1/28/97
PURCHASE AND SALE AGREEMENT
Between
ST. XXXX PROPERTIES, INC.
(Seller)
and
CORPORATE REALTY INCOME FUND I, L.P.
(Buyer)
Location: Alamo Towers
901 and 000 XX Xxxx 000
Xxx Xxxxxxx, Xxxxx
Dated as of January 28, 1997
TABLE OF CONTENTS
PAGE
1. PURCHASE AND SALE.........................................................1
1.1 Property..............................................................1
1.2 Assignment............................................................2
2. PURCHASE PRICE............................................................2
2.1 Deposit...............................................................2
2.2 Interest..............................................................2
2.3 Cash at Closing.......................................................3
3. TITLE.....................................................................3
3.1 Title Commitment: Survey............................................. 3
3.2 Review of Title.......................................................3
3.3 Vesting of Title......................................................4
3.4 Title Insurance.......................................................4
3.5 Inspection Period.....................................................4
4. CLOSING.................................................................. 6
4.1 Closing...............................................................6
4.2 Transactions at Closing...............................................6
4.3 Title Transfer and Payment of Purchase Price..........................8
5. PRORATIONS; CLOSING ITEMS.................................................8
5.1 Prorations: Closing Costs.............................................8
5.2 Calculation of Prorations............................................10
5.3 Furnishing of Information............................................10
6. REPRESENTATIONS AND WARRANTIES...........................................12
6.1 Seller's Representations and Warranties..............................12
6.2 Buyer's Representations and Warranties...............................14
6.3 Buyer Accepts Property "As Is".......................................14
7. CONDITIONS TO CLOSING....................................................17
7.1 Seller's Conditions..................................................17
7.2 Buyer's Conditions...................................................17
7.3 Failure of Condition.................................................18
8. DAMAGE OR DESTRUCTION OF THE PROPERTY; ..................................18
8.1 Damage or Destruction of the Property................................18
8.2 Condemnation.........................................................19
9. COMMISSIONS AND EXPENSES.................................................19
9.1 Payment of the Sale Commission.......................................19
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9.2 Leasing Commissions.................................................20
9.3 Lease Expense Reimbursement and Assumption..........................21
10. NOTICES.................................................................21
11. MISCELLANEOUS...........................................................22
11.1 Time...............................................................22
11.2 Attorneys'Fees.....................................................22
11.3 No Waiver..........................................................22
11.4 Entire Agreement...................................................22
11.5 Survival...........................................................22
11.6 Successors.........................................................23
11.7 Assignment.........................................................23
11.8 Relationship of the Parties........................................23
11.9 Governing Law......................................................23
11.10 Possession: Risk of Loss..........................................23
11.11 Review by Counsel.................................................23
11.12 Confidentiality...................................................24
11.13 Termination.......................................................25
11.14 Intentionally Omitted.............................................25
11.15 Counterparts......................................................25
12. LIQUIDATED DAMAGES......................................................25
13. NO RECORDING............................................................26
14. EFFECTIVENESS...........................................................26
EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY
EXHIBIT B XXXX OF SALE
EXHIBIT C ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT D SELLER'S AFFIDAVIT
EXHIBIT E BUYER'S AFFIDAVIT AND AGREEMENT
EXHIBIT F SERVICE CONTRACTS
EXHIBIT G INITIAL PERMITTED EXCEPTIONS
EXHIBIT H FORM OF DEED
EXHIBIT I TENANT NOTIFICATION LETTER
EXHIBIT J TENANT ESTOPPEL CERTIFICATE
EXHIBIT K RENT ROLL
EXHIBIT L SELLER'S CERTIFICATE
EXHIBIT M BUYER'S CERTIFICATE
EXHIBIT N EQUIPMENT LEASE
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement") is made as of the 28th day
of January, 1997 (the "Effective Date") by and between ST. XXXX PROPERTIES,
INC., a Delaware corporation ("Seller"), and CORPORATE REALTY INCOME FUND I,
L.P., a Delaware limited partnership ("Buyer").
A. Seller owns in fee simple that certain parcel of real property located
in the City of Xxx Xxxxxxx, Xxxxxx xx Xxxxx, Xxxxx xx Xxxxx commonly referred to
as Alamo Towers located at 901 and 000 XX Xxxx 000 xx Xxx Xxxxxxx, Xxxxx
(hereinafter referred to as the "Real Property").
B. Subject to the terms and conditions herein, seller desires to sell and
buyer desires to purchase the real property and certain items of personal
property.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
Seller and Buyer agree as follows:
1. PURCHASE AND SALE
1.1 Property.
Subject to the terms and conditions hereof, Seller hereby agrees to sell,
convey and assign to Buyer, and Buyer hereby agrees to purchase and accept from
Seller on the Closing Date (as defined in Section 4.1 below) the following
(collectively, the "Property"):
(a) the Real Property which is legally described on Exhibit A attached
hereto, together with any and all rights, privileges and easements
appurtenant thereto, which are owned by Seller;
(b) all buildings and other improvements and fixtures located on the Real
Property which are owned by Seller, including any apparatus, equipment
and appliances incorporated therein and used in connection with the
operation and occupancy thereof, such as heating and air conditioning
systems and facilities used to provide any utility service,
ventilation, or other services thereto (all of which are collectively
referred to as the "Improvements");
(c) all right, title and interest of Seller in and to personal property
located on the Property and listed on Exhibit B to the Xxxx of Sale,
which Xxxx of Sale is itself attached hereto as Exhibit B (the
"Personal Property"); and
(d) all assignable or transferable intangible property, including, but not
limited to: (i) all guaranties, warranties (including guaranties and
warranties pertaining to construction of the Improvements); (ii) all
air rights, excess floor area rights and other development rights
relating or appurtenant to the Real Property or the
Improvements; (iii) all rights to obtain utility service in connection
with the Improvements and the Real Property; (iv) assignable licenses
and other governmental permits and permissions relating to the Real
Property, the Improvements and the operation thereof; and (v) all
assignable contracts and contract rights as set forth on Exhibit F
attached hereto (all of the foregoing are hereinafter collectively
referred to as the "Intangible Property").
(e) All right, title and interest of Seller in and to the Leases, and
other occupancy agreements covering all or any portion of the Real
Property or the Improvements, to the extent they are in effect on the
Date of Closing (collectively the "Leases"), together with all rents
and other sums due thereunder (the "Rents") and any and all security
deposits in connection therewith ("Security Deposits").
1.2 Assignment.
In addition, Seller shall assign to Buyer all interest of Seller as
landlord in and to all of the Leases pertaining to the Real Property and
Improvements as more specifically set forth on Exhibit B to the Assignment and
Assumption Agreement, and in and to any equipment leases, commission agreements,
and service contracts, if any, as set forth on Exhibits C, D and E,
respectively, to the Assignment and Assumption Agreement (individually and
collectively the "Service Contracts"). Such assignment shall be made pursuant to
an Assignment and Assumption Agreement in the form described in Section 4.2(a)
(iii) below.
2. PURCHASE PRICE
Buyer shall pay as the total Purchase Price for the Property ("Purchase
Price") in the amount of Twelve Million One Hundred Eighty Thousand and
No/lOOths U.S. Dollars ($12,180,000.00) which shall be payable as follows:
2.1 Deposit.
Concurrently with the execution and delivery of this Agreement, Buyer has
caused Two Hundred Thousand and No/lOOths U.S. Dollars ($200,000.00) (the
"Deposit") to be delivered to Seller. The Deposit shall be held by Seller as an
xxxxxxx money deposit toward the Purchase Price. The Deposit shall be held by
Seller in an interest bearing account. Buyer will provide the by Seller with its
Taxpayer Identification Number and such additional information and documents as
may be required by Seller.
2.2 Interest.
Except as provided in Section 2.1 above and in other provisions of this
Agreement where Seller shall be entitled to retain the Deposit and all interest
earned thereon as liquidated damages pursuant to Section 12 below, interest
thereon on the Deposit shall accrue to the benefit of Buyer. The Deposit (and
interest thereon) shall be applied against the Purchase Price.
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2.3 Cash at Closing.
Eleven Million Nine Hundred Eighty Thousand and No/100ths U.S. Dollars
($11,980,000.00) adjusted for interest earned on the Deposit plus any other
amounts required to be paid by Buyer at Closing, and plus or minus any
prorations, in the form of immediately available U.S. funds by wire transfer as
more particularly set forth in Section 4.3 below.
3. TITLE
3.1 Title Commitment; Survey
Within ten (10) days of the date hereof, Seller shall cause to be delivered
to Buyer the following:
(a) A commitment for an owner's policy of title insurance (the "Title
Commitment"), issued by First American Title Insurance Company
("Title Company") covering the Real Property and Improvements and
indicating the willingness of Title Company to issue to Buyer at
Closing the owner's title policy described in Section 3.4 below
(the "Title Policy") in the amount of the Purchase Price, with
such Title Commitment setting forth the status of the title to
the Property and showing all liens, claims, encumbrances,
easements, rights-of-way, encroachments, reservations,
restrictions and any other matters of record affecting the
Property.
(b) A copy of all recorded documents referred to in the Title
Commitment as exceptions to title to the Property (the "Title
Documents").
(c) A copy of the survey of the Real Property and Improvements in
Seller's possession ("Survey").
3.2 Review of Title.
Buyer shall have until February 15, 1997 to review the Title Commitment,
Title Documents and Survey (collectively "Title Evidence") and render any
objections as to matters of title in writing to Seller. Any such matters of
title not timely objected to by Buyer shall be deemed waived and shall
constitute additional permitted exceptions ("Additional Permitted Exceptions")
hereunder. Seller shall have thirty (30) days from the date of such objections
to have such objections removed or satisfied. If Seller shall fail to have such
objections removed or satisfied within such time or during such time delivers a
written notice to Buyer that notwithstanding Seller's reasonable efforts, such
objections may not be cured, then Buyer may, at its sole election, within ten
(10) days of the first to occur of the expiration of said thirty (30) day period
or the date of receipt of such notice from Seller, by written notice to Seller
either (a) terminate this Agreement without any liability on its part in which
case the Deposit together with interest thereon shall be refunded to Buyer and
neither party shall have further rights or obligations hereunder (except as set
forth in Section 5.3(b) hereof) or (b) proceed to Closing and take title subject
to such objections, in which case such non-cured objections shall become
Additional Permitted Exceptions hereunder. Seller agrees to use reasonable
efforts to satisfy
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promptly any such title objections; provided, however, that Seller shall not be
obligated to expend more than $10,000 in the aggregate in connection with curing
any such objections. Notwithstanding anything in this Agreement to the contrary,
Buyer shall not object to, and agrees to acquire the Property subject to, the
initial permitted exceptions described on Exhibit H attached hereto ("Initial
Permitted Exceptions", with the Initial Permitted Exceptions and the Additional
Permitted Exceptions sometimes hereinafter collectively referred to as the
"Permitted Exceptions").
3.3 Vesting of Title.
At Closing, Seller shall convey fee simple title to the Real Property and
Improvements to Buyer by special warranty deed (as further described in Section
4.2(a)(i) below), subject to the Permitted Exceptions, and shall convey Seller's
interest in the Personal Property to Buyer by xxxx of sale (as further described
in Section 4.2(a) (ii) below).
3.4 Title Insurance.
At Closing, the Title Company shall issue to Buyer a 1992 ALTA owner's form
of title insurance policy, in the form that is customarily issued in the State
of Texas or if an ALTA owner's form of policy is not available, then in the form
that is customarily issued in Texas, together with any endorsements reasonably
required by Buyer (but only to the extent available in Texas) and with the
survey exception amended to read "shortages in area only" in the amount of the
Purchase Price insuring that fee simple title to the Real Property and
Improvements is vested in Buyer subject to the Permitted Exceptions (the "Title
Policy).
3.5 Inspection Period.
Buyer shall have until February 15, 1997 (the "Inspection Period") to
inspect the Property, the Due Diligence Documents (as hereinafter defined in
Section 5.3(b)), and perform such other due diligence with respect to the
Property as Buyer reasonably deems necessary. Buyer may, upon written notice to
Seller, received by Seller no later than 5:00 p.m. Central Time on the last day
of the Inspection Period, elect to terminate this Agreement. Upon any such
termination, the Deposit together with interest thereon shall be refunded to
Buyer and, subject to Section 5.3(b) hereof, neither party shall have further
rights or obligations hereunder. In the event no notice of termination is
received by Seller on or before such time, then the Deposit, together with all
accrued interest thereon, shall become non-refundable (subject to the other
terms and conditions of this Agreement) and Seller and Buyer shall proceed to
Closing in accordance with the terms and conditions hereof and the Inspection
Period termination rights shall be deemed waived by Buyer. Buyer shall not
undertake any soil borings, ground water testing or other "Phase 2"
investigative procedures without first having obtained the prior written consent
of Seller. In connection with Buyer's inspection of the Property, Buyer agrees
that:
(a) All inspection fees, engineering fees, or other expenses of any
kind incurred by Buyer relating to the inspection of the Property
will be at Buyer's sole cost and expense;
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(b) Buyer will advise Seller at least two (2) business days in
advance of the dates of all inspections and will schedule all
tests and inspections during normal business hours whenever
feasible unless otherwise requested by Seller;
(c) Seller will have the right to have one or more representatives of
Seller accompany Buyer and Buyer's representatives, agents or
designees while they are on the Property;
(d) Any entry by Buyer, its representatives, agents or designees will
not unreasonably interfere with Seller's use of the Property or
with the operations of any tenant;
(e) Buyer will restore any damage caused to the Property by Buyer's
entry on the Property for inspection purposes at Buyer's sole
cost and expenses if this transaction does not close; and
(f) In making any inspection hereunder, Buyer will treat and will
cause any representative of Buyer to treat all information
obtained by Buyer pursuant to the terms of this Agreement as
strictly confidential in accordance with Section 11.12 below.
Purchaser shall have the right to further inspect the Property within the two
(2) business day period immediately preceding the Closing (during normal
business hours and upon notice to Seller) for the purpose of confirming that the
Property is in the same condition at Closing as existing at end of Inspection
Period, reasonable wear and tear excepted; provided, however, that such right of
pre-closing inspection shall in no way be deemed to extend or resurrect the
Inspection Period or constitute a condition to Closing; subject, however, to the
other terms and conditions of this Agreement. For purposes of this Agreement,
the term "business day" shall mean a day other than any Saturday, Sunday, or day
upon which national banks in the City of San Antonio, Texas are not open for
general banking business.
The Covenants of Buyer contained in this Section 3.5(a) and (e) shall
survive Closing Date or any earlier termination of this Agreement.
Seller agrees to use reasonable efforts to operate and maintain the
Property in a manner generally consistent with the manner in which Seller has
operated and maintained the Property prior to the effective date (including any
scheduled renovations to the Improvements).
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4. CLOSING
4.1 Closing.
The purchase and sale of the Property ("Closing") shall occur on March 17,
1997 (the "Closing Date"). Seller and Buyer agree that this transaction shall
close in escrow through the Title Company. Buyer and Seller shall endeavor to
conduct a "pre-closing" on the business day prior to the Closing Date with title
transfer and payment of the Purchase Price to be completed on the Closing Date
as set forth in Section 4.3 below.
4.2 Transactions at Closing.
On the Closing Date:
(a) Seller shall deliver or cause to be delivered to Buyer the following
documents (collectively, the "Conveyance Documents") duly executed and
acknowledged where appropriate:
(i) Standard-form special warranty deed (the "Deed") conveying the
Real Property and the Improvements, subject only to the
applicable Permitted Exceptions, in the form attached hereto as
Exhibit H;
(ii) Xxxx of Sale in the form set forth on Exhibit B attached hereto
conveying the Personal Property to Buyer;
(iii) Assignment and Assumption Agreement (the "Assignment") in the
form set forth on Exhibit C attached hereto;
(iv) Certificate of non-foreign status in the form set forth on
Exhibit D attached hereto, to confirm that Buyer is not
required to withhold part of the Purchase Price pursuant to
Section 1445 of the Internal Revenue Code of 1986, as amended;
(v) Original Tenant Estoppel Certificates for the Leases to the
extent and in the form that tenants may have delivered same on
or before the Closing Date;
(vi) Original executed copies of all of the Leases;
(vii) Information required by the Title Company to comply with the
real estate reporting requirements set forth in Section 6045(e)
of the Internal Revenue Code of 1986, as amended;
(viii) Certificate confirming that the representations and warranties
of Seller under this Agreement remain true and correct in the
form attached hereto as Exhibit L;
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(ix) Evidence as to the authority of the person or persons executing
documents on behalf of the Seller reasonably acceptable to
Buyer and the Title Company;
(x) Leases and Service Contracts, together with such leasing and
property files and records located at the Property or at the
property manager's office necessary in connection with the
continuing day-to-day operation, leasing and maintenance of the
Property; provided, however, that proprietary information of
Seller not required in the day-to-day operation of the Property
shall not be included. For a period of three (3) years after
the Closing, Buyer shall allow Seller and its agents and
representatives access without charge to all files, records and
documents delivered to Purchaser at the Closing upon reasonable
advance notice and at all reasonable times, to examine and make
copies of any and all such files, records and documents, which
right shall survive the Closing;
(xi) Affidavits as may be customarily and reasonably required by the
Title Company, in a form reasonably acceptable to Seller;
(xii) Closing Statement acceptable to Seller; and
(xiii) Such other documents as may be reasonably necessary and
appropriate to complete the Closing of the transaction
contemplated herein.
(b) Buyer shall deliver to Seller the following:
(i) The Purchase Price as adjusted to reflect the Buyer's share of
closing costs, prorations and any fees as more particularly set
forth in Section 4.3 below;
(ii) Buyer's Affidavit and Agreement in the form set forth on
Exhibit E attached hereto;
(iii) Duly executed and acknowledged Assignment (as described in
Section 4.2(a)(iii) above);
(iv) Mechanic's Lien Affidavit in the form reasonably acceptable to
the Buyer; and
(v) Information required by the Title Company to comply with the
real estate reporting requirements set forth in Section 6045(e)
of the Internal Revenue Code of 1986, as amended;
(vi) Evidence of the authority of the person or persons executing
documents on behalf of Buyer reasonably acceptable to Seller
and the Title Company;
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(vii) Certificate confirming that the representations and warranties
of Buyer under this Agreement remain true and correct in the
form attached hereto as Exhibit M;
(viii) Closing Statement acceptable to Buyer;
(ix) Affidavits as may be customarily and reasonably required by the
Title Company, in a form reasonably acceptable to Buyer; and
(x) Such other documents as may be reasonably necessary and
appropriate to complete the Closing of the transaction
contemplated herein.
(c) Seller and Buyer shall execute a tenant notification letter to each
tenant of the Property (the "Tenant Notification Letter") in the form
attached hereto as Exhibit I, and Buyer shall, within forty-eight (48)
hours following the Closing, cause the Tenant Notification Letter to
be delivered to the tenants.
4.3 Title Transfer and Payment of Purchase Price.
Buyer agrees to deliver the cash payment specified in Section 4.2(b)(i)
above by wiring the same to the Title Company by no later than 12:00 noon
Central Time on the Closing Date directing the Title Company to deposit or wire
the same into Seller's designated account upon the receipt by the Title Company
of the documents to be executed and delivered by Seller under Sections 4.2(a)
and 4.2(c) above and upon issuance by the Title Company, or unconditional
agreement by the Title Company to issue, the Title Policy.
5. PRORATIONS; CLOSING ITEMS
5.1 Prorations; Closing Costs.
(a) The amount due on any gas, electric, water, sewer, or other utility
xxxx, or service contract relating to the Property shall be prorated
between Seller and Buyer as of the Closing Date, to the extent such
utilities or service contracts are the obligation of the Seller and
not a direct or indirect obligation of the tenants. Any utility
deposits made by Seller shall be and remain the property of Seller.
(b) All collected rents and other payments from each tenant under the
Leases, including, but not limited to, base rent, additional rent,
percentage rent (if any), and expense reimbursements, shall be
prorated between Seller and Buyer as of the Closing Date. The balance
remaining from any security deposits or prepaid rent held by Seller
shall be credited to Buyer (including the balance of estimated tax,
insurance and common area maintenance payments made to Seller by
tenants under the Leases net of any payments by Seller thereon). Buyer
agrees to indemnify and hold harmless Seller from and against any
loss, cost or expense (including, but not limited to, attorneys' fees)
resulting from any claim for such deposits or prepaid rent. If any
rent or other payments under the Leases are, in
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arrears as of the Closing Date ("Delinquent Rents"), the amount of any
such Delinquent Rents which are collected by Buyer shall be promptly
paid by Buyer to Seller after Closing. Buyer shall be entitled to
deduct from any such payment (i) Buyer's reasonable costs of
collection incurred with respect to such tenant (including attorneys'
fees), (ii) rents due for the month in which such payment is received
by Buyer, and (iii) rents from such tenant attributable to any period
after the Closing that are past due on the date of receipt. Buyer
agrees to use commercially reasonable efforts to collect Delinquent
Rents after the Closing provided Buyer shall not be required to bring
any action or proceeding against any Tenant on account of Delinquent
Rents. Seller may make reasonable efforts to collect Delinquent Rents
from and after the Closing Date; provided, however, that Seller shall
not be entitled to pursue any action for eviction of any tenant from
the Property.
(c) All real estate taxes attributable to the Property due and payable in
the calendar year in which the Closing occurs (i.e., 1997 real estate
taxes due October 1, 1997 and delinquent February 1, 1998) shall be
prorated as of the Closing provided Seller shall be entitled to
recover any reimbursements from Tenants on account of such taxes for
the period prior to Closing, and Buyer shall immediately remit to
Seller any such reimbursements received by Buyer upon receipt thereof.
Any real estate taxes (exclusive of tenant payment thereof) due and
payable in any calendar year which is (i) prior to the calendar year
in which Closing occurs (including 1996 real estate taxes due October
1, 1996 and delinquent February 1, 1997) shall be the obligation of
Seller and Seller shall pay all such taxes, including any interest or
penalty thereon, prior to Closing, and (ii) subsequent to the calendar
year in which the Date of Closing occurs shall be the obligation of
Buyer. If Closing shall occur before the actual real estate taxes for
the year of Closing (i.e., 1997 taxes) are known, the apportionment of
real estate taxes shall be upon the basis of the real estate taxes for
the Property for the immediately preceding year, provided that if the
taxes for the current year are thereafter determined to be more or
less than the real estate taxes for the preceding year (after any
appeal in assessed valuation thereof is concluded), Seller and Buyer
promptly shall adjust the proration of such real estate taxes and
Seller or Buyer, as the case may be, shall pay to the other any amount
required as a result of such adjustment. Seller and Buyer agree to
mutually cooperate with each other in connection with ongoing tax
reduction proceedings relating to prior tax years, if any, and any
ongoing or future proceedings relating to the tax year in which the
Closing occurs, if any, and any refund resulting therefrom (to the
extent not refundable to the tenants under the Leases) shall be
prorated between Seller and Buyer based on the Closing Date, after
deducting therefrom the reasonable out-of-pocket expenses incurred by
the parties. The provisions of the immediately preceding two sentences
shall survive Closing and shall not be merged therein.
(d) Buyer shall pay for the cost of recording the Deeds, the cost of any
endorsements or special coverages of any nature in connection with the
Title Policy (including
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without limitation any amendment of the survey exception to "shortages in
area only"), one-half (l/2) of any escrow fees and closing fees to the
Title Company, any surveys prepared by or at the direction of Buyer, any
lender's title insurance coverage, and any mortgage taxes or other similar
taxes, fees or assessments, and pay any sales tax in connection with the
transfer of the Personal Property. Buyer shall pay for all costs relating
to any financing obtained by Buyer in connection with its purchase of the
Property and all costs incurred by Buyer in performing any related tests
and investigations. Seller shall pay the base premium for the Title Policy
(without the cost of any endorsements or special coverages) one-half (1/2)
of all escrow fees and closing fees charged by the Title Company, and the
recording fees with respect to documents which Seller elects to place of
record in order to cure title objections raised by Buyer to the extent
Seller elects to cure the same, as fully described in said Section 3.3.
Each party shall pay its own attorney's fees.
5.2 Calculation of Prorations.
For purposes of calculating prorations, Seller shall be deemed to be in
title to the Property, and therefore entitled to the income therefrom and
responsible for the expenses thereof, through the day prior to the Closing Date
and Buyer shall be deemed to be in title to the Property, and therefore entitled
to the income therefrom and responsible for the expenses thereof, from and after
12:01 a.m. on the Closing Date. All prorations shall be made on the basis of the
actual number of days of the year and month which have elapsed as of the Closing
Date. Except as otherwise stated above, if necessary, the amount of prorations
shall be adjusted in cash after Closing, as and when complete and accurate
information becomes available but in any event no later than one hundred twenty
(120) days after the Closing Date; provided, however, the one hundred twenty
(120) day period shall be extended for a reasonable time for any real property
tax reduction or abatement proceeds which are to be prorated between Buyer and
Seller pursuant to the last sentence of Section 5.1(c) and for any period of
time which may be required for reconciliation of tax, insurance, and common area
maintenance expenses for the calendar year in which the Closing Date occurs.
Buyer and Seller each agree to reasonably cooperate with the other with respect
to such final proration. This provision shall survive Closing and shall not be
merged therein.
5.3 Furnishing of Information.
(a) Prior to the date hereof or within five (5) days of the date hereof,
Seller has or will furnish to Buyer copies of the following:
(i) a current rent roll, certified by The Heights Management Group,
Inc. (Seller's onsite property manager and hereinafter "Property
Manager") with respect to the Property, together with copies of
all Leases and amendments and/or modifications currently in
effect, together with a list prepared by Property Manager
pertaining to the status of rental payments by tenants under the
Leases and any delinquencies in connection therewith
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and listing to the best of the knowledge of Property Manager
any disputes pertaining to rent or additional rent with respect
to which Property Manager has received written notice;
(ii) a schedule of service, maintenance and other such contracts
relating to the day-to-day operation or maintenance of the
Property, together with copies of such contracts;
(iii) a statement summarizing all pending lease and/or renewal lease
negotiations currently being conducted by Seller and/or its
leasing agent with existing or prospective tenants;
(iv) a copy of the current Leasing and Management Agreement with The
Heights Management Group, Inc.;
(v) copies of financial statements for the Property for the last
two (2) years in the form prepared by Seller or Property
Manager in the ordinary course of business with respect to the
Property; and
(vi) copies of the current tax xxxx for the Property and current
property tax assessment information in Seller's possession.
(vii) A list of Personal Property prepared by Property Manager to be
conveyed at Closing pursuant to the Xxxx of Sale.
(b) Seller has allowed Buyer and Buyer's agents reasonable access to the
Property during regular business hours, subject to the terms of the
Leases and Buyer shall have the right to further inspect the Property
during the Inspection Period. Buyer hereby indemnifies, defends, and
holds Seller and the Property harmless from any and all costs, loss,
damages or expenses, of any kind or nature (including without
limitation mechanics' liens and including without limitation
reasonable attorneys' fees and expenses) arising out of or resulting
from such inspection, investigation entry and/or other activities upon
the Property by Buyer, its employees, agents, contractors,
subcontractors, and/or assigns. Notwithstanding anything to the
contrary herein, the indemnity set forth in this Section 5.3(b) shall
survive (i) any termination of this Agreement; and (ii) the Closing
and not be merged therein.
(c) Buyer acknowledges that Seller has made available for Buyer's
inspection and shall continue to make available during the Inspection
Period (i) the Leases and lease files; (ii) copies of financial
statements for the Property for the last two (2) years and copies of
such historical information in Seller's possession or the possession
of Seller's agents regarding operating expenses of the Property as
Buyer shall reasonably request; and (iii) other files, guaranties,
warranties, licenses, governmental permits (including Certificates of
Occupancy) and reports and agreements in the possession of Seller or
Property Manager pertaining to the Property, if any (i.e., engineering
reports, environmental reports, as-built plans,
11
insurance information, ADA audits) and Service Contracts (including
contracts for lawn care, snow plowing, janitorial and preventive
maintenance services) relating to the Property (collectively, the "Due
Diligence Documents"), on site at the Property or at the business
office of the Property Manager or otherwise. Seller shall reasonably
cooperate with Buyer to obtain any consents required in connection
with an assignment of any of the Due Diligence Documents. All of the
Due Diligence Documents are confidential and shall not be distributed
or disclosed by Buyer to any person or entity not associated with
Buyer in accordance with Section 11.12 hereof. Seller agrees to
deliver to Buyer a copy of any written notices which Seller receives
prior to Closing, from any governmental authority pertaining to any
violation of law or ordinance regulating the use of the Property which
are received by Seller prior to the Closing Date and of any notice
which Seller receives prior to Closing from any tenant regarding any
default under any Lease. If the transaction fails to close for any
reason whatsoever, Buyer shall return to Seller all of the Due
Diligence Documents which Seller or Property Manager may have
delivered to Buyer in accordance with this Section 5.3. THE FURNISHING
OF ANY MATERIALS, DOCUMENTS, REPORTS, OR AGREEMENTS DESCRIBED ABOVE
SHALL NOT BE INTERPRETED IN ANY MANNER AS A REPRESENTATION OR WARRANTY
OF ANY TYPE OR KIND BY SELLER, PROPERTY MANAGER, ANY PARTNER OF SELLER
OR AGENT OF SELLER, OR ANY OFFICER, DIRECTOR, OR EMPLOYEE OF SELLER,
OR PROPERTY MANAGER, OR ANY OTHER PARTY RELATED IN ANY WAY TO ANY OF
THE FOREGOING.
6. REPRESENTATIONS AND WARRANTIES
6.1 Seller's Representations and Warranties.
Seller hereby represents and warrants to Buyer as follows:
(a) Seller's Entity. Seller is a Delaware corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware.
(b) Seller Authority. Seller has full power and authority to enter into
this Agreement and to perform all its obligations hereunder, and has
taken all action required by law, its governing instruments, or
otherwise to authorize the execution, delivery, and performance of
this Agreement and all the deeds, agreements, certificates, and other
documents contemplated herein. This Agreement has been duly executed
by and is a valid and binding agreement of Seller, enforceable in
accordance with its terms, except as enforceability may be limited by
equitable principles or by the laws of bankruptcy, insolvency, or
other laws affecting creditors' rights generally.
(c) No Conflict or Lien. Neither the execution or delivery of this
Agreement nor the consummation of the transactions contemplated herein
will conflict with or result in a breach of any contract, license, or
undertaking to which Seller is a party or by
12
which any of its property is bound, or constitute a default thereunder
or, except as contemplated herein, result in the creation of any lien
or encumbrance upon the Premises.
(d) No Proceedings. No legal or administrative proceeding is threatened or
pending against Seller which would adversely affect its right to
convey the Premises to Buyer as contemplated in this Agreement.
(e) Leases. Seller has delivered to Buyer a correct and complete copy of
each Lease and all amendments thereto. The information regarding the
Leases contained on the Rent Roll attached here as Exhibit K is
correct and complete as of the date of this Agreement. To the
knowledge of Seller, the Leases are in full force and effect and
neither Seller, nor any tenant, is in default under the Leases. There
are no other leases or possessory rights of others regarding the
Property except as described in Exhibit K.
(f) Seller has no knowledge of and has not received notice of any
litigation which has been filed against Seller that arises out of the
ownership of the Property and would materially affect the Property or
use thereof, or Seller's ability to perform hereunder.
(g) Seller has no knowledge of and has not received written notice from
any governmental body, authority or agency of any violation of
federal, state or local laws, rules or regulations affecting the
Property, including any notice with respect to any Hazardous
Materials, as hereinafter defined.
(h) Seller has no knowledge of and has received no written notice of any
condemnation proceedings relating to the Property.
(i) All equipment leases to which Seller is a party relating to the
Property are accurately set forth on Exhibit N hereto.
(j) No leasing commissions are due and payable with respect to the
existing terms of the Leases except as set forth on the Rent Roll
described in Section 5.3(a)(i) hereof; provided, however, that nothing
contained in this Section 6.1(j) shall be construed in any way to
modify the obligations with respect to leasing commissions and tenant
improvements described in Sections 9.2 and 9.3 hereof.
(k) All service and maintenance contracts, including Service Contracts,
affecting the Property are accurate set forth on Exhibit F hereto.
Except with respect to the warranties set forth in the Deed and in Section
6.1 hereof, Seller has not made any warranty or representation, express or
implied, written or oral, concerning the Property, including without limitation
any representations relating to Hazardous Materials (as defined in Section
6.3(c) below).
13
All representations and warranties of Seller contained herein are intended
to and shall remain true and correct as of the Closing and shall survive the
delivery of the Deed for a period of one (1) year after Closing and shall
thereafter expire. Any claims by Buyer with respect to such representations or
warranties shall be commenced by written notice to Seller within said one (1)
year period or shall be deemed waived by Buyer. Notwithstanding the foregoing,
Buyer shall have no claim against Seller with respect to the representations and
warranties set forth in this Section 6.1 if Buyer had actual knowledge that a
representation or warranty was untrue and inaccurate or incorrect as of the time
of Closing and Buyer nevertheless chose to proceed with Closing hereunder.
Whenever in this Agreement a representation of Seller is based on the
"Seller's knowledge" or words of similar import, such reference shall be deemed
to be to the actual knowledge of Xxxxxxx Xxxxxxx (asset manager of Seller) and
Xxxxx X. Xxxx and Xxxxxxx X. Xxxxxxx of Property Manager, without investigation
or inquiry of any kind. There shall be no personal liability to said individuals
arising out of said representations or warranties. No knowledge of parties
affiliated with, employed by, or related by agency to Seller other than those
persons specifically named above, shall be imputed to Seller or to the
above-named persons.
Notwithstanding anything to the contrary contained in this Agreement, the
aggregate amount which may be collected by Buyer pursuant to the representations
and warranties of Seller set forth herein shall not exceed $1,000,000.00.
6.2 Buyer's Representations and Warranties.
Buyer represents, warrants, and covenants to Seller that:
(a) Authority to Execute; Organization. This Agreement constitutes valid
and binding obligation of Buyer and is enforceable against Buyer in
accordance with its terms. If Buyer is a corporation, a partnership,
or a trust, Buyer is validly organized and in good standing under the
laws of the state of its organization, and the execution of this
Agreement, delivery of money and all required documents, Buyer's
performance of this Agreement and the transaction contemplated hereby
have been duly authorized by the requisite action or the part of the
Buyer and Buyer's directors, partners or trustees.
(b) Recording. Buyer shall not record this Agreement or a memorandum
hereof at any time.
6.3 Buyer Accepts Property "As Is".
(a) Buyer Acknowledgment. As of the expiration of the Inspection Period,
Buyer acknowledges for Buyer and Buyer's successors, heirs and
assignees, (i) that Buyer has been given a reasonable opportunity to
inspect and investigate the Property, all improvements thereon and all
aspects relating thereto, either
14
independently or through agents and experts of Buyer's choosing and
(ii) that Buyer is acquiring the Property based upon Buyer's own
investigation and inspection thereof, and (iii) the provisions of this
Section 6.3(a) shall survive Closing and shall not be merged therein.
SELLER AND BUYER AGREE THAT UPON CLOSING THE PROPERTY SHALL BE SOLD
AND THAT BUYER SHALL ACCEPT POSSESSION OF THE PROPERTY ON THE CLOSING
DATE "AS IS, WHERE IS, WITH ALL FAULTS" WITH NO RIGHT OF SET-OFF OR
REDUCTION IN THE PURCHASE PRICE, AND THAT EXCEPT FOR THE WARRANTIES OF
TITLE CONTAINED IN THE DEED AND EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES OF SELLER SET FORTH IN SECTION 6.1(a) THROUGH (k) HEREOF
INCLUSIVE, SUCH SALE SHALL BE WITHOUT REPRESENTATION OR WARRANTY OF
ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTY
OF INCOME POTENTIAL, OPERATING EXPENSES, USES, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, AND SELLER DOES HEREBY DISCLAIM AND
RENOUNCE ANY SUCH REPRESENTATION OR WARRANTY. BUYER SPECIFICALLY
ACKNOWLEDGES THAT BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER,
PROPERTY MANAGER, OTHER AGENTS OR BROKERS AS TO ANY MATTER CONCERNING
THE PROPERTY (EXCEPT FOR THE WARRANTIES SPECIFICALLY SET FORTH IN THE
DEED AND IN SECTION 6.1(a) THROUGH (k) HEREOF INCLUSIVE), INCLUDING
WITHOUT LIMITATION: (1) THE CONDITION OR SAFETY OF THE PROPERTY OR ANY
IMPROVEMENTS THEREON, INCLUDING, BUT NOT LIMITED TO, PLUMBING, SEWER,
HEATING AND ELECTRICAL SYSTEMS, ROOFING, AIR CONDITIONING, IF ANY,
FOUNDATIONS, SOILS AND GEOLOGY INCLUDING HAZARDOUS MATERIALS (AS
HEREINAFTER DEFINED), LOT SIZE, OR SUITABILITY OF THE PROPERTY OR ITS
IMPROVEMENTS FOR A PARTICULAR PURPOSE; (2) WHETHER THE APPLIANCES, IF
ANY, PLUMBING OR UTILITIES ARE IN WORKING ORDER; (3) THE HABITABILITY
OR SUITABILITY FOR OCCUPANCY OF ANY STRUCTURE AND THE QUALITY OF ITS
CONSTRUCTION; AND (4) THE FITNESS OF ANY PERSONAL PROPERTY; OR (5)
WHETHER THE IMPROVEMENTS ARE STRUCTURALLY SOUND, IN GOOD CONDITION, OR
IN COMPLIANCE WITH APPLICABLE CITY, COUNTY, STATE OR FEDERAL STATUTES,
CODES OR ORDINANCES. SUBJECT ONLY TO THE LIMITED WARRANTIES OF TITLE
SET FORTH IN THE DEED AND THE WARRANTIES EXPRESSLY SET FORTH IN
SECTIONS 6.1(a) THROUGH (k) HEREOF, BUYER FURTHER ACKNOWLEDGES AND
AGREES THAT IT IS RELYING SOLELY UPON ITS OWN INSPECTION OF THE
PROPERTY AND NOT UPON ANY REPRESENTATIONS MADE TO IT BY SELLER, ITS
OFFICERS, DIRECTORS, CONTRACTORS, AGENTS OR EMPLOYEES OR ANY PERSON
WHOMSOEVER. ANY REPORTS,
15
REPAIRS OR WORK REQUIRED BY BUYER ARE TO BE THE SOLE RESPONSIBILITY OF
BUYER AND BUYER AGREES THAT THERE IS NO OBLIGATION ON THE PART OF
SELLER TO MAKE ANY CHANGES, ALTERATIONS, OR REPAIR TO THE PROPERTY,
AND BUYER ACKNOWLEDGES THAT UPON EXPIRATION OF THE INSPECTION PERIOD
BUYER HAS COMPLETED ITS DUE DILIGENCE WITH RESPECT TO THE PROPERTY TO
ITS SATISFACTION. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY RESALE
CERTIFICATE, CERTIFICATE OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT
NECESSARY FOR TRANSFER OR OCCUPANCY OF THE PROPERTY AND FOR ANY
REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER'S
SOLE COST AND EXPENSE.
(b) No Claim for Hazardous Materials. Upon Closing, Buyer for Buyer and
Buyer's successors in interest releases Seller from, and waives all
claims and liability which Buyer may have against Seller for, any
structural, physical or environmental condition at the Property and
further releases Seller from, and waives all liability against Seller
attributable to, the structural, physical and environmental condition
of the Property, including without limitation the presence, discovery
or removal any Hazardous Materials in, at, about or under the
Property, or for, connected with or arising out of any and all claims
or causes of action based upon the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986 ("XXXX"), the
Resource Conservation and Recovery Act ("RCRA"), the Toxic Substances
Control Act (the "TSCA"), as such acts may be amended from time to
time, or any other federal or state statutory or regulatory cause of
action arising from or related to Hazardous Materials at, in or under
the Property (collectively, the "Hazardous Waste Laws") The waiver and
release of Buyer set forth in this section 6.3(b) shall survive the
Closing Date and shall be enforceable at any time after the Closing
Date.
(c) "Hazardous Materials" Defined. For purposes of this Agreement, the
term "Hazardous Material" shall mean any substance, chemical, waste or
material that is or becomes regulated by any federal, state or local
governmental authority because of its toxicity, infectiousness,
radioactivity, explosiveness, ignitability, corrosiveness or
reactivity, including, without limitation, those substances regulated
by the Hazardous Waste Laws.
(d) No Representations as to Hazardous Materials. Buyer acknowledges that
Seller has made no representations or warranties whatsoever to Buyer
regarding the presence or absence of any Hazardous Materials in, at,
or under the Property; provided, however, that if Seller and Buyer
acknowledge that Seller has made certain representations as to no
proceedings or notices received as more specifically set forth in
Sections 6.1(d), (f) and (g) hereof. Buyer has made such studies and
investigations, conducted such tests and surveys, and engaged such
16
Specialists as Buyer has deemed appropriate to evaluate fairly the
Property, and its risks from an environmental and Hazardous Materials
standpoint.
7. CONDITIONS TO CLOSING
7.1 Seller's Conditions.
The obligation of Seller to sell and convey the Property under this
Agreement is subject to the satisfaction of the following conditions precedent
or conditions concurrent (the satisfaction of which may be waived only in
writing by Seller):
(a) Delivery and execution by Buyer of all monies, items, and other
instruments required to be delivered by Buyer to Seller;
(b) Buyer's covenants, warranties, and representations set forth herein
shall be true and correct as of the Closing Date;
(c) All of the actions by Buyer contemplated by this Agreement shall have
been completed; and
(d) There shall be no uncured default by Buyer of any of its obligations
under this Agreement.
7.2 Buyer's Conditions.
The obligation of Buyer to acquire the Property under this Agreement is
subject to the satisfaction of the following conditions precedent or conditions
concurrent:
(a) Delivery and execution by Seller of all monies, items and other
instruments to be delivered by Seller to Buyer;
(b) Seller's covenants, warranties and representations set forth herein
shall be true and correct as of the Closing Date.
(c) All of the actions by Seller contemplated by this Agreement shall have
been taken;
(d) There shall be no uncured default by Seller of any of its obligations
under this Agreement; and
(e) Buyer shall have received, on or before three (3) days before the
Closing Date, a Tenant Estoppel Certificate in substantially the form
attached hereto as Exhibit J from tenants leasing not less than
seventy-five percent (75%) of the leaseable area of the Improvements.
17
7.3 Failure of Condition.
(a) In the event of a failure of any condition contained in Section 7.2
above if Closing shall not occur as and when provided in this
Agreement solely because of a default by Seller, then Buyer may:
(i) terminate this Agreement in which event: (1) all documents and
funds deposited by Buyer shall be immediately returned to Buyer;
and (2) all documents deposited by Seller shall be immediately
returned to Seller;
(ii) pursue specific performance of Seller's obligation to convey the
Property to Buyer in accordance with the terms of this Agreement;
or
(iii) waive such default and close the transaction.
(b) In the event of a failure of any condition contained in Section 7.1
above, Seller may in its sole discretion:
(i) Terminate this Agreement and Seller shall retain as liquidated
damages the funds described in Article 12, in which event all
documents deposited by Buyer shall be immediately returned to
Buyer, and all documents deposited by Seller shall be immediately
returned to Seller; or
(ii) Seller may waive such default and close the transaction.
(c) Seller waives any rights it may have to specific performance in the
event of a default by Buyer with the exclusive remedy of Seller being
the right to liquidated damages more fully described in Section 12
hereof. Buyer waives any right to any claim of any nature for damages
or otherwise in the event of a default by Seller and Buyer
acknowledges that its exclusive remedies in the event of a default by
Seller shall be to either terminate this Agreement in accordance with
Section 7.3(a)(i) above or to seek specific performance in accordance
with Section 7.3(a)(ii) above.
8. DAMAGE OR DESTRUCTION OF THE PROPERTY;
CONDEMNATION
8.1 Damage or Destruction of the Property.
(a) If, between the Effective Date and the Closing Date, the Property is
Materially Damaged or Destroyed (as hereinafter defined), Buyer may
elect in writing, within five (5) days after receipt of notice from
Seller of such damage or destruction, accompanied by information
regarding the amount and payment of insurance, to terminate this
Agreement or to purchase all of the Property without regard to such
damage or destruction. If Buyer fails to notify Seller of Buyer's
election, Buyer will be deemed to have elected to proceed with the
purchase of all
18
of the Property. In the event that Buyer purchases all of the
Property, Seller shall have no obligation to repair any such damage or
destruction, nor shall the Purchase Price be adjusted except that the
Purchase Price shall be reduced by an amount equal to the deductible
amount under Seller's casualty insurance policy. "Materially Damaged
or Destroyed" shall mean damage or destruction the repair or
replacement of which would exceed twenty percent (20%) of the Purchase
Price, as determined by a licensed general contractor approved by
Buyer and Seller. If, between the Effective Date and the Closing Date,
the Property sustains nonmaterial damage, Seller shall assign its
rights to insurance proceeds, if any, as provided for in Section
8.1(b) below. Seller agrees to maintain until the Closing the level of
insurance coverage in effect on the Property as of the Effective Date,
which insurance coverage is maintained at a replacement cost level.
(b) If Buyer elects or is required to purchase the Property despite such
damage or destruction, Seller shall assign its rights to and Buyer
shall be entitled to receive any insurance proceeds (with any accrued
interest thereon) at or after Closing (as the same are available).
Seller shall reasonably cooperate with Buyer to allow Buyer to collect
any available insurance proceeds.
8.2 Condemnation.
If prior to Closing all or a Material Part of the Property is subject to a
proposed taking by any public authority, Seller shall promptly notify Buyer in
writing of such proposed taking and Buyer may terminate this Agreement by notice
to Seller within fifteen (15) days after written notice thereof. If Buyer so
elects, this Agreement shall be of no further force and effect. If Buyer does
not so terminate this Agreement, or if the taking is as to a non-Material Part
of the Property, Buyer shall accept the Property subject to the taking without a
reduction in the Purchase Price and shall receive at closing an assignment of
all of Seller's rights to any condemnation award. Seller shall reasonably
cooperate with Buyer to allow Buyer to collect any such award. A "Material Part"
of the Property shall mean a taking which would exceed twenty percent (20%) or
more of the Purchase Price the Property, as determined by a licensed appraiser
approved by Seller and Buyer.
9. COMMISSIONS AND EXPENSES.
9.1 Payment of the Sale Commission.
Buyer and Seller represent and warrant to each other that no real estate
broker or agent has been authorized to act on either parties' behalf except CB
Commercial Group, Inc. ("Seller's Agent") under a commission agreement between
Seller and Seller's Agent, which commission ("CB Commission") under said
commission agreement Seller will pay to Seller's Agent at Closing. In addition,
it is contemplated that Xxxxxxx Xxxxxx/Business Real Estate ("TB") will enter
into an additional agreement with Seller's Agent in connection with the
transaction described herein ("Additional Agreement"). Seller agrees to pay to
Seller's Agent an additional commission above and beyond the CB Commission in an
amount equal to the lesser of (i) the
19
amount payable by Seller's Agent to TB under the Additional Agreement or (ii)
$180,000.00 (hereinafter "Additional Commission"). Buyer hereby indemnifies
Seller and holds Seller harmless from any and all demands or claims which now or
hereafter may be asserted against Seller for any brokerage fees, commissions or
similar types of compensation (other than the obligation of Seller to pay at
Closing the Additional Commission described in the immediately preceding
sentence) which may be claimed by any broker which was engaged or which claims
to have been engaged by Buyer and all expenses and costs in handling or
defending any such demand or claim, including reasonable attorney's fees. Seller
hereby indemnifies Buyer and holds Buyer harmless from any and all demands or
claims which now or hereafter may be asserted against Buyer for any brokerage
fees, commissions or similar types of compensation which may be claimed by any
broker which was engaged or which claims to have been engaged by Seller and all
expenses and costs in handling or defending any such demand or claim, including
reasonable attorney's fees.
9.2 Leasing Commissions.
Seller shall pay all leasing commissions payable under Leases executed
prior to November 14, 1996 except for commissions payable by reason of any
expansion, extension or renewal of such Leases (to the extent such expansions,
extensions or renewals are pursuant to option rights expressly set forth in such
Leases as of November 14, 1996) occurring on or after the date hereof which
shall be paid by Buyer. A summary of the business terms of any amendment,
renewal or expansion of an existing Lease (unless such renewal or expansion is
pursuant to the terms (existing as of November 14, 1996) of an existing Lease,
in which case Seller and Buyer agree that any such renewal or expansion shall be
effective upon the valid exercise by a tenant pursuant to the terms of any such
existing Lease and that any such renewals or expansions are hereby deemed
approved by Buyer) or of any new Lease which Seller wishes to execute between
November 14, 1996 and the Date of Closing will be submitted to Buyer prior to
execution by Seller. Buyer agrees to notify Seller in writing within five (5)
business days after its receipt thereof of either its approval or disapproval
thereof, including all leasing commissions, tenant improvement and inducement
payments to be incurred in connection therewith. In the event Buyer informs
Seller within such five (5) business day period that Buyer does not approve the
amendment, renewal or expansion of the existing Lease or the new Lease, which
approval shall not be unreasonably withheld, Seller shall have the right to
terminate this Agreement by written notice thereof to Buyer within five (5)
business days after Seller's receipt of written notice of Buyer's disapproval
thereof, or Seller shall not proceed with such amendment, renewal or expansion
of the existing Lease or new Lease. In the event Buyer fails to notify Seller in
writing of its approval or disapproval within the five (5) business day period
set forth above, Buyer shall be deemed to have approved such new Lease,
amendment, renewal or expansion. All leasing commissions and tenant improvement
costs with respect to any such amendment, renewal, expansion or new lease
approved or deemed approved by Buyer as set forth above in this Section 9.2
shall be the obligation of Buyer.
20
9.3 Lease Expense Reimbursement and Assumption.
At Closing, Buyer shall (i) reimburse Seller for all leasing commissions,
tenant improvement or inducement payments, attorney's fees and other fees paid
or expenses incurred by Seller under Leases, expansions, extensions, or renewals
made on or after November 14, 1996, if any, which have been approved or deemed
approved by Buyer pursuant to Section 9.2, and (ii) assume all obligations of
the landlord under Leases which either (a) arise after Closing or (b) are
continuing covenants of the landlord which apply after Closing, if any.
10. NOTICES
All notices, requests or demands to a party hereunder shall be in writing
and shall be effective (i) when received by overnight courier service or
facsimile telecommunication (provided that a copy of such notice, request or
demand is deposited into the United States mail within one (1) business day of
the facsimile transmission), or (ii) three (3) days after being deposited into
the United States mail (sent certified or registered, return receipt requested),
in each case addressed as follows (or to such other address as Buyer or Seller
may designate in writing in accordance with this Section 10):
If to Seller:
St. Xxxx Properties, Inc.
000 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Phone No. (000) 000-0000
Fax No. (000) 000-0000
With a copy to:
Xxxxxxxxxxx Xxxxx & Xxxxxxxx
3400 Plaza VII
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Phone No. (000) 000-0000
Fax No. (000) 000-0000
If to Buyer:
Corporate Realty Income Fund I, L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
Phone No. (000) 000-0000
Fax No. (000) 000-0000
21
With a copy to:
Xxxxxx & Xxxxxx
35th Floor
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Phone No. (000) 000-0000
Fax No. (000) 000-0000
11. MISCELLANEOUS
11.1 Time.
Time is of the essence in the performance of each party's obligations
hereunder.
11.2 Attorneys' Fees.
If any legal action, arbitration or other proceeding is commenced to
enforce or interpret any provision of this Agreement, the prevailing party shall
be entitled to an award of its attorneys' fees and expenses. The phrase
"prevailing party" shall include a party who receives substantially the relief
desired whether by dismissal, summary judgment, judgment or otherwise.
11.3 No Waiver.
No waiver by any party of the performance or satisfaction of any covenant
or condition shall be valid unless in writing and shall not be considered to be
a waiver by such party of any other covenant or condition hereunder.
11.4 Entire Agreement.
This Agreement contains the entire agreement between the parties regarding
the Property and supersedes all prior agreements, whether written or oral,
between the parties regarding the same subject. This Agreement may only be
modified in writing.
11.5 Survival.
Except for (i) the representations and indemnity obligations of Buyer and
Seller under this Agreement, (ii) the post-closing obligations of Buyer and
Seller under this Agreement and (iii) as otherwise specifically provided in this
Agreement, none of the agreements, warranties and representations contained
herein shall survive Closing.
22
11.6 Successors.
Subject to Section 11.7, this Agreement shall bind and inure to the benefit
of the parties hereto and to their respective legal representatives, successors
and permitted assigns.
11.7 Assignment.
Seller's written consent shall be required for any assignment of Buyer's
rights to a nominee under this Agreement. Any attempted unpermitted assignment,
except with Seller's prior written consent, shall be ineffective and shall
constitute a default under this Agreement provided Buyer shall be entitled to
assign its rights under this Agreement to a wholly owned affiliate of Buyer
without Seller's consent. Notwithstanding any assignment hereunder, Buyer shall
remain liable for the obligations of Buyer under this Agreement. Buyer
represents, warrants and certifies to Seller that Buyer has not assigned,
transferred or encumbered or agreed to assign, transfer or encumber, directly or
indirectly, all or any portion of its rights or obligations under this
Agreement. Buyer shall give written notice of any proposed assignment at least
five (5) business days prior to Closing. If Seller approves such assignment (or
in the case of a permitted transfer to a wholly owned affiliate), Seller shall
have no obligation to reissue any estoppels, surveys, or title commitments
previously delivered to Buyer, nor shall Seller be responsible for any costs or
expenses of any nature associated with such transfer.
11.8 Relationship of the Parties.
The parties acknowledge that neither party is an agent for the other party,
and that neither party shall or can bind or enter into agreements for the other
party.
11.9 Governing Law.
This Agreement and the legal relations between the parties hereto shall be
governed by and construed in accordance with the laws of the State of Texas.
11.10 Possession: Risk of Loss.
Seller shall deliver to Buyer possession of the Property on the Closing
Date, subject only to the Leases and any existing tenancies, and Permitted
Exceptions. All risk of loss or damage with respect to the Property shall pass
from Seller to Buyer on the Closing Date.
11.11 Review by Counsel.
The parties acknowledge that each party and its counsel have reviewed and
approved this Agreement, and the parties hereby agree that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments or exhibits hereto.
23
11.12 Confidentiality.
(a) Seller and Buyer hereby covenant and agree that, at all times after
the date of execution hereof and prior to the Closing, unless
consented to in writing by the other party, no press release or other
public disclosure concerning this transaction shall be made, and each
party agrees to use best efforts to prevent disclosure of this
transaction, other than (i) to directors and officers of the parties,
limited partners of Buyer, and employees, prospective mortgage
lenders of Buyer, attorneys, accountants, agents and affiliates of the
parties who are involved in the ordinary course of business with this
transaction, all of which shall be instructed to comply with the
confidentiality provisions hereof; (ii) in response to lawful process
or subpoena or other valid or enforceable order of a court of
competent jurisdiction; (iii) in compliance with any filings required
by the Securities and Exchange Commission ("SEC") or other federal or
state agency.
(b) Notwithstanding anything to the contrary contained elsewhere herein,
Buyer hereby acknowledges that all information furnished by Seller to
Buyer or obtained by Buyer in the course of Buyer's investigation of
the Property, or in any way arising from or relating to any and all
studies or entries upon the Property by Buyer, its agents or
representatives, shall be treated as confidential information and
further, that if any such confidential information is disclosed to
third parties prior to the Closing, Seller may suffer damages and
irreparable harm. In connection therewith, Buyer hereby expressly
understands, acknowledges and agrees (i) that Buyer will not disclose
any of the contents or information contained in or obtained as a
result of any reports or studies made in connection with a Buyer's
investigation of the Property, in any form whatsoever (including, but
not limited to, any oral information received by Buyer during the
course of Buyer's inspection of the Property), to any party prior to
the Closing other than (a) the Seller, Seller's employees, agents or
representatives, or Buyer's agents, employees, representatives,
attorneys, consultants or potential institutional lenders, without the
prior express written consent of Seller (which consent shall not be
unreasonably withheld), (b) in response to lawful process or subpoena
or other valid and or enforceable order of a court of competent
jurisdiction, and (c) as required by the SEC or other federal or state
agency; (ii) that in making any disclosure of such information as
permitted hereunder, Buyer will advise said parties of the
confidentiality of such information and the potential of damage to
Seller as a result of any disclosure of such information by said third
party, and (iii) that Seller is relying on Buyer's covenant not to
disclose any of the contents or information contained in any such
reports or investigations to third parties (all of which is deemed to
be confidential information by the provisions of this Section). In the
event this Agreement is terminated, Buyer agrees to return to Seller
all information, studies, or reports Buyer or Buyer's agents have
obtained from Seller or Seller's agents, contractors or
representatives with respect to the Property or the condition of the
Property. In the event either Buyer or Buyer's agents, employees,
representatives, attorneys, consultants or potential institutional
24
lenders causes a breach of Buyer's duty of confidentiality hereunder,
Buyer shall be liable to Seller for damages and Seller may pursue all
of its remedies afforded it under this Agreement.
11.13 Termination.
Upon termination of this Agreement for any reason by either party, Buyer
shall have the obligation to return to Seller all Due Diligence Documents and
copies thereof (including the Survey) and any other information or documentation
received by Buyer from Seller or Seller's agents with respect to the Property
and shall not disclose to any third party the contents thereof. Seller shall not
have any obligation to return any sums due Buyer, upon any termination of this
Agreement by Buyer, until the Due Diligence Documents and copies thereof
(including the Surveys) and such other information or documents provided to
Buyer by Seller or Seller's agents have been returned to Seller.
11.14 Intentionally Omitted.
11.15 Counterparts.
This Agreement may be executed in one or more counterparts, each of which
will be deemed an original, and the counterparts taken together shall constitute
a single agreement.
12. LIQUIDATED DAMAGES
If Buyer is unable or fails to consummate the transactions under this
Agreement, Seller shall be entitled to terminate this Agreement and Buyer shall
pay the amount of the Deposit described in Section 2.1 plus any accrued interest
thereon (the "Specified Sum") to Seller as liquidated damages. SELLER AND BUYER
ACKNOWLEDGE THAT SELLER'S DAMAGES WOULD BE DIFFICULT TO DETERMINE, AND THAT THE
SPECIFIED SUM IS A REASONABLE ESTIMATE OF SELLER'S DAMAGES. SELLER AND BUYER
FURTHER AGREE THAT THIS SECTION 12 IS INTENDED TO AND DOES LIQUIDATE THE AMOUNT
OF DAMAGES DUE SELLER, AND SHALL BE SELLER'S EXCLUSIVE REMEDY AGAINST BUYER,
BOTH AT LAW AND IN EQUITY ARISING FROM OR RELATED TO A BREACH BY BUYER OF ITS
OBLIGATION TO CONSUMMATE THE
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
25
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. PROVISIONS OF THIS SECTION 12 SHALL
NOT BE CONSTRUED AS A LIMITATION ON THE INDEMNIFICATION OBLIGATIONS OF BUYER
UNDER SECTION 5.3(b) HEREOF.
13. NO RECORDING
The provisions hereof shall not constitute a lien on the Property and this
Agreement shall not be placed or suffered to be placed by Buyer for recording
with the office of the recorder (clerk) for the county in which the Property is
located. Buyer hereby appoints Seller as Buyer's true and lawful
attorney-in-fact, coupled with an interest, for the purposes of the execution of
such documents and doing such acts as shall be necessary to effect the discharge
of the recording of this Agreement if such recording shall have been
accomplished in violation of the Section.
14. EFFECTIVENESS
This Agreement shall only be effective if a counterpart is signed by both
Seller and Buyer.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
SELLER:
ST. XXXX PROPERTIES, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
------------------------
Xxxxx X. Xxxxx
Its: President
BUYER:
CORPORATE REALTY INCOME FUND I, L.P.
a Delaware limited partnership
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------
Xxxxxx X. Xxxxxxx, Xx.
Its: General Partner
26
EXHIBIT B
XXXX OF SALE
THIS XXXX OF SALE (the "Xxxx of Sale") is made as of the ________ day of
______________, 1997 by ST. XXXX PROPERTIES, INC., a Delaware corporation
("Seller"), in favor of CORPORATE REALTY INCOME FUND I, L.P. a Delaware limited
partnership ("Buyer").
Seller and Buyer are parties to a Purchase and Sale Agreement (the
"Purchase Agreement") dated ________, 1997 which provides for the sale of a
certain parcel of real property (the "Property") located in the State of Texas
as legally described on Exhibit A attached hereto.
In connection with the Purchase Agreement, Seller is required to convey to
Buyer certain items of tangible personal property as hereinafter described.
NOW THEREFORE, in consideration of TEN AND NO/100 DOLLARS ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller hereby CONVEYS AND TRANSFERS to Buyer, its legal
representatives, successors and assigns, all of its right, title and interest in
and to personal property located on the Property (excluding computer hardware
and software and property owned or used by Seller's agents) relating to the
ownership, use, maintenance or operation of the Property as set forth in Exhibit
B attached hereto.
SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE CONDITION OF THE
PERSONAL PROPERTY OR ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
BY ITS ACCEPTANCE OF THIS XXXX OF SALE BUYER ACKNOWLEDGES THAT IT HAS FULLY
INSPECTED THE PERSONAL PROPERTY AND BUYER ACCEPTS THE SAME IN ITS PRESENT USED
AND "AS IS" CONDITION.
IN WITNESS WHEREOF, the foregoing Xxxx of Sale was executed as of the date
first set forth above.
ST. XXXX PROPERTIES, INC.
By:______________________________
Xxxxx X. Xxxxx
Its: President
B-1
State of Minnesota )
)ss.
County of Xxxxxx )
This instrument was acknowledged before me on this _____ day of
____________, 1997 by Xxxxx X. Xxxxx, the President of St. Xxxx Properties,
Inc., on behalf of said corporation.
--------------------------
Notary Public
My Commission Expires:_________________
B-2
EXHIBIT A
TO XXXX OF SALE
Legal Description
B-3
EXHIBIT B
TO XXXX OF SALE
Personal Property
B-4
EXHIBIT C
---------
ASSIGNMENT AND ASSUMPTION AGREEMENT
-----------------------------------
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment"), is made as of
the ____ day of __________, 1997 by and between ST. XXXX PROPERTIES, INC., a
Delaware corporation ("Assignor") and CORPORATE REALTY INCOME FUND I, L.P., a
Delaware limited partnership ("Assignee").
RECITALS
Assignor, as seller, and Assignee, as buyer, are parties to a Purchase
and Sale Agreement ("Purchase Agreement") dated ___________, 1997, which
provides for the sale of certain real property (the "Property") located in the
State of Texas, as legally described on Exhibit A attached hereto; and
The Purchase Agreement provides, inter alia, (i) that Assignor shall
assign to Assignee certain leases, commission agreements, service contracts,
warranties, guarantees and trade name, (ii) that Assignee shall assume all of
the obligations of Seller thereunder from and after the date of such assignment,
and (iii) that Assignor and Assignee shall execute this Assignment.
NOW, THEREFORE, in consideration of TEN AND NO/100 DOLLARS ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. As used herein, the following terms have the following
meanings:
A. Accrued Obligations. Monetary obligations or rights to damages which
accrued or arose on or prior to the date hereof under any of the Assigned
Property, as defined below. Accrued Obligations do not include obligations to
pay leasing commissions (i) with respect to new leases made on or after November
14, 1996 approved or deemed approved by Buyer pursuant to Article 9 of the
Purchase Agreement, or (ii) with respect to any lease expansions, renewals,
modifications, amendments or extensions which occur on or after November 14,
1996 pursuant to leases made before that date which have been approved or deemed
approved by Buyer pursuant to Article 9 of the Purchase Agreement.
B. Assumed Obligations. Except for Accrued Obligations, all obligations
of Seller under the Assigned Property, as defined below.
2. Assignment. Assignor hereby conveys and assigns to Assignee all of
its right title and interest in, to and under the following (collectively, the
"Assigned Property"):
C-1
A. those certain tenant space leases set forth on Exhibit B attached
hereto;
B. those certain equipment leases set forth on Exhibit C attached
hereto, to the extent assignable;
C. those certain commission agreements set forth on Exhibit D attached
hereto, to the extent assignable;
D. those certain service and maintenance contracts set forth on Exhibit
E attached hereto, to the extent assignable;
E. all permits and licenses held by Assignor pertaining to the Property,
to the extent assignable;
F. all unexpired warranties, permits, approvals, licenses, legal
certificates, and authorizations pertaining to the Property, to the extent
assignable;
G. the trade name "Alamo Towers", except that this assignment is made
without warranty of title to such name or of Assignee's right to the exclusive
use of such name, and Assignee hereby acknowledges that Assignor may never have
used or registered such trade name; and
H. all other intangibles pertaining to the Property, to the extent
assignable.
3. Assumption. Assignee hereby assumes and agrees timely to perform the
Assumed Obligations.
4. Indemnity. Assignee hereby indemnifies and agrees to defend and hold
harmless Assignor from any loss, cost, claim, liability expense or demand of
whatever nature arising from any breach or failure of Assignee to observe or
perform any of the Assumed Obligations. Assignor hereby indemnifies and agrees
to defend and hold harmless Assignee from any loss, cost, claim, liability,
expense or demand of whatever nature arising from any breach or failure of
Assignor to observe or perform any of the Accrued Obligations.
5. Claims. As a condition to liability of Other Party hereunder, the
claiming party ("Claiming Party") shall notify the other party ("Other Party"),
in writing, of any claim ("Claim") covered by this Assignment within a
reasonable time after the assertion thereof by a third party against Other
Party. In the event of such a notice of a Claim by Claiming Party to Other
Party, Other Party shall have ten (10) days after receipt thereof in which to
undertake the defense of the Claim on behalf of itself and Claiming Party. If
Other Party so undertakes to defend said Claim on behalf of itself and Claiming
Party, it shall retain and pay counsel to conduct such defense. Such counsel
shall be subject to the approval of the Claiming Party which approval shall not
be unreasonably withheld or delayed. Claiming Party may employ its own counsel
to work with Other Party as counsel in connection with the defense of said
Claim, but Claiming Party shall pay all fees and disbursements of said counsel.
Other Party may settle the Claim, without the
C-2
consent of Claiming Party, to the extent the settlement does not bind Claiming
Party or impose any obligation on Claiming Party. If Claiming Party would have
any liability for the payment and/or performance of any settlement, Claiming
Party's written consent thereto must be obtained by Other Party in order for
said settlement to be binding upon Claiming Party.
If Other Party refuses or fails to so undertake to defend the Claim,
Claiming Party may defend the same on its own behalf, may retain and pay counsel
to conduct such defense and may settle the Claim, without the consent of Other
Party. Other Party shall then reimburse Claiming Party (a) for all reasonable
costs, including court costs and reasonable attorneys' fees, incurred by
Claiming Party in connection with said defense and/or any such settlement, (b)
for all sums paid by Claiming Party in accordance with any such settlement, and
(c) for all sums paid pursuant to any judgment entered against Claiming Party in
connection therewith.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
as of the date first set forth above.
ASSIGNOR:
ST. XXXX PROPERTIES, INC.
By:_________________________________
Xxxxx X. Xxxxx
Its: President
ASSIGNEE:
CORPORATE REALTY INCOME FUND I, L.P.
By:_________________________________
Xxxxxx X. Xxxxxxx, Xx.
Its: General Partner
C-3
EXHIBIT A
TO ASSIGNMENT AND ASSUMPTION AGREEMENT
Legal Description
C-4
EXHIBIT B
TO ASSIGNMENT AND ASSUMPTION AGREEMENT
Tenant Space Leases
C-5
EXHIBIT C
TO ASSIGNMENT AND ASSUMPTION AGREEMENT
Equipment Leases
NONE
C-6
EXHIBIT D
TO ASSIGNMENT AND ASSUMPTION AGREEMENT
Commission Agreements
No Assignable Commission Agreements
C-7
EXHIBIT E
TO ASSIGNMENT AND ASSUMPTION AGREEMENT
Service and Maintenance Contracts
C-8
EXHIBIT H
FORM OF DEED
-------------
RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
___________________________
___________________________
___________________________
Attn:
--------------------------------------------------------------------------------
SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE
SPECIAL WARRANTY DEED
THE STATE OF MINNESOTA )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF XXXXXX )
THAT, ST. XXXX PROPERTIES, INC., a Delaware corporation ("Grantor"), for
and in consideration of the sum of Twelve Million and No/l00ths Dollars
($12,180,000.00) and other good and valuable consideration in hand paid to
Grantor by CORPORATE REALTY INCOME FUND I, L.P., a Delaware limited partnership
("Grantee"), whose mailing address is 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, the receipt and sufficiency of such consideration being hereby
acknowledged, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT,
SELL AND CONVEY unto Grantee that certain real property being more particularly
described in Exhibit A attached hereto and made a part hereof for all purposes,
together with all improvements and fixtures situated thereon (collectively, the
"Property"); subject to those matters more particularly described in Exhibit B
attached hereto and made a part hereof for all purposes (collectively, the
"Permitted Exceptions").
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in any way belonging, unto Grantee, its
successors and assigns forever, subject to the Permitted Exceptions; and Grantor
does hereby bind itself and its successors to WARRANT AND FOREVER DEFEND all and
singular the Property, subject to the Permitted Exceptions, unto Grantee, its
successors and assigns, against every person whomsoever lawfully claiming, or
claim the same, or any part thereof, by, through, or under Grantor, but not
otherwise.
H-1
NOT WITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT GRANTEE IS ACQUIRING THE PROPERTY "AS IS" AND "WHERE
IS", AND WITH ALL FAULTS AND THAT, EXCEPT AS TO THE SPECIAL WARRANTY OF TITLE
SET FORTH ABOVE AND EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF GRANTOR
EXPRESSLY SET FORTH IN SECTION 6.1 OF THE PURCHASE AND SALE AGREEMENT BETWEEN
GRANTOR AND GRANTEE DATED AS OF JANUARY 28, 1997 ("PURCHASE AGREEMENT") (AS SUCH
REPRESENTATIONS AND WARRANTIES ARE LIMITED BY THE LAST FOUR PARAGRAPHS OF SAID
SECTION 6.1 OF THE PURCHASE AGREEMENT), GRANTOR HAS NOT MADE AND DOES NOT MAKE
ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, IN THIS SPECIAL
WARRANTY DEED WITH RESPECT TO THE QUALITY, PHYSICAL CONDITION, EXPENSES, VALUE
OF THE PROPERTY OR IMPROVEMENTS THEREON, HANDICAPPED ACCESSIBILITY LAW
COMPLIANCE, PRESENCE/ABSENCE OF HAZARDOUS MATERIALS, ELECTRIC AND MAGNETIC
FIELDS OR ABOVE/BELOW GROUND STORAGE TANKS, OR ANY OTHER MATTER OR THING
AFFECTING OR RELATED TO THE PROPERTY (INCLUDING, WITHOUT LIMITATION, WARRANTIES
OF HABITABILITY, WARRANTIES OF MERCHANTABILITY AND/OR OF FITNESS FOR A
PARTICULAR PURPOSE), WHICH MIGHT BE PERTINENT IN CONSIDERING THE MAKING OF THE
PURCHASE OF THE PROPERTY, AND GRANTEE, BY ITS ACCEPTANCE HEREOF, DOES HEREBY
RELEASE AND FOREVER DISCHARGE GRANTOR AND ITS OFFICERS, DIRECTORS, AGENTS,
EMPLOYEES, SUCCESSORS AND ASSIGNS FROM ANY AND ALL CLAIM, OBLIGATION AND
LIABILITY (WHETHER BASED IN TORT, UNDER CONTRACT OR OTHERWISE) ATTRIBUTABLE, IN
WHOLE OR IN PART, TO ANY SUCH REPRESENTATION AND/OR ALLEGED REPRESENTATION.
IN WITNESS WHEREOF, Grantor has executed this Special Warranty Deed as
of ____________________________, 1997.
"Grantor"
ST. XXXX PROPERTIES, INC.,
a Delaware corporation
By:____________________________
Xxxxx X. Xxxxx
Its: President
Grantee's Address:
-----------------
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
X-0
XXXXX XX XXXXXXXXX )
) ss.
COUNTY OF XXXXXX )
On December ____, 1996 before me, a Notary Public, personally appeared
Xxxxx X. Xxxxx,
[ ] personally known to me [ ] proved to me on the basis of
satisfactory evidence
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
--------------------------------
Signature of Notary
CAPACITY CLAIMED BY SIGNER:
[ ] Individual (s) [ ] Attorney-in-Fact
[ ] Partner(s) [ ] Subscribing Witness
[ ] Trustee(s) [ ] Guardian/Conservator
[ ] Corporate ___________________ [ ] Other:
Officer(s)____________________
SIGNER IS REPRESENTING:
Name of Person(s) or Entity(ies):
H-3
EXHIBIT A
TO SPECIAL WARRANTY DEED
Legal Description
H-4
LEGAL DESCRIPTION OF LAND
-------------------------
A 8.154 acre tract of land, said tract being all of Xxx 00, Xxxxx 0, XXX 00000,
Xxxxx Savings Subdivision, Unit 1-B as recorded in Volume 8900, Page 210, Deed
and Plat Records of Bexar County, Texas, and 5.002 acres out of Xxx 00, Xxxxx 0,
XXX 00000, Xxxxx Savings Subdivision, Unit 1-A, as recorded in Volume 8700, Page
239, Deed and Plat Records of Bexar County, Texas, said 8.154 acre tract being
more particularly described by metes and bounds, as follows:
BEGINNING: At a point in the north R.O.W. line of N.E. Loop 410 said point
being at the southwest end of a cut off line from the westerly
R.O.W. line of N. New Braunfels Avenue, for the southeast corner
of above referenced Lot 29;
THENCE: N 85(degree)36'20" W, with the north R.O.W. line of N.E. Loop
410, a distance of 691.32 feet to an angle point;
THENCE: N 83(degree)31'14" W, continuing along said north R.O.W. line of
N.E. Loop 410, a distance of 141.70 feet to a point for the
southwestern most corner of said 8.154 acre tract; said point
being the southwest corner of said Xxx 00, Xxxxx 0, XXX 00000;
THENCE: Along the west line of said Xxx 00, Xxxxx 0, XXX 00000, the
following bearings and distances:
N 06(degree)26'19" E, a distance of 125.02 feet to a point for
corner;
N 83(degree)31'44" W, a distance of 140.38 feet to a point for
corner;
N 40(degree)21'04" E, a distance of 212.71 feet to a point for
corner;
N 47(degree)51'57" W, a distance of 97.33 feet to a point for
corner;
N 41(degree)27'51" E, a distance of 220.05 feet to a point in
the southwest R.O.W. line of Xxxxxxx Alley (30' R.O.W.) for the
northwest corner of said 8.154 acre tract of land, said point
being the northwest corner of said Xxx 00, Xxxxx 0, XXX 00000;
THENCE: S 48(degree)39'51" E, along said southwest R.O.W. line of
Xxxxxxx Alley, a distance of 235.21 feet to an angle point;
THENCE: S 85(degree)08'05" E, along the south line of said Xxxxxxx
Alley, a distance of 426.59 feet to a point for the northeast
corner of said 8.154 acre tract;
THENCE: S 05(degree)21'10" W, a distance of 135.25 feet to a point for
corner;
THENCE: S 89(degree)15'41" E, a distance of 51.10 feet to an angle
point;
Page 1 of 0
XXXXXXX "X" (Xxxx.)
THENCE: S 85(degree)44'12" E, a distance of 153.05 feet to a point in
the west R.O.W. line of N. New Braunfels Avenue for corner of
said 8.154 acre tract;
THENCE: S 04(degree)52'30" W, with the west line of N. New Braunfels
Avenue, a distance of 241.54 feet to a point at the northeast
end of a cut off line from the north R.O.W. line of N.E. Loop
410;
THENCE: S 51(degree)15'48" W, along said cut off line a distance of
35.82 feet to the Point of BEGINNING and containing 8.154 acres
of 355,199. square feet of land, more or less.
Page 2 of 2
EXHIBIT B
TO SPECIAL WARRANTY DEED
Permitted Exceptions
H-5
