EXHIBIT 10.38
ASSIGNMENT AND ASSUMPTION AGREEMENT
BETWEEN TRINET CORPORATE REALTY TRUST, INC.
AND
XXXXX OPERATING PARTNERSHIP, L.P.
EXECUTION COUNTERPART
ASSIGNMENT AND ASSUMPTION AGREEMENT
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THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "AGREEMENT") is made as of
DECEMBER 4, 1998 (the "EFFECTIVE DATE"), by and between TRINET CORPORATE REALTY
TRUST, INC., a Maryland corporation ("ASSIGNOR"), and XXXXX OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership ("ASSIGNEE").
RECITALS
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A. Assignor and Xxxxxx Sunforest, L.P., a Georgia limited partnership
("SELLER") entered into that certain Purchase Agreement dated as of March 30,
1998 (the "PURCHASE AGREEMENT"), pursuant to which Assignor agreed to purchase,
and Seller agreed to sell, certain property located in Sunforest Executive
Center, Tampa, Florida to be improved with a four-story building containing
approximately 132,610 Rentable Square Feet, subject to the terms and conditions
set forth therein.
B. Assignor, Seller and SouthTrust Bank, National Association ("LENDER")
entered into that certain TriParty Agreement dated on or about March 30, 1998
(the "TRIPARTY AGREEMENT") in connection with a mortgage loan of even date
therewith from Lender to Seller secured, inter alia, by the Project.
C. Assignor desires to assign all of its rights and obligations as
purchaser under the Purchase Agreement to Assignee, and Assignee desires to
assume all of Assignor's rights and obligations as purchaser under the Purchase
Agreement, on the terms and conditions hereafter set forth.
D. Assignor desires to assign all of its rights and obligations under the
TriParty Agreement to Assignee, and Assignee desires to assume all of Assignor's
rights and obligations under the TriParty Agreement, on the terms and conditions
hereafter set forth.
NOW THEREFORE, in consideration of the mutual premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINED TERMS. All terms used herein but not defined herein shall have
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the same meaning for purposes hereof as they do for purposes of the Purchase
Agreement.
2. ASSIGNMENT PRICE; DEPOSIT INTO ESCROW.
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(a) The price for the assignment of the Purchase Agreement and the TriParty
Agreement (the "ASSIGNMENT PRICE") shall be FOUR HUNDRED TWENTY THOUSAND AND
NO/100 DOLLARS ($420,000.00).
(b) Within two (2) business days after the execution hereof by both
parties, the parties shall establish a strict joint order escrow with the
Atlanta, Georgia office of Chicago Title Insurance Company ("ESCROW HOLDER").
The terms and conditions set forth in this Agreement shall constitute both an
agreement between Assignor and Assignee and escrow instructions for Escrow
Holder. Assignor and Assignee shall promptly execute and deliver to Escrow
Holder any separate or additional escrow instructions requested by Escrow Holder
which are consistent with the terms of this Agreement. Any separate or
additional instructions shall not modify or amend the provisions of this
Agreement unless otherwise expressly set forth by mutual consent of Assignor and
Assignee.
(c) Within two (2) business days after the execution hereof by both
parties, Assignee will deposit the entire Assignment Price with the Escrow
Holder. The Assignment Price shall be non-refundable to Assignee on and after
the Effective Date except as expressly provided herein. The failure of Assignee
to timely deposit the full Assignment Price into Escrow shall be a material
breach under this Agreement entitling Assignor to terminate this Agreement by
written notice to Assignee. The Assignment Price shall at all times prior to
Closing be invested in United States treasury obligations, or such other
interest bearing accounts or securities as are approved by Assignee and Assignor
in writing; all interest earned on the Assignment Price until the Closing (or,
if Assignee earlier defaults in its obligations as purchaser under the Purchase
Agreement on or after the Effective Date, until the date of such default) shall
be paid or credited to Assignee. All interest earned on the Assignment Price
shall be paid to Assignor, at Closing, or otherwise to Assignee.
3. DUE DILIGENCE. Assignee acknowledges that, on or before the date of
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this Agreement, Assignor has delivered to Assignee legible copies of the
following documents:
(1) Assignment Agreement and Amendment and Restatement of Registration
and Commission Agreement by and among CLW Realty Group, Xxxxxx &
Associates, L.L.C. and Seller with respect to the Price Waterhouse Lease;
(2) Seller's existing title insurance policy with respect to the
Project, together with all documents referred to therein as exceptions to
title;
(3) All existing boundary and topographical surveys with respect to
the Land;
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(4) All Plans and Specifications with respect to the Project;
(5) A site plan with respect to the Project;
(6) All environmental Studies with respect to the Land, including,
without limitation, any wetlands Studies;
(7) The Price Waterhouse Lease;
(8) The Purchase Agreement; and
(9) The TriParty Agreement.
4. ASSIGNMENT AND ASSUMPTION.
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(a) Effective as of the Release Date (as hereinafter defined), Assignor
hereby assigns and transfers to Assignee all right, title and interest of
Assignor in, to and under (i) the Purchase Agreement, and (ii) the TriParty
Agreement.
(b) Effective as of the Release Date, Assignee hereby accepts the foregoing
assignment, and assumes and agrees to perform and discharge all of the
covenants, agreements, duties and obligations in the Purchase Agreement and the
TriParty Agreement to be performed by Assignor thereunder.
(c) For purposes of this Agreement, the term "RELEASE DATE" means the date
on the which the latest of the following occurs, if at all: (I) the timely
deposit of the Assignment Price, in good funds, in accordance with the terms of
this Agreement and receipt by Seller from Escrow Holder of written confirmation
of such deposit; (II) the timely deposit of the Deposit (as such term is defined
in that certain Amended and Restated Purchase Agreement dated on or about the
date hereof by and between Seller and Assignee (the "AMENDED AND RESTATED
PURCHASE AGREEMENT")), in good funds, in accordance with the terms of the
Amended and Restated Purchase Agreement and receipt by Seller from the Title
Company (as defined in the Amended and Restated Purchase Agreement) of written
confirmation of such deposit; and (III) the receipt by Seller of the
Acknowledgment, Consent and Agreement of Lender to this Agreement, duly executed
by Lender, in the form attached hereto or in such other form as may be
acceptable to Seller in its sole and absolute judgment and discretion.
5. CLOSING. On the date of the Closing under the Purchase Agreement, the
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Escrow Holder shall pay (i) the Assignment Price, less the Commission (as
hereinafter defined), to Assignor by federal funds wire transfer or other
immediately available funds, and (ii) the Commission to Broker (as hereinafter
defined) by federal funds wire transfer or other immediately available funds.
If the Closing fails to occur because of a default by Assignee in its
obligations as purchaser under the Purchase Agreement, Escrow Holder
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shall pay the Assignment Price to Assignor upon demand by Assignor and neither
party shall have any further liability or obligation to the other. If the
Closing fails to occur because of a default by Seller in its obligations under
the Purchase Agreement or the failure to satisfy a condition precedent to the
purchaser's obligations under the Purchase Agreement, this Agreement shall
terminate and all sums deposited with the Escrow Holder shall be refunded to
Assignee upon demand by Assignee and neither party shall have any further
liability or obligation to the other.
6. ASSIGNOR'S WARRANTIES; DISCLAIMER OF ADDITIONAL WARRANTIES.
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(a) Assignor represents and warrants to Assignee that: (i) Assignor is not
in default under the Purchase Agreement or the TriParty Agreement; (ii) to
Assignor's knowledge, Seller is not in default under the Purchase Agreement or
the TriParty Agreement; (iii) to Assignor's knowledge, Lender is not in default
under the TriParty Agreement; and (iv) except to the extent disclosed to
Assignee, Assignor has no knowledge as of the Effective Date, and has not given
its consent or undertaken any other action on or before the Effective Date,
whether express or implied, with respect to the Project, the Purchase Agreement,
the Amended and Restated Purchase Agreement, or otherwise with respect to the
transaction that is the subject of the Purchase Agreement or the Amended and
Restated Purchase Agreement that would have a materially adverse effect on the
Project, the Purchase Agreement, the Amended and Restated Purchase Agreement, or
otherwise with respect to such transaction.
(b) Assignee warrants and acknowledges to and agrees with Assignor that,
except as expressly set forth in this Agreement, Assignee is assuming the rights
and obligations of Assignor under the Purchase Agreement and the TriParty
Agreement specifically and expressly without any warranties, representations or
guarantees, either express or implied, of any kind, nature, or type whatsoever
from or on behalf of Assignor.
7. FURTHER ASSURANCES. Assignor and Assignee agree to execute such other
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documents and perform such other acts as may be reasonably necessary or proper
and usual to effect this Assignment.
8. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon and
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shall inure to the benefit of Assignor and Assignee and their respective
personal representatives, heirs, successors and assigns.
9. BROKERS. Assignor and Assignee each represent that they have dealt
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with no real estate brokers with respect to this Agreement other than Xxxxxx &
Associates, L.L.C. ("BROKER") and, to their knowledge, no other broker initiated
or participated in the negotiation of this Agreement. Assignee agrees to
indemnify, defend and hold Assignor harmless from all claims from any real
estate broker other than Broker for commission or fees in connection with this
Agreement arising from or based upon any act or agreement of Assignee. Assignor
shall be solely responsible for the payment of a commission to Broker in the
amount of ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00)
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(the "COMMISSION"). Assignor agrees to indemnify, defend and hold Assignee
harmless from all claims from any real estate broker other than Broker for
commission or fees in connection with this Agreement arising from or based upon
any act or agreement of Assignor.
10. NOTICES. All notices and other communications required or permitted
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hereunder shall be in writing and shall be mailed, hand delivered, sent by
Federal Express or other recognized overnight courier service or sent by
facsimile, to the parties as follows:
To Assignee:
Xxxxx Real Estate Funds
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy at the same time to:
Xxxxxxx X'Xxxxxxxxx, Xx., Esq.
O"Xxxxxxxxx & Xxxxx, LLP
000 Xxxxxxxxx Xxxxxx
The Xxxxxxx Building
Suite 1330
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
To Assignor:
TriNet Corporate Realty Trust, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Mr. Xxxxx Xxxxxx
Facsimile: (000) 000-0000
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With copies at the same time to:
TriNet Corporate Realty Trust, Inc.
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxx
Facsimile: (000) 000-0000
and
Xxxxxxx X Xxxxxxxxx, Esq.
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
or to such additional or other persons, at such other address or addresses as
may be designated by notice from Assignor or Assignee, as the case may be, to
the other. Notices by mail shall be sent by United States certified or
registered mail, return receipt requested, postage prepaid, and shall be deemed
given and effective two business days following posting in the United States
mails. Notices by hand delivery or facsimile shall be deemed given and
effective upon the delivery thereof. Notices by overnight courier shall be
deemed given and effective on the first business day following the delivery
thereof to Federal Express or another recognized overnight courier service.
11. ATTORNEYS' FEES. In the event of any legal action or proceeding
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between Assignor and Assignee arising from or based on this Agreement, the
unsuccessful party to such action or proceeding shall pay to the prevailing
party all costs and expenses, including reasonable attorneys' fees and
disbursements, incurred by such prevailing party in such action or proceeding
and in any appeal in connection therewith. If such prevailing party recovers a
judgment in any such action, proceeding or appeal, such costs, expenses and
attorneys' fees and disbursements shall be included in and as a part of such
judgment. Without limiting the generality of the foregoing, in the event that
Assignor is the prevailing party in any such action, proceeding or appeal and is
delayed in receiving the Assignment Price because of any such action, proceeding
or appeal, Assignee shall also pay to Assignor interest on the Assignment price
at twelve percent (12%) per annum from the date on which the Assignment Price
would otherwise have been paid to Assignor hereunder until the date on which the
Assignment Price, together with interest as set forth herein, is actually paid
to Assignor.
12. ENTIRE AGREEMENT. This Agreement, the Acknowledgment, Consent and
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Agreement of Seller attached hereto, and the Acknowledgment, Consent and
Agreement of Lender attached hereto represent the entire agreement among the
parties hereto with respect to the subject hereof and supersede all prior
negotiations, either written or oral, including but not limited to any letters
of intent.
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13. RECITALS INCORPORATED. The Recitals set forth in the preamble to this
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Agreement are incorporated herein by reference and made a part of this
Agreement.
14. COUNTERPARTS. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original and all of which, when
taken together, shall be deemed to be one agreement.
15. CONSTRUCTION. Assignor and Assignee acknowledge that each party and
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its counsel have reviewed and revised this Agreement and that the rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any document executed and delivered by either party in connection with the
transactions contemplated by this Agreement.
16. AMENDMENTS. This Agreement may not be altered, modified, extended,
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revised or changed, nor may any party hereto be relieved of any of its
liabilities or obligations hereunder, except by a written instrument duly
executed by each of the parties hereto to which Seller and Lender has consented.
17. ESCROW FEES. One-half (1/2) of any escrow fees and other expenses
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charged by the Escrow Holder shall be borne and paid by Assignor, and the other
one-half (1/2) of such fees and expenses shall be borne and paid by Assignee.
18. SURVIVAL. The provisions of this Agreement shall survive the
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assignment and assumption of the Purchase Agreement contemplated hereby.
19. CONDITION PRECEDENT. This Agreement and the assignments and
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assumptions contemplated hereby are expressly subject to the Acknowledgment,
Consent and Agreement of Seller attached hereto, and the Acknowledgment, Consent
and Agreement of Lender attached hereto, and this Agreement shall not be
effective unless and until both such agreements are executed in full by the
respective parties thereto.
[signature page follows]
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IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the date first hereinabove written.
ASSIGNOR: TRINET CORPORATE REALTY TRUST INC.,
a Maryland corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Its: Vice President
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ASSIGNEE: XXXXX OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership
By: Xxxxx Real Estate Investment Trust, Inc., a
Maryland corporation, its general partner
By: /s/ Xxx X. Xxxxx
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Name: XXX X. XXXXX, III
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Its: President
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