EXHIBIT 10.18
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "AGREEMENT") is made by and
between Purchaser and Seller as of the Effective Date.
In consideration of the mutual covenants and representations herein
contained, and other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledge, Seller and Purchaser agree as follows:
1. DEFINITIONS. Capitalized terms in this Agreement have the meanings set
forth and Schedule I attached hereto, unless otherwise defined herein.
2. PURCHASE AND SALE.
2.1 PURCHASE AND SALE. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, all of the Seller's assignable and
transferable right, title and interest in and to the Property.
2.2 INDEPENDENT CONSIDERATION. Purchaser agrees that if for any
reason this Agreement is terminated, then $100.00 (the "INDEPENDENT
CONSIDERATION") of the Xxxxxxx Money will be paid to Seller as consideration for
Purchaser's right to purchase the Property and for Seller's execution, delivery
and performance of this Agreement. The Independent Consideration is in addition
to and independent of any other consideration or payment provided for in this
Agreement, is non-refundable and shall be retained by Seller notwithstanding any
other provision of this Agreement.
3. PURCHASE PRICE. At Closing, Purchaser will pay to Seller is Thirteen
Million Six Hundred Fifty Thousand and No/100 Dollars ($13,650,000.00) (the
"PURCHASE PRICE") plus or minus reserves on deposit with the Lender, prorations,
less the Xxxxxxx Money, less the principal balance of the Loan.
4. XXXXXXX MONEY.
4.1 The Escrow Agent shall hold the Xxxxxxx Money in escrow in
accordance with the terms and provisions of this Agreement. Purchaser shall
deliver the Initial Xxxxxxx Money to the Escrow Agent within two (2) business
days after the date a fully-executed copy of this Agreement is delivered to the
Escrow Agent by Seller, by wire transfer in accordance with wire transfer
instructions provided by the Escrow Agent. The Xxxxxxx Money shall be invested
by the Escrow Agent in an FDIC insured, interest-bearing account at the Escrow
Agent's bank. Seller shall have the option of terminating this Agreement if the
full amount of Xxxxxxx Money is not delivered to the Escrow Agent as prescribed
in this SECTION.
4.2 If Purchaser terminates this Agreement in accordance with any
right to terminate granted to Purchaser by the terms of this Agreement, the
Xxxxxxx Money shall be immediately returned to Purchaser, and no party hereto
shall have any further obligations under this
Agreement except for such obligations which by their terms expressly survive the
termination of this Agreement ("SURVIVING OBLIGATIONS"). In the event Purchaser
shall not terminate this Agreement and Purchaser shall deliver the Additional
Xxxxxxx Money to the Escrow Agent upon expiration of Due Diligence Period.
5. CONDITIONS TO CLOSING.
5.1 INSPECTION MATERIALS. Seller, its expense, will deliver to
Purchaser the Inspection Materials in Seller's possession within five (5) days
after the Effective Date. If Purchaser is not satisfied with Seller's delivery
of Inspection Materials, then as its sole and exclusive remedy it may terminate
this Agreement and receive the Xxxxxxx Money.
Notwithstanding anything to the contrary, Seller shall have no
obligation to take any affirmative steps to obtain the Inspection Materials.
Purchaser agrees to notify Seller of any omitted or incomplete Inspection
Materials. Seller's failure to timely deliver or make available, as applicable,
the Inspection Materials to Purchaser shall not result in the extension of the
Due Diligence Period, and Purchaser's sole remedy for such failure shall be
Purchaser's right to terminate this Agreement by delivering written notice
thereof to Seller prior to the end of the Due Diligence Period and receive a
return of the Xxxxxxx Money, in which event neither party shall have any
obligation hereunder except for the Surviving Obligations.
5.2 TITLE COMMITMENT AND SURVEY.
(a) Seller will deliver its existing survey and the Title
Commitment within ten days of the Effective Date. Purchaser may obtain at its
expense an update of Seller's survey. In the event that any item on the Survey
or Title Commitment are unacceptable to Purchaser, Purchaser must within twenty
(20) days after the Effective Date, notify Seller in writing of such objections
("PURCHASER'S OBLIGATIONS"). Except for any Purchaser's Objections, Purchaser
shall be deemed to have accepted the form and substance of the Survey and the
Title Commitment.
(b) If by the end of the Due Diligence Period, Seller has
not cured all of Purchaser's Objections to the reasonable satisfaction of
Purchaser, Purchaser may (as its sole and exclusive remedies) either: (i) waive
Purchaser's Objections or (ii) terminate this Agreement by delivering written
notice thereof to Seller at or before the expiration of the Due Diligence Period
and receive a refund of the Xxxxxxx Money. In the event of a termination of this
Agreement by Purchaser under this SECTION, neither party shall have any further
obligations hereunder other than the Surviving Obligations.
(c) The term "PERMITTED ENCUMBRANCES" as used herein
includes: (i) any easement, right of way, encroachment, overlapping of
improvements, restriction, exception or other matter with respect to the
Property that is reflected or addressed on the Survey or the Title Commitment to
which Purchaser fails to timely object; (ii) any of Purchaser's Objections which
Seller does not cure, for whatever reason, to which Purchaser has waived its
objection; (iii) the rights and interests of parties claiming under the Leases
and the Contracts, together with all contracts pertaining to the Property,
whether or not cancelable on thirty days notice or less and without a
termination or other fee; and (iv) the Loan Documents (unless the assumption of
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the Loan is waived or deemed waived by Purchaser as provided in Section 5.[7]
below). Purchaser does not have to object to matters shown on Schedule C of the
Commitment or any liens on the Property and such matters will not be deemed to
be Permitted Encumbrances.
5.3 INSPECTION.
(a) Purchaser may inspect, test and survey the Property, at
any reasonable time during business hours during the Due Diligence Period upon
prior notice to Seller. Notwithstanding the foregoing, Purchaser must obtain
Seller's prior written approval of the scope and method of any environmental
testing or investigation (other than a Phase I environmental inspection) and any
inspection which would materially alter the physical condition of the Property,
prior to Purchaser's commencement of such inspections or testing. In any event,
Seller and its representatives, agents, and/or contractors shall have the right
to be present during any such testing, investigation, or inspection.
(b) If Purchaser, in its sole discretion, elects not to
purchase the Property for any reason or for no reason, Purchaser may (as its
sole and exclusive remedy) terminate this Agreement by delivering written notice
to Seller prior to the expiration of the Due Diligence Period and receive a
refund of the Xxxxxxx Money. In the event of a termination of this Agreement by
Purchaser under this SECTION, neither party shall have any further obligations
hereunder other than the Surviving Obligations.
(c) All information provided by Seller to Purchaser or
obtained by Purchaser relating to the Property in the course of Purchaser's
review, including, without limitation, any environmental assessment or audit
(collectively, the "REPORTS") shall be treated as confidential information by
Purchaser and Purchaser shall instruct all of its employees, agents,
representatives and contractors as to the confidentiality of all such
information.
Purchaser acknowledges certain restrictions on Seller's ability to
disclose the contents or otherwise provide copies of environmental site
assessments in Seller's possession with respect to the Property (the "RESTRICTED
REPORTS"). Notwithstanding such restrictions, Seller agrees to disclose such
information from the Restricted Reports to Purchaser provided (i) Purchaser
hereby acknowledges that such disclosure is made subject to the terms and
provisions of SECTION 6 hereof, and (ii) PURCHASER AGREES TO, AND DOES HEREBY,
INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER FROM ANY LIABILITY RESULTING FROM
SUCH DISCLOSURE OR, PURCHASER'S USE OF SUCH INFORMATION FROM THE RESTRICTED
REPORTS. THIS INDEMNIFICATION BY PURCHASER SHALL SURVIVE THE CLOSING OR THE
TERMINATION OF THIS AGREEMENT, AS APPLICABLE.
Purchaser shall restore the Property to its condition existing
immediately prior to Purchaser's inspection thereof, and Purchaser shall be
liable for all damage or injury to any person or property resulting from,
relating to or arising out of any such inspection, whether occasioned by the
acts of Purchaser or any of its employees, agents, representatives or
contractors, and Purchaser shall indemnify, defend and hold harmless Seller and
its agents, employees, officers, directors, affiliates and asset managers from
any liability resulting
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therefrom. This indemnification by Purchaser shall survive the Closing or the
termination of this Agreement, as applicable. Prior to Purchaser's entry onto
the Property, Purchaser agrees to provide to Seller evidence of insurance
reasonably acceptable to Seller.
5.4 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents
and warrants to Seller that (a) it is duly organized and in good standing under
the laws of the sate of its organization, is qualified to do business in the
State and has the power to enter into this Agreement and to exercise and deliver
this Agreement and to perform all duties and obligations imposed upon it
hereunder, and Purchaser has obtained all necessary partnership and corporate
authorizations required in connection with the execution, delivery and
performance of this Agreement and has obtained the consent of all entities and
parties necessary to bind Purchaser to this Agreement and (b) neither the
execution nor the delivery of this Agreement, nor the consummation of the
purchase and sale contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions of this Agreement conflict with or will result in the
breach of any of the terms, conditions, or provisions of any agreement or
instrument to which Purchaser, or any partner or related entity or affiliate of
Purchaser, is a party or by which Purchaser, any partner or related entity or
affiliate of Purchaser, or any of Purchaser's assets is bound.
5.5 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents to
its actual knowledge to Purchaser that:
(a) Seller is a limited partnership, is duly organized under
the laws of the State of Texas and has the power to enter into this Agreement
and to exercise and deliver this Agreement and to perform all duties and
obligations imposed upon it hereunder.
(b) Seller has obtained all necessary partnership
authorizations required in connection with the execution, delivery and
performance of this Agreement and has obtained the consent of all entities and
parties necessary to bind Purchaser to this Agreement.
(c) Neither the execution nor the delivery of this
Agreement, nor the consummation of the purchase and sale contemplated hereby,
nor the fulfillment of or compliance with the terms and conditions of this
Agreement conflict with or will result in the breach of any of the terms,
conditions, or provisions of any agreement or instrument to which Seller, or any
partner or related entity or affiliate of Purchaser, is a party or by which
Seller, any partner or related entity or affiliate of Seller, or any of Seller's
assets is bound.
(d) The Rent Roll prepared by Seller, the Operating
Statements prepared by Seller, accurate and complete in all material respects.
(e) Neither Seller nor any person in the employ of Seller
has received any written notice of any lawsuits, claims, condemnation, zoning
violations, or other adverse claims pending or threatened affecting the
Property.
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(f) At the Closing there will be no unpaid bills or claims
in connection with any repair of the Improvements other than any unpaid bills or
claims arising in the ordinary course of business, payable in a normal billing
cycle.
(g) Seller is not a foreign person within the meaning of
Sections 1445 and 7701 of the Internal Revenue Code of 1986 ("IRS"), i.e.,
Seller is not a non-resident alien, foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in the IRS and
Income Tax Regulations).
(h) At the Closing there will be no outstanding and unpaid
tenant improvement costs or real estate lasing commissions in connection with
any Leases in existence on the Effective Date.
(i) The Property is in compliance with all applicable laws,
ordinances, regulations, statutes, rules and restrictions relating to the
Property.
(j) Reserved.
(k) Seller has not received any notice from any insurance
company, governmental agency, or other person of any defects or inadequacies in
the Property which would materially and adversely affect the insurability or
usability of the Property or prevent the issuance of new insurance policies for
the Property at present rates.
(l) Each of the Leases is in full force and effect and has
not been amended, modified, or supplemented in anyway that has not been
disclosed to Purchaser in writing; that all of the Leases are described in the
Rent Roll.
(m) Reserved.
(n) Final certificates of occupancy have been issued for the
Improvements, and Seller has all necessary licenses, approvals and permits for
the existing use as a shopping center.
The representations and warranties of Seller set forth in this Section, and the
covenants of Seller set forth herein, shall survive the Closing for a period of
six (6) months, at which time they shall terminate and any cause of action
Purchaser may have will automatically expire, except as to any claims based
thereon for which a lawsuit is presently pending against Seller based upon such
representations, warranties and covenants.
If at any time prior to Closing Seller learns or has any reason to
believe that any of Seller's representations or warranties contained in this
Agreement are no longer true or valid in a natural manner Seller shall
immediately notify Purchaser in writing and therein specify the factors
rendering or likely to render such representations or warranties untrue or
invalid, and Purchaser shall have the right to terminate this Agreement by
delivering written notice thereof to Seller at any time or before the Closing,
in which event the Xxxxxxx Money will be returned to Purchaser.
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5.6 TENANT ESTOPPEL CERTIFICATES. During the Due Diligence Period,
Seller shall use reasonable efforts to obtain from the tenants under the Leases
executed tenant estoppel certificates in the form attached as EXHIBIT "D" (the
"TENANT ESTOPPEL CERTIFICATE FORM").
5.7 LOAN ASSUMPTION.
(a) Purchaser shall use good faith efforts to obtain
Lender's approval for Purchaser's assumption of the Loan on the same terms as
currently set forth in the Loan Documents, including an individual to assume the
personal liability provisions of the Loan Documents. Purchaser shall forward to
Seller copies of any and all notices and other corresp9ondence received from
Lender by Purchaser or sent to Lender by Purchaser (other than specific loan
information or confidential financial information regarding Purchaser) promptly
after receipt or delivery of such notices and other correspondence. Seller and
Purchaser shall reasonably cooperate to facilitate the assumption of the Loan by
Purchaser.
(b) A condition precedent to Seller's obligation to close
hereunder is that Lender, Seller and Purchaser shall enter into at Closing a
debt assumption agreement (the "ASSUMPTION AGREEMENT"), pursuant to which
Purchaser [and Purchaser's guarantor] shall assume the Loan and Seller, and all
existing indemnitors and guarantors, shall be released by Lender from all debts,
duties, obligations and liabilities under the Loan.
(c) If Purchaser has not received an acceptable loan
assumption approval ("LOAN APPROVAL") before the end of the Inspection Period,
then Purchaser may extend the time for Loan Approval by delivering a letter to
Seller stating that all of Purchaser's contingencies under this Agreement are
either satisfied or waived, Purchaser has complied with all requirements and
paid all fees required for the assumption application, and Purchaser's
assumption application is still under review. Seller agrees that it will extend
the time for Purchaser's loan approval for up to thirty (30) additional days
(the "LOAN APPROVAL DATE") from the expiration of the Due Diligence Period. If
Purchaser continues to comply with all requests but it has not received Loan
Approval by the Loan Approval Date, then the Xxxxxxx Money will be returned to
Purchaser and this Agreement will terminate.
6. NO ADDITIONAL REPRESENTATIONS OR WARRANTIES BY SELLER; ACCEPTANCE OF
PROPERTY.
6.1 DISCLAIMER. PURCHASER ACKNOWLEDGES AND AGREES THAT EXCEPT AS
SPECIFICALLY PROVIDED HEREIN, SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES (OTHER THAN
THE SPECIAL WARRANTY OF TITLE AS SET OUT IN THE DEED, AS DEFINED BELOW),
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE,
OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR
CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND
GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE
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PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND
USES WHICH PURCHASER OR ANY TENANT MAY CONDUCT THEREON, (D) THE COMPLIANCE OR OR
BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS
OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR
MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G) THE MANNER, QUALITY,
STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, (H) COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS
OR REQUIREMENTS, INCLUDING EXISTENCE IN OR ON THE PROPERTY OF HAZARDOUS
MATERIALS (AS DEFINED BELOW) OR (I) ANY OTHER MATTER WITH RESPECT TO THE
PROPERTY. ADDITIONALLY, NO PERSON ACTING ON BEHALF OF SELLER IS AUTHORIZED TO
MAKE, AND BY EXECUTION HEREOF OF PURCHASER ACKNOWLEDGES THAT NO PERSON HAS MADE,
ANY REPRESENTATION, AGREEMENT, STATEMENT, WARRANTY, GUARANTY OR PROMISE
REGARDING THE PROPERTY OR THE TRANSACTION CONTEMPLATED HEREIN; AND NO SUCH
REPRESENTATION, WARRANTY, AGREEMENT, GUARANTY, STATEMENT OR PROMISE, IF ANY,
MADE BY ANY PERSON ACTING ON BEHALF OF SELLER SHALL BE VALID OR BINDING UPON
SELLER UNLESS EXPRESSLY SET FORTH HEREIN. PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER
IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY
INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER AND AGREES TO ACCEPT THE
PROPERTY AT THE CLOSING AND WAIVE ALL OBJECTIONS OR CLAIMS AGAINST SELLER
(INCLUDING, BUT NOT LIMITED TO, ANY RIGHT OR CLAIM OF CONTRIBUTION) ARISING FROM
OR RELATED TO THE PROPERTY OR TO ANY HAZARDOUS MATERIALS ON THE PROPERTY.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE
PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND
THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OR SUCH
INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY, TRUTHFULNESS OR
COMPLETENESS OF SUCH INFORMATION, SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY
ANY ORAL OR WRITTEN STATEMENT, REPRESENTATION OR INFORMATION PERTAINING TO THE
PROPERTY, OR THE OPERATION HEREOF, FURNISHED BY ANY REAL ESTATE BROKER,
CONTRACTOR, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF
THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND BASIS
WITH ALL FAULTS, SUBJECT TO THE EXPRESS REPRESENTATIONS HEREIN. IT IS UNDERSTOOD
AND AGREED THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR NEGOTIATION TO
REFLECT THAT ALL OF THE PROPERTY IS SOLD BY SELLER AND PURCHASED BY
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PURCHASER SUBJECT TO THE FOREGOING. THE PROVISIONS OF THIS SECTION 6 SHALL
SURVIVE THE CLOSING OR ANY TERMINATION HEREOF.
6.2 HAZARDOUS MATERIALS. "HAZARDOUS MATERIALS" means any substance
which is or contains (i) any "hazardous substance" as now or hereafter defined
in ss.101(4) of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. ss.9601 et seq.) ("CERCLA") or any
regulations promulgated under CERCLA; (ii) any "hazardous waste" as now or
hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C.
ss.6901 et seq.) ("RCRA") or regulations promulgated under RCRA; (iii) any
substance regulated by the Toxic Substances Control Act (15 U.S.C. ss.2601 et
seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos
and asbestos containing materials, in any form, whether friable or non-friable;
(vi) polychlorinated biphenyls; (vii) radon gas; and (viii) any additional
substances or materials which are now or hereafter classified or considered to
be hazardous or toxic under Environmental Requirements (as hereinafter defined)
or the common law, or any other applicable laws relating to the Property.
Hazardous Materials shall include, without limitation, any substance, the
presence of which on the Property, (A) requires reporting, investigation or
remediation under Environmental Requirements; (B) causes or threatens to cause a
nuisance on the Property or adjacent property or poses or threatens to pose a
hazard to the health or safety of persons on the Property or adjacent property;
or (C) which, if it emanated or migrated from the Property, could constitute a
trespass.
6.3 ENVIRONMENTAL REQUIREMENTS. "ENVIRONMENTAL REQUIREMENTS" means
all laws, ordinances, statutes, codes, rules, regulations, agreements,
judgments, orders, and decrees, now or hereafter enacted, promulgated, or
amended, of the United States, the states, the counties, the cities, or any
other political subdivisions in which the Property is located, and any other
political subdivision, agency or instrumentality exercising jurisdiction over
the owner of the Property, the Property, or the use of the Property, relating to
pollution, the protection or regulation of human health, natural resources, or
the environment, or the emission, discharge, release or threatened release of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or waste or Hazardous Materials into the environment (including,
without limitation, ambient air, surface water, ground water or land or soil).
7. CLOSING.
7.1 CLOSING. The Closing shall be held at the offices of the Title
Company on the Closing Date, unless the parties mutually agree in writing upon
another place, time or date.
7.2 POSSESSION. Possession of the Property shall be delivered to
Purchaser at the Closing, subject to the Permitted Encumbrances.
7.3 PRORATION AND DEPOSITS.
(a) All rents, other amounts payable by the tenants under
the Leases, interest accrued of the Loan, income, utilities and all other
expenses with respect to the Property for the month in which the Closing occurs,
and real estate and personal property taxes and other assessments (without
reference to any early payment discount) with respect to the Property for the
year in which the Closing occurs, shall be prorated to the date Seller receives
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the Purchase Price in immediately available funds with Seller being allocated
the benefits and burdens of ownership on the Closing Date. Seller will credit to
Purchase at the Closing the amount of all security deposits held by Seller for
the Leases or deliver any non-cash security deposits to Purchaser.
(b) Seller shall assign to Purchaser at the Closing any
reserves then held by Lender in connection with the Loan, and Purchaser shall
pay to Seller at the Closing the amount of any such reserves then held by Lender
in connection with the Loan.
(c) If the Closing shall occur before rents and all other
amounts payable by the tenants under the Leases and all other income from the
Property have actually been paid for the month in which the Closing occurs, the
apportionment of such rents and other amounts and other income shall be upon the
basis of such rents, other amounts and other income actually received by Seller.
Subsequent to the Closing, if any such rents and other income are actually
received by Purchaser, all such amounts shall first be applied to post-closing
rents due to Purchaser which are past due and the balance shall be immediately
paid by Purchaser to Seller. Purchaser shall make a good faith effort and
attempt to collect any such rents and other amounts and other income not
apportioned at the Closing for the benefit of Seller, however, Purchaser shall
not be required to expend any funds or institute any litigation in its
collection efforts. Nothing in this paragraph shall restrict Seller's right to
collect delinquent rents directly from a tenant by any legal means.
(d) If the Closing shall occur before the tax rate or the
assessed valuation of the Property is fixed for the then current year, the
apportionment of taxes shall be upon the basis of the tax rate for the preceding
year applied to the latest assessed valuation (without reference to any early
payment discount). Subsequent to the Closing, when the tax rate and the assessed
valuation of the Property is fixed for the year in which the Closing occurs, the
parties agree to adjust the proration of taxes and, if necessary, to refund or
repay such sums as shall be necessary to effect such adjustment. If the Property
is not assessed as a separate parcel for tax or assessment purposes, then such
taxes and assessments attributable to the Property shall be determined by
Purchaser and Seller. If, as of the Closing, the Property is not being treated
as a separate tax parcel, then within thirty (30) days after the Closing,
Purchaser shall, at its sole cost and expense, have the Property assessed
separately for tax and assessment purposes. In the event the Property has been
assessed for property tax purposes at such rates as could result in "roll-back"
taxes upon changes in land usage or ownership of the Property, Purchaser agrees
to pay all such taxes and indemnify, defend and save Seller harmless from and
against any and all claims and liabilities for such taxes.
(e) If the Closing shall occur before the actual amount of
utilities and all other operating expenses with respect to the Property for the
month in which the Closing occurs are determined, the apportionment of such
utilities and other operating expenses shall be upon the basis of an estimate by
Seller of such utilities and other operating expenses for such month. Subsequent
to the Closing, when the actual amount of such utilities and other operating
expenses with respect top the Property for the month in which the Closing occurs
are determined, the parties agree to adjust the proration of such utilities and
other operating expenses and, if necessary, to refund or repay such sums as
shall be necessary to effect such adjustment.
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(f) If following the Closing, either party determines that
the adjustments at Closing for utilities and other operating expenses with
respect to the Property were not correctly applied, then the parties agree to
adjust such amounts.
(g) The agreements of Seller and Purchaser set forth in this
SECTION 7.3 shall survive the Closing.
7.4 CLOSING COSTS. Except as otherwise expressly provided herein,
(a) Seller shall pay, on the Closing Date, the cost of the Title Commitment, the
basic title insurance premium for the Owner's Policy, and one-half (1/2) of any
escrow fees, up to $1,500.00 for the cost of the updated survey, and other
customary charges of the Title Company, and (b) Purchaser shall pay, on the
Closing Date, all recording costs in connection with the Deed, one-half (1/2) of
any escrow fees, all other costs of the survey, and other customary charges of
the Title Company, and any and all Lien Assumption Costs. Purchaser shall pay
and be responsible for the cost of any endorsements to the Owner's Policy, and
any costs associated with Purchaser's financing of the Property. Except as
otherwise provided herein, each party shall pay its own attorneys' fees.
7.5 SELLER'S OBLIGATIONS AT THE CLOSING. At the Closing, Seller
shall cause the Escrow Agent to release from escrow and deliver to Purchaser the
following:
(a) DEED. Special Warranty Deed (the "DEED") executed by
Seller, conveying the Land to Purchaser, subject to the Permitted Encumbrances,
in the form attached to this Agreement as EXHIBIT B.
(b) TENANT NOTICES. Signed notices (the "TENANT NOTICE
LETTERS") to all tenants of the Property executed by Seller, notifying such
tenants that the Property has been transferred to Purchaser and that Purchaser
is responsible for security deposits (specifying the amounts of such deposits).
(c) XXXX OF SALE, ASSIGNMENT AND ASSUMPTION OF SERVICE
CONTRACTS AND LEASES. Xxxx of Sale, Assignment and Assumption of Services
Contracts and Leases (the "XXXX OF SALE AND ASSIGNMENT") executed by Seller,
conveying the Tangible Personal Property, the Intangible Personal Property, the
Contracts and the Leases, among other things, to Purchaser, subject to the
Permitted Encumbrances, in the form attached to this Agreement as EXHIBIT C.
(d) EVIDENCE OF AUTHORITY. Such organizational and
authorizing documents of Seller as shall be reasonable required by the Title
Company to evidence Seller's authority to consummate the transactions
contemplated by this Agreement.
(e) FOREIGN PERSON. An affidavit of Seller in accordance
with the Foreign Investment in Real Property Tax Act of 1980, and the 1984 Tax
Reform Act, as amended.
(f) LEASES. The originals of all of the Leases in the
possession of Seller and all security deposits held by Seller, except to the
extent applied by Seller or its predecessors in interest in accordance with the
terms of the Leases.
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(g) CONTRACTS. The originals of all of the Contracts, if
any, in the possession of Seller, together with the originals of all contracts,
if any, pertaining to Property, whether or not cancelable on thirty days notice,
in the possession of Seller.
(h) ASSUMPTION AGREEMENT. The Assumption Agreement executed
by Seller.
(i) MISCELLANEOUS DOCUMENTS. Such other documents reasonably
necessary to consummate the transaction contemplated hereby as may reasonably be
required by the Title Company.
7.6 PURCHASER'S OBLIGATIONS AT THE CLOSING. At the Closing,
Purchaser shall cause the Escrow Agent to release from escrow and deliver to
Seller the following:
(a) PURCHASER PRICE. The cash portion of the Purchase Price
plus or minus prorations, and adjustments as provided herein, and less the
outstanding principal of the Loan as of the Closing by wire transfer of
immediately available funds.
(b) POST-EFFECTIVE DATE LEASE EXPENSES. All costs and
expenses incurred by Seller under any new lease, executed after the Effective
Date. Said costs and expenses shall include, but not be limited to, costs
incurred by Seller for tenant improvements, leasing commissions, capital
improvements, and reasonable attorneys' fees.
(c) EVIDENCE OF AUTHORITY. Such organizational and
authorizing documents of Purchaser as shall be reasonably required by Seller or
the Title Company authorizing Purchaser's acquisition of the Property pursuant
to this Agreement and the execution of this Agreement and any documents to be
executed by Purchaser at the Closing.
(d) DEED. The Deed executed by Purchaser.
(e) TENANT NOTICES. The Tenant Notice Letters executed by
Purchaser.
(f) XXXX OF SALE, ASSIGNMENT AND ASSUMPTION OF SERVICE
CONTRACTS AND LEASES. The Xxxx of Sale and Assignment executed by Purchaser.
(g) ASSUMPTION DOCUMENTS. Such documents and deliveries as
may be required by Lender to effect the assumption by Purchaser of the Loan and
the release of Seller therefrom, together with the Assumption Agreement executed
by Purchaser and Lender.
(h) MISCELLANEOUS DOCUMENTS. Such other documents reasonably
necessary to consummate the transaction contemplated hereby as may reasonably be
required by the Title Company.
7.7 CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE. If at Closing
Purchaser does not have executed estoppel certificates from at least 90% of the
leasable space in the Improvements, then Purchaser will not be obligated to
close and Purchaser may terminate this Agreement and receive the Xxxxxxx Money.
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8. RISK OF LOSS.
8.1 CONDEMNATION. If, prior to the Closing, action is initiated to
take any of the Property by eminent domain proceedings or by deed in lieu
thereof, Purchaser may either at or prior to the Closing (a) terminate this
Agreement (other than the Surviving Obligations), or (b) consummate the Closing,
in which latter event all of Seller's assignable right, title and interest in
and to the award of the condemning authority shall be assigned to Purchaser at
the Closing and there shall be no reduction in the Purchaser Price.
8.2 CASUALTY. Except as provided in this SECTION 8.2, Seller assumes
all risks and liability for damage to or injury occurring to the Property by
fire, storm, accident, or any other casualty or cause until the Closing has been
consummated. If the Property, or any part thereof, suffers any damage in excess
of $500,000 (the "CASUALTY AMOUNT") prior to the Closing from fire or other
casualty, which Seller, at its sole option, does not elect to repair prior to
Closing, Purchaser may either at or prior to the Closing (a) terminate this
Agreement (other than the Surviving Obligations), or (b) consummate the Closing,
in which latter event all of Seller's right, title and interest in and to the
proceeds of any insurance covering such damage (less an amount equal to any
expenses and costs incurred by Seller to repair or restore the Property and any
portion of such proceeds paid or to be paid on account of the loss of rents or
other income from the Property for the period prior to and including the Closing
Date, all of which shall be payable to Seller), to the extent the amount of such
insurance does not exceed the Purchaser Price, shall be assigned to Purchaser at
the Closing. If the Property, or any part thereof, suffers any damage less than
the Casualty Amount prior to the Closing, Purchaser agrees that it will
consummate the Closing and accept the assignment of the proceeds of any
insurance covering such damage plus an amount equal to Seller's deductible under
its insurance policy, and there shall be no reduction in the Purchaser Price.
9. DEFAULT.
9.1 BREACH BY SELLER. Except as Purchaser's remedies may otherwise
be expressly limited by the terms of this Agreement:
(a) In the event that Seller shall default in any of its obligations
hereunder to be performed prior to Closing, for any reason other than
Purchaser's default or a termination of this Agreement by Purchaser or
Seller pursuant to a right to do so under the provisions hereof,
Purchaser, as its sole and exclusive remedy at law and in equity, may
either (i) terminate this Agreement (other than the Surviving
Obligations) and receive a refund of the Xxxxxxx Money, or (ii) enforce
specific performance of this Agreement.
(b) Notwithstanding the foregoing, in no event shall Seller be
liable to Purchaser for any actual, punitive, speculative, consequential
or other damages.
9.2 BREACH BY PURCHASER. If Purchaser fails to comply with this
Agreement, Seller may, as its sole and exclusive remedy at law and in equity,
terminate this Agreement (except for the Surviving Obligations) and thereupon
shall be entitled to the Xxxxxxx Money as liquidated damages (and not as a
penalty). Seller and Purchaser have made this provision for liquidated damages
because it would be difficult to calculate, on the date hereof, the amount of
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actual damages for such breach, and Seller and Purchaser agree that these sums
represent reasonable compensation to Seller for such breach. The provisions of
this SECTION 9.2 shall not limit or affect any of Purchaser's indemnities as
provided in other Sections of this Agreement.
10. FUTURE OPERATIONS.
10.1 COVENANTS. From the date of this Agreement until the Closing or
earlier termination of this Agreement:
(a) Seller will keep and maintain the Property in
substantially its condition as of the date of this Agreement.
(b) Seller will perform all Seller's obligations under the
Contracts. After expiration of Due Diligence Period, Seller will not, without
the prior written consent of Purchaser, modify, enter into, or renew any
Contract which cannot be canceled upon thirty (30) days prior written notice.
Seller will use its best efforts to coordinate the termination of any Contract
which Purchaser gives written notice to terminate at Closing without payment by
Seller.
(c) Seller will not prepay any principal amount on the Loan.
10.2 LEASING. Seller may lease any space in the Improvements without
the prior consent of Purchaser during Due Diligence Period. Seller must give a
copy of any such lease to Purchaser. If Purchaser does not terminate this
AGreement, then Purchaser must pay all costs associated with such leases,
including commissions and tenant improvement costs.
From the expiration of the Due Diligence Period until the Closing or
earlier termination of this Agreement, Seller will not lease any space in the
Improvements with the prior consent of Purchaser, which consent shall not be
unreasonably withheld, conditioned or delayed. All costs and expenses incurred
and paid by Seller under any new lease entered into after the Effective Date
shall be paid by Purchaser. If Purchaser does not respond in writing within
three business days to Seller's request to approve a proposed lease, then
Purchaser will be deemed to have approved such lease. Seller will provide
Purchaser with a copy of any such leases.
11. MISCELLANEOUS.
11.1 NOTICES. All notices under this Agreement, shall be in writing
and shall be deemed effective either (a) on the date personally delivered to the
address indicated herein, as evidenced by written receipt therefor, whether or
not actually received by the person to whom addressed; (b) upon deposit in the
United States mail if by certified or registered mail, return receipt requested,
addressed to the intended recipient at the address indicated herein; or (c) on
the day deposited into the custody of a nationally recognized overnight delivery
service such as Federal Express, addressed to such party at the address
specified in SCHEDULE I (unless changed by similar notice in writing given by
the particular person whose address is to be changed).
11.2 REAL ESTATE COMMISSIONS. Upon the Closing of the transaction
contemplated hereby, Seller agrees to pay: (a) a commission in the amount of two
percent (2%) of the Purchaser Price to Vigor Properties and (b) a commission in
the amount of three percent (3%) of the Purchaser Price to Dunhill Partners,
Inc. ("BROKERS"). Said commissions are in no event
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payable unless the transaction contemplated hereby is closed in accordance with
the terms of this Agreement. Except as set forth above, neither Seller nor
Purchaser has authorized any broker or finder to act on Seller or Purchaser's
behalf in connection with the sale and purchaser hereunder and neither Seller
nor Purchaser has dealt with any broker or finder purporting to act on behalf of
any other party. Purchaser agrees to indemnify, defend and hold harmless Seller
from and against any and all claims, losses, damages, costs or expenses of any
kind or character arising out of or resulting from any agreement arrangement or
understanding alleged to have been made by Purchaser or on Purchaser's behalf
with any broker or finder in connection with this Agreement or the transaction
contemplated hereby, other than the Brokers. Seller agrees to indemnify, defend
and hold harmless Purchaser from and against any and all claims, losses,
damages, costs or expenses of any kind or character arising out of or resulting
from any agreement, arrangements or understanding alleged to have been made by
Seller or on Seller's behalf with any broker or finder in connection with this
Agreement or the transaction contemplated hereby, including the Brokers.
Notwithstanding anything to the contrary contained herein, this SECTION 11.2
shall survive the Closing or any earlier termination of this Agreement.
11.3 ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the parties relative to the subject matter hereof, and there are no oral
or written agreements between the parties relative to the subject matter hereof,
and there are no oral or written agreements between the parties, nor any
representations made by either party relative to the subject matter hereof,
which are not expressly set forth herein.
11.4 AMENDMENT. This Agreement may be amended only by a written
instrument executed by the party or parties to be bound thereby.
11.5 HEADINGS. The captions and headings used in this Agreement are
for convenience only and do not in any way limit, amplify, or otherwise modify
the provisions of this Agreement.
11.6 TIME OF ESSENCE. Time is of the essence of this Agreement;
however, if the final date of any period which is set out in any provision of
this Agreement falls on a Saturday, Sunday or legal holiday under the laws of
the United States, the State of Texas or the State, then, in such event, the
time of such period shall be extended to the next day which is not a Saturday,
Sunday or legal holiday.
11.7 GOVERNING LAW. This Agreement shall be governed by the laws of
the State and the laws of the United States pertaining to transactions in the
State.
11.8 SUCCESSORS AND ASSIGNS; ASSIGNMENT. This Agreement shall bind
and inure to the benefit of Seller and Purchaser and their respective heirs,
executors, administrators, personal and legal representatives, successors and
permitted assigns. Purchaser may assign Purchaser's rights under this Agreement
without the prior written consent of Seller.
11.9 INVALID PROVISION. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
composed a part of this Agreement, and the remaining provisions of this
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Agreement shall remain in full force and effect and shall not be affected by
such illegal, invalid, or unenforceable provision or by its severance from this
Agreement.
11.10 ATTORNEYS' FEES. In the event it becomes necessary for either
party hereto to file suit to enforce this Agreement or any provision contained
herein, the party prevailing in such suit shall be entitled to recover, in
addition to all other remedies or damages, as provided herein, reasonable
attorneys' fees incurred in such suit.
11.11 MULTIPLE COUNTERPARTS. This Agreement may be executed in a
number of identical counterparts which, taken together, shall constitute
collectively one (1) agreement; in making proof of this Agreement, it shall not
be necessary to produce or account for more than one such counterpart with each
party's signature.
11.12 EXHIBITS. The following exhibits are attached to this Agreement
and are incorporated into this Agreement by this reference and made a part
hereof for all purposes:
Exhibit A: Legal Description
Exhibit B: Special Warranty Deed
Exhibit C: Xxxx of Sale and Assignment
11.13 NO RECORDATION. Seller and Purchaser hereby acknowledge that
neither this Agreement nor any memorandum or affidavit thereof shall be recorded
of public record.
11.14 MERGER PROVISION. Except as otherwise expressly provided herein,
any and all rights of action of Purchaser for any breach by Seller of any
representation, warranty or covenant contained in this Agreement shall merge
with the Deed and other instruments executed at Closing, shall terminate at
Closing and shall not survive Closing.
Executed by Seller on February ___, 2004.
ARISTOCRAT FUND IV, L.P.,
a Texas limited partnership
By: TODAY PLAZA CENTER GP, INC.,
General Partner
By: _______________________________
Name: _____________________________
Title: ____________________________
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Executed by Purchaser on February ___, 2004.
XXXXXXX PLAZA, LTD.,
a Texas limited partnership
By: GP XXXXXXX PLAZA, INC.,
General Partner
By: _______________________________
Xxxxxxx X. Xxxxxxxxxx
President
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ESCROW AGREEMENT
The undersigned Escrow Agent hereby acknowledges receipt of the Initial
Xxxxxxx Money and a copy of this Agreement and agrees to hold and dispose of the
Xxxxxxx Money in accordance with the provisions of this Agreement.
Executed on February ___, 2004.
LAND AMERICAN COMMONWEALTH
TITLE COMPANY
By: __________________________________
Name: ________________________________
Its: Authorized Officer
