Contract
Exhibit 10.1 PURCHASE AND SALE AGREEMENT SELLER: US RIO, LP, a Delaware limited partnership PURCHASER: XXXX CCIT ACQUISITIONS, LLC, a Delaware limited liability company PROPERTY: The Xxxxxx.Xxx Distribution Facility commonly known as the Amazon Fulfillment Center, located in the Meadowville Technology Park in Chesterfield County, Virginia July 30, 2013
i TABLE OF CONTENTS 1. The Property .......................................................................................................................................... 1 1.1 Description .................................................................................................................................... 1 1.2 As-Is Purchase .............................................................................................................................. 2 1.3 Agreement to Convey ................................................................................................................... 3 2. Price and Payment ................................................................................................................................. 3 2.1 Purchase Price ............................................................................................................................... 3 2.2 Xxxxxxx Money and Independent Consideration ........................................................................... 3 2.3 Closing .......................................................................................................................................... 4 3. Inspections and Approvals .................................................................................................................... 4 3.1 Inspections .................................................................................................................................... 4 3.2 Title and Survey ............................................................................................................................ 6 3.3 Contracts ....................................................................................................................................... 7 3.4 Permitted Encumbrances ............................................................................................................... 8 3.5 Miscellaneous Property Information ............................................................................................. 8 3.6 Purchaser's Right to Terminate ..................................................................................................... 8 3.7 Tenant Estoppels ........................................................................................................................... 9 4. Prior to Closing ..................................................................................................................................... 9 4.1 Insurance ....................................................................................................................................... 9 4.2 Maintenance .................................................................................................................................. 9 4.3 New Contracts ............................................................................................................................... 9 4.4 New Leases and Amendments ...................................................................................................... 9 5. Representations and Warranties .......................................................................................................... 10 5.1 By Seller ...................................................................................................................................... 10 5.2 By Purchaser ............................................................................................................................... 14 5.3 Broker ......................................................................................................................................... 16 6. Costs and Prorations ........................................................................................................................... 16 6.1 Seller's Costs ............................................................................................................................... 16 6.2 Purchaser's Costs ......................................................................................................................... 17 6.3 Prorations .................................................................................................................................... 17 6.4 Taxes ........................................................................................................................................... 18 6.5 In General .................................................................................................................................... 18 6.6 Purpose and Intent ....................................................................................................................... 18 7. Damage, Destruction or Condemnation .............................................................................................. 18 7.1 Material Event ............................................................................................................................. 18 7.2 Immaterial Event ......................................................................................................................... 19 7.3 Termination and Return of Deposit ............................................................................................ 19 8. Notices ................................................................................................................................................ 19 9. Closing and Escrow ............................................................................................................................ 20 9.1 Conditions Precedent to Closing ................................................................................................. 20 9.2 Escrow Instructions ..................................................................................................................... 21 9.3 Seller's Deliveries ........................................................................................................................ 21 9.4 Purchaser's Deliveries ................................................................................................................. 22 9.5 Insurance ..................................................................................................................................... 22 9.6 Possession ................................................................................................................................... 22 9.7 Post-Closing Collections ............................................................................................................. 22 10. Default; Failure of Condition .......................................................................................................... 23 10.1 Purchaser Default ........................................................................................................................ 23 10.2 Seller Default .............................................................................................................................. 23 10.3 Waiver of Trial by Jury ............................................................................................................... 24
ii 10.4 Limited Liability ......................................................................................................................... 24 11. Miscellaneous ................................................................................................................................. 24 11.1 Entire Agreement ........................................................................................................................ 24 11.2 Severability ................................................................................................................................. 24 11.3 Applicable Law ........................................................................................................................... 24 11.4 Assignability ............................................................................................................................... 24 11.5 Successors Bound ....................................................................................................................... 24 11.6 Breach ......................................................................................................................................... 24 11.7 No Public Disclosure .................................................................................................................. 25 11.8 Captions ...................................................................................................................................... 25 11.9 Attorneys' Fees ............................................................................................................................ 25 11.10 No Partnership ........................................................................................................................ 25 11.11 Time of Essence ...................................................................................................................... 25 11.12 Counterparts ............................................................................................................................ 25 11.13 Recordation ............................................................................................................................. 25 11.14 Proper Execution ..................................................................................................................... 25 11.15 Right of First Offer; Right of First Refusal ............................................................................. 26 11.16 Committee Approval ............................................................................................................... 26 11.17 Effective Date Conditioned Upon Deposit ............................................................................. 26 11.18 Time to Execute and Deliver .................................................................................................. 26 11.19 Term Sheet .............................................................................................................................. 26 11.20 No Recording .......................................................................................................................... 26 11.21 1031 Exchange ........................................................................................................................ 26 11.22 Calculation of Time Periods ................................................................................................... 27 11.23 Simultaneous Closing.…………………………………………………………………….…30 11.24 Guaranty……………………………………………………………………………………...30 11.25 On-Going Warranty Work…………………………………………………………………...30 11.26 Post-Closing Agreement……………………………………………………………………..30
iii LIST OF EXHIBITS Exhibit 1.1.1 Legal Description Exhibit 1.1.6 List of Contracts as of the Effective Date Exhibit 3.5 Miscellaneous Property Information Exhibit 5.1.3 Seller's Disclosure Statement Exhibit 5.1.3(ii) Environmental Reports and Documents Exhibit 9.3.1 Form of Special Warranty Deed Exhibit 9.3.2 Form of Xxxx of Sale Exhibit 9.3.4 Form of Assignment of Lease and Warranties Exhibit 9.3.5 Form of Assignment and Assumption of Contracts Exhibit 9.3.7 Affidavit Pursuant to Foreign Investment and Real Property Tax Act Exhibit 9.3.8 Incumbency Affidavit Exhibit 9.3.10 Exhibit 11.25 Form of Tenant Notice Letter Schedule of Repairs
iv TERM SHEET* SELLER: US RIO, LP NOTICE ADDRESS: Section 8 c/o U.S. Real Estate Limited Partnership 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000 Xxx Xxxxxxx, XX 00000-0000 Attention: Xxxx Xxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 E-mail: xxxx.xxxx@xxxxxxxx.xxx With a copy to: USAA Real Estate Company 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000 Xxx Xxxxxxx, XX 00000-0000 Attention: Xxxxxxx Xxxxxx, Esq. Telephone: (000) 000-0000 Facsimile: (000) 000-0000 E-mail: xxxxx.xxxxxx@xxxxxxxx.xxx With a copy to: Golden Steves Xxxxx & Xxxxxx LLP 000 Xxxxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxxxxx, Xxxxx 00000 Attention: Xxxx Xxxxx Telephone (000) 000-0000 Facsimile: (000) 000-0000 E-mail: xxxxxx@xxxxxxxxxxxx.xxx PURCHASER: Xxxx CCIT Acquisitions, LLC NOTICE ADDRESS: Section 8 c/o Cole Real Estate Investments, Inc. 0000 X. Xxxxxxxxx Xxxx, Xxxxx 0000 Xxxxxxx, XX 00000 Attn: Xxxxxx Xxxx Vice President, Legal Services Telephone: (000) 000-0000 Facsimile: (000) 000-0000 E-mail: xxx.xxxx@xxxxxxxx.xxx
v With a copy to: Xxxxxx, Xxxxxxx & Xxxxxx, LLP 1600 Atlanta Financial Center 0000 Xxxxxxxxx Xxxx, X.X. Xxxxxxx, XX 00000 Attn: Xxxx X. Xxxxxx, Esq. Telephone: (000) 000-0000 Facsimile: (000) 000-0000 E-mail: xxxxxxx@xxxxxx.xxx PROPERTY: Section 1.1.1 The Xxxxxx.xxx distribution facility located in the Meadowville Technology Park, situated in Chesterfield County, Virginia, more particularly described herein. PURCHASE PRICE: Section 2.1 $81,250,000.00 DEPOSIT: Section 2.2.1 Deposit: $812,500.00 VOID DATE: Section 11.18 July 30, 2013 with respect to Title Company’s confirmation of receipt of a fully executed copy of this Agreement and July 31, 2013 with respect to Title Company’s confirmation of receipt of the Deposit TITLE COMPANY: Section 2.2.1(b) mailto:First American Title Insurance Company National Commercial Services The Esplanade Commercial Center 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000 Xxxxxxx, XX 00000 Attention: Xxxxxxx Xxxxxxxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 E-mail: xxxxxxxxxx@xxxxxxx.xxx APPROVAL DATE: Section 3.6 July 30, 2013 CLOSING DATE: Section 2.3 July 31, 2013, as may be extended pursuant to the terms of this Agreement. BROKER: Section 5.3 CBRE * To the extent of any conflict between the terms and provisions of this Term Sheet and the Purchase and Sale Agreement, the terms and provisions of the Purchase and Sale Agreement shall govern and control.
1 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this “Agreement”), is made as of the 30th day of July, 2013 (the "Effective Date") by and between US RIO, LP, a Delaware limited partnership ("Seller"), with an office at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000-0000, and XXXX CCIT ACQUISITIONS, LLC, a Delaware limited liability company ("Purchaser"), with an office at 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000. R E C I T A L S: Seller desires to sell Seller’s interest in and to that certain improved parcel of real property commonly known as the Amazon Fulfillment Center, located in the Meadowville Technology Park, situated in Chesterfield County, Virginia and legally described on Exhibit 1.1.1 attached hereto (the “Land”), along with certain related personal and intangible property, and Purchaser desires to purchase Seller’s interest in and to such real, personal and intangible property. NOW, THEREFORE, in consideration of the foregoing, of the covenants, promises and undertakings set forth herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as follows: 1. The Property. 1.1 Description. Subject to the terms and conditions of this Agreement, and for the consideration herein set forth, Seller agrees to sell and transfer, and Purchaser agrees to purchase and acquire, all of Seller's right, title, and interest in and to the following (collectively, the “Property”): 1.1.1 the Land; 1.1.2 The buildings, parking areas, improvements, and fixtures now situated on the Land (the "Improvements"); 1.1.3 All personal property, machinery, apparatus, and equipment currently situated on the Land and used in the operation, repair and maintenance of the Land and Improvements and situated thereon, if any (collectively, the “Personal Property”), such Personal Property being more particularly described on Exhibit 1.1.3 attached hereto. The Personal Property to be conveyed is subject to depletions, replacements and additions in the ordinary course of business; 1.1.4 All easements, hereditaments, and appurtenances belonging to or inuring to the benefit of Seller and pertaining to the Land, if any; 1.1.5 That certain Lease Agreement dated as of December 21, 2011 by and between Seller, as landlord and Amazon.com.kydc, LLC, as tenant (“Tenant”), copies of which lease has been provided to Purchaser, and all guaranties thereof (the “Tenant Lease”); 1.1.6 Subject to Section 3.3, contracts and agreements relating to the operation or maintenance of the Land, Improvements or Personal Property to which Seller is party, the terms of which extend beyond midnight of the day preceding the date of Closing, such contracts and agreements listed on Exhibit 1.1.6 attached hereto;
2 1.1.7 Assignable warranties and guaranties issued in connection with the Improvements or Personal Property, if any (provided, such assignment shall be on a non- exclusive basis) (the “Warranties”), excluding Tenant’s rights in and to the warranties required to be assigned to Tenant under the Tenant Lease; and 1.1.8 All transferable consents, authorizations, variances or waivers, licenses, permits and approvals from any governmental or quasi-governmental agency, department, board, commission, bureau or other entity or instrumentality solely with respect to the Land, the Tenant Lease or the Improvements, if any (collectively, the "Approvals"). 1.2 "As-Is" Purchase. THE PROPERTY IS BEING SOLD IN AN "AS IS, WHERE IS" CONDITION AND "WITH ALL FAULTS" AS OF THE DATE OF THIS AGREEMENT AND OF CLOSING. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE OR ARE MADE AND NO RESPONSIBILITY HAS BEEN OR IS ASSUMED BY SELLER OR BY ANY PARTNER, OFFICER, PERSON, FIRM, AGENT OR REPRESENTATIVE ACTING OR PURPORTING TO ACT ON BEHALF OF SELLER AS TO (I) THE CONDITION OR STATE OF REPAIR OF THE PROPERTY; (II) THE COMPLIANCE OR NON-COMPLIANCE OF THE PROPERTY WITH ANY APPLICABLE LAWS, REGULATIONS OR ORDINANCES (INCLUDING, WITHOUT LIMITATION, ANY APPLICABLE ZONING, BUILDING OR DEVELOPMENT CODES); (III) THE VALUE, EXPENSE OF OPERATION, OR INCOME POTENTIAL OF THE PROPERTY; (IV) THE CREDIT-WORTHINESS OF ANY TENANT, VENDOR OR OTHER PERSON OR ENTITY; (V) ANY OTHER FACT OR CONDITION WHICH HAS OR MIGHT AFFECT THE PROPERTY OR THE CONDITION, STATE OF REPAIR, COMPLIANCE, VALUE, EXPENSE OF OPERATION OR INCOME POTENTIAL OF THE PROPERTY OR ANY PORTION THEREOF; OR (VI) WHETHER THE PROPERTY CONTAINS ASBESTOS OR HARMFUL OR TOXIC SUBSTANCES OR PERTAINING TO THE EXTENT, LOCATION OR NATURE OF SAME. THE PARTIES AGREE THAT ALL UNDERSTANDINGS AND AGREEMENTS HERETOFORE MADE BETWEEN THEM OR THEIR RESPECTIVE AGENTS OR REPRESENTATIVES ARE MERGED IN THE AGREEMENT AND THE EXHIBITS HERETO ANNEXED, WHICH ALONE FULLY AND COMPLETELY EXPRESS THEIR AGREEMENT, AND THAT THIS AGREEMENT HAS BEEN ENTERED INTO AFTER FULL INVESTIGATION, OR WITH THE PARTIES SATISFIED WITH THE OPPORTUNITY AFFORDED FOR FULL INVESTIGATION, NEITHER PARTY RELYING UPON ANY STATEMENT OR REPRESENTATION BY THE OTHER UNLESS SUCH STATEMENT OR REPRESENTATION IS SPECIFICALLY EMBODIED IN THIS AGREEMENT OR THE EXHIBITS ANNEXED HERETO. TO THE EXTENT THAT SELLER HAS PROVIDED TO PURCHASER ANY SURVEYS, TITLE COMMITMENTS, INSPECTION, ENGINEERING OR ENVIRONMENTAL REPORTS (INCLUDING REPORTS CONCERNING ASBESTOS OR HARMFUL OR TOXIC SUBSTANCES, OR ANY OTHER MATERIALS, INFORMATION OR DATA IN CONNECTION WITH PURCHASER'S INSPECTION OF THE PROPERTY), SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE ACCURACY OR COMPLETENESS, METHODOLOGY OF PREPARATION OR OTHERWISE CONCERNING THE CONTENTS OF SUCH REPORTS, MATERIALS, INFORMATION AND DATA. PURCHASER ACKNOWLEDGES THAT ANY SUCH REPORTS, MATERIALS, INFORMATION AND DATA MADE AVAILABLE TO PURCHASER ARE MADE AVAILABLE AS A CONVENIENCE AND AN ACCOMMODATION ONLY, AND THAT SELLER HAS REQUESTED PURCHASER TO INSPECT FULLY THE PROPERTY AND INVESTIGATE ALL MATTERS RELEVANT THERETO AND TO RELY SOLELY UPON THE RESULTS OF PURCHASER'S OWN INSPECTIONS OR OTHER INFORMATION OBTAINED OR
3 OTHERWISE AVAILABLE TO PURCHASER, RATHER THAN ANY INFORMATION THAT MAY HAVE BEEN PROVIDED BY SELLER TO PURCHASER. EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES SET FORTH IN SUBSECTION 5.1.1 THROUGH 5.1.3, PURCHASER WAIVES AND RELEASES SELLER FROM ANY PRESENT OR FUTURE CLAIMS ARISING FROM OR RELATING TO THE CONDITION, OPERATION OR ECONOMIC PERFORMANCE OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE PRESENCE OR ALLEGED PRESENCE OF ASBESTOS OR HARMFUL OR TOXIC SUBSTANCES IN, ON, UNDER OR ABOUT THE PROPERTY INCLUDING, WITHOUT LIMITATION, ANY CLAIMS UNDER OR ON ACCOUNT OF (I) THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS THE SAME MAY HAVE BEEN OR MAY BE AMENDED FROM TIME TO TIME, AND SIMILAR STATE STATUTES, AND ANY REGULATIONS PROMULGATED THEREUNDER; (II) ANY OTHER FEDERAL, STATE OR LOCAL LAW, ORDINANCE, RULE OR REGULATION, NOW OR HEREAFTER IN EFFECT, THAT DEALS WITH OR OTHERWISE IN ANY MANNER RELATES TO, ENVIRONMENTAL MATTERS OF ANY KIND; OR (III) THE COMMON LAW. THE TERMS AND PROVISIONS OF THIS SECTION SHALL SURVIVE CLOSING HEREUNDER. /s/ TW_______________ /s/ JP_______________ Purchaser's Initials Seller's Initials 1.3 Agreement to Convey. Seller agrees to convey, and Purchaser agrees to accept, title to the Land and related Improvements by special warranty deed in the condition described in Section 3.4 and title to the Personal Property, by xxxx of sale, without warranty as to the title or the condition of such personalty, and Seller agrees to assign, and Purchaser agrees to accept, an assignment of Seller’s interest in the Tenant Lease and Warranties pursuant to assignment and assumption of leases and assignment of Seller’s interest in the Approvals and Contracts pursuant to an assignment of contract, all as more particularly set forth herein. 2. Price and Payment. 2.1 Purchase Price. Subject to the provisions of the immediately following paragraph, the total purchase price (the "Purchase Price") to be paid by Purchaser to Seller for the sale and conveyance of Seller’s interest in the Property shall be payable in full in cash at the Closing, and subject to prorations as herein set forth, is Eighty One Million Two Hundred Fifty Thousand and NO/100ths DOLLARS ($81,250,000.00). All references in this Agreement to dollars means United States Dollars. 2.2 Xxxxxxx Money and Independent Consideration. Payment of the Purchase Price is to be made in cash as follows: 2.2.1 (a) On July 31, 2013, Purchaser shall deposit xxxxxxx money with the Title Company (as hereinafter defined) in the amount of Eight Hundred Twelve Thousand Five Hundred AND NO/100 DOLLARS ($812,500.00) (the “Deposit”) in the form of cash to be held by Title Company pursuant to the terms, covenants and conditions of this Agreement. Upon delivery of the Deposit to the Title Company, the Deposit shall be non-refundable (except as otherwise specified herein). The Deposit shall be in good funds, either by cashier’s check or by federal wire transfer and shall be delivered to and held by the Title
4 Company pursuant to the terms, covenants and conditions of this Agreement. If Purchaser fails to make the Deposit as and when required herewith, Seller may terminate this Agreement by written notice to Purchaser, in which case the parties shall have no further obligation to each other except for any provisions that expressly survive the termination of this Agreement. (b) The Deposit will be placed with and held in escrow by First American Title Insurance Company, National Commercial Services, The Esplanade Commercial Center, 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxx Xxxxxxxxx (the “Title Company”), in immediately available funds in an interest bearing account at a mutually acceptable banking institution. Any interest earned by the Deposit shall be considered as part of the Deposit. Except as otherwise provided in this Agreement, the Deposit will be applied to the Purchase Price at Closing. (c) Prior to or contemporaneous with the execution hereof by Purchaser and Seller, Purchaser has paid to Seller ONE HUNDRED AND NO/100 DOLLARS ($100.00) (“Independent Contract Consideration”), which amount Seller and Purchaser bargained for and agreed to as consideration for Seller's execution and delivery of this Agreement. The Independent Contract Consideration is non-refundable and in addition to any other payment or deposit required by this Agreement, and Seller shall retain the Independent Contract Consideration notwithstanding any other provision of this Agreement to the contrary. 2.3 Closing. Payment of the Purchase Price and the closing hereunder (the "Closing") shall be subject to the satisfaction of the conditions precedent set forth in Section 9.1 and shall take place pursuant to an escrow closing on or before July 31, 2013, as may be extended pursuant to the terms of this Agreement (the "Closing Date"), at the offices of the Title Company at a time to be mutually agreed upon by the parties or at such other time and place as may be agreed upon in writing by Seller and Purchaser. 3. Inspections and Approvals. 3.1 Inspections. 3.1.1 Seller agrees to allow Purchaser and Purchaser's engineers, architects, employees, agents and representatives reasonable access, during normal business hours to the Property (subject in all respects to the rights of Tenant under the terms of the Tenant Lease) and to the records, if any, maintained by or for Seller by Seller or Seller's property management company or otherwise within the possession or control of Seller or its representatives. Such access shall be solely for the purposes of (i) reviewing the Tenant Lease and any records relating thereto; (ii) reviewing records relating to operating expenses; and (iii) inspecting the physical condition of the Property and conducting non-intrusive physical and environmental tests and inspections of the Property. PURCHASER SHALL NOT CONDUCT OR ALLOW ANY PHYSICALLY INTRUSIVE TESTING OF, ON OR UNDER THE LAND OR THE IMPROVEMENTS WITHOUT FIRST OBTAINING SELLER'S WRITTEN CONSENT AS TO THE TIMING AND SCOPE OF WORK TO BE PERFORMED, WHICH CONSENT MAY BE WITHHELD IN SELLER’S SOLE AND ABSOLUTE DISCRETION. 3.1.2 Purchaser agrees that, in making any inspections of, or conducting any testing of, on or under, the Property, Purchaser and all representatives of Purchaser entering onto the Property shall each carry (a) not less than $1,000,000 commercial general liability insurance, and (b) excess or umbrella liability insurance with limits of not less than $2,000,000, insuring all
5 activity and conduct of Purchaser and such representatives while exercising such right of access. Purchaser represents and warrants that it carries not less than the coverage set forth in paragraphs (a) and (b) of this Section 3.1.2 with contractual liability endorsement which insures Purchaser's indemnity obligations hereunder, and, upon request of Seller, will provide Seller with written evidence of same. 3.1.3 Purchaser agrees that in exercising its right of access hereunder, Purchaser will use (and cause its representatives to use) its best efforts not to interfere with the activity of tenants or any persons occupying or providing service at the Property. Purchaser shall give Seller reasonable prior notice of its intention to conduct any inspections or tests, so that Seller shall have a reasonable opportunity to have a representative present during any such inspection or test, and Seller expressly reserves the right to have such a representative present. Failure of Seller to respond within three (3) business days of such notice shall be deemed approval by the Seller of such inspections or tests; provided, Seller’s failure to respond shall not be deemed approval of any physically intrusive testing which shall be governed in all respects by the terms of Section 3.1.1 above. Purchaser agrees to cooperate with any reasonable request by Seller in connection with the timing of any such inspection or test. Purchaser agrees to provide Seller with a copy of any written inspection or test report or summary upon Seller's request therefor, provided Seller pays Purchaser 50% of the costs of such inspections or reports which obligation shall survive any termination of this Agreement or Closing. 3.1.4 Unless Seller specifically and expressly otherwise agrees in writing, Purchaser agrees that (a) the results of all inspections, tests, analyses, studies and similar reports relating to the Property prepared by or for Purchaser utilizing any information acquired in whole or in part through the exercise of Purchaser's inspection rights; and (b) all information (the "Proprietary Information") regarding the Property of whatsoever nature made available to Purchaser by Seller or Seller's agents or representatives is confidential and shall not be disclosed to any other person except those assisting Purchaser with the transaction, or Purchaser's lender, and then only upon Purchaser making such person aware of the confidentiality restriction and procuring such person's agreement to be bound thereby and by the terms of the Existing Confidentiality Agreement (as defined below). Purchaser agrees not to use or allow to be used any such information for any purpose other than to determine whether to proceed with the contemplated purchase, or if same is consummated, in connection with the operation of the Property post-Closing. Further, if the purchase and sale contemplated hereby fails to close for any reason whatsoever, Purchaser agrees to return to Seller, or cause to be returned to Seller, all Proprietary Information. Notwithstanding any other term of this Agreement, the provisions of this Section 3.1.4 shall expire upon the earlier of (i) Closing or (ii) 365 days after the termination of this Agreement. Notwithstanding the foregoing, but subject to the Existing Confidentiality Agreement, the confidentiality provisions of this Section 3.1.4 shall not apply to any disclosures made by Purchaser as required by law, by court order, or in connection with any subpoena served upon Purchaser, provided that Purchaser provides Seller with prompt written notice of any such requirement or subpoena (other than where prohibited by law) so that Seller may, in its sole discretion, seek a protective order or other appropriate remedy. Further, the confidentiality obligations of this Section 3.1.4 shall be inoperative as to any portions of the Proprietary Information which is or becomes generally available to the public other than as a result of a disclosure by Purchaser or its representatives in breach of this Agreement. The obligations under this Section 3.1.4 and Section 11.7 hereof are in addition to and not in lieu of the confidentiality obligations contained in that certain Nondisclosure Agreement dated as of May 3, 2013 executed by Purchaser’s affiliate for the benefit of Tenant (the “Existing Confidentiality Agreement”) and the execution of this Agreement shall not supersede or diminish Purchaser’s obligations thereunder and Purchaser acknowledges that the Existing Confidentiality Agreement binds Purchaser and shall continue to
6 bind Purchaser in accordance with its terms notwithstanding the expiration of Purchaser’s obligations under this Section 3.1.4. 3.1.5 Purchaser shall, at its sole cost and expense, promptly restore any physical damage or alteration of the physical condition of the Property which results from any inspections or testing conducted by or on behalf of Purchaser, which obligation shall survive Closing or the termination of this Agreement for a period of twelve (12) months. All inspections and testing shall be conducted at Purchaser's sole cost and expense and in strict accordance with all requirements of applicable law. 3.1.6 Except as expressly set forth in this Agreement, Seller makes no representations or warranties as to the truth, accuracy or completeness of any materials, data or other information supplied to Purchaser in connection with Purchaser's inspection of the Property (e.g., that such materials are complete, accurate or the final version thereof, or that such materials are all of such materials as are in Seller's possession). It is the parties' express understanding and agreement that such materials are provided only for Purchaser's convenience in making its own examination and determination prior to the Approval Date as to whether it wishes to purchase the Property, and, in doing so, Purchaser shall rely exclusively on its own independent investigation and evaluation of every aspect of the Property and not on any materials supplied by Seller. Except as expressly set forth in this Agreement, Purchaser expressly disclaims any intent to rely on any such materials provided to it by Seller in connection with its inspection and agrees that it shall rely solely on its own independently developed or verified information. 3.1.7 PURCHASER AGREES (WHICH AGREEMENT SHALL SURVIVE CLOSING OR TERMINATION OF THIS AGREEMENT) TO INDEMNIFY, DEFEND, AND HOLD SELLER FREE AND HARMLESS FROM ANY LOSS, INJURY, DAMAGE, CLAIM, LIEN, COST OR EXPENSE, INCLUDING ATTORNEYS' FEES AND COSTS, ARISING OUT OF PURCHASER'S AND PURCHASER’S REPRESENTATIVES’ ACTIVITIES ON THE PROPERTY IN CONNECTION WITH THEIR INSPECTIONS AND TESTING AND ARISING OUT OF A BREACH OF THE FOREGOING AGREEMENTS BY PURCHASER IN CONNECTION WITH THE INSPECTION AND TESTING OF THE PROPERTY. THE TERMS AND PROVISIONS OF THIS SECTION SHALL SURVIVE CLOSING HEREUNDER. 3.2 Title and Survey. Seller has delivered to Purchaser copies of the existing survey of the Land and Improvements in Seller’s possession or control (the "Survey"). Purchaser has obtained with respect to the Property a current (meaning bearing an issue date not earlier than thirty (30) days prior to the Effective Date) title commitment for the issuance of a standard ALTA Owner’s Title Insurance Policy with respect to Seller's interest in the Land, appurtenances and Improvements (the "Title Commitment"), and Purchaser has provided or caused the Title Company to provide Seller copies of the Title Commitment and copies of all documents and instruments referred to as exceptions to title in the Title Commitment. The Title Commitment is in an amount equal to the Purchase Price. Purchaser has provided written notice dated July 23, 2013 to Seller of matters shown by the Title Commitment or Survey which are not satisfactory to Purchaser (the "Title Notice"). Seller shall have until the Closing Date to elect to cure or not to cure any title objections to the satisfaction of the Purchaser. If Seller elects not to cure such objections, Purchaser may terminate this Agreement in its sole discretion and the Title Company shall refund the Deposit to Purchaser. If the Seller elects to cure such title objections to the satisfaction of the Purchaser, then the parties shall then have until the Closing Date to make such arrangements or take such steps as they shall mutually agree to satisfy Purchaser's objection(s); provided, however, except as otherwise provided herein, Seller shall have no obligation whatsoever to expend or agree to expend any funds, to undertake or agree to undertake any obligations or otherwise to cure or
7 agree to cure any title or survey objections, and Seller shall not be deemed to have any obligation to cure unless Seller expressly undertakes such an obligation by a written notice to or written agreement with Purchaser given or enter into on or prior to the Approval Date and which recites that it is in response to a Title Notice. Notwithstanding the foregoing, all exceptions to title shown on the Title Commitment or otherwise arising prior to the Closing which evidence (i) mortgages or deeds of trust encumbering Seller’s fee interest in the Property; (ii) judgment liens evidencing non-appealable judgments rendered against Seller and encumbering Seller’s fee interest in the Property; or (iii) mechanic’s or materialmen’s liens encumbering Seller’s fee interest in the Property and arising from any work performed or materials furnished for or on behalf of Seller (items i, ii, and iii above collectively referred to as “Lien Exceptions”), shall, in each instance, be deemed objected to without any notice by Purchaser and cured by Seller (which, in the case of a mechanic’s or materialmen’s lien shall include, at Seller’s option, bonding around or insuring-over the mechanic’s or materialmen’s lien) at or prior to Closing. Except as otherwise provided with respect to Lien Exceptions, Purchaser's sole right with respect to the Title Commitment or Survey to matters to which it objected in its Title Notice shall be to elect on or before the Closing Date to terminate this Agreement. All matters shown on the Title Commitment and/or Survey with respect to which Purchaser failed to give a Title Notice, or with respect to which a timely Title Notice is given but Seller fails to undertake an express obligation to cure as provided above, shall be deemed to be approved by Purchaser and "Permitted Encumbrances" as provided in Section 3.4 hereof, subject, however, to Purchaser's termination right provided in this Section 3.2. Purchaser shall have the right to cause a new survey of the Property to be prepared and certified to Purchaser, Seller and the Title Company prior to the Closing (an “Updated Survey”). If, prior to Closing, the Updated Survey reflects, Seller discloses to Purchaser or Purchaser discovers pursuant to an updated title commitment (an “Updated Title Commitment”) or otherwise discovers that title to the Property is subject to defects, limitations or encumbrances other than (i) the Permitted Encumbrances; or (ii) any matter caused by Purchaser or any person or entity claiming by, through or under Purchaser; then Purchaser shall promptly give Seller written notice of its objection thereto. Such written notice shall additionally notify Seller that the Agreement may be terminated if such title defect is not removed, bonded or insured-over in a commercially reasonable manner prior to the Closing Date. In such event, Seller may elect to postpone the Closing for thirty (30) days and attempt to cure such objection. If Purchaser fails to waive any such objection within ten (10) days after notice from Seller that Seller is unable to or elects not cure the objection, this Agreement will terminate automatically and the Title Company to return the Deposit to Purchaser, provided that Purchaser and Seller shall not be in default hereunder, and neither party shall have any liability to the other except for the surviving obligations of Purchaser and Seller set forth in this Agreement. For the purposes of this Agreement, any title defect, limitation or encumbrance, other than those enumerated in (i) – (ii) above, shall be deemed cured if the Title Company or another title company reasonably acceptable to Purchaser and authorized to do business in the State in which the Property is located will agree to issue a standard ALTA form of owner's title insurance policy to Purchaser for the Purchase Price, which policy takes no exception for such defect, limitation or encumbrance and is issued for no additional premium or for an additional premium if Seller agrees to pay such additional premium upon Closing. 3.3 Contracts. On or before the Approval Date, Purchaser shall notify Seller in writing if Purchaser elects not to assume at Closing any of the service, maintenance, management, supply, landscaping and lawn or other contracts to which Seller is a party listed in Exhibit 1.1.6 relating to the operation of the Property (the “Contracts”), copies of which Contracts have been provided to Purchaser. If Purchaser does not notify Seller prior to the Approval Date, it shall be conclusively presumed that Purchaser rejects all of the Contracts. If Purchaser exercises its right not to assume one or more Contracts at Closing, Seller shall terminate such disapproved contract(s) and make payment of any termination charges. Notwithstanding the foregoing, Purchaser shall have no right to terminate any Contracts which are required to remain in full force and effect pursuant to the terms of the Tenant Lease and Purchaser
8 shall be required to assume the same at Closing. Provided, further, that the Development Agreement (as defined in the Tenant Lease) (the “Development Agreement”) shall not constitute a Contract for purposes of this Agreement. 3.4 Permitted Encumbrances. Unless Purchaser terminates this Agreement pursuant to Section 3.2 or Section 3.6 hereof, as applicable, following its opportunity fully to inspect the Property, the state of title thereto and all other matters relating to the Property, including its feasibility for Purchaser's intended use and its suitability as an investment, Purchaser shall be deemed to have approved and to have agreed to purchase the Property subject to the following: 3.4.1 All exceptions to title shown in the Title Commitment or Updated Title Commitment or matters shown on the Survey and Updated Survey which Purchaser has approved or is deemed to have approved pursuant to Section 3.2 hereof; 3.4.2 All contracts which Purchaser has approved pursuant to Sections 3.3, 4.3 and 4.4 hereof; 3.4.3 The lien of non-delinquent real and personal property taxes and assessments; 3.4.4 Rights of parties in possession permitted under the Tenant Lease; 3.4.5 Any state of facts which the Survey or an inspection of the premises would disclose; 3.4.6 Easements or claims of easements shown by the public records; 3.4.7 Any service, installation, connection, maintenance or construction charges due after Closing, and subject to the proration provisions hereof, for sewer, water, electricity, telephone, cable television or gas; and 3.4.8 The Tenant Lease. All of the foregoing are referred to herein collectively as "Permitted Encumbrances." 3.5 Miscellaneous Property Information. Seller has provided Purchaser with the information listed in Exhibit 3.5 ("Miscellaneous Property Information") or otherwise made such information available to Purchaser for Purchaser's review, to the extent such information exists and is within the possession or control of Seller. 3.6 Purchaser's Right to Terminate. Purchaser shall have the right, for any reason or no reason, by giving Seller and Title Company written notice (the "Termination Notice") on or before 6:00 p.m. Phoenix, Arizona time on July 30, 2013 (the "Approval Date") to terminate this Agreement. Purchaser’s execution of this Agreement shall serve as notice to Seller and the Title Company of Purchaser’s waiver of its termination rights under this Section 3.6. Notwithstanding the fact that the Tenant Lease contains a tenant right of first refusal or right of first offer (either such right, a “ROFR”), Purchaser hereby agrees that its inspections shall commence and run through the Approval Date as set forth in this Section 3, and commencement thereof shall not be tolled pending receipt of a written waiver of such ROFR by Tenant; provided, however, that in return therefor, Seller hereby agrees that, in the event Tenant does give notice of its intent to exercise the ROFR or does
9 actually exercise the ROFR, Seller shall promptly reimburse to Purchaser all reasonable out-of-pocket and third-party property diligence expenses incurred by Purchaser, including, without limitation, reasonable attorneys’ fees and costs, in an amount not in excess of $65,000 in the aggregate. 3.7 Tenant Estoppel and Acceptance Letter. Seller shall secure and deliver to Purchaser, on or before the Closing Date, a signed estoppel certificate from Tenant with respect to the Tenant Lease in the form attached as an exhibit to the Tenant Lease (the “Tenant Estoppel”) and a signed copy of the letter executed by Tenant accepting the “Landlord Improvements” as contemplated under Section 10.1 of the Development Agreement (the “Acceptance Letter”). If the Tenant Estoppel or Acceptance Letter shows defaults by the lessor or the lessee under the Tenant Lease or under the Development Agreement that are material and cannot or will not be cured by the Closing Date or illustrate any material and adverse matters that are otherwise inconsistent with the form of the Tenant Estoppel or Acceptance Letter sent to Tenant or if the Tenant Estoppel does not contain an acknowledgment that Tenant is not entitled to a reduction in Base Rent pursuant to Section 4 of the Tenant Lease and Section 6.6 of the Development Agreement (a “Material Defect”), then such delivery shall not be deemed delivery of the Tenant Estoppel and/or Acceptance Letter, as applicable. If the Tenant Estoppel and Acceptance Letter are not delivered to Purchaser (or deemed not delivered) on or before the Closing Date, then Seller or Purchaser shall have the right to extend the Closing for up to fifteen (15) days upon written notice to the other party delivered on or before 5:00 p.m. Phoenix, Arizona time on the scheduled Closing Date; provided that the Closing Date shall occur two (2) business days following delivery of the Tenant Estoppel and/or Acceptance Letter. If the Tenant Estoppel and/or Acceptance Letter is not delivered to Purchaser (or deemed not delivered) at least two (2) business days prior to the Closing Date, as may be extended by the terms of the prior sentence, then Purchaser shall, as its sole and exclusive remedy, elect to either: (a) terminate this Agreement upon written notice thereof delivered to Seller at least one (1) business day prior to the Closing Date, or (b) waive such failure by Seller and close the transaction contemplated by this Agreement, with no recourse against Seller based on such failure. If such termination notice is given (or deemed given as set forth below), the Title Company shall immediately return the Deposit to Purchaser and neither party shall have any further liability hereunder except for the obligations that expressly survive the termination of this Agreement. If Purchaser fails to timely deliver any such termination notice, Purchaser will be deemed to have elected to terminate this Agreement pursuant to (a) above. 4. Prior to Closing. 4.1 Insurance. Until Closing, maintain any policies of insurance that Seller is required to maintain pursuant to the terms of the Tenant Lease. 4.2 Maintenance. Until Closing, maintain and/or cause to be maintained the condition of the Property as required to be maintained by Seller, as lessor, under the Tenant Lease, if applicable, subject to ordinary wear and tear. 4.3 New Contracts. After the Effective Date, Seller or Seller's agent shall, upon the written reasonable approval of Purchaser, enter into only those third-party contracts which are necessary to carry out its obligations under the Tenant Lease and Section 4.2 and which shall be cancelable on thirty (30) days' written notice without penalty or termination fee. If Seller enters into any such contract, it shall promptly provide a true, complete and correct copy thereof to Purchaser and unless Purchaser, within seven (7) days thereafter, notifies Seller in writing of its intention to assume such contract, it shall be treated as a contract disapproved by Purchaser under Section 3.3 hereof. 4.4 New Leases and Amendments. After the Approval Date, Seller will not execute any new leases or amend, terminate or accept the surrender of the Tenant Lease or waive any landlord rights or tenant obligations under the Tenant Lease or approve any subleases without the prior written consent of
10 Purchaser, which consent shall not be unreasonably withheld. Failure of Purchaser to consent or expressly withhold its consent within three (3) business days after receipt of such written request for such consent shall be deemed to constitute disapproval of such lease, sublease, amendment or termination or acceptance of the surrender of the Tenant Lease or waiver of any landlord rights or tenant obligations under the Tenant Lease. Notwithstanding the foregoing, if Seller proposes any new leases or proposes to amend, terminate or accept the surrender of the Tenant Lease or waive any landlord rights or tenant obligations under the Tenant Lease or approve any subleases within three (3) business days prior to the Approval Date, then the parties agree that the Approval Date shall be extended three (3) additional business days with respect to this Section 4.4 only. Further, Seller hereby covenants to Purchaser from and after the Effective Date and until the Closing Date or earlier termination of this Agreement: (i) Subject to the right of first offer and/or right of refusal in favor of Tenant under the Tenant Lease, Seller will not enter into nor execute any agreement, written or oral, under which Seller is or could become obligated to sell the Property, or any portion thereof, to a third party, without Purchaser’s prior written consent; (ii) Seller will not, without the prior written consent of Purchaser, take any action before any governmental authority having jurisdiction thereover, the object of which would be to change the present zoning of or other land-use limitations, upon the Property, or any portion thereof, or its potential use; (iii) without Purchaser’s prior written consent, Seller shall not, by voluntary or intentional act or omission to act, further cause or create any easement, encumbrance, or mechanic’s or materialmen’s liens, and/or similar liens or encumbrances to arise or to be imposed upon Seller’s interest in the Property or any portion thereof that effects title thereto; (iv) Seller shall not, without the prior written consent of Purchaser, provide a copy of, nor disclose any of the terms of, this Agreement to any appraiser, and Seller shall instruct Seller’s Broker that it may not provide a copy of nor disclose any of the terms of this Agreement to any appraiser without the prior written consent of Purchaser; (v) should Seller receive notice or knowledge of any information regarding any of the matters set forth in this Section, Seller will promptly notify Purchaser of the same in writing; and (vi) take such actions which Seller may be allowed under the terms of the Tenant Lease and in accordance with such terms, to cause Tenant to comply in all material respects with the terms, covenants and conditions of the Tenant Lease, including, but not limited to, all insurance and maintenance obligations under the Tenant Lease. 5. Representations and Warranties. 5.1 By Seller. Seller represents and warrants to Purchaser that: 5.1.1 Seller is a Delaware limited partnership, duly organized under the laws of the State of its organization, and is authorized to do business in the State in which the Property is located, has duly authorized the execution and performance of this Agreement and the documents to be delivered pursuant to Section 9.3, and such execution and performance will not result in a
11 breach of or default under any document, instrument, order or agreement to which Seller is a party or by which Seller is bound; 5.1.2 Seller is not a "foreign person" within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended; and 5.1.3 Except as otherwise indicated on the Disclosure Statement attached hereto as Exhibit 5.1.3: (i) Litigation. There is no action, suit, litigation or proceeding to which Seller is a party the outcome of which could materially adversely affect any of the Property pending or being prosecuted in any court or before any federal, state, county or municipal department, commission, bureau, agency or other governmental instrumentality, other than tax contests, if any, and to Seller’s knowledge no such action is threatened; (ii) Environmental. To Seller’s knowledge, other than as disclosed in the reports and documents delivered by Seller to Purchaser pursuant to Section 3.5, including, without limitation, the reports and documents more particularly described in Exhibit 5.1.3 (ii), neither the Property nor Seller (as to any of the Property) is in violation in any material respect of or liable under any existing, applicable Environmental Law, or subject to any existing or pending investigation or inquiry by any governmental authority or any remedial or response action or remedial or response obligations under any Environmental Law. The term “Environmental Laws” shall mean the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et seq., the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. 1801 et seq., the Clean Water Act, 33 U.S.C. Sections 1251 et seq., as said laws have been supplemented or amended to date, the regulations promulgated pursuant to said laws and any other administrative, federal, state or local law, statute, rule, regulation or ordinance which regulates or proscribes the use, storage, disposal, presence, cleanup, transportation or release or threatened release into the environment of Hazardous Materials. The term "Hazardous Materials" shall mean any substance, chemical, waste or other material which is listed, defined or otherwise identified as “hazardous” or “toxic” under any of the Environmental Laws, including, without limitation, formaldehyde, urea, polychlorinated biphenyls, petroleum, petroleum product or by-product, crude oil, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel or mixture thereof, radon, asbestos and any by-product of same; (iii) Lease. A true and complete copy of the Tenant Lease (and all amendments and guaranties thereto and thereof) in effect as of the Effective Date has been provided to Purchaser. As of the Effective Date, no portion of the Property is subject to a lease to which Seller is a party other than the Tenant Lease; (iv) Condemnation. No condemnation proceedings have been instituted against the Property and Seller has not received any written notice and has no knowledge that any such proceedings or suits are contemplated; (v) Proceedings. There are no suits or claims pending or to Seller’s knowledge, threatened with respect to or in any manner affecting the Property, nor has
12 Seller received any correspondence or other written information to indicate that there is any pending or threatened (a) violation of law, (b) environmental, zoning or other land use regulation proceeding, or (c) tax levy or special assessment proceedings against the Property or any portion thereof; (vi) There are no unrecorded leases (other than the Tenant Lease) affecting the Property to which Seller is a party; and Seller does not have any defeasance, lender approval or prepayment obligations with respect to any existing financing which will delay the originally scheduled Closing; (vii) To Seller’s knowledge, no notice of violation has been issued with regard to any applicable regulation, ordinance, requirement, covenant, condition or restriction relating to the present use or occupancy of the Property by any person, authority or agency having jurisdiction; (viii) To Seller’s knowledge, there are no intended public improvements which will or could result in any charges being assessed against the Property which will result in a lien upon the Property; (ix) Seller has not entered into and there is not existing any other agreement, written or oral, under which Seller is or could become obligated to sell the Property (except under the rights of first refusal and first offer pursuant to the Tenant Lease), or any portion thereof, to a third party; (x) Seller has not taken any action before any governmental authority having jurisdiction thereover, the object of which would be to change the present zoning of or other land use limitations, upon the Property, or any portion thereof, or its potential use, and, to Seller’s knowledge, there are no pending proceedings, the object of which would be to change the present zoning or other land use limitations; (xi) To Seller’s knowledge, no default of Seller exists under the Tenant Lease; Seller has sent no written notice of default to the Tenant and, to Seller’s knowledge, no default of Tenant exists under the Tenant Lease; Seller has not received any notice or correspondence from Tenant or Tenant’s agents indicating Tenant’s desire, willingness or intent to amend, modify or terminate the Tenant Lease; (xii) To Seller’s knowledge, Seller has performed its obligations under the Development Agreement required to be performed as of the Effective Date; to Seller’s knowledge, no default of Seller exists under the Development Agreement; and Seller has not received any notice or correspondence from Tenant or Tenant’s agents indicating Tenant’s desire, willingness or intent to amend, modify or terminate the Development Agreement; (xiii) No consent of any third party is required in order for Seller to enter into this Agreement and perform Seller’s obligations hereunder; (xiv) Intentionally omitted; (xv) Seller has delivered or, if too extensive, made available to Purchaser for review, to the extent in existence and in Seller's possession, true and complete copies of all environmental, asbestos, soil and geotechnical reports regarding the Property;
13 (xvi) To Seller’s knowledge, Seller has not engaged in any dealings or transactions, directly or indirectly (i) in contravention of any U.S. international or other money laundering regulations or conventions, including, without limitation, the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986, the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, Trading with the Enemy Act (50 U.S.C. Section 1 et. seq., as amended), or any foreign asset control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto. Seller represents and warrants to, and covenants with Purchaser that (i) neither Seller nor, to Seller’s knowledge, any of its owners or affiliates currently are, or shall be at any time during the term hereof, in violation of any laws relating to terrorism or money laundering (collectively, the “Anti-Terrorism Laws”), including without limitation Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and regulations of the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) related to Specially Designated Nationals and Blocked Persons (SDN’s) (OFAC Regulations), and/or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56)(the “USA Patriot Act”); (ii) neither Seller nor, to Seller’s knowledge, any of its owners, affiliates, investors, officers, directors, employees, vendors, subcontractors or agents is or shall be during the term hereof a “Prohibited Person” which is defined as follows: (1) a person or entity owned or controlled by, affiliated with, or acting for or on behalf of, any person or entity that is identified as an SDN on the then-most current list published by OFAC at its official website, xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxx/x00xxx.xxx or at any replacement website or other replacement official publication of such list, and (2) a person or entity who is identified as or affiliated with a person or entity designated as a terrorist, or associated with terrorism or money laundering pursuant to regulations promulgated in connection with the USA Patriot Act; and (iii) Seller has taken appropriate steps to understand its legal obligations under the Anti-Terrorism Laws and has implemented appropriate procedures to assure its continued compliance with such laws. Seller hereby agrees to defend, indemnify, and hold harmless Purchaser, its officers, directors, agents and employees, from and against any and all claims, damages, losses, risks, liabilities and expenses (including reasonable attorney’s fees and costs) arising from or related to any breach of the foregoing representations, warranties and covenants. 5.1.4 Each of the representations and warranties of Seller contained in Section 5.1: (i) is made as of the Effective Date; (ii) will be deemed to be remade by Seller, and to be true in all material respects, as of Closing, subject to other matters expressly permitted in this Agreement or otherwise specifically approved in writing by Purchaser; and (iii) will survive for a period of twelve (12) months after the Closing ("Claims Period"). Any claim that Purchaser may have at any time against Seller for a breach of any such representation or warranty, whether known or unknown, which is not specifically asserted by a demand notice before the expiration of the Claims Period and with respect to claims specified in a demand notice before the expiration of the Claims Period that are not resolved or made the subject of litigation instituted and served prior the expiration of three (3) months after the Claims Period, will not be valid or effective, and Seller will have no liability with respect thereto. Additionally, any claim actually known by Purchaser on or prior to Closing shall be deemed waived by Purchaser if Purchaser does not terminate this Agreement on account thereof, but proceeds to Closing despite such breach. Notwithstanding anything to the contrary contained herein, with respect to any demand notice given after Closing but before the end of the Claims Period, in no event will Seller have any liability to Purchaser for
14 a breach of any covenant, representation or warranty under this Agreement or any Closing Documents executed pursuant hereto (the "Other Documents") in excess of Two Million Thirty- One Thousand Two Hundred Fifty AND 00/100 Dollars ($2,031,250.00) (the “Claims Ceiling”). The provisions of this Section 5.1.4 shall survive Closing. 5.1.5 The continued accuracy in all material respects of the aforesaid representations and warranties is a condition precedent to Purchaser’s obligation to close. If any of said representations and warranties is not correct in all material respects at the time the same is made or as of Closing (or at any time in between), and Seller had no knowledge of such inaccuracy when the representation or warranty was made, or when remade at Closing, or if such warranty or representation becomes inaccurate on or prior to Closing other than by reason of Seller’s action or inaction hereunder, Purchaser may, upon being notified of such occurrence on or prior to Closing and after the expiration of the cure period provided under Section 11.6 hereof, either (a) terminate this Agreement upon notice to Seller and the Title Company without liability on the part of Seller or Purchaser, subject to the surviving obligations of Seller or Purchaser under this Agreement and the Deposit will be returned to Purchaser, or (b) waive such matter and proceed to Closing, by notice to Seller given within ten (10) days after the expiration of the cure period in which event Seller shall have no liability with respect to any such inaccuracy. If Purchaser fails to give any notice within the required time period, Purchaser will be deemed to have elected to waive such matter and to proceed to Closing. If any of said representations and warranties are not correct in all material respects at the time the same is made or as of Closing (or any time in between), and Seller had actual knowledge of such inaccuracy when the representation or warranty was made, or, by its action or inaction hereunder caused the representation or warranty to be inaccurate when remade at Closing, Purchaser may, after the expiration of the cure period, if any, provided under Section 11.6 hereof, either (a) exercise its remedies under Section 10.2, or (b) terminate this Agreement upon notice to Seller and the Title Company, subject to the surviving obligations of Seller or Purchaser under this Agreement, and receive a return of the Deposit and reimbursement by Seller of Purchaser’s out-of-pocket costs in an amount not in excess of $75,000, or (c) waive the breach and its rights under clauses (a) and (b) and proceed to Closing, by notice to Seller given within ten (10) days after expiration of the cure period, but in no event later than Closing, in which event Seller shall have no liability with respect to any such inaccuracy. If Purchaser fails to give any notice within the required time period, Purchaser will be deemed to have elected to waive such matter and to proceed to Closing. 5.1.6 As used in this Section 5.1 and elsewhere in this Agreement, the phrase “to Seller’s knowledge” or phrases of similar import mean and are limited to the actual current knowledge of Xxxxx Xxxx, Managing Director of Development of an affiliate of Seller, without any independent investigation or inquiry having been made, and not to any constructive knowledge of the foregoing individuals or of Seller or any investment advisor to Seller, any entity that is a partner in such investment advisor, or any affiliates of any thereof, or to any officer, agent, representative, or employee of Seller or such investment advisor, any such constituent partner, or any such affiliate. Seller, during the term of this Agreement, agrees to notify Purchaser in writing promptly in the event Seller obtains actual knowledge of any change affecting any such representations or warranties. Seller represents and warrants that Xxxxx Xxxx is the Managing Director of Development having ongoing responsibility with respect to the development of the Property and this individual possesses comprehensive knowledge of the facts set forth in Section 5.1. 5.2 By Purchaser. Purchaser represents and warrants to Seller that:
15 5.2.1 Purchaser is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of its organization, and is or will as of Closing be, authorized to do business in the State in which the Property is located, has duly authorized the execution and performance of this Agreement, and such execution and performance will not violate any material term of its certificate of incorporation or bylaws; or result in a breach of or default under any document, instrument, order or agreement to which Purchaser is a party or by which Purchaser is bound; 5.2.2 Purchaser is acting as principal in this transaction with authority to close the transaction; 5.2.3 No petition in bankruptcy (voluntary or otherwise), assignment for the benefit of creditors, or petition seeking reorganization or arrangement or other action under federal or state bankruptcy laws is pending against or contemplated by Purchaser; 5.2.4 Intentionally Omitted; 5.2.5 Intentionally Omitted; 5.2.6 Unless otherwise disclosed to Seller in writing, neither Purchaser nor any affiliate of Purchaser (excluding any indirect owners of Purchaser) is other than a citizen of, or partnership, corporation or other form of legal person domesticated in, the United States of America; 5.2.7 ERISA (a) (i) the Property is not being acquired by or on behalf of an “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or a “plan” within the meaning of Section 4975(e)(1) of the Code, which is subject to ERISA or section 4975 of the Code, respectively (hereinafter referred to collectively as the “Plan”); and (ii) the assets being used to acquire the Property or to otherwise discharge Purchaser’s obligations hereunder are not “plan assets” within the meaning of Department of Labor Regulation section 2510.3-101, as modified by Section 3(42) of ERISA; (b) Purchaser and all shareholders, members, partners and investors in Purchaser are neither parties in interest, as described in section 3(14) of ERISA, nor disqualified persons, as described in section 4975(e)(2) of the Code with respect to any Plan (other than a Plan maintained exclusively for the benefit of the employees of Purchaser or Purchaser’s affiliates), which is an investor in or related to Seller; (c) The transaction described in this Agreement does not constitute a “prohibited transaction” within the meaning of either section 406 of ERISA or section 4975 of the Code, other than a transaction which is exempt from section 406 of ERISA and section 4975 of the Code by virtue of (i) a statutory or regulatory exemption granted pursuant to section 408 of ERISA or (ii) the fact that the transaction described in this Agreement complies with all conditions for exemptive relief contained in Prohibited Transaction Exemption 84-14 granted by the U.S. Department of Labor (“PTE 84-14”); (d) Purchaser shall not assign its interest hereunder to any person or entity which does not expressly make this covenant and warranty for the benefit of Seller; and
16 (e) Purchaser covenants that in the event it determines that the representations and warranties of Purchaser made in this Section 5.2.7 have ceased to be accurate in any material respect, Purchaser shall notify Seller of such determination as promptly as practicable and in any event within ten (10) days after such determination is made; and 5.2.8 Neither Purchaser, nor any affiliate of Purchaser (excluding any indirect owners of Purchaser), have engaged in any dealings or transactions, directly or indirectly (i) in contravention of any U.S. international or other money laundering regulations or conventions, including, without limitation, the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986, the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, Trading with the Enemy Act (50 U.S.C. Section 1 et seq., as amended), or any foreign asset control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto., Purchaser represents and warrants to, and covenants with Seller that (i) neither Purchaser nor any affiliate of Purchaser (excluding any indirect owners of Purchaser), currently are, or shall be at any time during the term hereof, in violation of Anti-Terrorism Laws, including without limitation Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and regulations of the U.S. Treasury Department's Office of Foreign Assets Control (OFAC) related to Specially Designated Nationals and Blocked Persons (SDN’s (OFAC Regulations), and/or the USA Patriot Act; (ii) neither Purchaser, nor any affiliate of Purchaser (excluding any indirect owners of Purchaser), is or shall be during the term hereof (1) a Prohibited Person, and (2) a person or entity who is identified as or affiliated with a person or entity designated as a terrorist, or associated with terrorism or money laundering pursuant to regulations promulgated in connection with the USA Patriot Act; and (iii) Purchaser has taken appropriate steps to understand its legal obligations under the Anti-Terrorism Laws and has implemented appropriate procedures to assure its continued compliance with such laws. Purchaser hereby agrees to defend, indemnify, and hold harmless Seller, it officers, directors, agents and employees, from and against any and all claims, damages, losses, risks, liabilities and expenses (including reasonable attorney's fees and costs) arising from or related to any breach of the foregoing representations, warranties and covenants. 5.3 Broker. Seller and Purchaser each represents to the other that it has had no dealings, negotiations, or consultations with any broker, representative, employee, agent or other intermediary in connection with the Agreement or the sale of the Property except CB Xxxxxxx Xxxxx (the “Broker”). Seller and Purchaser agree that each will indemnify, defend and hold the other free and harmless from the claims of any broker(s), representative(s), employee(s), agent(s) or other intermediary(ies) claiming to have represented Seller or Purchaser, respectively, or otherwise to be entitled to compensation in connection with this Agreement or in connection with the sale of the Property other than Broker. Broker will be compensated by Seller pursuant to the terms of a separate agreement between Seller and Broker. The terms and provisions of this paragraph shall survive Closing hereunder. 6. Costs and Prorations. 6.1 Seller's Costs. Seller will pay the following costs of closing this transaction: 6.1.1 The fees and disbursements of Seller's counsel; 6.1.2 The costs of releasing all liens, judgments, and other encumbrances that are to be released and of recording such releases;
17 6.1.3 One half of the escrow and recording fees (other than fees for recording the Deed) and costs due Title Company for its services; 6.1.4 The Grantor tax associated with the Deed; 6.1.5 The cost of a standard coverage ALTA owner’s title insurance policies, without extended coverage, endorsement or amendment, in the amount of the Purchase Price, issued in connection with this transaction, whether pursuant to the Title Commitment or otherwise; and 6.1.6 The cost of the Survey. 6.2 Purchaser's Costs. Purchaser will pay the following costs of closing this transaction: 6.2.1 The fees and disbursements of its counsel, inspecting architect and engineer, if any; 6.2.2 One half of the escrow and recording fees and costs due Title Company for its services; 6.2.3 The cost of any loan title insurance policy; 6.2.4 All sales or use taxes relating to the transfer of personal property to Purchaser and all state and local recordation taxes payable in connection with the conveyance of the Land and the Improvements (other than the transfer taxes for the Deed, for which Seller is responsible); 6.2.5 The cost of any title insurance in excess of the cost of a standard coverage ALTA owner’s title insurance policies, without endorsement or amendment, in the amount of the Purchase Price, issued in connection with this transaction, whether pursuant to the Title Commitment or otherwise; 6.2.6 The cost to obtain the Updated Survey; 6.2.7 The cost of recordation of the Deed and Assignment of Lease; and 6.2.8 Any other expense(s) incurred by Purchaser or its representative(s) in inspecting or evaluating the Property or closing this transaction. 6.3 Prorations. Rents and any other amounts payable by Tenant, and, to the extent not otherwise paid directly by the Tenant under the Tenant Lease, personal property taxes, installment payments of special assessment liens, vault charges, sewer charges, utility charges and normally prorated operating expenses actually collected, billed or paid as of the date of Closing shall be prorated as of the date of Closing and be adjusted against the Purchase Price due at the Closing, provided that within sixty (60) days after the Closing, Purchaser and Seller will make a further adjustment for such rents, taxes or charges which may have accrued or been incurred prior to the date of Closing, but not collected or paid at that date. All prorations shall be based upon the actual number of days of ownership of the Property. Seller shall be responsible for all leasing commissions and other leasing costs due and payable prior to the Closing Date with respect to the Tenant Lease. Purchaser shall be responsible for all leasing
18 commissions and other leasing costs attributable to any new leases executed on or after the Closing Date or the renewal, extension or expansion of any existing lease after the Closing Date to the extent Purchaser enters into any leasing agreement in which leasing commissions and other leasing costs are payable in connection with the renewal, extension or expansion of any existing lease after the Closing Date. Seller represents and warrants that there are no leasing commissions or other leasing costs due and payable now or in the future under any agreement to which Seller or any of its affiliates is a party with respect to the Tenant Lease. The terms and provisions of this section shall survive Closing hereunder. 6.4 Taxes. To the extent not otherwise paid directly by Tenant under the Tenant Lease, general real estate taxes and special assessments relating to the Property payable during the year in which Closing occurs shall be prorated as of the Closing Date. If Closing shall occur before the actual taxes and special assessments payable during such year are known, the apportionment of taxes shall be upon the basis of taxes for the Property payable during the immediately preceding year, provided that, if the taxes and special assessments payable during the year in which Closing occurs are thereafter determined to be more or less than the taxes payable during the preceding year (after any appeal of the assessed valuation thereof is concluded), Seller and Purchaser promptly (but in no event later than thirty (30) days after the issuance of the tax xxxx for the year in which Closing occurs, except in the case of an ongoing tax protest) shall adjust the proration of such taxes and special assessments, and Seller or Purchaser, as the case may be, shall pay to the other any amount required as a result of such adjustment and this covenant shall not merge with the Deed delivered hereunder but shall survive the Closing. 6.5 In General. Any other expenses, charges and fees of Closing not otherwise specifically allocated herein or incurred by a specific party, shall be borne by the parties in accordance with the general custom and practice in the State and County in which the Property is situated, as applicable, or if no such custom or practice exists they shall be borne equally between the parties. To the extent that the Tenant Lease provide for any adjustment of previously paid estimated amounts of real estate tax or operating expense reimbursements on a date subsequent to the Closing Date, Seller shall be entitled to receive, or shall be responsible to pay, as the case may be (when such amounts are actually received or payable by Purchaser), Seller’s pro rata share of any such adjusted amounts that are applicable to periods ending prior to the Closing Date. After Closing, Seller agrees to reasonably cooperate with Purchaser in providing Purchaser access to Seller’s books and records relating to such adjustments under the Tenant Lease so that Purchaser may adequately perform such adjustments. 6.6 Purpose and Intent. Except as expressly provided herein, the purpose and intent as to the provisions of prorations and apportionments set forth in this Section 6 and elsewhere in this Agreement is that Seller shall bear all expenses of ownership and operation of the Property and shall receive all income therefrom accruing through 11:59 p.m. at the end of the day preceding the Closing and Purchaser shall bear all such expenses and receive all such income accruing thereafter. 7. Damage, Destruction or Condemnation. 7.1 Material Event. If, prior to Closing, any portion of the Property is destroyed or taken under power of eminent domain which event (i) gives Tenant the right to terminate the Tenant Lease or xxxxx rent under the Tenant Lease temporarily or permanently, (ii) results in proceeds from condemnation awards or casualty insurance policies that are insufficient to rebuild the improvements on the Property in the manner which the improvements existed prior to such taking or casualty or (iii) result in a loss of parking at the Property, Purchaser may elect to terminate this Agreement by giving written notice of its election to Seller within ten (10) days after receiving notice from Seller of such destruction or taking. If Purchaser does not give such written notice within such ten (10) day period, this transaction shall be consummated on the date and at the Purchase Price provided for in Section 2, and Seller will assign to Purchaser (i) the insurance proceeds of any insurance policy(ies) payable to Seller and pay to Purchaser
19 the amount of any deductible under Seller’s insurance policy, if any, or (ii) Seller’s portion of any condemnation award. 7.2 Immaterial Event. Except upon the occurrence of a material event as set forth in Section 7.1 above, Purchaser shall close this transaction on the date and at the Purchase Price agreed upon in Section 2, and Seller will assign to Purchaser (i) the insurance proceeds of any insurance policies payable to Seller and pay to Purchaser the amount of any deductible under Seller’s insurance policy, if any, or (ii) Seller’s portion of any condemnation award. 7.3 Termination and Return of Deposit. If Purchaser elects to terminate this Agreement pursuant to this Section 7, and if Purchaser is not, on the date of such election, in default under this Agreement, Seller shall promptly direct the Title Company to return the Deposit to Purchaser, and neither party shall have any further liability hereunder except for the obligations of Purchaser which survive the termination of this Agreement. 8. Notices. All notices or other communications hereunder shall be in writing and shall be deemed duly given if addressed and delivered to the respective parties' addresses, as set forth below: (i) in person; (ii) by Federal Express or similar overnight carrier service; (iii) mailed by certified or registered mail, return receipt requested, postage prepaid or (iv) by facsimile transmission (with electronic confirmation) followed by a notice set forth in (i), (ii) or (iii) above. Such notices shall be deemed received upon the earlier of receipt or, if mailed by certified or registered mail, three (3) days after such mailing. Seller and Purchaser may from time to time by written notice to the other designate another address for receipt of future notices. If to Seller: c/o USAA Real Estate Company 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000 Xxx Xxxxxxx, XX 00000-0000 Attention: Xxxx Xxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Email: xxxx.xxxx@xxxxxxxx.xxx with a copy to: c/o USAA Real Estate Company 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000 Xxx Xxxxxxx, XX 00000-0000 Attention: Xxxxxx Xxxxxx, Esq. Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Email: xxxxx.xxxxxx@xxxxxxxx.xxx with a copy to: Golden Steves Xxxxx & Xxxxxx LLP 000 Xxxxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxxxxx, Xxxxx 00000 Attention: Xxxxxx X. Xxxxx Telephone: (000) 000-0000
20 Facsimile: (000) 000-0000 Email: xxxxxx@xxxxxxxxxxxx.xxx If to Purchaser: c/o Cole Real Estate Investments, Inc. 0000 X. Xxxxxxxxx Xxxx, Xxxxx 0000 Xxxxxxx, XX 00000 Attention: Xxxxxx Xxxx Vice President, Legal Services Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Email: xxx.xxxx@xxxxxxxx.xxx with a copy to: Xxxxxx, Xxxxxxx & Xxxxxx, LLP 1600 Atlanta Financial Center 0000 Xxxxxxxxx Xxxx, X.X. Xxxxxxx, XX 00000 Attention: Xxxx X. Xxxxxx, Esq. Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Email: xxxxxxx@xxxxxx.xxx Telephone and e-mail addresses are for informational purposes only. Effective notice will be deemed given only as provided above. 9. Closing and Escrow. 9.1 Conditions Precedent to Closing. 9.1.1 Purchaser's Conditions to Closing. The obligation of Purchaser to purchase the Property from Seller, and to perform the obligations required to be performed by Purchaser at the Closing, are subject to each of the following conditions: (i) Closing Documents. Seller shall have tendered at Closing (or prior to Closing as applicable) all Closing Documents set forth in Section 9.3 to which Seller is a party. (ii) Compliance with Agreement. Seller shall have performed and complied in all material respects with its covenants and obligations under this Agreement such that any default or failure of performance of Seller as to which Purchaser has delivered written notice to Seller shall be cured in all material respects prior to or at Closing. (iii) Title Policy. The Title Company shall be committed to issue the title policy in accordance with Section 3.2. 9.1.2 Seller's Conditions to Closing. The obligation of Seller to sell the Property to Purchaser, and to perform the obligations required to be performed by Seller at the Closing, are subject to each of the following conditions:
21 (i) Closing Documents. Purchaser shall have tendered at Closing all Closing Documents to which Purchaser is a party. (ii) Compliance with Agreement. Purchaser shall have performed and complied in all material respects with its covenants and obligations under this Agreement such that any default or failure of performance of Purchaser as to which Seller has delivered written notice to Purchaser shall be cured in all material respects prior to or at Closing. 9.1.3 Failure of Condition. If any of the conditions precedent to Closing have not occurred or been satisfied within the time periods and in accordance with the terms set forth herein, then the party whose conditions to Closing have not been satisfied shall have the right to terminate this Agreement by written notice to the other party, whereupon neither party shall have any further rights or obligations hereunder and the Deposit shall be returned to Purchaser by the Title Company (other than the obligations of either party that expressly survive termination of this Agreement), unless the failure of condition is due to a default by one of the parties, in which the non-defaulting party shall have those rights and remedies set forth in Section 10 hereof. If the transaction contemplated by this Agreement closes, the parties shall be deemed to have waived any and all unmet or unsatisfied conditions, subject to Section 5.1.5 above. 9.2 Escrow Instructions. Upon execution of this Agreement, the parties shall deliver an executed counterpart of this Agreement to the Title Company to serve as the instructions to the Title Company as the escrow holder for consummation of the transaction contemplated herein. Seller and Purchaser agree to execute such additional and supplementary escrow instructions as may be appropriate to enable the Title Company to comply with the terms of this Agreement; provided, however, that in the event of any conflict between the provisions of this Agreement and any supplementary escrow instructions, the terms of the Agreement shall prevail. 9.3 Seller's Deliveries. Unless otherwise specified, Seller shall deliver either at the Closing or by making available at the Property, as appropriate, the following original documents (the “Closing Documents”), each executed and, if required, acknowledged: 9.3.1 A special warranty deed to the Land, in the form attached hereto as Exhibit 9.3.1, subject only to the Permitted Encumbrances (the “Deed”); 9.3.2 A xxxx of sale for the Property in the form attached hereto as Exhibit 9.3.2 conveying the Personal Property; 9.3.3 An original, or to the extent an original is not available, a copy of the Tenant Lease and Contracts; 9.3.4 An assignment and assumption agreement of the Tenant Lease and Warranties in the form attached hereto as Exhibit 9.3.4 (the “Assignment and Assumption of Lease”); 9.3.5 An assignment of contracts assigning Seller’s right, title and interest in, to and under the Contracts and the Approvals in the form attached hereto as Exhibit 9.3.5 (the “Assignment and Assumption of Contracts”); 9.3.6 All books and records at the Property held by or for the account of Seller, including without limitation, plans and specifications, as available;
22 9.3.7 An affidavit pursuant to the Foreign Investment and Real Property Tax Act in the form attached hereto as Exhibit 9.3.7; 9.3.8 An incumbency affidavit in the form attached hereto as Exhibit 9.3.8; 9.3.9 The Tenant Estoppel in accordance with the terms of Section 3.7 (unless waived by Purchaser pursuant to the terms of Section 3.7); 9.3.10 A tenant notice letter for the Property in the form attached hereto as Exhibit 9.3.10; and 9.3.11 Such affidavits, indemnities and other deliveries as are reasonably required by the Title Company to deliver the title policy, executed by Seller. 9.4 Purchaser's Deliveries. At the Closing, Purchaser shall (i) deposit with the Title Company the Purchase Price; and (ii) execute the agreements referred to in Sections 9.3.4 and 9.3.5. 9.5 Insurance. Seller shall terminate its policies of insurance as of noon on the date of Closing, and Purchaser shall be responsible for obtaining its own insurance thereafter. 9.6 Possession. Purchaser shall be entitled to possession of the Property upon conclusion of the Closing, subject to the Tenant Lease and the Permitted Encumbrances. 9.7 Post-Closing Collections. Purchaser shall use its best efforts during the six (6) month period immediately following Closing to collect and promptly remit to Seller rents or other amounts due Seller for the period prior to Closing. Purchaser shall apply such rents or other amounts received, first for the account of Purchaser for amounts currently due to Purchaser; second, for the account of Purchaser for delinquent amounts due to Purchaser, and third, to Seller for any and all amounts due to Seller for periods prior to Closing; and the balance to be retained by Xxxxxxxxx.
00 00. Default; Failure of Condition. 10.1 PURCHASER DEFAULT. IF PURCHASER SHALL BECOME IN BREACH OF OR DEFAULT UNDER THIS AGREEMENT AND THE BREACH OR DEFAULT CONTINUES BEYOND THE EXPIRATION OF THE CURE PERIOD, IF ANY, PROVIDED IN SECTION 11.6 HEREOF, SELLER SHALL ELECT AS ITS SOLE REMEDY HEREUNDER TO (A) TERMINATE THIS AGREEMENT WHEREIN THE DEPOSIT SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES, AND BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF PURCHASER PURSUANT TO SECTION 3.1.7 HEREOF AND THE PAYMENT OF LEGAL FEES IN CONNECTION WITH ANY ENFORCEMENT OF SUCH INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 11.9 HEREOF; OR (B) WAIVE THE DEFAULT, PRIOR TO OR AT THE CLOSING, AND PROCEED TO CLOSE THE TRANSACTION CONTEMPLATED HEREBY IN ACCORDANCE WITH THE REMAINING TERMS HEREOF. SELLER AND PURCHASER AGREE THAT THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER'S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND SHALL NOT CONSTITUTE A PENALTY OR A FORFEITURE. /s/ TW__________________ /s/ JP_________________ Purchaser's Seller's Initials 10.2 SELLER DEFAULT. IF SELLER SHALL BECOME IN BREACH OR DEFAULT UNDER THIS AGREEMENT AND THE BREACH OR DEFAULT CONTINUES BEYOND THE EXPIRATION OF THE CURE PERIOD, IF ANY, PROVIDED IN SECTION 11.6 HEREOF, PURCHASER MAY, AS PURCHASER’S SOLE OPTION, ELECT EITHER TO: (I) BY WRITTEN NOTICE TO SELLER AND THE TITLE COMPANY, CANCEL THIS AGREEMENT WHEREUPON THE DEPOSIT SHALL BE PAID IMMEDIATELY BY THE TITLE COMPANY TO PURCHASER, SELLER SHALL PROMPTLY REIMBURSE TO PURCHASER ITS REASONABLE OUT-OF-POCKET AND THIRD-PARTY PROPERTY DILIGENCE EXPENSES IN AN AMOUNT NOT TO EXCEED $65,000.00 AND, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER OF THE PARTIES SHALL HAVE ANY FURTHER LIABILITY OR OBLIGATION HEREUNDER; OR, (II) EXTEND THE DATE SCHEDULED FOR CLOSING FOR SUCH REASONABLE PERIOD OF TIME AS MAY BE REQUIRED TO PERMIT SELLER TO CURE OR REMEDY SUCH BREACH IN ACCORDANCE WITH SECTION 11.6; (III) WAIVE, PRIOR TO OR AT THE CLOSING, THE APPLICABLE OBJECTION OR CONDITION AND PROCEED TO CLOSE THE TRANSACTION CONTEMPLATED HEREBY IN ACCORDANCE WITH THE REMAINING TERMS HEREOF; OR (IV) SEEK SPECIFIC PERFORMANCE OF SELLER’S OBLIGATIONS HEREUNDER. NOTWITHSTANDING THE FOREGOING, IF SPECIFIC PERFORMANCE IS UNAVAILABLE AS A REMEDY TO PURCHASER BECAUSE OF SELLER’S AFFIRMATIVE ACT OR INTENTIONAL OMISSION, PURCHASER SHALL BE ENTITLED TO PURSUE ALL RIGHTS AND REMEDIES AVAILABLE AT LAW OR IN EQUITY; PROVIDED, IN ANY SUIT FOR DAMAGES, SELLER SHALL NOT BE LIABLE TO PURCHASER FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES. NOTWITHSTANDING THE FOREGOING, ANY CONFLICT BETWEEN THE PROVISIONS OF THIS SECTION AND SECTION 5.1.5 WITH REGARD TO A BREACH OF SELLER’S REPRESENTATIONS OR WARRANTIES SHALL BE RESOLVED BY THE PROVISIONS OF SECTION 5.1.5.
24 10.3 Waiver of Trial by Jury. The respective parties hereto shall and hereby do waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way connected with this Agreement, or for the enforcement of any remedy under any statute, emergency or otherwise. 10.4 Limited Liability. The obligations of Seller are binding only on Seller’s interest in the Property and any other assets of Seller and shall not be personally binding upon, nor shall any resort be had to, the private properties of any of the partners, officers, directors, shareholders or beneficiaries of Seller, or of any partners, officers, directors, shareholders or beneficiaries of any partners of Seller, or of any of Seller's employees or agents. All documents executed by Seller shall be deemed to contain (even if not expressly stated) the foregoing exculpation. 11. Miscellaneous. 11.1 Entire Agreement. This Agreement, together with the Exhibits attached hereto, all of which are incorporated by reference, is the entire agreement between the parties with respect to the subject matter hereof, and no alteration, modification or interpretation hereof shall be binding unless in writing and signed by both parties. 11.2 Severability. If any provision of this Agreement or application to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances, other than those as to which it is so determined invalid or unenforceable, shall not be affected thereby, and each provision hereof shall be valid and shall be enforced to the fullest extent permitted by law. 11.3 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State in which the Property is located. 11.4 Assignability. This Agreement may not be assigned by Seller without the prior written consent of Purchaser which consent shall not be unreasonably withheld. Purchaser may assign its rights under this Agreement to an affiliate of Purchaser without seeking or obtaining Seller’s consent. Such assignment shall not become effective until the assignee executes an instrument whereby such assignee expressly assumes each of the obligations of Purchaser under this Agreement, including specifically, without limitation, all obligations concerning the Deposit. Purchaser shall provide Seller a copy of any such proposed assignment to an affiliate of Purchaser prior to Closing. No assignment shall release or otherwise relieve Purchaser from any obligations hereunder; provided, however, with respect to any assignment, if Closing occurs the assigning party (but not the assignee) shall be relieved of all its obligations arising under this Agreement before, on and after Closing provided, any such assignee shall be deemed to have made any and all representations and warranties made by Purchaser hereunder, as if the assignee were the original signatory hereto. 11.5 Successors Bound. This Agreement shall be binding upon and inure to the benefit of Purchaser and Seller and their respective successors and permitted assigns. 11.6 Breach. Should either party be in breach of or default under or otherwise fail to comply with any of the terms of this Agreement, the complying party shall have the option to cancel this Agreement upon twenty (20) days written notice to the other party and such other party’s failure to cure such breach within such twenty (20) day period. The date of Closing shall be extended to the extent necessary to afford the defaulting party the full twenty-day period within which to cure such breach, default or failure; provided, however, that the failure or refusal by a party to perform on the scheduled
25 date of Closing (except in respect of a Pending Default by the other party) shall be deemed to be an immediate default without the necessity of notice or opportunity to cure; and provided further, that if the date of Closing shall have been once extended as a result of default by a party, such party shall not be entitled to any further notice or cure rights with respect to that or any other default. For purposes of this Section 11.6, a "Pending Default" shall be a default for which (i) written notice was given by the non- defaulting party prior to the Closing, and (ii) the cure period extends beyond the scheduled date of Closing. 11.7 No Public Disclosure. Neither Seller nor Purchaser will release or cause or permit to be released any press notices, or publicity (oral or written) or advertising promotion relating to, or otherwise announce or disclose or cause or permit to be announced or disclosed, in any manner whatsoever, the terms, conditions or substance of this Agreement without first obtaining the written consent of the other party. The foregoing shall not preclude either party from discussing the substance or any relevant details of such transactions with any of its attorneys, accountants, professional consultants, lenders, partners, investors, or any prospective lender, partner or investor, as the case may be, or prevent either party hereto from complying with laws, rules, regulations and court orders, including without limitation, governmental regulatory, disclosure, tax and reporting requirements. Purchaser and Seller may disclose this transaction or any aspect or information related to this transaction or disclosure or other notice as its attorneys deem is reasonably necessary to comply with applicable law. In addition to any other remedies available to a party, each party shall have the right to seek equitable relief, including without limitation, injunctive relief or specific performance, against the other party in order to enforce the provisions of this Section 11.7. 11.8 Captions. The captions in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope of this Agreement or the scope or content of any of its provisions. 11.9 Attorneys' Fees. In the event of any litigation arising out of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs. 11.10 No Partnership. Nothing contained in this Agreement shall be construed to create a partnership or joint venture between the parties or their successors in interest. 11.11 Time of Essence. Time is of the essence in this Agreement. 11.12 Counterparts. This Agreement may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. Signatures hereon sent by facsimile or electronic mail may be treated as original signatures, and any party so executing this Agreement agrees to deliver to the other party “paper” originals of said signatures within two (2) business days after such transmission by facsimile or electronic mail. 11.13 Recordation. Purchaser and Seller agree not to record this Agreement or any memorandum hereof. 11.14 Proper Execution. The submission by Seller to Purchaser of this Agreement in unsigned form shall be deemed to be a submission solely for Purchaser's consideration and not for acceptance and execution. Such submission shall have no binding force and effect, shall not constitute an option, and shall not confer any rights upon Purchaser or impose any obligations upon Seller irrespective of any reliance thereon, change of position or partial performance. The submission by Seller of this Agreement for execution by Purchaser and the actual execution and delivery thereof by Purchaser to Seller shall, together with the Deposit, similarly have no binding force and effect on Seller unless and until Seller shall
26 have executed this Agreement and a fully executed counterpart thereof, together with the Deposit, shall have been delivered to the Title Company. 11.15 Right of First Offer; Right of First Refusal. The parties acknowledge that the Property is subject to (i) a right of first offer and (ii) a right of first refusal, in favor of Tenant as more particularly described in the Tenant Lease. It shall be a condition precedent to Seller’s obligation to convey the Property in accordance with this Agreement that Tenant shall have waived such rights or that Seller shall have provided evidence that such rights have been deemed to have been waived by Tenant. Said waivers or such evidence (the “Waivers”) shall be in a form reasonably acceptable to Seller, Purchaser and the Title Company (such that the Title Company, in accepting the Waiver, is willing to issue the Title Policy not subject to such right of first offer or such right of first refusal in connection with the sale of the Property to Purchaser). Should Tenant exercise either its right of first offer or its right of first refusal, this Agreement shall terminate, the Deposit shall be returned to Purchaser and Seller shall reimburse Purchaser for its actual, out-of-pocket expenses relating to its investigation of the Property, not to exceed $65,000.00. If Seller has not provided the required Waivers or received an election by Tenant to exercise either such right, on or before two (2) business days prior to the Closing Date, then Seller shall have the right to delay the Closing for up to thirty (30) days upon written notice to Purchaser delivered not less than two (2) business days prior to the scheduled Closing Date; provided that Closing shall occur within three (3) business days following delivery of the final Waivers and the Tenant Estoppel shall not be dated more than 45 days prior to the Closing Date, as extended. If the foregoing requisite Waivers, Tenant Estoppel and/or exercise of rights of first offer or first refusal are not delivered to Purchaser at least two (2) business days prior to the Closing Date, as may have been delayed as provided above, then Purchaser’s sole right with respect thereto shall be to elect to terminate this Agreement and the Deposit returned to Purchaser, and Seller shall reimburse Purchaser for its actual, out-of-pocket expenses relating to its investigation of the Property, not to exceed $65,000.00. 11.16 Committee Approval. Intentionally omitted. 11.17 Effective Date Conditioned Upon Deposit. This Agreement shall become effective only upon, and all time periods not otherwise expressly set forth shall commence to run, from the Effective Date, only if the Deposit has been made. 11.18 Time to Execute and Deliver. This Agreement shall be void if one fully executed copy is not received by Seller, along with confirmation that this Agreement has been received by the Title Company, on or before 9:00 p.m. C.S.T. on July 30, 2013 and that the Deposit has been received by the Title Company on or before 5:00 p.m. C.S.T. on July 31, 2013. 11.19 Term Sheet. The Term Sheet attached to this Agreement and incorporated by reference herein sets forth the basic terms of the transaction for the benefit and convenience of the parties. Notwithstanding the foregoing, to the extent of any conflict between the terms and provisions of this Term Sheet and the Agreement, the terms and provisions of the Agreement shall govern and control. 11.20 No Recording. Neither this Agreement nor any memorandum or short form hereof shall be recorded or filed in any public land or other public records of any jurisdiction, by either party and any attempt to do so may be treated by the other party as a breach of this Agreement. 11.21 1031 Exchange. Either party may consummate the purchase and sale of the Property as part of a so-called like kind exchange (the “Exchange”) pursuant to § 1031 of the Internal Revenue Code of 1986, as amended (the “Code”), provided that: (i) the Closing shall not be delayed or affected by reason of the Exchange nor shall the consummation or accomplishment of the Exchange be a condition precedent or condition subsequent to either party’s obligations under this Agreement; (ii) the exchanging
27 party shall effect the Exchange through an assignment of this Agreement, or its rights under this Agreement, to a qualified intermediary; (iii) the non-exchanging party shall not be required to take an assignment of the Agreement for the relinquished property or be required to acquire or hold title to any real property for purposes of consummating the Exchange; and (iv) the exchanging party shall pay any additional costs that would not otherwise have been incurred by Purchaser or Seller had the exchanging party not consummated this transaction through the Exchange. The non-exchanging party shall not, by this Agreement or acquiescence to the Exchange, have its rights under this Agreement affected or diminished in any manner or be responsible for compliance with or have any liability in connection with or be deemed to have warranted that the Exchange in fact complies with § 1031 of the Code. 11.22 Calculation of Time Periods. Unless otherwise specified, in computing any period of time described herein, the date of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is a Saturday, Sunday or legal holiday for national banks in Phoenix, Arizona in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday. The last day of any period of time described herein shall be deemed to end at 5:00 p.m. Phoenix, Arizona time. 11.23 Simultaneous Closing. The transaction contemplated by this Agreement shall be subject and contingent upon US Real Estate Limited Partnership (an affiliate of Seller) (“USRELP”) and Purchaser simultaneously closing the transaction contemplated by that certain Purchase and Sale Agreement dated of even date herewith between USRELP and Purchaser, which contract relates to the purchase of USRELP’s interest in certain land and improvements commonly known as the Murfreesboro Fulfillment Center, located at 2020 Xxx X. Xxxxxxx Parkway, in the City of Murfreesboro, Xxxxxxxxxx County, Tennessee (the “Related Transaction”), to the extent provide below. If USRELP is ready, willing and able to close the Related Transaction and Purchaser is obligated pursuant to the Related Transaction to close but fails to so close the Related Transaction simultaneously with the transaction contemplated by this Agreement, then Seller shall elect as its sole remedy hereunder to (a) terminate this Agreement wherein the Deposit shall be retained by Seller as liquidated damages, and both parties shall be relieved of and released from any further liability hereunder except for the indemnification obligations of Purchaser pursuant to Section 3.1.7 hereof and the payment of legal fees in connection with any enforcement of such indemnification obligations pursuant to Section 11.9 hereof; or (b) waive the simultaneous close condition and proceed to close the transaction contemplated hereby in accordance with the remaining terms hereof. If either (1) Purchaser is not obligated pursuant to the Related Transaction to close, or (2) Purchaser is ready, willing and able to close the Related Transaction and USRELP fails to so close the Related Transaction simultaneously with the transaction contemplated by this Agreement, then Purchaser shall elect as its sole remedy hereunder to (a) terminate this Agreement whereupon the Deposit shall be returned to Purchaser, Seller shall promptly reimburse to Purchaser its reasonable out-of-pocket and third-party property diligence expenses in an amount not to exceed $50,000.00, and both parties shall be relieved of and released from any further liability hereunder except for the indemnification obligations of Purchaser pursuant to Section 3.1.7 hereof and the payment of legal fees in connection with any enforcement of such indemnification obligations pursuant to Section 11.9 hereof; or (b) waive the simultaneous close condition and proceed to close the transaction contemplated hereby in accordance with the remaining terms hereof. 11.24 Guaranty. USAA REAL ESTATE COMPANY, a Delaware corporation (“Realco”) joins this Agreement only for the purpose of granting the following guaranty: by execution of this Agreement, Realco, Seller’s affiliate, for good and valuable consideration, the receipt of which is hereby acknowledged, agrees to and does hereby unconditionally and irrevocably guaranty, (i) Seller’s post-closing obligations and liabilities under this Agreement, (ii) Seller’s indemnification obligations set
28 forth in the Assignment and Assumption of Lease, and (iii) Seller’s indemnification obligations set forth in the Assignment and Assumption of Contracts. 11.25 On-Going Warranty Work. Seller shall repair or cause to be repaired, at no cost to Purchaser, the items identified on Exhibit 11.25 attached hereto (the “Repairs”), subject to Purchaser’s reasonable approval. Except for the Warranty walk repair described in item (b) of Exhibit 11.25, Seller acknowledges and agrees that any amounts expended in connection with completing the Repairs shall not reduce or otherwise be subject to the Claims Ceiling set forth in Section 5.1.4 herein. After Closing, Seller, its contractor and their respective agents and employees shall have reasonable access to the Land (subject to the rights of Tenant under the Tenant Lease) as may be necessary to complete the Repairs. Seller covenants to complete all Repairs on or before December 31, 2013. The provisions of this Section 11.25 shall survive Closing. 11.26 Post Closing Agreement. After Closing, Seller agrees to use commercially reasonable efforts to deliver the following documentation to Purchaser, at no cost to Purchaser: (i) a copy of the Engineer’s Certificate required in that certain Storm Water Management System/Best Management Practice (BMP)/Easement Agreement dated January 30, 2012 (“SWMS Agreement”) certifying that the drainage and detention facilities were constructed in accordance with the Approved Plans (as such term is defined in that certain SWMS Agreement); and (ii) evidence reasonably satisfactory to Purchaser that any road improvements which may have been constructed by Seller in connection with that Deed of Easement dated December 21, 2011 have been removed and planted with grass as required in Section 1.01(v) therein. The terms and provisions of this Section 11.26 shall survive Closing. [Signatures Appear on Following Page]
29 IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement on the date set forth below, effective as of the date set forth above. SELLER: US RIO, LP, a Delaware limited partnership By: US Real Estate Limited Partnership, a Texas limited partnership, its general partner By: USAA Real Estate Company, a Delaware corporation, its general partner By: /s/ Xxxx Xxxx Name: Xxxx Xxxx Title: Managing Director Date: July 30, 2013 GUARANTOR: USAA REAL ESTATE COMPANY, a Delaware corporation By: /s/ Xxxx Xxxx Name: Xxxx Xxxx Title: Managing Director Date: July 30, 2013 PURCHASER: XXXX CCIT ACQUISITIONS, LLC, a Delaware limited liability company By: Xxxx Corporate Income Advisors, LLC, a Delaware limited liability company, its Manager By: /s/ Xxxx X. Xxxxx Xxxx X. Xxxxx, Senior Vice President Date: July 30, 2013
30 An original, fully executed copy of this Agreement has been received by the Title Company's agent this 30th day of July, 2013, and by execution hereof the Title Company's agent hereby covenants and agrees to be bound by the terms of this Agreement. FIRST AMERICAN TITLE INSURANCE COMPANY By: /s/ Xxxxxxx Xxxxxxxxx Name: Xxxxxxx Xxxxxxxxx Title: Authorized Agent Receipt of the Deposit of $812,500.00 acknowledged this 31st day of July, 2013. FIRST AMERICAN TITLE INSURANCE COMPANY By: /s/ Xxxxxxx Xxxxxxxxx Name: Xxxxxxx Xxxxxxxxx Title: Authorized Agent Receipt of the Independent Consideration of $100 acknowledged this 31st day of July, 2013. FIRST AMERICAN TITLE INSURANCE COMPANY By: /s/ Xxxxxxx Xxxxxxxxx Name: Xxxxxxx Xxxxxxxxx Title: Authorized Agent
