ASSIGNMENT OF PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
E & R XXXX ROAD, LLC, AS SELLER
AND
SERIES B, LLC, AS BUYER
ASSIGNOR, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, does hereby assign all of its right, title and
interest in that certain Purchase Agreement and Escrow Instructions described
herein, to ASSIGNEE and its successors and assigns. The Purchase Agreement and
Escrow Instructions is described as follows:
DATE OF AGREEMENT: September 9, 2005
ORIGINAL BUYER: Series B, LLC
ASSIGNED TO: Xxxx XX Glendale AZ, LLC
PROPERTY ADDRESS: 0000 Xxxx Xxxx Xxxx, Xxxxxxxx, XX 00000
ASSIGNOR acknowledges that it is not released from any and all obligations
or liabilities under said Purchase Agreement and Escrow Instructions with the
exception of the xxxxxxx money deposit which is currently in escrow.
ASSIGNEE hereby agrees to assume and be responsible for all obligations
and liabilities under said Purchase Agreement and Escrow Instructions. This
Assignment shall be in full force and effect upon its full execution.
Executed this 25th day of October, 2005.
ASSIGNOR: ASSIGNEE:
SERIES B, LLC XXXX XX GLENDALE AZ, LLC
By: Xxxx REIT Advisors II, LLC
By: /s/ Xxxx X. Pons_ its Manager
-----------------
Xxxx X. Xxxx
Authorized Officer
By: /s/ Xxxx X. Xxxx
--------------------
Xxxx X. Xxxx
Senior Vice President
EXHIBIT 10.6
PURCHASE AGREEMENT
AND ESCROW INSTRUCTIONS
BETWEEN
E & R XXXX ROAD, LLC
AS SELLER
AND
SERIES B, LLC
AS BUYER
September 9, 2005
PURCHASE AGREEMENT
AND ESCROW INSTRUCTIONS
DATED: Dated to be effective as of September 9, 2005 (the
"Effective Date").
PARTIES: This Purchase Agreement and Escrow Instructions is
between E & R Xxxx Road, LLC, an Arizona limited liability
company, as "Seller", and Series B, LLC, an Arizona limited
liability company, as "Buyer".
WHEREAS, as of the Effective Date, Seller is the fee title owner of that
certain parcel of improved property located at 0000 X. Xxxx Xxxx, Xxxxxxxx,
Xxxxxxx, and legally described on Exhibit A attached hereto (collectively, the
"Real Property");
WHEREAS, as of the Effective Date, the Real Property is improved with a
building containing approximately 23,000 square feet (the "Building"). The Real
Property, the Building and the improvements to the Real Property (collectively,
the "Improvements") are leased to EBCO, Inc. ("Tenant") in accordance with a
written lease (the "Existing Lease"), which Existing Lease shall be replaced and
superseded as of XXX (defined below) by a triple net lease between Tenant and
Buyer, in form acceptable to Buyer, Seller and Tenant (the "New Lease"), as
provided herein. The Real Property, the Building, the Improvements, the personal
property, if any, of Seller located on the Real Property and Seller's interest
in the Existing Lease and all rents issued and profits due or to become due
thereunder are hereinafter collectively referred to as the "Property";
WHEREAS, Buyer desires to purchase the Property from Seller and Seller
desires to sell the Property to Buyer free and clear of all liens but subject to
the New Lease, all as more particularly set forth in this Purchase Agreement and
Escrow Instructions (the "Agreement"); and
WHEREAS, Buyer and Seller have entered into that certain Purchase
Agreement and Escrow Instructions (the "Additional Agreement") relating to that
certain real property and improvements located at 0000 X. Xxxxxxx 00, Xxxxxxxxx,
Xxxxxxx (the "Additional Property").
NOW THEREFORE, in consideration of the promises set forth in this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Seller and Buyer (each, a "Party" and,
collectively, the "Parties") hereby agree as follows:
1. INCORPORATION OF RECITALS. All of the foregoing Recitals are hereby
incorporated as agreements of the Parties.
2. BINDING AGREEMENT. This Agreement constitutes a binding agreement
between Seller and Buyer for the sale and purchase of the Property subject to
the terms set forth in this Agreement. Subject to the limitations set forth in
this Agreement, this Agreement shall
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bind and inure to the benefit of the Parties and their respective successors and
assigns. This Agreement supersedes all other written or verbal agreements
between the Parties concerning any transaction embodied in this Agreement. No
claim of waiver or modification concerning the provision of this Agreement shall
be made against a Party unless based upon a written instrument signed by such
Party.
3. INCLUSIONS IN PROPERTY.
(a) The Property. The term "Property" shall also include the
following:
(1) all tenements, hereditaments and appurtenances pertaining
to the Real Property;
(2) all interest, if any, of Seller in any mineral, water and
irrigation rights running with or otherwise pertaining to the Real Property;
(3) all interest, if any, of Seller in any road adjoining the
Real Property;
(4) all interest, if any, of Seller in any award made or to be
made or settlement in lieu thereof for damage to the Property or any portion
thereof by reason of condemnation, eminent domain or exercise of police power;
(5) all of Seller's interest in the Building, the Improvements
and any other improvements and fixtures on the Real Property;
(6) all of Seller's interest, if any, in any equipment,
machinery and personal property located on and used in connection with the Real
Property (collectively, the "Personalty");
(7) the Existing Lease and all security deposits, if any, now
or hereafter due thereunder; and,
(8) all of Seller's interest, to the extent transferable, in
all permits and licenses (collectively, the
"Permits"), warranties (specifically including, without limitation, any warranty
related to the roof of the Building), contractual rights and intangibles
(including rights to the architectural/engineering plans) with respect to the
operation, maintenance, repair or improvement of the Property (collectively, the
"Contracts").
(b) The Transfer Documents. Except for the Personalty, which shall
be transferred by that certain xxxx of sale from Seller to Buyer, a specimen of
which is attached hereto as Exhibit C (the "Xxxx of Sale"); the Permits and
Contracts, which are to be transferred by that certain assignment agreement, a
specimen of which is attached hereto as Exhibit D (the "Assignment Agreement");
all components of the Property shall be transferred and conveyed by execution
and delivery by Seller of a special warranty deed, a specimen of which is
attached hereto as Exhibit E (the "Deed"). Upon the execution of the New Lease
by Tenant and Buyer at XXX, the Existing Lease shall be terminated by that
certain termination of lease, a specimen of which is attached hereto as Exhibit
F (the "Termination of Existing Lease"). The Xxxx of Sale,
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the Assignment Agreement, the Deed and the Termination of Existing Lease are
hereinafter collectively referred to as the "Transfer Documents".
4. PURCHASE PRICE. The price to be paid by Buyer to Seller for the
Property is Five Million Six Hundred Ninety One Thousand Five Hundred Twenty
Five and no/100 Dollars ($5,691,525.00) (the "Purchase Price"), payable as
follows:
(a) One Hundred Thousand and no/100 Dollars ($100,000.00) xxxxxxx
money (the "Xxxxxxx Money Deposit") to be deposited in escrow with Fidelity
National Title Insurance Company, 00 X. Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx 00000, Attn.: Xxxx Xxxxxx ("Escrow Agent") not later than three (3)
business days following the receipt by Escrow Agent of a fully-executed original
of this Agreement (said receipt by Escrow Agent of both a fully-executed
original of this Agreement and the Xxxxxxx Money Deposit, the "Opening of
Escrow"), which Xxxxxxx Money Deposit is to be held by Escrow Agent until
released to Seller or Buyer as provided herein or paid to Seller at close of
escrow ("XXX"); and
(b) Five Million Five Hundred Ninety One Thousand Five Hundred
Twenty Five and no/100 Dollars ($5,591,521.00), in additional cash, or other
immediately available funds (as may be increased or decreased by such sums as
are required to take into account any additional deposits, prorations, credits,
or other adjustments required by this Agreement), to be deposited in escrow with
Escrow Agent on or before XXX (the "Additional Funds") which is to be held by
Escrow Agent until cancellation of this Agreement as provided herein or paid to
Seller at XXX.
5. DISPOSITION OF XXXXXXX MONEY DEPOSIT. Seller and Buyer hereby instruct
Escrow Agent to place the Xxxxxxx Money Deposit in a federally insured
interest-bearing passbook account on behalf of Seller and Buyer. The Xxxxxxx
Money Deposit and interest thereon shall be applied as follows:
(a) if Buyer cancels this Agreement as Buyer is so entitled to do as
provided in this Agreement, the Xxxxxxx Money Deposit and all interest earned to
the effective date of withdrawal shall be paid immediately to Buyer;
(b) if the Xxxxxxx Money Deposit is forfeited by Buyer pursuant to
this Agreement, such Xxxxxxx Money Deposit and all interest earned to the date
of withdrawal shall be paid to Seller pursuant to Section 21(b) below as
Seller's agreed and total liquidated damages, it being acknowledged and agreed
that it would be difficult or impossible to determine Seller's exact damages;
and
(c) if escrow closes, the Xxxxxxx Money Deposit and all interest
earned to XXX shall be credited to Buyer, automatically applied against the
Purchase Price and paid to Seller at XXX.
6. PRELIMINARY TITLE REPORT AND OBJECTIONS. (a) Within ten (10) days after
the Opening of Escrow, Escrow Agent shall deliver a current Preliminary Title
Report (the "Report") for an ALTA extended coverage title insurance policy (the
"Owner's Policy") on the Property to Buyer and Seller. The Report shall show the
status of title to the Property as of the date of such Report and shall also
describe the requirements of Escrow Agent for the
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issuance of an Owner's Policy as described herein. The cost of a standard
Owner's Policy will be paid for by Seller; Buyer shall pay additional costs for
an extended coverage policy. In addition to the Report, Escrow Agent shall
simultaneously deliver to Buyer complete, legible copies of all documents
identified in Part Two of Schedule B of the Report.
(b) If Buyer is dissatisfied with any exception to title as shown in
the Report (an "Objectionable Report"), then Buyer may, by giving written notice
thereof to Escrow Agent and Seller on or before expiration of the Study Period
(as defined below) or ten (10) days from Buyer's receipt of such Objectionable
Report, whichever is later (provided, however, Buyer shall have not less than
ten (10) days from its receipt of the Survey (as defined in Section 9 below)
corresponding to the Property to object to any matters disclosed on or by such
Survey that were not previously disclosed by seller's existing survey
corresponding to the Property), either (i) terminate this Agreement and the
Additional Agreement, whereupon the Xxxxxxx Money Deposit plus interest shall be
returned immediately to Buyer and, except as otherwise provided in this
Agreement, neither of the Parties shall have any further liability or obligation
under this Agreement, or (ii) provisionally accept the title subject to Seller's
agreement to cause the removal of any disapproved exceptions or objectionable
matters. Seller shall be under no obligation to cause the removal of any such
exceptions or matters, but in the event Seller agrees, in its sole discretion,
to do so, Seller shall attempt (at its sole cost) to remove the exceptions or
objections (or, if acceptable to Buyer, obtain title insurance endorsements over
the exceptions and objections) before the Closing Date. If Seller agrees to
attempt to cause the removal of such exceptions or matters but is unable to do
so prior to the Closing Date, Buyer may proceed under option (i) above, or Buyer
may waive such exceptions or objections.
If Buyer gives notice to Seller of its election of option (ii)
above, Seller shall notify Buyer in writing within five (5) days after receiving
Buyer's written notice of disapproval of any exceptions or objectionable matters
if Seller does not intend to remove (or endorse over) any such exception and/or
objectionable matter. Seller's lack of response shall be deemed as Seller's
decision to not remove the objectionable matters and exceptions (or obtain title
insurance endorsements over said exceptions and objectionable matters, if
acceptable to Buyer) prior to the Closing Date.
(c) In the event the Report is amended to include new exceptions
that are not set forth in the prior Report, Buyer shall have until the later of
(i) the expiration of the Study Period, or (ii) the date seven (7) days after
Buyer's receipt of the amended Report and copies of the documents identified in
the new exceptions or new requirements (provided, however, Buyer shall have not
less than five (5) days from its receipt of any Survey revised to reflect any
such new exceptions to object to any matters disclosed on or by such revised
Survey related to such new exceptions), within which to either (Y) terminate
this Agreement and the Additional Agreement, whereupon the Xxxxxxx Money Deposit
plus interest shall be returned immediately to Buyer and, except as otherwise
provided in this Agreement, neither of the Parties shall have any further
liability or obligation under this Agreement, or (Z) to provisionally accept the
title to the Property subject to Seller's agreement to cause the removal of any
disapproved exceptions or objections. Unless Seller expressly agrees to attempt
to cause the removal of such exceptions or objections, Seller shall be under no
obligation to remove said exceptions or objections.
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If Buyer gives notice to Seller of its election of option (Z) above,
Seller shall notify Buyer in writing within five (5) days after receiving
Buyer's written notice of disapproval of any exceptions or objectionable matters
if Seller does not intend to remove (or endorse over) any such exception and/or
objectionable matter. Seller's lack of response shall be deemed as Seller's
decision to not remove the objectionable matters and exceptions (or obtain title
insurance endorsements over said exceptions and objectionable matters, if
acceptable to Buyer) prior to the Closing Date.
(d) In the event Buyer provisionally accepts title to the Property
pursuant to Sections 6(b) and/or 6(c) above, if Seller serves notice (or is
deemed to have served notice) to Buyer that Seller does not intend to remove
such exceptions and/or objections before XXX, Buyer shall, within ten (10) days
after receipt of such notice from Seller, notify Seller and Escrow Agent in
writing of Buyer's election to either (i) terminate this Agreement and the
Additional Agreement, whereupon the Xxxxxxx Money Deposit plus interest shall be
returned immediately to Buyer and, except as otherwise provided in this
Agreement, neither of the Parties shall have any further liability or obligation
under this Agreement, or (ii) waive such objections. If written notice of either
satisfaction or dissatisfaction as to the Report is not timely given by Buyer to
Seller pursuant to this Section 6, then Buyer shall be deemed to have
disapproved of the condition of the title of the Property, and shall have
elected to terminate this Agreement and the Additional Agreement, whereupon the
Xxxxxxx Money Deposit plus interest shall be returned immediately to Buyer and,
except as otherwise provided in this Agreement, neither of the Parties shall
have any further liability or obligation under this Agreement.
(e) In the event of a termination of the Additional Agreement by
Buyer pursuant to Section 6 of the Additional Agreement, this Agreement shall be
deemed to be terminated, whereupon the Xxxxxxx Money Deposit plus interest shall
be returned immediately to Buyer and, except as otherwise provided in this
Agreement, neither of the Parties shall have any further liability or obligation
under this Agreement.
7. BUYER'S STUDY PERIOD.
(a) The Study Period. Buyer shall have until the later of 5:00 p.m.
MST on the thirtieth (30th) day after the Opening of Escrow (the "Study
Period"), at Buyer's sole cost, within which to conduct and approve any
investigations, studies or tests deemed necessary by Buyer, in Buyer's sole
discretion, to determine the feasibility of acquiring the Property, including,
without limitation, Buyer's right to: (i) review and approve the Survey, the
Existing Lease, Seller's operating statements with respect to the Property, and
the Contracts; (ii) meet and confer with Tenant; and, (iii) obtain, review and
approve an environmental study of each of the Property (collectively, "Buyer's
Diligence").
(b) Right of Entry. Subject to the prior rights of Tenant in the
Property, Seller hereby grants to Buyer and Buyer's agents, employees and
contractors the right to enter upon the Property, during regular business hours
during the Study Period, to conduct Buyer's Diligence. In consideration
therefor, Buyer shall and does hereby agree to indemnify and hold Seller
harmless from any and all liabilities, claims, losses or damages, including, but
not limited to, court costs and attorneys' fees, which may be incurred by Seller
as a direct result of Buyer's
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Diligence. Buyer's indemnity and hold harmless obligation shall survive
cancellation of this Agreement or XXX.
(c) Cancellation. Unless Buyer so notifies Seller or Escrow Agent,
in writing, on or before the end of the Study Period, of Buyer's acceptance of
the Property and waiver of the contingencies as set forth in this Section 7,
this Agreement and the Additional Agreement shall be canceled and the Xxxxxxx
Money Deposit plus all interest accrued thereon shall be returned immediately to
Buyer and, except as otherwise provided in this Agreement, neither of the
Parties shall have any further liability or obligation under this Agreement. In
the event of a cancellation of the Additional Agreement by Buyer pursuant to
Section 7 of the Additional Agreement, this Agreement shall be deemed to be
terminated, whereupon the Xxxxxxx Money Deposit plus interest shall be returned
immediately to Buyer and, except as otherwise provided in this Agreement,
neither of the Parties shall have any further liability or obligation under this
Agreement.
(d) Acceptance. If Buyer notifies Seller or Escrow Agent of Buyer's
acceptance of the Property as provided in Section 7(c) above, the entire Xxxxxxx
Money Deposit, as the same may be increased during the term of this Agreement,
shall, except as otherwise expressly provided herein, become non-refundable to
Buyer. Unless Buyer's performance hereunder is excused due to a failure of a
condition of closing (other than as a result of the action or inaction of
Buyer), a breach by Seller of this Agreement or any other reason expressly
provided herein, if Buyer fails to close escrow within the time period set forth
in Section 18 below or if Buyer otherwise breaches this Agreement, the Xxxxxxx
Money Deposit shall be forfeited to Seller as provided in Section 5(b) above.
8. DELIVERY OF SELLER'S DILIGENCE MATERIALS.
(a) Deliveries to Buyer. Seller agrees to deliver to Buyer
contemporaneously with the Opening of Escrow all information in Seller's
possession or control relating to the leasing, operating, maintenance,
construction, repair, zoning (including any zoning verification letters),
platting, engineering, soil tests, water tests, environmental tests, master
planning, architectural drawings and like matters regarding the Property
(collectively, "Seller's Diligence Materials"), all at no cost to Buyer. From
and after the Opening of Escrow, Seller agrees to provide to Buyer any other
documents or information in the possession or control of Seller or its agents
pertaining to the Property that Buyer may reasonably request in writing.
(b) Delivery by Buyer. If this Agreement is canceled for any reason,
except Seller's willful default hereunder, Buyer agrees to deliver to Seller (i)
all Seller's Diligence Materials received by Buyer from Seller, and (ii) upon
payment by Seller to Buyer of Buyer's cost thereof, copies of those
investigations, studies and/or tests which Buyer may have elected to obtain.
9. THE SURVEY. Seller, at Seller's cost, shall, within twenty five (25)
days of Opening of Escrow, cause a certified ALTA survey of the Real Property,
Building and Improvements comprising the Property (the "Survey") to be completed
by a surveyor licensed in the State of Arizona and delivered to Buyer and Escrow
Agent, whereupon the legal description in the Survey shall control over the
description in Exhibit A-1 attached hereto to the extent they
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may be inconsistent. The Survey shall set forth the legal description and
boundaries of the parcel of Real Property and all easements, encroachments and
improvements thereon.
10. IRS SECTION 1445. Seller shall furnish to Buyer in escrow by XXX a
sworn affidavit (the "Non-Foreign Affidavit") stating under penalty of perjury
that Seller is not a "foreign person" as such term is defined in Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended (the "Code"). If
Seller does not timely furnish the Non-Foreign Affidavit, Buyer may withhold (or
direct Escrow Agent to withhold) from the Xxxxxxx Money Deposit and/or the
Additional Funds, an amount equal to the amount required to be so withheld
pursuant to Section 1445(a) of the Code, and such withheld funds shall be
deposited with the Internal Revenue Service as required by such Section 1445(a)
and the regulations promulgated thereunder. The amount withheld, if any, shall
nevertheless be deemed to be part of the Purchase Price paid to Seller.
11. DELIVERY OF POSSESSION. Seller shall deliver possession of the
Property to Buyer at XXX subject only to the rights of Tenant under the New
Lease as agreed to by Seller, Tenant and Buyer.
12. BUYER'S CONDITIONS PRECEDENT. In addition to all other conditions
precedent for Buyer set forth in this Agreement, Buyer's obligations to perform
under this Agreement and to close escrow are expressly subject to the following:
(a) the delivery by Seller to Escrow Agent, for delivery to Buyer at
XXX, of the executed original Transfer Documents;
(b) the issuance of the Owner's Policy (or a written commitment
therefor) subject only to those matters approved or deemed approved by Buyer
pursuant to this Agreement;
(c) the delivery by Seller to Buyer at XXX of all security deposits
and pre-paid/abated rents under the Existing Lease, if any, in the form of a
credit in favor of Buyer against the Additional Funds;
(d) the deposit by Seller with Buyer prior to expiration of the
Study Period of (i) an executed original estoppel certificate naming Buyer (or
its designee) and Wachovia Bank, National Association, as addressees, which
certificate must be reasonably acceptable to Buyer, in Tenant's standard form,
and (ii) a subordination, non-disturbance and attornment agreement, in form and
substance reasonably acceptable to Tenant, for the benefit of Wachovia Bank,
National Association, both executed by Tenant with respect to the Existing
Lease;
(e) the agreement of Buyer, Seller and Tenant to a mutually
agreeable form of New Lease prior to the expiration of the Study Period, and
subsequent to such agreement, the delivery by Tenant to Escrow Agent, no later
than five (5) business days prior to XXX, of such New Lease, fully executed by
Tenant;
(f) the deposit with Escrow Agent and Buyer prior to the expiration
of the Study Period of an executed waiver by Tenant of any right of first
refusal under the Existing Lease;
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(f) the deposit with Escrow Agent of an executed affidavit of Seller
and such other documentation as may be reasonably required by Escrow Agent to
allow for the deletion of the mechanics' lien exception from the Owner's Policy;
(g) the delivery by Seller prior to expiration of the Study Period
to Buyer of the Certificate of Occupancy for the Property;
(h) the deposit with Escrow Agent of a letter from Seller to Tenant
requesting that future rent under the New Lease be paid to Buyer; and
(i) delivery to Buyer of fully-executed originals of the Contracts
and Permits, if any, in the possession of Seller or Seller's agents and any
correspondence with respect thereto, together with such non-proprietary leasing
and property manuals, files and records which are material in connection with
the continued operation, leasing and maintenance of the Property.
If the foregoing conditions have not been satisfied by the specified date or XXX
as the case may be, and provided that Buyer is not in breach of this Agreement
and is otherwise ready and able to perform its obligations hereunder, then Buyer
shall have the right, at Buyer's sole option, by giving written notice to Seller
and Escrow Agent, to (i) cancel this Agreement and the Additional Agreement, or
(ii) extend XXX for up to thirty (30) days during which xxxx Xxxxxx shall
endeavor to satisfy any and all unsatisfied condition or conditions. In the
event this Agreement and the Additional Agreement are terminated, the Xxxxxxx
Money Deposit plus interest shall be paid immediately by Escrow Agent to Buyer
and, except as otherwise provided in this Agreement, neither of the Parties
shall have any further liability or obligation under this Agreement. In the
event XXX is extended as provided above, close of escrow under the Additional
Agreement shall be extended by the same amount of time as XXX is extended
hereunder.
In the event of a termination of the Additional Agreement by Buyer pursuant to
Section 12 of the Additional Agreement, this Agreement shall be deemed to be
terminated, whereupon the Xxxxxxx Money Deposit plus interest shall be returned
immediately to Buyer and, except as otherwise provided in this Agreement,
neither of the Parties shall have any further liability or obligation under this
Agreement. In the event close of escrow under the Additional Agreement shall be
extended pursuant to Section 12 of the Additional Agreement, XXX under this
Agreement shall be deemed to be extended by the same amount of time as close of
escrow under the Additional Agreement is extended.
Nothing contained in this Section 12 shall limit or otherwise modify Buyer's
rights under Section 21(a) of this Agreement in the event of a breach of this
Agreement by Seller.
13. SELLER'S CONDITIONS PRECEDENT. In addition to all other conditions precedent
for Seller set forth in this Agreement, Seller's obligation to perform under
this Agreement and to close escrow are expressly subject to the following:
(a) prior to XXX, the execution, by Buyer, of the New Lease in a
form agreeable to Seller and Tenant and Buyer's delivery of same to Escrow
Agent;
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(b) the delivery by Buyer to Escrow Agent prior to XXX of all
documents reasonably necessary to close escrow;
(c) the deposit by Buyer with Escrow Agent of all amounts necessary
to pay the Purchase Price on or before the XXX; and
(d) the Buyer's performance of all of its obligations hereunder so
as to allow XXX to timely occur as provided herein.
If the foregoing conditions have not been satisfied by the specified date or
XXX, as the case may be, and provided that Seller is not in breach of this
Agreement and all the conditions set forth in Section 12 above have been
satisfied, then Seller shall have the right, at Seller's sole option, by giving
written notice to Buyer and Escrow Agent, to (i) cancel this Agreement and the
Additional Agreement, or (ii) extend XXX for up to thirty (30) days during which
time Buyer shall endeavor to satisfy any and all unsatisfied condition or
conditions. In the event this Agreement and the Additional Agreement are
terminated, the Xxxxxxx Money Deposit plus interest shall be paid immediately by
Escrow Agent to Seller and, except as otherwise provided in this Agreement,
neither of the Parties shall have any further liability or obligation under this
Agreement. In the event XXX is extended as provided above, close of escrow under
the Additional Agreement shall be extended by the same amount of time as XXX is
extended hereunder.
In the event of a termination of the Additional Agreement by Seller pursuant to
Section 13 of the Additional Agreement, this Agreement shall be deemed to be
terminated, whereupon the Xxxxxxx Money Deposit plus interest shall be paid to
Seller and, except as otherwise provided in this Agreement, neither of the
Parties shall have any further liability or obligation under this Agreement. In
the event close of escrow under the Additional Agreement shall be extended
pursuant to Section 13 of the Additional Agreement, XXX under this Agreement
shall be deemed to be extended by the same amount of time as close of escrow
under the Additional Agreement is extended.
Nothing contained in this Section 13 shall limit or otherwise modify Seller's
rights under Section 21(b) of this Agreement in the event of a breach of this
Agreement by Buyer.
14. SELLER'S WARRANTIES. Seller hereby represents and warrants to Buyer as
of the Effective Date and again as of XXX that:
(a) to Seller's actual knowledge, there are no unrecorded leases
(other than the Existing Lease), liens or encumbrances which may affect title to
the Property;
(b) to Seller's actual 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;
(c) to Seller's actual 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;
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(d) to Seller's actual knowledge, there is no impending or
contemplated condemnation or taking by inverse condemnation of the Property, or
any portion thereof, by any governmental authorities;
(e) there are no suits or claims pending or to Seller's actual
knowledge, threatened with respect to or in any manner affecting the Property,
nor does Seller know of any circumstances which should or could reasonably form
the basis for any such suits or claims which have not been disclosed in writing
to Buyer by Seller;
(f) 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, or any portion thereof, to a third party and Seller will not
enter into nor execute any such agreement without Buyer's prior written consent;
(g) Seller has not and will not, without the prior written consent
of Buyer, 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, and, to Seller's actual knowledge, there are no pending
proceedings, the object of which would be to change the present zoning or other
land-use limitations;
(h) this transaction will not in any way violate any other
agreements to which Seller is a party;
(i) Seller has full power and authority to execute, deliver and
perform under this Agreement as well as under the Transfer Documents, specimens
of which are attached hereto as Exhibits;
(j) no default of Seller exists under any of the Contracts and, to
Seller's knowledge, no default of any of the other parties exists under any of
the Contracts;
(k) no consent of any third party is required in order for Seller to
enter into this Agreement and perform Seller's obligations hereunder;
(l) except for any item to be prorated at XXX in accordance with
this Agreement, all bills or other charges, costs or expenses arising out of or
in connection with or resulting from Seller's use, ownership, or operation of
the Property up to XXX shall be paid in full by Seller;
(m) all general real estate taxes, assessments and personal property
taxes that have become due with respect to the Property (except for those that
will be prorated at XXX) have been paid or will be so paid by Seller prior to
XXX;
(n) between the Effective Date and XXX or any earlier termination of
this Agreement, Seller shall not execute or enter into any lease with respect to
the Property, or terminate, amend, modify, extend or waive any rights under the
Existing Lease without Buyer's prior written consent, which consent may be
withheld at Buyer's discretion;
(o) Seller agrees that, between the Effective Date and XXX or any
earlier termination of this Agreement, Seller shall, at its sole cost:
(1) continue to operate the Property as heretofore operated by
Seller;
10
(2) maintain or cause Tenant to maintain the Property in its
current condition and perform required and routine maintenance and make
replacements of each part of the Property that is tangible property (whether
real or personal) and perform repairs or make replacements to any broken,
defective or disfunctioning portion of the Property that is tangible property
(whether real or personal) as the relevant conditions require;
(3) pay or cause Tenant to pay (as applicable) prior to XXX,
all sums due for work, materials or services furnished or otherwise incurred in
the ownership, use or operation of the Property up to XXX;
(4) comply or cause Tenant to comply with all governmental
requirements applicable to the Property;
(5) except as required by a governmental agency, not place or
permit to be placed on any portion of the Property any new improvements of any
kind or remove or permit any improvements to be removed from the Property
without the prior written consent of Buyer;
(6) not restrict, rezone, file or modify any development plan
or zoning plan or establish or participate in the establishment of any
improvement district with respect to all or any portion of the Property without
Buyer's prior written consent; and
(7) without Buyer'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 the Property or any portion
thereof that effects title thereto;
(p) Seller has no actual knowledge that there exists or has existed,
and Seller itself has not caused any generation, production, location,
transportation, storage, treatment, discharge, disposal, release or threatened
release upon, under or about the Property of any Hazardous Materials. "Hazardous
Materials" shall mean any flammables, explosives, radioactive materials,
hazardous wastes, hazardous and toxic substances or related materials, asbestos
or any material containing asbestos (including, without limitation, vinyl
asbestos tile), or any other substance or material, defined as a "hazardous
substance" by any federal, state, or local environmental law, ordinance, rule or
regulation including, without limitation, the Federal Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, the
Federal Hazardous Materials Transportation Act, as amended, the Federal Resource
Conservation and Recovery Act, as amended, and the rules and regulations adopted
and promulgated pursuant to each of the foregoing;
(q) to Seller's actual knowledge, there is not now, nor has there
ever been, on or in the Property or any portion thereof underground storage
tanks, any asbestos-containing materials or any polychlorinated biphenyls,
including those used in hydraulic oils, electric transformers, or other
equipment. Seller hereby assigns to Buyer, effective as of XXX, all claims,
counterclaims, defenses, or actions, whether at common law, or pursuant to any
other applicable federal or state or other laws which Seller may have against
any third parties relating to the existence of any Hazardous Materials in, at,
on, under or about the Property (including
11
Hazardous Materials released on the Property prior to XXX and continuing in
existence on the Property at XXX);
(r) to Seller's actual knowledge, there are no proceedings pending
for the increase of the assessed valuation of the Property or any portion
thereof;
(s) should Seller receive notice or actual knowledge of any
information regarding any of the matters set forth in this Section 13 after the
Effective Date and prior to XXX, Seller will immediately notify Buyer of the
same in writing;
(t) the execution, delivery and performance of this Agreement and
the Transfer Documents, specimens of which are attached hereto as Exhibits, have
not and will not constitute a breach or default under any other agreement, law
or court order under which Seller is a party or may be bound; and
(u) all representations made in this Agreement by Seller shall
survive the execution and delivery of this Agreement and XXX. Seller shall and
does hereby indemnify against and hold Buyer harmless from any loss, damage,
liability and expense, together with all court costs and attorneys' fees which
Buyer may incur, by reason of any material misrepresentation by Seller or any
material breach of any of Seller's warranties. Seller's indemnity and hold
harmless obligations shall survive XXX.
15. BUYER'S WARRANTIES. Buyer hereby represents to Seller as of the
Effective Date and again as of XXX that:
(a) Buyer has full power and authority to execute, deliver and
perform under this Agreement as well as under the Transfer Documents, specimens
of which are attached hereto as Exhibits;
(b) there are no actions or proceedings pending or to Buyer's
knowledge, threatened against Buyer which may in any manner whatsoever affect
the validity or enforceability of this Agreement or any of the documents,
specimens of which are attached hereto as Exhibits, or impact Buyer's ability to
fulfill its obligations contained herein;
(c) the execution, delivery and performance of this Agreement and
the Transfer Documents, specimens of which are attached hereto as Exhibits, have
not and will not constitute a breach or default under any other agreement, law
or court order under which Buyer is a party or may be bound;
(d) should Buyer receive notice or knowledge of any information
regarding any of the matters set forth in this Section 15 after the Effective
Date and prior to XXX, Buyer will promptly notify Seller of the same in writing;
and
(e) all representations made in this Agreement by Buyer shall
survive the execution and delivery of this Agreement and XXX. Buyer shall and
does hereby indemnify against and hold Seller harmless from any loss, damage,
liability and expense, together with all court costs and attorneys' fees which
Seller may incur, by reason of any material misrepresentation by Buyer or any
material breach of any of Buyer's warranties. Buyer's indemnity and hold
harmless obligations shall survive XXX.
16. RENTS AND DEPOSITS. Seller and Buyer agree that, in addition to all
other conditions and covenants contained herein, Seller shall deliver to Buyer
and Escrow Agent not later than the day immediately prior to XXX information,
certified by Seller to be true and
12
accurate as of the date thereof and as of the date of XXX, with respect to (i)
the amount of Tenant's security deposit under the Existing Lease, if any, and
(ii) prepaid and/or abated rents, including, without limitation, the amount
thereof and the date to which such rents have been paid.
17. BROKER'S COMMISSION. Concerning any brokerage commission, the Parties
agree as follows:
(a) the Parties warrant to one another that they have not dealt with
any finder, broker or realtor in connection with this Agreement except Staubach
Investment Sales ("Broker");
(b) if any person shall assert a claim to a finder's fee or
brokerage commission on account of alleged employment as a finder or broker in
connection with this Agreement (including Broker), the Party under whom the
finder or broker is claiming shall indemnify and hold the other Party harmless
from and against any such claim and all costs, expenses and liabilities incurred
in connection with such claim or any action or proceeding brought on such claim,
including, but not limited to, counsel and witness fees and court costs in
defending against such claim. The provisions of this subsection shall survive
cancellation of this Agreement or XXX; and
(c) Seller shall be responsible for payment of a commission to
Broker in an amount equal to One Hundred Thousand and no/100 Dollars
($100,000.00), which commission shall be paid at XXX.
18. CLOSE OF ESCROW. XXX shall be on or before 5:00 p.m. MST on the
fifteenth (15th) day after the expiration of the Study Period (as such Study
Period may be extended pursuant to Section 6(b) hereof) or such earlier date as
Buyer may choose by giving written notice thereof to Seller and Escrow Agent.
Notwithstanding the foregoing, the Parties acknowledge and agree that XXX for
the Property shall occur simultaneously with close of escrow for the Additional
Property, and thus XXX may be adjusted to ensure such a simultaneous closing
with the Additional Property. Buyer may extend the XXX date as to the Property
for up to an additional thirty (30) days upon delivery of written notice to
extend the XXX date to Escrow Agent prior to the original XXX date and by
depositing an additional Fifty Thousand and no/100 Dollars ($50,000.00) of
xxxxxxx money with Escrow Agent, provided, however, Buyer must also elect to
extend the close of escrow of the Additional Property for an identical period of
time as provided in Section 18 of the Additional Agreement. For purposes of this
Agreement, any additional xxxxxxx money deposited with Escrow Agent pursuant to
this Section 18 shall be added to and become a part of the Xxxxxxx Money
Deposit.
19. ASSIGNMENT. Either Party may assign its rights under this Agreement to
an affiliate of such Party, or as required under an Exchange (defined below),
without seeking or obtaining the other Party's consent. Such assignment shall
not become effective until the assignee executes an instrument whereby such
assignee expressly assumes each of the obligations of the assigning Party under
this Agreement. Buyer may also designate someone other than Buyer, as grantee
and/or assignee, under the Transfer Documents by providing written notice of
such designation at least five (5) days prior to XXX. No assignment shall
release or otherwise relieve either Party from any obligations hereunder.
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20. RISK OF LOSS. Seller shall bear all risk of loss, damage or taking of
the Property which may occur prior to XXX. In the event of any loss, damage or
taking with respect to the Property prior to XXX, Buyer may, at Buyer's sole
option, by written notice to Seller and Escrow Agent, terminate this Agreement
and the Additional Agreement, whereupon the Xxxxxxx Money Deposit plus interest
shall be paid immediately to Buyer and, except as otherwise provided in this
Agreement, neither of the Parties shall have any further liability or obligation
hereunder. In the alternative, Buyer may attempt to negotiate an appropriate
downward adjustment of the Purchase Price. If Seller and Buyer cannot agree upon
such a downward adjustment within a reasonable period (not to exceed ten (10)
days from the date Buyer receives notice of the loss) Buyer may terminate this
Agreement and the Additional Agreement as provided above. If Buyer waives any
such loss or damage to any such Property and closes escrow, Seller shall at XXX
and as a condition precedent thereto, pay Buyer or credit Buyer against the
Additional Funds the amount of any insurance or condemnation proceeds, or assign
to Buyer, as of XXX and in a form acceptable to Buyer, all rights or claims for
relief to the same.
In the event of a termination of the Additional Agreement by Buyer
pursuant to Section 20 of the Additional Agreement, this Agreement shall be
deemed to be terminated, whereupon the Xxxxxxx Money Deposit plus interest shall
be returned immediately to Buyer and, except as otherwise provided in this
Agreement, neither of the Parties shall have any further liability or obligation
under this Agreement.
21. REMEDIES.
(a) Seller's Breach. If Seller breaches this Agreement, Seller shall
also be deemed to have breached the Additional Agreement and Buyer may, at
Buyer's sole option, either: (i) by written notice to Seller and Escrow Agent,
cancel this Agreement and the Additional Agreement in its entirety whereupon the
Xxxxxxx Money Deposit plus interest shall be paid immediately by Escrow Agent to
Buyer and, except as otherwise provided in this Agreement, neither of the
Parties shall have any further liability or obligation hereunder; or, (ii) seek
specific performance against Seller in which event XXX shall be automatically
extended as necessary. Notwithstanding the foregoing, if specific performance is
unavailable as a remedy to Buyer because of Seller's affirmative acts, Buyer
shall be entitled to pursue all rights and remedies available at law or in
equity. This limitation of damages does not apply to the indemnification under
Section 17. Any breach by Seller of the Additional Agreement shall also be
deemed to be a breach of this Agreement, and Buyer shall be entitled to exercise
the rights as provided above. Buyer may seek specific performance against Seller
with respect to the Property only if Buyer simultaneously seeks specific
performance under the Additional Agreement with respect to the Additional
Property.
(b) Buyer's Breach. If Buyer breaches this Agreement, Buyer shall
also be deemed to have breached the Additional Agreement and as Seller's sole
remedy for breach of this Agreement Seller shall be entitled to retain the
Xxxxxxx Money Deposit in accordance with subsection 5(b) as Seller's agreed and
total liquidated damages. Seller hereby waives any right to seek any equitable
or legal remedies against Buyer. This limitation of damages does not apply to
the indemnification under Sections 7(b) and 17.
22. ATTORNEYS' FEES. If there is any litigation to enforce any provisions
or rights arising herein in accordance with Section 21, the unsuccessful party
in such litigation, as
14
determined by the court, agrees to pay the successful party, as determined by
the court, all costs and expenses, including, but not limited to, reasonable
attorneys' fees incurred by the successful party, such fees to be determined by
the court.
23. NOTICES.
(a) Addresses. Except as otherwise required by law, any notice
required or permitted hereunder shall be in writing and shall be given by
personal delivery, or by deposit in the U.S. Mail, certified or registered,
return receipt requested, postage prepaid, addressed to the Parties at the
addresses set forth below, or at such other address as a Party may designate in
writing pursuant hereto, or tested telex, or telegram, or telecopies (fax), or
any express or overnight delivery service (e.g., Federal Express), delivery
charges prepaid:
if to Seller: E & R Xxxx Road, LLC
0000 X. Xxxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxx
Tel.: (000) 000-0000, ext. 2209
Fax: (000) 000-0000
with copies to: Xxxx X. Xxxxxxxx, Esq.
Xxxxxxxx Law Firm
0000 X. Xxxxxxxx Xxxxxx, Xxxxx X-000
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
if to Buyer: Series B, LLC
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Legal Department
Tel.: (000) 000-0000
Fax: (000) 000-0000
with copies to: Xxxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxx, PLC
0000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: J. Xxxxx Xxxxxxxxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
if to Escrow Agent: Fidelity National Title Insurance Company
00 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
15
(b) Effective Date of Notices. Notice shall be deemed to have been
given on the date on which such notice is delivered, if notice is given by
personal delivery, telex, telegrams or telecopies, and on the date of deposit in
the mail, if mailed or deposited with the overnight carrier, if used. Notice
shall be deemed to have been received on the date on which the notice is
received, if notice is given by personal delivery, and on the second (2nd) day
following deposit in the U.S. Mail, if notice is mailed. If escrow has opened, a
copy of any notice given to a party shall also be given to Escrow Agent by
regular U.S. Mail or by any other method provided for herein.
24. CLOSING COSTS.
(a) Closing Costs. Seller and Buyer agree to pay closing costs as
indicated in this Agreement and in the escrow instructions attached hereto as
Exhibit G, and by this reference incorporated herein (the "Escrow
Instructions"). At XXX, Seller shall pay (i) the costs of releasing all liens,
judgments, and other encumbrances that are to be released and of recording such
releases, (ii) one-half the fees and costs due Escrow Agent for its services
(the remaining one-half to be paid by Buyer), (iii) the transfer tax associated
with the sale of the Property, if any, and (iv) all other costs to be paid by
Seller under this Agreement. Except as otherwise provided for in this Agreement,
Seller and Buyer will each be solely responsible for and bear all of their own
respective expenses, including, without limitation, expenses of legal counsel,
accountants, and other advisors incurred at any time in connection with pursuing
or consummating the transaction contemplated herein. Real estate taxes shall be
prorated based upon the current valuation and latest available tax rates. All
prorations shall be calculated through escrow as of XXX based upon the latest
available information, including, without limitation, a credit to Buyer for any
rent prepaid by Tenant for the period beginning with and including the date on
which the closing occurs through and including the last day of the month in
which the closing occurs. All other credits to Buyer shall be similarly
prorated. Any other closing costs not specifically designated as the
responsibility of either Party in the Escrow Instructions or in this Agreement
shall be paid by Seller and Buyer according to the usual and customary
allocation of the same by Escrow Agent. Seller agrees that all closing costs
payable by Seller shall be deducted from Seller's proceeds otherwise payable to
Seller at XXX. Buyer shall deposit with Escrow Agent sufficient cash to pay all
of Buyer's closing costs. Except as provided in this Section 24(a), Seller and
Buyer shall each bear their own costs in regard to this Agreement.
(b) Post-Closing Adjustment. If after XXX, the parties discover any
errors in adjustments and apportionments or additional information becomes
available which would render the closing prorations materially inaccurate, the
same shall be corrected as soon after their discovery as possible. The provision
of this Section 24(b) shall survive XXX except that no adjustment shall be made
later than two (2) months after XXX unless prior to such date the Party seeking
the adjustment shall have delivered a written notice to the other Party
specifying the nature and basis for such claim. In the event that such claim is
valid, the Party against whom the claim is sought shall have ten (10) days in
which to remit any adjustment due.
(c) Instructions. This Agreement, together with the Escrow
Instructions, shall constitute escrow instructions for the transaction
contemplated herein. Such escrow instructions shall be construed as applying
principally to Escrow Agent's employment.
16
25. ESCROW CANCELLATION CHARGES. If escrow fails to close because of
Seller's default, Seller shall be liable for any cancellation charges of Escrow
Agent. If escrow fails to close because of Buyer's default, Buyer shall be
liable for any cancellation charges of Escrow Agent. If escrow fails to close
for any other reason, Seller and Buyer shall each be liable for one-half of any
cancellation charges of Escrow Agent. The provisions of this Section 25 shall
survive cancellation of this Agreement.
26. APPROVALS. Concerning all matters in this Agreement requiring the
consent or approval of any Party, the Parties agree that any such consent or
approval shall not be unreasonably withheld unless otherwise provided in this
Agreement.
27. RELEASES. Except as expressly provided in this Agreement, Seller and
anyone claiming through Seller hereby releases Tenant from any and all claims of
whatever kind or nature, in law or equity, whether now known or unknown to
Seller, whether contingent or matured, that Seller may now have or hereafter
acquire against Tenant for any costs, loss, liability, damage, expenses, demand,
action or cause of action arising from or related to the Existing Lease arising
from events occurring prior to XXX.
28. ADDITIONAL ACTS. The Parties agree to execute promptly such other
documents and to perform such other acts as may be reasonably necessary to carry
out the purpose and intent of this Agreement.
29. GOVERNING LAW/JURISDICTION/VENUE. This Agreement shall be governed by
and construed or enforced in accordance with the laws of the State of Arizona.
In regard to any litigation which may arise in regard to this Agreement, the
Parties shall and do hereby submit to the jurisdiction of and the Parties hereby
agree that the proper venue shall be in the Superior Court of Arizona in
Maricopa County, Arizona.
30. CONSTRUCTION. The terms and provisions of this Agreement represent the
results of negotiations among the Parties, each of which has been represented by
counsel of its own choosing, and neither of which has acted under any duress or
compulsion, whether legal, economic or otherwise. Consequently, the terms and
provisions of this Agreement shall be interpreted and construed in accordance
with their usual and customary meanings, and the Parties each hereby waive the
application of any rule of law which would otherwise be applicable in connection
with the interpretation and construction of this Agreement that ambiguous or
conflicting terms or provisions contained in this Agreement shall be interpreted
or construed against the Party whose attorney prepared the executed Agreement or
any earlier draft of the same.
31. TIME OF ESSENCE. Time is of the essence of this Agreement. However, if
this Agreement requires any act to be done or action to be taken on a date which
is a Saturday, Sunday or legal holiday, such act or action shall be deemed to
have been validly done or taken if done or taken on the next succeeding day
which is not a Saturday, Sunday or legal holiday, and the successive periods
shall be deemed extended accordingly.
32. INTERPRETATION. If there is any specific and direct conflict between,
or any ambiguity resulting from, the terms and
17
provisions of this Agreement and the terms and provisions of any document,
instrument or other agreement executed in connection herewith or in furtherance
hereof, including any Exhibits hereto, the same shall be consistently
interpreted in such manner as to give effect to the general purposes and
intention as expressed in this Agreement which shall be deemed to prevail and
control.
33. HEADINGS. The headings of this Agreement are for reference only and
shall not limit or define the meaning of any provision of this Agreement.
34. FAX AND COUNTERPARTS. This Agreement may be executed by facsimile
and/or in any number of counterparts. Each party may rely upon any facsimile or
counterpart copy as if it were one original document.
35. INCORPORATION OF EXHIBITS BY REFERENCE. All Exhibits to this Agreement
are fully incorporated herein as though set forth at length herein.
36. SEVERABILITY. If any provision of this Agreement is unenforceable, the
remaining provisions shall nevertheless be kept in effect.
37. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the Parties and supersedes all prior agreements, oral or written, with respect
to the subject matter hereof. The provisions of this Agreement shall be
construed as a whole and not strictly for or against any Party.
38. SEC S-X 3-14 Audit. Seller acknowledges that Buyer may elect to assign
all of its right, title and interest in and to this Agreement to a publicly
registered company ("Registered Company") promoted by the Buyer. In the event
Buyer's assignee under this Agreement is a Registered Company, such Registered
Company will be required to make certain filings with the U.S. Securities and
Exchange Commission required under SEC Rule S-X 3-14 (the "SEC Filings") that
relate to the most recent pre-acquisition fiscal year (the "Audited Year") for
the Property. To assist the Registered Company with the preparation of the SEC
Filings, Seller agrees to provide Buyer with financial information regarding the
Property for the Audited Year requested by Buyer and/or Buyer's auditors. Such
information may include, but is not limited to, bank statements, operating
statements, general ledgers, cash receipts schedules, invoices for expenses and
capital improvements, insurance documentation, and accounts receivable aging
related to the Property, provided such information is in the possession or
control of Seller or its affiliates ("SEC Filing Information"). Seller shall
deliver the SEC Filing Information requested by Buyer prior to the expiration of
the Study Period, and Seller agrees to cooperate with Buyer and Buyer's auditors
regarding any inquiries by Buyer or Buyer's auditors following receipt of such
information, including delivery by Seller of an executed representation letter
prior to XXX in form and substance requested by Buyer's auditors ("SEC Filings
Letter"). A sample SEC Filings Letter is attached to the Purchase Agreement as
Exhibit G; however, Buyer's auditors may require additions and/or revisions to
such letter following review of the SEC Filing Information provided by Seller.
Seller consents to the disclosure of the SEC Filing Information in any SEC
Filings by the Registered Company. Buyer shall reimburse Seller for Seller's
reasonable costs associated with providing the SEC Filing Information. The
provisions of this Section 38 shall survive the XXX for a period of one (1)
year.
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39. TAX-FREE EXCHANGE. The parties acknowledge that one or both of the
parties may be entering into this transaction as part of an IRC Section 1031 Tax
Deferred Exchange (an "Exchange") for the benefit of such party or parties. Each
party agrees to assist and cooperate in any such Exchange for the benefit of the
other provided the cooperating party shall incur no liability, cost or expense
and will execute any and all documents, subject to its reasonable approval of
its counsel, as are reasonably necessary in connection with the Exchange.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of
the Effective Date.
SELLER: E & R XXXX ROAD, LLC
By: /s/ Xxxxxx Xxxxxxxxx
---------------------
Xxxxxx Xxxxxxxxx
Its: Manager/Member
BUYER: SERIES B, LLC
By: /S/ Xxxx X. Xxxx
------------------------
Xxxx X. Xxxx
Its: Authorized Officer
ACKNOWLEDGEMENT OF TENANT
The undersigned hereby acknowledges and agrees that it will execute and
deliver to Buyer at XXX, as lessee thereunder, the New Lease and all other
documents contemplated thereby and reasonably required by Escrow Agent, Seller
and/or Buyer.
EBCO, INC.
By: /S/ Xxxxxx Xxxxxxxxx
------------------------
Xxxxxx Xxxxxxxxx
Its: Vice President & C.F.O.
19
ESCROW AGENT'S ACCEPTANCE
The foregoing fully executed Agreement together with the Xxxxxxx Money
Deposit is accepted by the undersigned this _____ day of ____________, 20__,
which for the purposes of this Agreement shall be deemed to be the date of
Opening of Escrow. Escrow Agent hereby accepts the engagement to handle the
escrow established by this Agreement in accordance with the terms set forth in
this Agreement.
FIDELITY NATIONAL TITLE INSURANCE
COMPANY
By: /S/ X. Xxxxxx
-----------------
Title: Asst. Commercial Escrow Officer
20
