As of the date of this Certificate, Seller has performed all
obligations required of Seller pursuant to the REA; no offsets, counterclaims,
or defenses of the Undersigned under the REA exist against Seller; and no
events have occurred that, with the passage of time or the giving of notice,
would constitute a basis for offsets, counterclaims, or defenses against
Seller, except as follows:
__________________________________________________________________ . (If none,
please state "None.")
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SECTION 12. ASSIGNMENTS BY SELLER.
The Undersigned has received no notice of any assignment,
hypothecation or pledge of the REA by Seller.
SECTION 13. ASSIGNMENTS BY THE UNDERSIGNED.
The Undersigned has not assigned the REA or any portion thereof to any
assignee. No one except the Undersigned and its employees will occupy the
Adjacent Property. The address for notices to be sent to the Undersigned is as
set forth in the REA.
SECTION 14. ENVIRONMENTAL MATTERS.
The operation and use of the Adjacent Property does not involve the
generation, treatment, storage, disposal or release into the environment of any
hazardous materials, regulated materials, and/or solid waste, except those used
in the ordinary course of operating a retail store or otherwise used in
accordance with all applicable laws.
SECTION 15. NOTIFICATION BY THE UNDERSIGNED.
From the date of this Certificate and continuing until ____________,
the Undersigned agrees to immediately notify Buyer, in writing, at the
following address, on the occurrence of any event or the discovery of any fact
that would make any representation contained in this Certificate inaccurate:
The Price REIT, Inc.
000 Xxxxx Xxxxxxx Avenue, 4th Floor
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxxx
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention Xxxxx X. Xxxxxxxx, Esq.
The Undersigned makes this Certificate with the knowledge that it will
be relied upon by Buyer in agreeing to purchase the Property.
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The Undersigned has executed this Certificate as of the date first
written above by the person named below, who is duly authorized to do so.
______________________________________
By: _______________________
Name:
Its:
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EXHIBIT "L"
SELLER'S REA ESTOPPEL CERTIFICATE
THIS SELLER'S REA ESTOPPEL CERTIFICATE ("Certificate"), dated as of
__________, 1996, is executed by LOOP ONE/183, LTD., a Texas limited
partnership ("Seller") in favor of The Price REIT, Inc., a Maryland corporation
("Buyer").
R E C I T A L S
A. Buyer and Seller have entered into that certain Phase I
Purchase and Sale Agreement and Joint Escrow Instructions, dated as of
________, 1996 (the "Purchase Agreement"), whereby Buyer has agreed to
purchase, among other things, the improved real property located in the City of
Austin, County of Xxxxxx, State of Texas, more particularly described on
Exhibit "__" attached to the Purchase Agreement (the "Property").
B. Seller and __________________ ("REA Party") are parties to
that certain Reciprocal Easement Agreement, dated as of _______ (together with
all amendments, modifications, supplements and restatements thereof, the
"REA"), for a portion of the Property. REA Party owns that certain improved
real property located in the City of Austin, County of Xxxxxx, State of Texas,
more particularly described on Exhibit "__" to the REA (the "Adjacent
Property").
C. In connection with the Purchase Agreement, Seller has agreed
to execute and deliver this Certificate.
NOW, THEREFORE, Seller certifies, warrants, and represents to Buyer as
follows:
A G R E E M E N T
SECTION 1. REA.
Attached hereto as Exhibit "A" is a true, correct and complete copy of
the REA, including the following amendments, modifications, supplements and
restatements thereof, which together represent all of the amendments,
modifications, supplements and restatements thereof:
____________________________________________________________________
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___________________________________________________________________.
(If none, please state "None.")
SECTION 2. FULL FORCE OF REA.
The REA is in full force and effect, has not been terminated, and
(subject to principles of equity which may limit the availability of certain
equitable remedies and bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and other laws applicable to creditors' rights or the
collection of debtors' obligations generally) is enforceable in accordance with
its terms.
SECTION 3. COMPLETE AGREEMENT.
Except as may be set forth in the "Permitted Exceptions" (as defined
in the Purchase Agreement), the REA and that certain Option Agreement, dated as
of __________, by and between REA Party, as optionor, and Seller, as optionee,
constitute the complete agreement between Seller and REA Party for the Adjacent
Property and the Property.
SECTION 4. OCCUPATION.
REA Party is currently occupying the Adjacent Property and Seller is
currently occupying the Property.
SECTION 5. REA TERM.
The term of the REA commenced on ____________________ and is
[perpetual/ends on _________________].
SECTION 6. PURCHASE RIGHTS.
REA Party has no option, right of first refusal, right of first offer,
or other right to purchase all or any portion of the Property, except as
follows: __________________________________________________________________ .
(If none, please state "None.")
SECTION 7. RIGHTS OF REA PARTY.
Except as expressly stated in the REA, REA Party:
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(a) has no right to renew or extend the term of the REA; and
(b) has no right, title, or interest in the Property, other than
pursuant to the REA.
SECTION 8. REA PARTY'S OBLIGATIONS.
(a) REA Party has been paying its monetary obligations, if any,
under the REA in accordance with the time periods set forth in the REA and REA
Party is not in default in the performance of any of its other obligations
under the REA.
(b) REA Party's estimated share of any and all expenses for
_________________________________________________________________ (list types
of expenses) is currently being paid at the rate of $_________ per month,
payable to Seller. (If none, please state "None.")
(c) There are no existing defenses or offsets against the monetary
obligations, if any, due or to become due under the terms of the REA and there
has been no default or other wrongful act or omission by Seller under the REA,
except as follows: ____________-
__________________________________________________________________ . (If none,
please state "None.")
SECTION 9. INSURANCE.
To Seller's knowledge, all insurance, if any, required to be
maintained by REA Party under the REA is presently in effect.
SECTION 10. PENDING ACTIONS.
To Seller's knowledge, there are no actions, whether voluntary or
otherwise, pending against REA Party pursuant to the bankruptcy or insolvency
laws of the United States or any state thereof.
SECTION 11. SELLER'S OBLIGATIONS.
As of the date of this Certificate, Seller has performed all
obligations required of Seller pursuant to the REA; no offsets, counterclaims,
or defenses of REA Party under the REA exist against Seller; and no events have
occurred that,
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with the passage of time or the giving of notice, would constitute a basis for
offsets, counterclaims, or defenses against Seller, except as follows:
____________________________________________________________________
__________________________________________________________________ . (If none,
please state "None.")
SECTION 12. ASSIGNMENTS BY SELLER.
Seller has not assigned, hypothecated or pledged the REA, other than
to Seller's lender (Texas Commerce Bank National Association), which assignment
was made in connection with Seller's securing funds for the acquisition of the
Property and construction of certain improvements thereon, and which will be
released as of the Closing (as defined in the Purchase Agreement).
SECTION 13. ASSIGNMENTS BY REA PARTY.
REA Party has not assigned the REA or any portion thereof to any
assignee. The address for notices to be sent to REA Party is as set forth in
the REA.
SECTION 14. ENVIRONMENTAL MATTERS.
The operation and use of the Adjacent Property does not involve the
generation, treatment, storage, disposal or release into the environment of any
hazardous materials, regulated materials, and/or solid waste, except those used
in the ordinary course of operating a retail store or otherwise used in
accordance with all applicable laws.
SECTION 15. SELLER'S KNOWLEDGE.
Whenever the phrase "Seller's knowledge" or any similar phrase is used
in this Certificate, the meaning thereof is intended to have, and shall have,
the same meaning as the phrase "Seller's knowledge" set forth in Section 9.27
of the Purchase Agreement.
Seller makes this Certificate with the knowledge that it will be
relied upon by Buyer in agreeing to purchase the Property.
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Seller has executed this Certificate as of the date first written
above by the person named below, who is duly authorized to do so.
SELLER
LOOP ONE/183, LTD.,
a Texas limited partnership
By: Xxxx 0/000 Xxx, X.X.,
General Partner
By: ________________________________
Xxxxxx X. Xxxxxx
Manager
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EXHIBIT "M"
NON-FOREIGN AFFIDAVIT
1. Section 1445 of the Internal Revenue Code of 1986, as amended
(the "IRC"), provides that a transferee of a United States real property
interest must withhold tax if the transferor is a foreign person.
2. In order to inform The Price REIT, Inc., a Maryland
corporation (the "Transferee"), that withholding of tax is not required upon
the disposition by Loop One/183, Ltd., a Texas limited partnership (the
"Transferor"), of the United States real property more particularly described
on Exhibit "A" attached hereto and incorporated herein by reference (the
"Property"), the undersigned Transferor certifies and declares by means of this
certification, the following:
a. The Transferor is not a foreign person, foreign
corporation, foreign partnership, foreign trust or
foreign estate (as such terms are defined in the IRC
and the Income Tax Regulations).
b. Transferor's federal taxpayer identification number
is:
______________________
c. Transferor's address is:
______________________________
______________________________
______________________________
3. Transferor understands that this certification may be
disclosed to the Internal Revenue Service by Transferee and that any false
statement contained in this certification may be punished by fine, imprisonment
or both.
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Under penalties of perjury, Transferor declares that it has carefully
examined this certification and it is true, correct and complete.
Executed this _____ day of ________, 1996 at ___________, Texas.
LOOP ONE/183, LTD.,
a Texas limited partnership
By: Xxxx 0/000 Xxx, X.X.,
General Partner
By: ______________________________________
Xxxxxx X. Xxxxxx
Manager
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EXHIBIT "N"
NOTICE TO TENANTS
[Tenant's Name and Address]
Re: [Name of Lease], dated as of ________________
(the "Lease"), by and between _______________
("Tenant") and Loop One/183, Ltd., a Texas limited
partnership ("Loop One")
Dear Tenant:
Effective as of ___________, 1996, Loop One has sold the Arboretum
Crossing Power Center (and has assigned the Lease) to the Price REIT, Inc., a
Maryland corporation ("Purchaser"). In connection with such purchase and sale,
Purchaser has assumed Loop One's obligations as landlord under the Lease and
has also been transferred your security deposit in the amount of $__________.
All rent hereafter due should be made payable to Purchaser and
forwarded to the following address:
000 X. Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Accounting Department
In addition, all inquiries you may have should be forwarded to
Purchaser at the above address.
Very truly yours,
LOOP ONE/183, LTD.,
a Texas limited partnership
By: Xxxx 0/000 Xxx, X.X.,
General Partner
By: ______________________________
Xxxxxx X. Xxxxxx
Manager
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AGREED TO AND ACCEPTED:
THE PRICE REIT, INC.,
a Maryland corporation
By: ____________________________
Name:
Its:
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EXHIBIT "O"
NOTICE TO VENDORS
[Vendor's Name and Address]
Re: [Name of Service Contract], dated as of _________
(the "Service Contract"), by and between
____________ ("Vendor") and Loop One/183, Ltd.,
a Texas limited partnership ("Loop One")
Dear Vendor:
Effective as of _____, 1996 Loop One has sold the Arboretum Crossing
Power Center (and has assigned its rights in and to the Service Contract) to
the Price REIT, Inc., a Maryland corporation ("Purchaser").
Accordingly, you should make separate arrangements with Purchaser for
any services to be rendered to the Arboretum Crossing Power Center in
accordance with the terms of the Service Contract. All bills for services
rendered through [the Closing Date] should be tendered to Loop One.
All future notices and inquiries that you may have regarding the
Service Contract should be forwarded to Purchaser at the following address:
000 X. Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Accounting Department
Very truly yours,
LOOP ONE/183, LTD.,
a Texas limited partnership
By: Xxxx 0/000 Xxx, X.X.,
General Partner
By: ___________________________
Xxxxxx X. Xxxxxx
Manager
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AGREED TO AND ACCEPTED:
THE PRICE REIT, INC.,
a Maryland corporation
By: ____________________________
Name:
Its:
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EXHIBIT "P"
LEASE SCHEDULE
BUILDING CURRENT COMMENCEMENT* EXPIRATION* SECURITY
BUILDING I AREA TERM RENTS DATE DATE DEPOSIT EXPENSES FREE RENT
---------- -------- ------- ------ ------------ ------------ -------- ---------------- --------
Suite A DSW Shoe Warehouse 18,900 10 Yrs. $14.00 3/1/97 2/28/07 N/A $1.25 CAM, No CAP N/A
Suite B Baby Superstore 40,000 15 Yrs. $ 9.85 11/1/96 10/31/11 N/A $.75 CAM 2 Months
Suite C Mikasa 15,000 15 Yrs. $15.25 11/15/96 00/00/00 X/X X/X
Xxxxx X Xxxxxxx Xxxx 45,576 20 Yrs. $14.50 11/1/96 1/31/17 N/A $1.0 CAM&INS, 5% CAP N/A
Suite E Cost Plus 18,900 15 Yrs. $14.20 10/1/96 9/30/11 N/A $1.25 CAM, 10% CAP N/A
BUILDING II
-----------
Suite A Party City 9,000 10 Yrs. $16.00 10/1/96 9/30/06 $14,437.50 $1.00 CAM N/A
Suite B Leather Leather 6,000 10 Yrs. $16.00 11/1/96 10/31/06 $ 9,500.00 $.75 CAM, No CAP N/A
BUILDING III
------------
Suite A Vacancy 3,500
Suite B Xxxx Carpet ShowPlace 5,000 5 Yrs. $22.20 11/1/96 10/31/01
Suite C Barbeques Galore 5,000 5 Yrs. $21.60 11/1/97 12/31/01 N/A $1.00 CAM, No CAP N/A
BUILDING IV
-----------
Just For Feet 15,675 15 Yrs. $19.51 2/1/97 1/31/96 N/A $1.25 CAM, 10% CAP N/A
-------
Total 182,551
--------------
* - Estimated dates; actual commencement and expiration dates will be based on
actual opening dates.
P-1
109
EXHIBIT "Q"
APPROVALS
1. The recorded subdivision plat establishing the Land as its own separate
legal lot as recorded in Volume 96, Pages 296-297, of the Plat Records
of Xxxxxx County, Texas.
2. The Development Permit dated October 24, 1995, issued by the City of
Austin, Department of Planning and Development, a copy of which is
attached as Exhibit "Q-2".
3. Those Project Permits issued by the City of Austin, Department of
Planning and Development, copies of which are attached hereto as
Exhibits "Q-3" through "Q-8".
4. Letter dated April 11, 1996, addressed to Xx. Xxx Xxxxxx, of Cencor
Realty Services, from the Texas Natural Resource Conservation
Commission's Xxx Xxxxxxx, Executive Director, relating, in part, to the
Water Pollution Abatement Plan for Arboretum Crossing dated January 10,
1996, prepared for Cencor Realty Services by Xxxxxx & Associates, Inc.,
copies of which buyer, by its execution of the Agreement to which this
Exhibit Q is attached, acknowledges having received.
Q-1
000
XXXXX XXXXX Application
-------------------- (DEVELOPMENT PERMIT) Date: 24 OCT 95
WATERSHED Department of Planning & Development ---------
Application is hereby made to the Director of the Department of Planning &
Development of the City of Austin, Texas for a permit to develop a site in
accordance with plans and specifications submitted herewith, and in full
conformity with provisions of the Land Development Code and all rules and
ordinances of the City of Austin whether specified herein or not. The location
and pertinent features of said development are as follows:
Project Name (or description): ARBORETUM CROSSING
------------------------------------------------
Project Address or Location Description: 0000 XXXXXXXX XXXX
---------------------------------------
Owner of Property: CENCOR REALTY SERVICES (XXX XXXXXX)
------------------------------------------------------------
Address: 000 X. 0xx XX, XXX 000, XXXXXX, XX 00000 Telephone: (000)000-0000
---------------------------------------- -------------
Owner's Representative: XXXXXX & ASSOCIATES (XXXXX XXXXXXX)
-------------------------------------------------------
Address: 0000 XXX XX XX XXX. XX, X-000, XXXXXX, XX 00000 Telephone:(000)000-0000
---------------------------------------------- -------------
Subdivision: Section Stock Lot
------------------------- -------- -------- --------
Application is hereby made for the following development: THIS PROJECT
---------------------
INCLUDES APPROX. 220,000 SQ. FT. OF RETAIL SPACE, APPROX. 4,500 SQ. FT. OF
--------------------------------------------------------------------------------
RESTAURANT SPACE, 1,100 PARKING SPACES & OTHER SITE MODIFICATIONS.
--------------------------------------------------------------------------------
CONDITIONS OF PERMIT
It is the responsibility of the permit holder to identify all utilities in the
work area and to notify each utility of the scope of work in the immediate area
of the utility.
Engineer's Certification: Inspection and a "Certification of Completion" by a
Texas Registered Professional Engineer is required
for the development approved by this Permit. No
Certificate of Occupancy may be approved until the
Engineer's Certification is filed. The engineer is
responsible for the adequacy of the plans submitted
with this application.
PLANNING DEPT.
--------------------------------------------------------------------------------
Fee Stamp Special Conditions:
PAID --------------------------------------------------------
OCT 24, 1995
CITY OF AUSTIN --------------------------------------------------------
--------------------------------------------------------
Receipt #1718114
------------- --------------------------------------------------------
================================================================================
It is agreed that for and in consideration of the ------------------------
approval of this application, the proposed Approval:
development shall be performed and completed in
accordance with the plans and specifications as APPROVED
approved by the City of Austin and in accordance APR 05 1996
with the "City of Austin Standard Specification,"
State of Texas construction safety statutes and all By:
Code requirements of the City of Austin and as --------------------
delineated on this application. All plans and DEVELOPMENT SERVICES
specifications submitted by the applicant in ------------------------
connection with this application are hereby made NOT VALID UNLESS STAMPED
a part of this application. All development
approved by this permit is subject to the
inspection and control of the Departments of
Public Works and Transportation Services and
Environmental and Conservation Services of the
City of Austin.
[SIG] For CENCOR Date 4-5-96
--------------------------- ------------- ----------------
Signature of Applicant (OWNER)
PERMIT EXPIRES 3 YEARS FROM DATE OF APPROVAL
EXHIBIT Q-2
111
CITY OF AUSTIN - PROJECT PERMIT
PERMIT NO. ADDRESS DATE
9608668 9333 RESEARCH BV A 06/13/96
------------------------------------------------------------------------------------------------------------------------------
????????? PERMIT CLERK
STONEBRIDGE IV, XXX XXXXX, M
------------------------------------------------------------------------------------------------------------------------------
???? ????? ???
0911
------------------------------------------------------------------------------------------------------------------------------
????? ????? ??????? PROPOSED OCCUPANCY
CS CO NEW SHELL BUILDING
????? ?????
------------------------------------------------------------------------------------------------------------------------------
????????? ???????? ????????? ???? ???? ???? ???? BLDG. # ????
SP-95-0414C 0018800 00338926.00 2N X0-0 X-0 D1
------------------------------------------------------------------------------------------------------------------------------
WORK PERMITTED ???????? ?????? ???????? ??????? ????
NEW
------------------------------------------------------------------------------------------------------------------------------
CONTRACTORS NAME PHONE FEE PAID DATE REQUIRED
CENCOR REALTY 482-8383 INSPECTIONS
OWNER/CONTR. WHITE CONSTRUCTION
BUILDING 1525.00 06/13/96 BUILDING
ELECTRICAL 490.00 ELECTRIC
MECHANICAL 245.00 MECHANIC
PLUMBING 260.00 PLUMBING
SIDEWALK DRIVE CONCRETE
SIGN ENGINEER
OTHER WATER
ARCH/ENGR. SEWER
????? TOTAL FEES TOTAL PAID FIRE
5397.00 4402.00 LANDSCAPE
-------------------------------------------------------------------------------------------------------- ENERGY
C.O. MAILING ADDRESS
CENCOR REALTY PLAN CHECK 2877.00 05/02/96
000 XXXX 0XX XXXXXX
XXXXXX XX 00000
BY TAKING AND/OR PAYING FOR THIS PERMIT
APPLICATION, YOU ARE DECLARING YOU ARE THE
OWNER OR HAVE BEEN AUTHORIZED BY THE OWNER
REMARKS W#G63879,WW#134638*** OR OWNERS TO SUBMIT THIS APPLICATION, THAT
THE GIVEN DATA ARE TRUE FACTS AND THAT THE
WORK WILL CONFORM TO THE PLANS AND
SPECIFICATIONS SUBMITTED HEREWITH:
THIS IS A RECEIPT OF PAYMENT FOR FEE OR FEES
AS MARKED PAID.
CONTRACTOR'S COPY
EXHIBIT Q-3
112
CITY OF AUSTIN - PROJECT PERMIT
PERMIT NO. ADDRESS DATE
9608674 9333 RESEARCH BV A 2 06/13/96
----------------------------------------------------------------------------------------------------------------
STONEBRIDGE IV, XXX XXXXX, M
----------------------------------------------------------------------------------------------------------------
09Y
----------------------------------------------------------------------------------------------------------------
PROPOSED OCCUPANCY
CS CO NEW SHELL BUILDING
----------------------------------------------------------------------------------------------------------------
SP-95-0414C 0042296 00867068.00 2N X0-0 X-0 O1
----------------------------------------------------------------------------------------------------------------
WORK PERMITTED
NEW
----------------------------------------------------------------------------------------------------------------
NAME PHONE FEE PAID DATE REQUIRED
C CENCOR REALTY 482-8383 INSPECTIONS
O OWNER-CONTR. WHITE CONSTRUCTION 3440.00 06/13/96 BUILDING
N BUILDING 795.00 ELECTRIC
T ELECTRICAL 430.00 MECHANIC
R MECHANICAL 410.00 PLUMBING
A PLUMBING ENGINEER
C SIDEWALK/DRIVE WATER
T SIGN SEWER
O OTHER ------------------------------------------------- FIRE
R ARCH/ENGR. TOTAL FEES TOTAL PAID LANDSCAPE
S 7225.00 5590.00 ENERGY
------------------------------------------------------------------------------------------
C.O. MAILING ADDRESS
CENCOR REALTY PLAN CHECK 2150.00 06/13/96
000 XXXX 0XX XXXXXX
XXXXX #000
XXXXXX XX 00000
BY TAKING AND/OR PAYING FOR THIS PERMIT
APPLICATION, YOU ARE DECLARING YOU ARE THE
REMARKS W#G63879, WW#134638/PLAN REV OWNER OR HAVE BEEN AUTHORIZED BY THE OWNER
PD ON BLD#A1/CODE BY TL*** OR OWNERS TO SUBMIT THIS APPLICATION. THAT
THE GIVEN DATA ARE TRUE FACTS AND THAT THE
WORK WILL CONFORM TO THE PLANS AND
SPECIFICATIONS SUBMITTED HEREWITH:
THIS IS A RECEIPT OF PAYMENT FOR FEE OR FEES
AS MARKED PAID.
CONTRACTOR'S COPY
EXHIBIT Q-4
113
CITY OF AUSTIN - PROJECT PERMIT
PERMIT NO. ADDRESS DATE
9608673 9333 RESEARCH BV A 3 06/13/96
----------------------------------------------------------------------------------------------
STONEBRIDGE IV, XXX XXXXX, M
----------------------------------------------------------------------------------------------
0911 1
----------------------------------------------------------------------------------------------
CS CO NEW SHELL BUILDING
----------------------------------------------------------------------------------------------
SP-95-0414C 0015000 00307500.00 2N B242 B-2 01
----------------------------------------------------------------------------------------------
NEW
----------------------------------------------------------------------------------------------
CONTRACTORS PHONE FEE PAID DATE REQUIRED
CENCOR REALTY INSPECTIONS
OWNER/CONTR. WHITE CONSTRUCTION 482-8383
1295.00 06/13/96 BUILDING
BUILDING 445.00 ELECTRIC
ELECTRICAL 205.00 MECHANIC
MECHANICAL 230.00 PLUMBING
PLUMBING ENGINEER
SIDEWALK/DRIVE WATER
SIGN SEWER
OTHER ------------------------------------------------ FIRE
ARCH/ENGR. TOTAL FEES TOTAL PAID LANDSCAPE
2175.00 1295.00 ENERGY
----------------------------------------------------------------------------------------------
C.O. MAILING ADDRESS
CENCOR REALTY
000 XXXX 0XX XXXXXX
XXXXX #000
XXXXXX XX 00000 BY TAKING AND/OR PAYING FOR THIS PERMIT
APPLICATION, YOU ARE DECLARING YOU ARE THE
REMARKS: W#G63879, WW#134638/PLAN REV OWNER OR HAVE BEEN AUTHORIZED BY THE OWNER
PD ON BLD#A1/CODE BY TL*** OR OWNERS TO SUBMIT THIS APPLICATION. THAT
THE GIVEN DATA ARE TRUE FACTS AND THAT THE
WORK WILL CONFORM TO THE PLANS AND
SPECIFICATIONS SUBMITTED HEREWITH:
THIS IS A RECEIPT OF PAYMENT FOR FEE OR FEES
AS MARKED PAID.
CONTRACTOR'S COPY
EXHIBIT Q-5
114
CITY OF AUSTIN - PROJECT PERMIT
PERMIT NO. ADDRESS DATE
9608672 9333 RESEARCH BV A 5 06/13/96
------------------------------------------------------------------------------------------------------------------------------
????????? PERMIT CLERK
STONEBRIDGE IV, XXX XXXXX, M
------------------------------------------------------------------------------------------------------------------------------
???? ????? ???
0911 1
------------------------------------------------------------------------------------------------------------------------------
????? ????? ??????? PROPOSED OCCUPANCY
CS CO NEW SHELL BUILDING
????? ?????
------------------------------------------------------------------------------------------------------------------------------
????????? ???????? ????????? ???? ???? ???? ???? BLDG. # ????
SP-95-0414C 0018900 00387450.00 2N X0-0 X-0
------------------------------------------------------------------------------------------------------------------------------
WORK PERMITTED ???????? ?????? ???????? ??????? ????
NEW
------------------------------------------------------------------------------------------------------------------------------
CONTRACTORS NAME PHONE FEE PAID DATE REQUIRED
CENCOR REALTY 482-8383 INSPECTIONS
OWNER/CONTR. WHITE CONSTRUCTION
BUILDING 1525.00 06/13/96 BUILDING
ELECTRICAL 395.00 ELECTRIC
MECHANICAL 220.00 MECHANIC
PLUMBING 205.00 PLUMBING
SIDEWALK DRIVE ENGINEER
SIGN WATER
OTHER SEWER
ARCH/ENGR. FIRE
????? TOTAL FEES TOTAL PAID LANDSCAPE
2345.00 1525.00 ENERGY
--------------------------------------------------------------------------------------------------------
C.O. MAILING ADDRESS
CENCOR REALTY
000 XXXX 0XX XXXXXX
XXXXX #000
XXXXXX XX 00000
BY TAKING AND/OR PAYING FOR THIS PERMIT
APPLICATION, YOU ARE DECLARING YOU ARE THE
OWNER OR HAVE BEEN AUTHORIZED BY THE OWNER
REMARKS W#G63880,WW#134639/PLAN REV OR OWNERS TO SUBMIT THIS APPLICATION. THAT
PD ON BLD#A1/CODE BY TL*** THE GIVEN DATA ARE TRUE FACTS AND THAT THE
WORK WILL CONFORM TO THE PLANS AND
SPECIFICATIONS SUBMITTED HEREWITH:
THIS IS A RECEIPT OF PAYMENT FOR FEE OR FEES
AS MARKED PAID.
CONTRACTOR'S COPY
EXHIBIT Q-6
115
CITY OF AUSTIN - PROJECT PERMIT
PERMIT NO. ADDRESS DATE
9608671 9333 RESEARCH BV B 0 06/13/96
------------------------------------------------------------------------------------------------------------------------------
????????? PERMIT CLERK
STONEBRIDGE IV, XXX XXXXX, M
------------------------------------------------------------------------------------------------------------------------------
???? BLOCK LOT
0911 1
------------------------------------------------------------------------------------------------------------------------------
????? ????? ??????? PROPOSED OCCUPANCY
CS CO NEW SHELL BUILDING
????? ?????
------------------------------------------------------------------------------------------------------------------------------
??????? ??? ???????? ????????? ???? ???? ???? ???? ???? ???? ????
SP-95-0414C 0015060 00287000.00 2N X0-0 X-0 01
------------------------------------------------------------------------------------------------------------------------------
WORK PERMITTED ???????? ?????? ???????? ??????? ????
NEW
------------------------------------------------------------------------------------------------------------------------------
NAME PHONE FEE PAID DATE REQUIRED
CONTRACTORS CENCOR REALTY 482-8383 INSPECTIONS
OWNER/CONTR. WHITE CONSTRUCTION
BUILDING 1295.00 06/13/96 BUILDING
ELECTRICAL 315.00 ELECTRIC
MECHANICAL 210.00 MECHANIC
PLUMBING 185.00 PLUMBING
SIDEWALK/DRIVE ENGINEER
SIGN WATER
OTHER SEWER
ARCH/ENGR. FIRE
????? TOTAL FEES TOTAL PAID LANDSCAP
2005.00 1295.00 ENERGY
--------------------------------------------------------------------------------------------------------
C.O. MAILING ADDRESS
CENCOR REALTY
000 XXXX 0XX XXXXXX
XXXXX #000
XXXXXX XX 00000
BY TAKING AND/OR PAYING FOR THIS PERMIT
APPLICATION, YOU ARE DECLARING YOU ARE THE
OWNER OR HAVE BEEN AUTHORIZED BY THE OWNER
REMARKS W#G63881,WW#134640,PLAN REV OR OWNERS TO SUBMIT THIS APLICATION, THAT
PD ON BLD#A1/CODE BY TL*** THE GIVEN DATA ARE TRUE FACTS AND THAT THE
WORK WILL CONFORM TO THE PLANS AND
SPECIFICATIONS SUBMITTED HEREWITH:
THIS IS A RECEIPT OF PAYMET FOR FEE OR FEES
AS MARKED PAID.
CONTRACTOR'S COPY
EXHIBIT Q-7
116
CITY OF AUSTIN - PROJECT PERMIT
PERMIT NO. ADDRESS DATE
9608669 9333 RESEARCH BV C 0 06/13/96
----------------------------------------------------------------------------------------------
???? PERMIT CLERK
STONEBRIDGE IV, XXX XXXXX, M
----------------------------------------------------------------------------------------------
???? LOT
0911 BLOCK 1
----------------------------------------------------------------------------------------------
???? ???? ???? PROPOSED OCCUPANCY
CS CO ???? ???? NEW SHELL BUILDING
----------------------------------------------------------------------------------------------
???? ???? ???? ???? ???? ???? ???? ???? ????
SP-95-0414C 0013500 00287000.00 2N X0-0 X-0 01
----------------------------------------------------------------------------------------------
WORK PERMITTED ???? ???? ???? ???? ????
NEW
----------------------------------------------------------------------------------------------
CONTRACTORS NAME PHONE FEE PAID DATE REQUIRED
INSPECTIONS
OWNER/CONTR. CENCOR REALTY 482-8383
WHITE CONSTRUCTION 1070.00 06/13/96 BUILDING
BUILDING 265.00 ELECTRIC
ELECTRICAL 140.00 MECHANIC
MECHANICAL 165.00 PLUMBING
PLUMBING ENGINEER
SIDEWALK/DRIVE WATER
SIGN SEWER
OTHER ------------------------------------------------ FIRE
ARCH/ENGR. ???? TOTAL FEES TOTAL PAID LANDSCAP
3790.00 3220.00 ENERGY
----------------------------------------------------------------------------------------------
C.O. MAILING ADDRESS ELECTRIC SERVICE 2150.00 06/13/96
CENCOR REALTY
000 XXXX 0XX XXXXXX
XXXXX #000
XXXXXX XX 00000 BY TAKING AND/OR PAYING FOR THIS PERMIT
APPLICATION, YOU ARE DECLARING YOU ARE THE
REMARKS W#G63883,WW#134642,PLAN REV OWNER OR HAVE BEEN AUTHORIZED BY THE OWNER
PD ON BLD#A1/CODE BY TL*** OR OWNERS TO SUBMIT THIS APPLICATION, THAT
THE GIVEN DATA ARE TRUE FACTS AND THAT THE
WORK WILL CONFORM TO THE PLANS AND
SPECIFICATIONS SUBMITTED HEREWITH:
THIS IS A RECEIPT OF PAYMENT FOR FEE OR FEES
AS MARKED PAID.
CONTRACTOR'S COPY
EXHIBIT Q-8
117
EXHIBIT "R"
LITIGATION
None.
R-1
118
EXHIBIT "S"
LEASE-UP PAYMENT SCHEDULE
================================================================================
Suite Containing Unleased Space Amount of Annual Base Rent
================================================================================
Suite B $16.00 per square foot
--------------------------------------------------------------------------------
Suite C $14.00 per square foot
--------------------------------------------------------------------------------
Suite D $13.00 per square foot
================================================================================
S-1
119
EXHIBIT "T"
SCHEDULE OF PERSONAL PROPERTY
None.
T-1
120
EXHIBIT "U"
SITE PLAN
U-1
121
EXHIBIT ___
MASTER ASSIGNMENT OF AND AMENDMENT TO
PURCHASE AGREEMENTS
THIS MASTER ASSIGNMENT OF AND AMENDMENT TO PURCHASE AGREEMENTS
("Amendment") is made and entered into as of ___________, 1997, by and among (i)
LOOP 1/183, LTD., a Texas limited partnership ("Seller"), (ii) THE PRICE REIT,
INC., a Maryland corporation ("Assignor"), and (iii) PRICE/BAYBROOK, LTD., a
Texas limited partnership ("Buyer").
RECITALS
A. Seller and Assignor have entered into (i) that certain Phase I
Purchase and Sale Agreement and Joint Escrow Instructions, dated as of October
10, 1996 (as amended, the "Phase I Purchase Agreement"), and (ii) that certain
Phase II Purchase and Sale Agreement and Joint Escrow Instructions, dated as of
October 10, 1996 (as amended, the "Phase II Purchase Agreement" and, together
with the Phase I Purchase Agreement, the "Purchase Agreements"). Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed
thereto in the Purchase Agreements.
B. Pursuant to Section 16.5.2 of the Purchase Agreements, Assignor
has the right to assign the Purchase Agreements to an entity owned or controlled
by Assignor for the purpose of taking title to each Property.
C. Assignor now desires to assign and Buyer now desires to accept
assignment of and assume all of Assignor's right, title and interest in and to
the Purchase Agreements.
D. The parties also desire to amend the Purchase Agreements in
accordance with the terms and conditions hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Seller, Assignor and Buyer
hereby agree as follows:
AGREEMENT
1. ASSIGNMENT AND ASSUMPTION OF PURCHASE AGREEMENTS
a. Assignment. From and after the date hereof, Assignor
hereby irrevocably assigns, sets over, transfers and conveys to Buyer, its
successors and
122
assigns, all of Assignor's right, title and interest in and to the Purchase
Agreements (the "Assignment").
b. Acceptance and Assumption. Buyer hereby accepts the
Assignment of the Purchase Agreements and the rights granted herein. Buyer
hereby expressly assumes, for itself and its successors, assigns and legal
representatives, all of the obligations and liabilities, fixed and contingent,
of Assignor under the Purchase Agreements.
c. Acknowledgement of Continuing Liability. Assignor hereby
acknowledges that, notwithstanding the Assignment, Assignor continues to be
liable for its obligations under the Purchase Agreements.
d. No Third Parties. Nothing expressed or implied in this
Section 1 is intended or shall be construed to confer upon or give to any person
or entity, other than the parties hereto and their successors or assigns, any
rights or remedies under or by reason of the Assignment.
2. AMENDMENTS TO PHASE I PURCHASE AGREEMENT
a. Legal Description. The Phase I Purchase Agreement is
hereby amended to delete Exhibit "B" attached thereto in its entirety and insert
Exhibit "A" attached hereto in lieu thereof.
b. Purchase Price. The parties hereby acknowledge and agree
that the Initial Purchase Price has been determined to be Twenty Three Million
One Hundred Fifty Seven Thousand Dollars ($23,157,000.00); provided, however,
that in the event that Seller fails to deliver to Buyer on or before the
thirtieth (30th) day following the Closing Date, a new Tenant Estoppel and an
amendment to the Just For Feet Lease, each executed by Just For Feet and each
indicating that the annual rent paid by Just For Feet pursuant to the terms of
its Lease (as amended) is Three Hundred Thirteen Thousand Ninety Six Dollars
($313,096.00), Seller shall immediately deliver to Buyer, the sum of Sixty Eight
Thousand Seven Hundred Forty Four Dollars ($68,744.00).
c. Closing Date. The Phase I Purchase Agreement is hereby
amended by deleting Section 8.1.1 thereof in its entirety and inserting the
following paragraph in lieu thereof:
"8.1.1 Closing Date. Subject to the provisions of this
Agreement, the Closing shall take place on February 4, 1997 or
on such other date as the parties hereto may agree."
2
123
d. Qualified Leases. The Phase I Purchase Agreement is
hereby amended by deleting the first sentence of Section 7.1.11 thereof in its
entirety and inserting the following sentence in lieu thereof:
"On or before the Closing, at least 86% of the Property
shall have been leased pursuant to Qualified Leases."
e. Just For Feet.
(1) Rent. Notwithstanding anything to the contrary
contained in the Phase I Purchase Agreement, at the Closing, the sum of Seventy
Five Thousand Six Hundred Six Dollars and Fifty Six Cents ($75,606.56) (the
"Just For Feet Funds") shall be deducted from the Purchase Price payable to
Seller and shall be held in Escrow (and invested in accordance with the terms
hereof. The parties hereby acknowledge that although Just For Feet has entered
into a lease for a portion of the Property, Just For Feet will not be open for
business and will not be paying rent as of the Closing. The Parties hereby agree
(and instruct Escrow Agent) that until Escrow Agent receives written notice from
Buyer and Seller indicating that Just For Feet has commenced paying rent
pursuant to the terms of its lease (the "Rent Notice"), Escrow Agent shall
disburse to Buyer a portion of the Just For Feet Funds equal to the sum of
Thirty Thousand Six Hundred Sixty Two Dollars and Sixty Six Cents ($30,62.66)
(the "Monthly Payment") on the first day of each calendar month after the
Closing (and Buyer shall receive a credit against the Purchase Price paid at the
Closing for a portion of such amount for any partial month in which the Closing
occurs, in accordance with the terms of Section 8.5 of the Phase I Purchase
Agreement.) Upon Escrow Agent's receipt of the Rent Notice, Escrow Agent shall
promptly return any and all excess Just For Feet Funds (and any interest and
dividends earned thereon) to Seller. In the event that from time to time there
are insufficient Just For Feet Funds (and any interest and dividends earned
thereon) to Seller. In the event that from time to time there are insufficient
Just For Feet Funds to allow Escrow Agent to make any Monthly Payment to Buyer
in accordance with the terms hereof, then ten (10) days prior to the date on
which the next such Monthly Payment is due, then ten (10) days prior to the date
on which the next Monthly Payment is due, Escrow Agent shall deliver a written
notice to Seller and Buyer setting forth the amount of such insufficiency and
Seller shall (not later than five (5) Business Days after receiving such notice)
deliver the amount of such insufficiency into Escrow, which amount shall be
added to the Just For Feet Funds and paid to Buyer in accordance with the terms
of this paragraph.
(2) Dispute. The parties hereby acknowledge that a
dispute has arisen between Seller and Just For Feet in connection with a
potential delivery date penalty (the "Dispute"). Therefore, the parties hereby
acknowledge and agree that at the Closing, Ninety One Thousand Two Hundred
Twenty Eight Dollars and
3
124
Sixty Eight Cents ($91,228.68) (the "Disputed Funds") shall be deducted from
the Purchase Price payable to Seller and shall be held in Escrow and disbursed
in accordance with the terms of Section 8.5.2 of the Phase I Purchase Agreement
(and invested in accordance with the terms of Section 2.1.3 of the Phase I
Purchase Agreement). Seller and Buyer acknowledge that the Disputed Funds (i)
relate to the Dispute in which Seller is presently engaged with Just For Feet
concerning the extent, if at all, that Just For Feet would be entitled to
receive liquidated damages from Seller by reason of Just For Feet's alleged
delay in Seller's delivery of the Just For Feet leased premises to Just For
Feet, (ii) the amount of the Disputed Funds referenced above represents the
maximum amount of liquidated damages claimed by Just For Feet and (iii) Seller
intends to dispute Just For Feet's entitlement to receive the Disputed Funds.
In light of the considerations expressed in the preceding sentence, Seller and
Buyer acknowledge and agree that the Disputed Funds shall be held in escrow by
Escrow Agent until such time as Escrow Agent receives written notice from
Seller and Just For Feet authorizing Escrow Agent to disburse the Disputed
Funds (together with any interest or dividends as shall have accrued thereon)
in such manner as shall be specified in such written notice. Notwithstanding
any provision contained in the Phase I Purchase Agreement which could be
construed otherwise and/or any disbursement of any Disputed Funds to Just For
Feet, Seller hereby acknowledges and agrees that (A) Seller retains and may
exercise the right to assert a claim against (including the right to bring a
lawsuit), and the right to defend any claim that may be brought against Seller
by, Just For Feet in connection with the underlying Dispute to which the
Disputed Funds relate and (B) Seller's indemnification of Buyer set forth in
Section 15 of the Phase I Purchase Agreement, shall apply to the Dispute and
shall survive the Closing.
f. Traffic Signalization and Sidewalks. Notwithstanding
anything to the contrary contained in the Phase I Purchase Agreement, the
parties hereby acknowledge and agree that Seller shall be responsible for the
construction of the traffic signalization system and the sidewalks adjacent to
MOPAC Expressway (and the payment of all costs in connection therewith up to
$100,000.00) until the earlier to occur of: (i) the "Closing" (as defined in the
Phase II Purchase Agreement); or (ii) the third (3rd) anniversary of the
"Closing" (as defined in the Phase II Purchase Agreement); or (ii) the third
(3rd) anniversary of the "Closing" (as defined in the Phase I Purchase
Agreement).
x. Xxxx Carpet. Notwithstanding anything to the contrary
contained in the Phase I Purchase Agreement, the parties hereby acknowledge and
agree that Seller shall be required to deliver to Buyer a Tenant Estoppel from
Xxxx Carpet as part of the Minimum Estoppel Requirement, in accordance with the
terms of Section 7.1.8 of the Phase I Purchase Agreement. Xxxx Carpet shall not
be considered as a tenant in calculating the Purchase Price unless the Tenant
Estoppel
4
125
from Xxxx Carpet provides that (i) the lease for Xxxx Carpet is in full force
and effect and (ii) Xxxx Carpet has commenced paying rent in accordance with
the terms of such lease. Seller hereby agrees (a) to guaranty the payment of
all rent under the Xxxx Carpet lease until the second (2nd) anniversary of the
Closing and (b) in the event that (1) the Xxxx Carpet lease is terminated on or
prior to the second (2nd) anniversary of the Closing and (2) Seller consents to
such termination, to re-lease or sublease the Xxxx Carpet space (at Seller's
sole cost and expense) on terms reasonably satisfactory to Buyer, for a rent
amount equal to or higher than the rent due under the Xxxx Carpet lease.
h. Estoppels. Notwithstanding anything to the contrary
contained in the Phase I Purchase Agreement or in any written correspondence
previously sent from Assignor and/or Buyer to Seller disapproving Tenant
Estoppels previously obtained from one or more Tenants, the parties hereby
acknowledge and agree that Buyer's payment of the Purchase Price and acceptance
of the Deed at the Closing shall be deemed to be either (i) Buyer's approval of
all Tenant Estoppels from the Tenants or (ii) Buyer's waiver of the Minimum
Estoppel Requirement and any requirement under the Phase I Purchase Agreement
that Seller execute and deliver any Seller Estoppels.
i. Tenant Improvements. Notwithstanding anything to the
contrary contained in the Phase I Purchase Agreement, the parties hereby
acknowledge and agree that at the Closing, Two Hundred Forty Five Thousand
Dollars ($245,000.00) (the "TI Funds") shall be deducted from the Purchase Price
payable to Seller and shall be held in Escrow (and invested in accordance with
the terms of Section 2.1.3 of the Phase I Purchase Agreement). The parties
hereby agree (and instruct Escrow Agent) that upon, and in accordance with,
Buyer's written instructions, Escrow Agent shall disburse the TI Funds (in the
manner and in such amounts as Buyer may direct) to the following Tenants: (i) up
to $165,000.00 to Mikasa; (ii) up to $5,000.00 to Baby Superstore; and (iii) up
to $75,000.00 to Xxxx Carpet. Following the last of all of the foregoing
disbursements, Escrow Agent shall deliver to Seller any remaining TI Funds and
any and all interest and dividends earned thereon. The parties further
acknowledge and agree as follows: (1) at the Closing, Escrow Agent shall deduct
Twenty Four Thousand Ninety Three Dollars ($24,093.00) from the Purchase Price
payable to Seller and shall immediately disburse such amount to Circuit City
(which amount represents one-half of Circuit City's costs in connection with
erecting certain common walls); and (2) the term "delinquent rents" or
"delinquent rentals" as used in Section 8.5.1 of the Phase I Purchase Agreement
shall include all amounts owed by Tenants under the terms of their Leases
(including, without, limitation, amounts owed in connection with tenant
improvements).
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j. Remaining Sitework. Notwithstanding anything to the
contrary contained in the Phase I Purchase Agreement, the parties hereby
acknowledge and agree that at the Closing, Forty Thousand Dollars ($40,000.00)
(the "Work Funds") shall be deducted from the Purchase Price payable to Seller
and shall be held in Escrow (and invested in accordance with the terms of
Section 2.1.3 of the Phase I Purchase Agreement). The parties hereby agree (and
instruct Escrow Agent) that upon, and in accordance with, Seller's written
instructions (which written instructions shall be delivered to Escrow Agent no
sooner than five (5) Business Days after Seller has delivered written notice of
any disbursement to Buyer) Escrow Agent shall disburse the Work Funds (in the
manner and in such amounts as Seller shall direct in its written instructions
to Escrow Agent) to the appropriate parties to pay for the following work
(which Seller hereby agrees to complete in accordance with the terms of the
Purchase Agreements): (i) constructing the fence around the sedimentation pond;
(ii) stabilizing the rear retaining wall; (iii) re-painting or re-striping the
parking lot; and (iv) improving the drainage in the detention pond in front of
the Cost Plus store. Following the last of all of the foregoing disbursements
and upon Escrow Agent's receipt of written notice from Buyer and Seller
regarding such fact, Escrow Agent shall deliver to Seller any remaining Work
Funds and any and all interest and dividends earned thereon.
k. Construction. Notwithstanding anything to the contrary
contained herein, the parties hereby acknowledge and agree that Seller shall
remain responsible, at its sole cost and expense, for the completion of the
construction of all Improvements on the Property in accordance with the
Construction Documents and the Purchase Agreements.
l. Easements. The parties hereby acknowledge that Seller
is in the process of amending (i) that certain Electric Utility Easement,
recorded on June 7, 1996, in Volume 12703, Page 1162, of the Real Property
Records of Xxxxxx County, Texas (so that it conforms with the actual location
of all poles) and (ii) the REA (so that it conforms with the terms of all of the
Leases). The parties further acknowledge that such amendments may not be
finalized on or before the Closing, in which event, Seller covenants and agrees
to finalize such amendments as soon as possible following the Closing, subject
to Buyers reasonable approval thereof.
m. Common Area Maintenance, Taxes and Insurance.
(1) No Proration. Notwithstanding anything to the
contrary contained in the Phase I Purchase Agreement, the parties hereby
acknowledge and agree that all expenses relating to common area maintenance,
insurance and taxes for the Property for 1997 (collectively, the "1997
Expenses"), and all reimbursements by
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Tenants therefor, shall not be prorated. At the Closing Seller shall deliver to
Buyer all invoices for the 1997 Expenses and all reimbursements for the 1997
Expenses that Seller has received prior to the Closing Date and Buyer shall be
responsible for paying all such 1997 Expenses to the appropriate parties and
collecting all additional 1997 Expenses from the Tenants.
(2) CAM. The parties hereby acknowledge that the
Initial Purchase Price specified herein has been calculated based upon, among
other things, (A) an assumption that the annual common area maintenance
expenses for the Property ("CAM") will equal One Dollar ($1.00) per square
foot of the Property for 1997 (the "Assumed CAM") and (B) the fact that the
maximum amount of annual reimbursements for CAM that can be collected from each
of Mikasa and Baby Superstore for 1997 pursuant to the terms of their Leases is
Seventy Five Cents ($.75) per square foot of the Property. The parties further
acknowledge that despite their assumption in clause (A) above, it is presently
unknown whether actual 1997 CAM will in fact equal the Assumed CAM. Therefore,
Seller and Buyer covenant and agree that, as soon as practicable following
December 31, 1997 (but in no event later than March 1, 1998), Buyer shall
determine the actual CAM for 1997 expressed in dollars (or, as applicable,
cents) per square foot of the Property (the "Actual CAM") and shall submit a
written statement of Actual CAM as so determined by Buyer to Seller (and such
statement shall be accompanied by reasonable substantiating documentation
establishing the Actual CAM reflected thereon). To the extent that the Actual
CAM exceeds the Assumed CAM, Seller shall, within thirty (30) days of Seller's
receipt of a written request from Buyer, remit to Buyer an amount equal to the
quotient obtained by dividing the Excess Amount (as hereinafter defined) by
.10475, and (ii) to the extent that the Actual CAM is less than the Assumed
CAM, Buyer shall, within thirty (30) days of Buyer's receipt of a written
request from Seller, remit to Seller an amount equal to the quotient obtained
by dividing Deficiency Amount (as hereinafter defined) by .10475. As used
herein, the term "Excess Amount" shall mean the product of (a) the difference
between the Actual CAM and the Assumed CAM multiplied by (b) the square footage
of the leased premises of Mikasa and Baby Superstore. As used herein, the term
"Deficiency Amount" shall mean the product of (1) the difference between the
Assumed CAM and the greater of (y) the Actual CAM and (z) Seventy Five Cents
($.75) multiplied by (2) the square footage of the leased premises of Mikasa
and Baby Superstore.
3. AMENDMENT TO PHASE II PURCHASE AGREEMENT.
a. Legal Description. The Phase II Purchase Agreement is
hereby amended to delete Exhibit "B" attached thereto in its entirety and
insert Exhibit "B" attached hereto in lieu thereof.
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4. MISCELLANEOUS.
a. Governing Law. This Amendment and the legal relations
of the parties hereto shall be governed by and construed and enforced in
accordance with the laws of the State of Texas, without regard to its
principles of conflicts of law.
b. Effect of Amendment. In the event of any inconsistency
between the terms of the Phase I Purchase Agreement and the terms of Section 2
of this Amendment, the terms of Section 2 of this Amendment shall prevail. In
the event of any inconsistency between the terms of the Phase II Purchase
Agreement and the terms of Section 3 of this Amendment, the terms of Section 3
of this Amendment shall prevail.
c. Ratification. Except as otherwise expressly modified
hereby, the Purchase Agreements shall remain in full force and effect, and all
of the terms and provisions of the Purchase Agreements, as herein modified and
assigned, are hereby ratified and reaffirmed.
d. Attorneys' Fees. In the event that either party hereto
brings an action or proceeding against the other party to enforce or interpret
any of the covenants, conditions, agreements or provisions of this Amendment,
the prevailing party in such action or proceeding shall be entitled to recover
all costs and expenses of such action or proceeding, including, without
limitation, attorneys' fees, charges, disbursements and the fees and costs of
expert witnesses.
e. Counterparts. This Amendment may be executed in as many
counterparts as may be deemed necessary and convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original, but all such counterparts shall constitute one and the
same instrument. Additionally, the parties hereby covenant and agree that, for
purposes of facilitating the execution of this Amendment, a facsimile signature
shall be deemed to be an original signature and a telecopy delivery (i.e., the
transmission by any party of its signature on an original or any copy of this
Amendment via telecopy or fax machine) shall be deemed to be the delivery of
such party's original signature.
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129
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the day and year first above written.
SELLER:
LOOP 1/183, LTD.,
a Texas limited partnership
By: Loop 1/183 One, L.C.
Its: General Partner
By:
---------------------------
Xxxxxx X. Xxxxxx
Manager
ASSIGNOR:
THE PRICE REIT, INC.,
a Maryland corporation
By: /s/ [SIG]
---------------------------
Name: Xxxxxx Xxxxxxxx
Its: Sr. Exec. V.P.
BUYER:
PRICE/BAYBROOK, LTD.,
a Texas limited partnership
By: PRICE/TEXAS, INC.,
a Texas corporation
Its: General Partner
By: /s/ [SIG]
---------------------------
Name: Xxxxxx Xxxxxxxx
Its: Vice President
130
EXHIBIT "A"
(To be attached as Exhibit "B" to the Phase I Purchase Agreement)
LEGAL DESCRIPTION
TRACT 1: Lot 1. of ARBORETUM CROSSING, a subdivision in Xxxxxx County, Texas,
according to the map or plat of record in Volume 96, Pages 296-297, of the Plat
Records of Xxxxxx County, Texas.
TRACE 2-A: Easement rights as described in Article II, Section 2.01, Section
2.02 and Section 2.03 of the Amended and Restated Reciprocal Easement Agreement
dated __________ by Loop 1/183, Ltd., of record in Volume _____, Page _____ of
the Real Property Records of Xxxxxx County, Texas, over and across Xxx 0, xx
Xxxxxxxxx Xxxxxxxx, a subdivision in Xxxxxx County, Texas, according to the map
or plat of record in Volume 96, Pages 296-297, of the Plat Records of Xxxxxx
County, Texas.
TRACT 2-B: Easement rights as described in Article II, Section 2.01, Section
2.02 and Section 2.03 of Amended and Restated Reciprocal Easement Agreement
dated __________ by Loop 1/183, Ltd., of record in Volume _____, Page _____ of
the Real Property Records of Xxxxxx County, Texas, over and across Xxx 0, xx
Xxxxxxxxx Xxxxxxxx, a subdivision in Xxxxxx County, Texas, according to the map
or plat of record in Volume 95, Pages 296-297, of the Plat Records of Xxxxxx
County, Texas.
TRACT 3: Easement rights of access over and across Xxx 0-X, xx Xxxxxxxxxxxxx xx
Xxx 0, Xxxxxxxxxxx IV, a subdivision in Xxxxxx County, Texas, according to the
map or plat of record in Volume 93, Pages 391-392 of the Plat Records of Xxxxxx
County, Texas, as described in Reciprocal Access Easement of record in Volume
12279, Page 713 of the Real Property Records of Xxxxxx County, Texas.
A-1
131
EXHIBIT "B"
(To be attached as Exhibit "B" to the Phase II Purchase Agreement)
LEGAL DESCRIPTION
TRACT: Lots 2 and 3, of ARBORETUM CROSSING, a subdivision in Xxxxxx County,
Texas, according to the map or plat of record in Volume 96, Page(s) 296-297 of
the Plat Records of Xxxxxx County, Texas.
TRACT 2: Easement rights as described in Article II, Section 2.01, Section 2.02
and Section 2.03 of the Amended and Restated Reciprocal Easement Agreement
dated __________ by Loop 1/183, Ltd., of record in Volume _____, Page _____ of
the Real Property Records of Xxxxxx County, Texas, over and across Xxx 0, xx
Xxxxxxxxx Xxxxxxxx, a subdivision in Xxxxxx County, Texas, according to the map
or plat recorded in Volume 96, Page(s) 296-297 of the Plat Records of Xxxxxx
County, Texas.
TRACT 3: Easement rights of access over and across Lot 1-A, of Resubdivision of
Lot 1 Stonebridge IV, a subdivision in Xxxxxx County, Texas, according to the
map or plat of record in Volume 93, Page(s) 391-392 of the Plat Records of
Xxxxxx County, Texas, as described in reciprocal Access Easement of Record in
Volume 12279, Page 713 of the Real Property Records of Xxxxxx County, Texas.
B-1
132
EXHIBIT ____
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
--------------------------------------------------------------------------------
MEMORANDUM OF AGREEMENT
THIS MEMORANDUM OF AGREEMENT (this "Memorandum") is made and entered
into as of April 1, 1997, by and between LOOP 1/183, LTD., a Texas limited
partnership ("Loop"), and PRICE/BAYBROOK, LTD., a Texas limited partnership
("Price").
RECITALS
WHEREAS, Loop and Price's predecessor-in-interest are parties to that
certain Phase I Purchase and Sale Agreement and Joint Escrow Instructions, dated
as of October 10, 1996 (as amended and assigned, the "Purchase Agreement"),
pursuant to which Price may have the right to place a lien (the "Lien") against
the property identified on Exhibit "A" attached hereto (the "Property"); and
WHEREAS, Loop and Price have agreed to enter into this Memorandum for
purposes of giving notice of the potential Lien.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and in the Purchase Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Loop and Price hereby agree as follows:
AGREEMENT
1. Lien. In accordance with the terms of the Purchase Agreement,
Price shall have the right to place and enforce a Lien against the Property in
connection with Loop's obligation to reimburse Price for any of "Buyer's
Driveway Costs" (as defined in the Purchase Agreement) which Price may incur
under the Purchase Agreement.
2. Notice. The purpose of this Memorandum is to give notice of the
potential Lien; however, the Lien will not actually attach to, or be enforceable
133
against, the Property until such time as Price's claim for such Lien is
recorded, it being understood, agreed and acknowledged that for purposes of
determining the priority of such Lien (if such Lien subsequently attaches to the
Property), it shall be subordinate and inferior to other liens and encumbrances
recorded prior to the recordation of Price's claim for the Lien. This Memorandum
is not intended to set forth all of the terms and conditions of the Lien or
Price's rights with respect thereto, for which reference must be made to the
complete Purchase Agreement in the hands of Loop and Price.
3. Miscellaneous. The covenants, conditions, and agreements
contained in the Purchase Agreement and in this Memorandum shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns. This Memorandum may be executed in as many counterparts as may be
deemed necessary and convenient, and by the different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum as
of the day first above written.
LOOP:
LOOP 1/183, LTD.,
a Texas limited partnership
By: Loop 1/183 One, L.C.
Its: General Partner
By:
---------------------
Xxxxxx X. Xxxxxx
Manager
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134
PRICE:
PRICE/BAYBROOK, LTD.,
a Texas limited partnership
By: PRICE/TEXAS, INC.,
a Texas corporation
Its: General Partner
By: /s/ XXXXXX XXXXXXXX
---------------------
Name: Xxxxxx Xxxxxxxx
Its: Vice President
3
000
XXX XXXXX XX XXXXX )
)
COUNTY OF XXXXXX )
This instrument was acknowledged before me on the ____ day of
_______________________, 1997, by Xxxxxx X. Xxxxxx, as Manager of Xxxx 0/000
Xxx, X.X., the General Partner of Loop 1/183, Ltd., a Texas limited partnership.
[SEAL]
---------------------------------
Notary Public in and for
the State of Texas
---------------------------------
(Printed Name of Notary)
My commission expires: __________
000
XXXXX XX XXXXXXXXXX )
) :ss.
COUNTY OF LOS ANGELES )
On the 1st day of April, 1997, before me, Xxxxxx Xxxxxxxx, Notary
Public, personally appeared Xxxxxx Xxxxxxxx personally known to me to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he executed the same in his authorized capacity, and that by his signature
on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
[SIG]
-------------------------------------
(SEAL)
----------------------------
XXXXXX XXXXXXXX
COMMISSION #1104608
NOTARY PUBLIC - CALIFORNIA
LOS ANGELES COUNTY
MY COMM. EXPIRES JUL 2, 2000
----------------------------
137
EXHIBIT "A"
LEGAL DESCRIPTION
TRACT 1: Xxxx 0 xxx 0, xx XXXXXXXXX XXXXXXXX, a subdivision in Xxxxxx County,
Texas, according to the map or plat of record in Volume 96, Page(s) 296-297 of
the Plat Records of Xxxxxx County, Texas.
TRACT 2: Easement rights as described in Article II, Section 2.01, Section 2.02
and Section 2.03 of the Amended and Restated Reciprocal Easement Agreement
dated _________________ by Loop 1/183, Ltd., of record in Volume ______, Page
_____ of the Real Property Records of Xxxxxx County, Texas, over and across Xxx
0, xx Xxxxxxxxx Xxxxxxxx, a subdivision in Xxxxxx County, Texas, according to
the map or plat recorded in Volume 96, Page(s) 296-297 of the Plat Records of
Xxxxxx County, Texas.
TRACT 3: Easement rights of access over and across Lot 1-A, of Resubdivision of
Lot 1 Stonebridge IV, a subdivision in Xxxxxx County, Texas, according to the
map or plat of record in Volume 93, Page(s) 391-392 of the Plat Records of
Xxxxxx County, Texas, as described in Reciprocal Access Easement of record in
Volume 12279, Page 713 of the Real Property Records of Xxxxxx County, Texas.
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