EXHIBIT 10.46
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
FOR THE DIAL BUILDING
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
-----------------------------------------------
THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (the "Agreement"), is
made and entered into as of the 23rd day of February, 2000, by and between XXXX
COMPANIES US, INC., a Minnesota corporation ("Seller") and XXXXX CAPITAL, INC.,
a Georgia corporation ("Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property (as hereinafter defined) subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, the mutual
agreements contained herein, the sum of Ten Dollars ($10.00) in hand paid by
Purchaser to Seller at and before the sealing and delivery of these presents and
for other good and valuable consideration, the receipt, adequacy, and
sufficiency which are hereby expressly acknowledged by the parties hereto, the
parties hereto do hereby covenant and agree as follows:
1. Purchase and Sale of Property. Subject to and in accordance with the
-----------------------------
terms and provisions of this Agreement, Seller hereby agrees to sell to
Purchaser and Purchaser hereby agrees to purchase from Seller, the Property,
which term "Property" shall mean and include the following:
(a) All that tract or parcel of land (the "Land") known as Xxxx 0 xxx
0, Xxxxxxxxxx Xxxxxxx Xxxxx, per Book 390 of Maps, page 33, records of
Maricopa County, Arizona, containing approximately 8.8375 acres, having an
address of 00000 X. Xxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx, and being more
particularly described on Exhibit "A" hereto; and
-----------
(b) All right, title and interest of Seller in and to all rights,
privileges, and easements appurtenant to the Land, including all water
rights, mineral rights, reversions, or other appurtenances to said Land,
and all right, title, and interest of Seller, if any, in and to any land
lying in the bed of any street, road, alley, or right-of-way, open or
proposed, adjacent to or abutting the Land; and
(c) All right, title and interest of Seller in and to all buildings,
structures, and improvements situated on the Land, including, without
limitation, that certain two story office building containing approximately
129,689 square feet of leasable space, the parking areas containing
approximately 523 parking spaces and other amenities located on the Land,
and all apparatus, built-in appliances, equipment, pumps, machinery,
plumbing, heating, air conditioning, electrical and other fixtures located
on the Land (all of which are herein collectively referred to as the
"Improvements"); and
(d) all personal property now owned by Seller and located on or to be
located on or in, or used in connection with, the Land and Improvements
("Personal Property"); and
(e) all of Seller's right, title, and interest, as landlord or
lessor, in and to that certain Single Tenant Lease Agreement with The Dial
Corporation, a Delaware corporation (the "Tenant") dated March 21, 1997, as
amended by letter dated August 7, 1997 (the"Lease"); and
(f) all of Seller's right, title, and interest in and to the plans
and specifications with respect to the Improvements and any guarantees,
trademarks, rights of copyright, warranties, or other rights related to the
ownership of or use and operation of the Land, Personal Property, or
Improvements, all governmental licenses and permits, and all intangibles
associated with the Land, Personal Property, and Improvements, including
the name of the Improvements and the logo therefor, if any.
2. Xxxxxxx Money. Within two (2) business days after the full execution
-------------
of this Agreement, Purchaser shall deliver to Old Republic Title Agency ("Escrow
Agent"), whose offices are at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX
00000, Purchaser's check, payable to Escrow Agent, in the amount of $100,000
(the "Xxxxxxx Money"), which Xxxxxxx Money shall be held and disbursed by Escrow
Agent in accordance with this Agreement. The Xxxxxxx Money shall be paid by
Escrow Agent to Seller at Closing (as hereinafter defined) and shall be applied
as a credit to the Purchase Price (as hereinafter defined), or shall otherwise
be paid to Seller or refunded to Purchaser in accordance with the terms of this
Agreement. All interest and other income from time to time earned on the Xxxxxxx
Money shall belong to Purchaser and shall be disbursed to Purchaser at any time
or from time to time as Purchaser shall direct Escrow Agent. In no event shall
any such interest or other income be deemed a part of the Xxxxxxx Money.
3. Purchase Price. Subject to adjustment and credits as otherwise
--------------
specified in this Agreement, the purchase price (the "Purchase Price") to be
paid by Purchaser to Seller for the Property shall be FOURTEEN MILLION TWO
HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($14,250,000.00). The Purchase Price
shall be paid by Purchaser to Seller at the Closing (as hereinafter defined) by
cashier's check or by wire transfer of immediately available federal funds, less
the amount of Xxxxxxx Money and subject to prorations, adjustments and credits
as otherwise specified in this Agreement.
4. Purchaser's Inspection and Review Rights. Subject to the rights of the
----------------------------------------
Tenant, Purchaser and its agents, engineers, or representatives, with Seller's
reasonable, good faith cooperation, shall have the privilege of going upon the
Property as needed to inspect, examine, test, and survey the Property at all
reasonable times and from time to time. Purchaser hereby agrees to hold Seller
harmless from any liens, claims, liabilities, and damages incurred through the
exercise of such privilege, and Purchaser further agrees to repair any damage to
the Property caused by the exercise of such privilege. At all reasonable times
prior to the Closing (as hereinafter defined), Seller shall make available to
Purchaser, or Purchaser's agents and representatives, for review and copying,
all books, records, and files in Seller's possession relating to the ownership
and operation of the Property, including, without limitation, title matters,
surveys, tenant files, service and maintenance agreements, and other contracts,
books, records, operating statements, and other information relating to the
Property. Seller further agrees to in good faith assist and cooperate with
Purchaser in coming to a thorough understanding of the books, records, and files
relating to the Property.
2
Seller further agrees to provide to Purchaser (to the extent the same have not
previously been provided to Purchaser) prior to the date which is five (5) days
after the effective date of this Agreement (a) the most current boundary and
"as-built" surveys of the Land and Improvements and any title insurance
policies, appraisals, occupancy permits, building inspection reports and
environmental reports relating thereto and in the possession or under the
control of Seller, and (b) a statement setting forth all revenues from the
Property and setting forth all costs and expenses of operating, maintaining, and
repairing the Property (and the costs of replacing component parts thereof)
incurred by Seller, in each case during the entire period from February 1, 1998,
through January 31, 2000, which statement shall be certified by Seller to the
best of Seller's knowledge after diligent inquiry and review of records, to be
complete and accurate in all material respects. Seller acknowledges that
Purchaser may be required by the Securities and Exchange Commission to file
audited financial statements for one to three years with regard to the Property.
At no cost or liability to Seller, Seller shall (i) cooperate with Purchaser,
its counsel, accountants, agents, and representatives, provide them with access
to Seller's books and records with respect to the ownership, management,
maintenance, and operation of the Property for the applicable period, and permit
them to copy the same, (ii) execute a form of "rep" letter in form and substance
reasonably satisfactory to Seller, and (iii) furnish Purchaser with such
additional information concerning the same as Purchaser shall reasonably
request. Purchaser will pay the costs associated with any such audit.
5. Special Condition to Closing. Purchaser shall have thirty (30) days
----------------------------
from the effective date of this Agreement (the "Inspection Period") to make
investigations, examinations, inspections, market studies, feasibility studies,
lease reviews, and tests relating to the Property and the operation thereof in
order to determine, in Purchaser's sole opinion and discretion, the suitability
of the Property for acquisition by Purchaser. Purchaser shall have the right to
terminate this Agreement at any time prior to the expiration of the Inspection
Period by giving written notice to Seller of such election to terminate. In the
event Purchaser so elects to terminate this Agreement, Seller shall be entitled
to receive and retain the sum of Twenty-Five Dollars ($25.00) of the Xxxxxxx
Money, and the balance of the Xxxxxxx Money shall be promptly refunded by Escrow
Agent to Purchaser, whereupon, except as expressly provided to the contrary in
this Agreement, no party hereto shall have any other or further rights or
obligations under this Agreement. Seller acknowledges that the sum of $25.00 is
good and adequate consideration for the termination rights granted to Purchaser
hereunder.
6. General Conditions Precedent to Purchaser's Obligations Regarding the
---------------------------------------------------------------------
Closing. In addition to the conditions to Purchaser's obligations set forth in
-------
Paragraph 5 above, the obligations and liabilities of Purchaser hereunder shall
in all respects be conditioned upon the satisfaction of each of the following
conditions, any of which may be waived by written notice from Purchaser to
Seller:
(a) Seller shall have complied in all material respects with and
otherwise performed in all material respects each of the covenants and
obligations of Seller set forth in this Agreement, as of the date of
Closing (as hereinafter defined).
3
(b) All representations and warranties of Seller as set forth in this
Agreement shall be true and correct in all material respects as of the date
of Closing.
(c) There shall have been no adverse change to the title to the
Property which has not been cured and the Title Company (as hereinafter
defined) shall have issued the Title Commitment (as hereinafter defined) on
the Land and Improvements without exceptions other than as described in
paragraph 7 and the Title Company shall be prepared to issue to Purchaser
upon the Closing a leasehold owner's title insurance policy on the Land and
Improvements pursuant to such Title Commitment.
(d) Purchaser shall have received the Tenant Estoppel Certificate
referred to in Paragraph 9(c) hereof, duly executed by the Tenant at least
five (5) days prior to the end of the Inspection Period.
(e) Purchaser shall have received the Estoppel Certificate Regarding
Declaration referred to in Paragraph 9(d) hereof, duly executed by the
declarant thereunder at least five (5) days prior to the end of the
Inspection Period.
7. Title and Survey. Seller covenants and agrees that Seller, at its sole
----------------
cost and expense, shall, on or before ten (5) days after the Effective Date of
this Agreement, cause Old Republic National Title Insurance Company, or such
other such title insurance company acceptable to Purchaser (herein referred to
as the "Title Company"), to deliver to Purchaser its commitment (herein referred
to as the "Title Commitment") to issue to Purchaser, upon the recording of the
Special Warranty Deed, the payment of the Purchase Price, and the payment to the
Title Company of the policy premium therefor, an owner's policy of title
insurance, in the amount of the Purchase Price, insuring good and marketable
record title to the Property to be in Purchaser subject only to the Permitted
Exceptions (as hereinafter defined), with affirmative coverage over any
mechanic's, materialman's and subcontractor's liens and with full extended
coverage over all general exceptions, and containing the following endorsements:
zoning (including affirmative coverage against any violations of recorded
covenants and restrictions), survey, and access. Such Title Commitment shall
not contain any exception for rights of parties in possession other than an
exception for the right of the Tenant under the Lease. If the Title Commitment
shall contain an exception for the state of facts which would be disclosed by a
survey of the Property or an "area and boundaries" exception, the Title
Commitment shall provide that such exception will be deleted upon the
presentation of an ALTA/ASCM survey acceptable to Title Company, in which case
the Title Commitment shall be amended to contain an exception only for the
matters shown on the as-built survey which Seller shall obtain at its sole cost
and expense for the benefit of Purchaser. Said survey shall include a
certification that the Property is zoned in a classification which will permit
the operating of the Property as an office building and any conditions to the
granting of such zoning have been satisfied. Seller shall also cause to be
delivered to Purchaser together with such Title Commitment, legible copies of
all documents and instruments referred to therein. Purchaser, upon receipt of
the Title Commitment and the copies of the documents and instruments referred to
therein, shall then have ten (10) days during which to examine the same, after
which Purchaser shall notify Seller of
4
any defects or objections affecting the marketability of the title to the
Property. Seller shall then have until the Closing to cure such defects and
objections and shall, in good faith, exercise reasonable diligence to cure such
defects and objections.
8. Representations and Warranties of Seller. Seller hereby makes the
----------------------------------------
following representations and warranties to Purchaser, each of which shall be
deemed material:
(a) Lease. Seller has delivered to Purchaser a true, correct and
-----
complete copy of the Lease, together with all modifications and amendments
thereto herein referred. Seller is the "landlord" under the Lease and owns
unencumbered legal and beneficial title to the Lease and the rents and
other income thereunder, subject only to the collateral assignment of the
Lease and the rents thereunder in favor of the holder of an existing
mortgage or deed of trust encumbering the Property, which mortgage or deed
of trust shall be canceled and satisfied by Seller at the Closing. The term
of the Lease commenced on August 14, 1997, and expires on August 31, 2008.
The Tenant currently leases and occupies 100% of the rentable area of the
Improvements.
(b) Lease - Assignment. To the best of Seller's knowledge, the
------------------
Tenant has not assigned its interest in the Lease or sublet any portion of the
premises leased to the Tenant under the Lease.
(c) Lease - Default. (i) Seller has not received any notice of
---------------
termination or default under the Lease, (ii) there are no existing or
uncured defaults by Seller or by the Tenant under the Lease, (iii) to the
best of Seller's knowledge, there are no events which with the passage of
time or notice, or both, would constitute a default by Seller or by the
Tenant, and Seller has complied with each and every undertaking, covenant,
and obligation of Seller under the Lease, and (iv) Tenant has not asserted
any defense, set-off, or counterclaim with respect to its tenancy or its
obligation to pay rent, additional rent, or other charges pursuant to the
Lease.
(d) Lease - Rents and Special Consideration. Tenant: (i) has not
---------------------------------------
prepaid rent for more than the current month under the Lease, (ii) has not
received and is not entitled to receive any rent concession in connection
with its tenancy under the Lease other than as described in the Lease,
(iii) is not entitled to any special work (not yet performed), or
consideration (not yet given) in connection with its tenancy under the
Lease, and (iv) does not have any deed, option, or other evidence of any
right or interest in or to the Property, except for the Tenant's tenancy as
evidenced by the express terms of the Lease.
(e) Lease - Commissions. No rental, lease, or other commissions with
-------------------
respect to the Lease are payable to Seller, any partner of Seller, any
party affiliated with or related to Seller or any partner of Seller or any
third party whatsoever. All commissions payable under, relating to, or as a
result of the Lease have been cashed-out and paid and satisfied in full by
Seller or by Seller's predecessor in title to the Property.
5
(f) Lease - Acceptance of Premises. (i) Tenant has accepted its
------------------------------
leased premises located within the Property, including any and all work
performed therein or thereon pursuant to the Lease, (ii) Tenant is in full
and complete possession of its premises under the Lease, and (iii) Seller
has not received notice from the Tenant that the Tenant's premises are not
in full compliance with the terms and provisions of Tenant's Lease or are
not satisfactory for Tenant's purposes.
(g) No Other Agreements. Other than the Lease and the Permitted
-------------------
Exceptions, there are no leases, service contracts, management agreements,
or other agreements or instruments in force and effect, oral or written, to
which Seller is a party and that grant to any person whomsoever or any
entity whatsoever any right, title, interest or benefit in or to all or any
part of the Property or any rights relating to the use, operation,
management, maintenance, or repair of all or any part of the Property.
(h) No Litigation. There are no actions, suits, or proceedings
-------------
pending, or, to the best of Seller's knowledge, threatened by any
organization, person, individual, or governmental agency against Seller
with respect to the Property or against the Property, nor does Seller know
of any basis for such action. Seller has no knowledge of any pending or
threatened application for changes in the zoning applicable to the Property
or any portion thereof.
(i) Condemnation. No condemnation or other taking by eminent domain
------------
of the Property or any portion thereof has been instituted and, to the best
of Seller's knowledge, there are no pending or threatened condemnation or
eminent domain proceedings (or proceedings in the nature or in lieu
thereof) affecting the Property or any portion thereof or its use.
(j) Proceedings Affecting Access. The Property is served by curb cuts
----------------------------
for direct vehicular access to and from Dial Boulevard & Xxxxxxxx-Xxxxxx
Parkway adjoining the Property. Said street(s) are public streets. There
are no pending or, to the best of Seller's knowledge, threatened
proceedings that could have the effect of impairing or restricting access
between the Property and either of such adjacent public roads.
(k) Intentionally Omitted.
----------------------
(l) Condition of Improvements. Seller is not aware of any structural
-------------------------
or other defects, in the Improvements. The heating, ventilating, air
conditioning, electrical, plumbing, water, elevator(s), roofing, storm
drainage and sanitary sewer systems at or servicing the Land and
Improvements are, to the best of the Seller's knowledge, in good condition
and working order and Seller is not aware of any defects or deficiencies,
latent or otherwise, therein. The Improvements have been constructed in
compliance with applicable provisions of the Lease, City of Scottsdale
building regulations, and any recorded covenants, conditions and
restrictions.
(m) Certificates. To the best of Seller's knowledge, there are
------------
presently in effect permanent certificates of occupancy, licenses, and
6
permits as may be required for the Property, and the present use and
occupation of the Property is in compliance and conformity with the
certificates of occupancy and all licenses and permits. There has been no
notice or request of any municipal department, insurance company or board
of fire underwriters (or organization exercising functions similar
thereto), or mortgagee directed to Seller and requesting the performance of
any work or alteration to the Property which has not been complied with.
(n) Violations. To the best of Seller's knowledge, there are no
----------
violations of law, municipal or county ordinances, or other legal
requirements with respect to the Property, and the Improvements thereon
comply with all applicable legal requirements with respect to the use,
occupancy, and construction thereof. The Property is zoned in a
classification which permits the use thereof in the present manner. The
Property is not located in a flood hazard area.
(o) Intentionally Omitted.
---------------------
(p) Bankruptcy. Seller is "solvent" as said term is defined by
----------
bankruptcy law and has not made a general assignment for the benefit of
creditors nor been adjudicated a bankrupt or insolvent, nor has a receiver,
liquidator, or trustee for any of Seller's properties (including the
Property) been appointed or a petition filed by or against Seller for
bankruptcy, reorganization, or arrangement pursuant to the Federal
Bankruptcy Act or any similar Federal or state statute, or any proceeding
instituted for the dissolution or liquidation of Seller.
(q) Pre-existing Right to Acquire. No person or entity has any right
-----------------------------
or option to acquire the Property or any portion thereof which will have
any force or effect after the execution of this Agreement, other than
Purchaser and the Tenant.
(r) Effect of Certification. To the best of Seller's knowledge,
-----------------------
neither this Agreement nor the transactions contemplated herein will
constitute a breach or violation of, or default under, or will be modified,
restricted, or precluded by the Lease or the Permitted Exceptions.
(s) Authorization. Seller is a duly organized and validly existing
-------------
corporation under the laws of the State of Minnesota. This Agreement has
been duly authorized and executed on behalf of Seller and constitutes the
valid and binding agreement of Seller, enforceable in accordance with its
terms, and all necessary action on the part of Seller to authorize the
transactions herein contemplated has been taken, and no further action is
necessary for such purpose.
(t) Seller Not a Foreign Person. Seller is not a "foreign person"
---------------------------
which would subject Purchaser to the withholding tax provisions of Section
1445 of the Internal Revenue Code of 1986, as amended.
7
(u) Hazardous Substances. Seller hereby warrants and represents,
--------------------
to the best of Seller's knowledge, and except as otherwise disclosed in
that certain Phase I Environmental Site Assessment of Xxxx 0 xxx 0,
Xxxxxxxxxx Xxxxxxx Xxxxx, by Xxxxxx Southwest, Inc., dated September 22,
1998 that (i) no "hazardous substances", as that term is defined in the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. Section 9601, et. seq., the Resource
-- ---
Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et. seq.,
-- ---
and the rules and regulations promulgated pursuant to these acts, any so-
called "super-fund" or "super-lien" laws or any applicable state or local
laws, nor any other pollutants, toxic materials, or contaminants have
been or shall prior to Closing be discharged, disbursed, released, stored,
treated, generated, disposed of, or allowed to escape on the Property, (ii)
no asbestos or asbestos containing materials have been installed, used,
incorporated into, or disposed of on the Property, (iii) no polychlorinated
biphenyls are located on or in the Property, in the form of electrical
transformers, fluorescent light fixtures with ballasts, cooling oils, or
any other device or form, (iv) no underground storage tanks are located on
the Property or were located on the Property and subsequently removed or
filled, (v) no investigation, administrative order, consent order and
agreement, litigation, or settlement with respect to Hazardous Substances
is proposed, threatened, anticipated or in existence with respect to the
Property, and (vi) the Property has not previously been used as a landfill,
cemetery, or as a dump for garbage or refuse. Seller hereby indemnifies
Purchaser and holds Purchaser harmless from and against any loss, cost,
damage, liability or expense due to or arising out of the breach of any
representation or warranty contained in this Paragraph.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY HEREIN, PURCHASER IS ACQUIRING THE
PROPERTY IN ITS "AS IS" CONDITION AS OF THE DATE OF THE CLOSING.
9. Seller's Additional Covenants. Seller does hereby further covenant and
-----------------------------
agree as follows:
(a) Operation of Property. Seller hereby covenants that, from the
---------------------
date of this Agreement up to and including the date of Closing, Seller
shall: (i) not negotiate with any third party respecting the sale of the
Property or any interest therein, (ii) not modify, amend, or terminate the
Lease, or enter into any new lease, contract, or other agreement respecting
the Property, (iii) not grant or otherwise create or consent to the
creation of any easement, restriction, lien, assessment, or encumbrance
respecting the Property, and (iv) cause the Property to be operated,
maintained, and repaired in the same manner as the Property is currently
being operated, maintained, and repaired.
(b) Preservation of Lease. Seller shall, from and after the date of
---------------------
this Agreement to the date of Closing, use its good faith efforts to
perform and discharge all of the duties and obligations and shall otherwise
comply with every covenant and agreement of the landlord under the Lease,
at Seller's expense, in the manner and within the time limits required
thereunder. Furthermore, Seller shall, for the same period of
8
time, use diligent and good faith efforts to cause the Tenant under the
Lease to perform all of its duties and obligations and otherwise comply
with each and every one of its covenants and agreements under such Lease
and shall take such actions as are reasonably necessary to enforce the
terms and provisions of the Lease.
(c) Tenant Estoppel Certificate. At least five (5) days prior to
---------------------------
expiration of the Inspection Period, Seller shall obtain and deliver to
Purchaser a fully completed estoppel certificate with respect to the Lease
in substantially the form of Exhibit "B" (the "Tenant Estoppel
-----------
Certificate"), duly executed by the Tenant thereunder. The Tenant Estoppel
Certificate shall be executed as of a date not more than thirty (30) days
prior to Closing.
(d) Estoppel Certificate Regarding Declaration. At least five (5)
------------------------------------------
days prior to expiration of the Inspection Period, Seller shall obtain and
deliver to Purchaser a fully completed estoppel certificate with respect to
the Declaration of Easements, Covenants, Conditions and Restrictions
recorded as document number 00-0000000, Maricopa County Records, in
substantially the form of Exhibit "E" to the Lease (the "Estoppel
-----------
Certificate Regarding Declaration"), duly executed by the Declarant
thereunder. Said certificate shall be executed as of a date not more than
thirty (30) days prior to Closing, shall contain updated information and
shall be addressed to Purchaser and its assigns and any lender making a
loan secured by the Property.
(e) Insurance. From and after the date of this Agreement to the date
---------
and time of Closing, Seller shall, at its expense, continue to maintain the
all risk fire and extended coverage insurance policy covering the Property
which is currently in force and effect.
10. Closing. Provided that all of the conditions set forth in this
-------
Agreement are theretofore fully satisfied or performed, it being fully
understood and agreed, however, that Purchaser may expressly waive in writing,
at or prior to Closing, any conditions that are unsatisfied or unperformed at
such time, the consummation of the sale by Seller and purchase by Purchaser of
the Property (herein referred to as the "Closing") shall be held at 2:00 p.m.,
local time, on the first business day which is at least five (5) days after the
end of the Inspection Period, at the offices of Escrow Agent, or at such earlier
time as shall be designated by Purchaser in a written notice to Seller not less
than two (2) business days prior to Closing.
11. Seller's Closing Documents. For and in consideration of, and as a
--------------------------
condition precedent to, Purchaser's delivery to Seller of the Purchase Price
described in Paragraph 3 hereof, Seller shall obtain or execute, at Seller's
expense, and deliver to Purchaser at Closing the following documents (all of
which shall be duly executed, acknowledged, and notarized where required and
shall survive the Closing):
(a) Special Warranty Deed. A Special Warranty Deed in substantially
---------------------
the form of Exhibit "C";
----------
(b) Xxxx of Sale. A Xxxx of Sale conveying to Purchaser
------------
9
marketable title to the Personal Property in the form and substance of
Exhibit "D";
-----------
(c) Blanket Transfer. A Blanket Transfer and Assignment in the form
----------------
and substance of Exhibit "E";
----------
(d) Assignment and Assumption of Lease. An Assignment and Assumption
----------------------------------
of Lease in the form and substance of Exhibit "F", assigning to Purchaser
-----------
all of Seller's right, title, and interest in and to the Lease and the
rents thereunder (and which shall provide among other things that Seller
shall remain liable for its environmental indemnity to Tenant under the
Lease);
(e) Seller's Affidavit. A customary seller's affidavit in the form
------------------
required by the Title Company to satisfy the requirements of its commitment
and the endorsements contemplated by paragraph 7 hereof;
(f) FIRPTA Certificate. A FIRPTA Certificate in such form as
------------------
Purchaser shall reasonably approve;
(g) Certificates of Occupancy. The original Certificates of occupancy
-------------------------
for all space within the Improvements;
(h) Marked Title Commitment. The Title Commitment, marked to change
-----------------------
the effective date thereof through the date and time of recording the
Special Warranty Deed, to reflect that Purchaser is vested with a fee
simple interest in the Land and the Improvements, and to reflect that all
requirements for the issuance of the final title policy pursuant to such
Title Commitment have been satisfied;
(i) Keys and Records. All of the keys to any doors or locks on the
----------------
Property and the original tenant files and other books and records relating
to the Property in Seller's possession;
(j) Tenant Notice. Notice from Seller to the Tenant of the sale of
-------------
the Property to Purchaser in such form as Purchaser shall reasonably
approve;
(k) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement;
(l) Other Documents. Such other documents as shall be reasonably
---------------
required by Purchaser's counsel.
12. Purchaser's Closing Documents. Purchaser shall obtain or execute and
-----------------------------
deliver to Seller at Closing the following documents, all of which shall be duly
executed and acknowledged where required and shall survive the Closing:
(a) Blanket Transfer. The Blanket Transfer and Assignment;
----------------
(b) Assignment and Assumption of Lease. The Assignment and Assumption
----------------------------------
of Lease;
10
(c) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and Seller
pursuant to this Agreement; and
(d) Other Documents. Such other documents as shall be reasonably
---------------
required by Seller's counsel.
13. Closing Costs. Seller shall pay the cost of the Title Commitment,
-------------
including the cost of the examination of title to the Property made in
connection therewith, the premium for the owner's policy of title insurance
issued pursuant thereto, the cost of any transfer or documentary tax imposed by
any jurisdiction in which the Property is located, the cost of the as-built
survey, the attorneys' fees of Seller, and all other costs and expenses incurred
by Seller in closing and consummating the purchase and sale of the Property
pursuant hereto. Purchaser shall pay the attorneys' fees of Purchaser, and all
other costs and expenses incurred by Purchaser in closing and consummating the
purchase and sale of the Property pursuant hereto. Each party shall pay one-
half of any escrow fees.
14. Prorations. The following items shall be prorated and/or credited
----------
between Seller and Purchaser as of Midnight preceding the date of Closing:
(a) Rents. Rents, additional rents, and other income of the Property
-----
(other than security deposits, which shall be assigned and paid over to
Purchaser) collected by Seller from Tenant for the month of Closing.
Purchaser shall also receive a credit against the Purchase Price payable by
Purchaser to Seller at Closing for any rents or other sums (not including
security deposits) prepaid by Tenant for any period following the month of
Closing, or otherwise.
(b) Property Taxes. To the extent the same are not paid by Tenant,
--------------
City, state, county, and school district ad valorem taxes based on the ad
valorem tax bills for the Property, if then available, or if not, then on
the basis of the latest available tax figures and information. Should such
proration be based on such latest available tax figures and information and
prove to be inaccurate upon receipt of the ad valorem tax bills for the
Property for the year of Closing, either Seller or Purchaser, as the case
may be, may demand at any time after Closing a payment from the other
correcting such malapportionment. In addition, if after Closing there is an
adjustment or reassessment by any governmental authority with respect to,
or affecting, any ad valorem taxes for the Property for the year of Closing
or any prior year, any additional tax payment for the Property required to
be paid with respect to the year of Closing shall be prorated between
Purchaser and Seller and any such additional tax payment for the Property
for any year prior to the year of Closing shall be paid by Seller. This
agreement shall expressly survive the Closing.
(c) Utility Charges. Except for utilities which are the
---------------
responsibility of Tenant, Seller shall pay all utility bills received prior
to Closing and shall be responsible for utilities furnished to the Property
prior to Closing. Purchaser shall be responsible for the payment of all
bills for utilities furnished to the Property subsequent
11
to the Closing. Seller and Purchaser hereby agree to prorate and pay their
respective shares of all utility bills received subsequent to Closing,
which agreement shall survive Closing.
15. Purchaser's Default. In the event of default by Purchaser under the
-------------------
terms of this Agreement, Seller's sole and exclusive remedy shall be to receive
the Xxxxxxx Money as liquidated damages and thereafter the parties hereto shall
have no further rights or obligations hereunder whatsoever. It is hereby agreed
that Seller's damages will be difficult to ascertain and that the Xxxxxxx Money
constitutes a reasonable liquidation thereof and is intended not as a penalty,
but as fully liquidated damages. Seller agrees that in the event of default by
Purchaser, it shall not initiate any proceeding to recover damages from
Purchaser, but shall limit its recovery to the retention of the Xxxxxxx Money.
Seller's Initial /s/ DB Purchaser's Initials /s/ LW
----------------- -----------------
16. Seller's Default. In the event of default by Seller under the terms
----------------
of this Agreement, including, without limitation, the failure of Seller to cure
any title defects or objections, except as otherwise specifically set forth
herein, at Purchaser's option: (i) if any such defects or objections arose by,
through, or under Seller or if any such defects or objections consist of taxes,
mortgages, deeds of trust, deeds to secure debt, mechanic's or materialman's
liens, or other such monetary encumbrances, Purchaser shall have the right to
cure such defects or objections, in which event the Purchase Price shall be
reduced by an amount equal to the costs and expenses incurred by Purchaser in
connection with the curing of such defects or objections, and upon such curing,
the Closing hereof shall proceed in accordance with the terms of this Agreement;
or (ii) Purchaser shall have the right to terminate this Agreement by giving
written notice of such termination to Seller, whereupon Escrow Agent shall
promptly refund all Xxxxxxx Money to Purchaser, and Purchaser and Seller shall
have no further rights, obligations, or liabilities hereunder, except as may be
expressly provided to the contrary herein; or (iii) Purchaser shall have the
right to accept title to the Property subject to such defects and objections
with no reduction in the Purchase Price, in which event such defects and
objections shall be deemed "Permitted Exceptions"; or (iv) Purchaser may elect
to seek specific performance of this Agreement.
17. Condemnation. If, prior to the Closing, all or any part of the
------------
Property is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or condemnation (or sale
in lieu thereof), or if Seller has received notice that any condemnation action
or proceeding with respect to the Property is contemplated by a body having the
power of eminent domain, Seller shall give Purchaser immediate written notice of
such threatened or contemplated condemnation or of such taking or sale, and
Purchaser may by written notice to Seller given within thirty (30) days of the
receipt of such notice from Seller, elect to cancel this Agreement. If Purchaser
chooses to cancel this Agreement in accordance with this Paragraph 17, then the
Xxxxxxx Money shall be returned immediately to Purchaser by Escrow Agent and the
rights, duties, obligations, and liabilities of the parties hereunder shall
immediately terminate and be of no further force and effect. If Purchaser does
not elect to cancel this Agreement
12
in accordance herewith, this Agreement shall remain in full force and effect and
the sale of the Property contemplated by this Agreement, less any interest taken
by eminent domain or condemnation, or sale in lieu thereof, shall be effected
with no further adjustment and without reduction of the Purchase Price, and at
the Closing, Seller shall assign, transfer, and set over to Purchaser all of the
right, title, and interest of Seller in and to any awards that have been or that
may thereafter be made for such taking.
18. Damage or Destruction. If any of the Improvements shall be destroyed
---------------------
or damaged prior to the Closing, and the estimated cost of repair or replacement
exceeds $100,000.00 or if the Lease shall terminate as a result of such damage,
Purchaser may, by written notice given to Seller within twenty (20) days after
receipt of written notice from Seller of such damage or destruction, elect to
terminate this Agreement, in which event the Xxxxxxx Money shall immediately be
returned by Escrow Agent to Purchaser and except as expressly provided herein to
the contrary, the rights, duties, obligations, and liabilities of all parties
hereunder shall immediately terminate and be of no further force or effect. If
Purchaser does not elect to terminate this Agreement pursuant to this Paragraph
18, or has no right to terminate this Agreement (because the damage or
destruction does not exceed $100,000.00 and the Lease remains in full force and
effect), and the sale of the Property is consummated, Purchaser shall be
entitled to receive all insurance proceeds paid or payable to Seller by reason
of such destruction or damage under the insurance required to be maintained by
Seller pursuant to Paragraph 9(d) hereof (less amounts of insurance theretofore
received and applied by Seller to restoration). If the amount of said casualty
or rent loss insurance proceeds is not settled by the date of Closing, Seller
shall execute at Closing all proofs of loss, assignments of claim, and other
similar instruments to ensure that Purchaser shall receive all of Seller's
right, title, and interest in and under said insurance proceeds.
19. Assignment. Purchaser's rights and duties under this Agreement shall
----------
not be assignable except to an affiliate of Purchaser without the consent of
Seller which consent shall not be unreasonably withheld.
20. Broker's Commission. Seller has by separate agreement agreed to pay a
-------------------
brokerage commission to CB Commercial Real Estate Group (the "Broker").
Purchaser and Seller hereby represent each to the other that they have not
discussed this Agreement or the subject matter hereof with any real estate
broker or agent other than Broker so as to create any legal right in any such
broker or agent to claim a real estate commission with respect to the conveyance
of the Property contemplated by this Agreement. Seller shall and does hereby
indemnify and hold harmless Purchaser from and against any claim, whether or not
meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Seller, including any claim asserted by Brokers and any
broker or agent claiming under Broker. Likewise, Purchaser shall and does
hereby indemnify and hold harmless Seller from and against any claim, whether or
not meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Purchaser, except any such claim asserted by Broker and
any broker or agent claiming under Broker. This Paragraph 21 shall survive the
Closing or any termination of this Agreement.
13
21. Notices. Wherever any notice or other communication is required or
-------
permitted hereunder, such notice or other communication shall be in writing and
shall be delivered by telecopy, overnight courier, by hand, or sent by U.S.
registered or certified mail, return receipt requested, postage prepaid, to the
addresses set out below or at such other addresses as are specified by written
notice delivered in accordance herewith:
PURCHASER: c/x Xxxxx Capital, Inc.
0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attn: Chief Investment Officer
with a copy to: X'Xxxxxxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxxxx, X. X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. X'Xxxxxxxxx, Esq.
SELLER: Xxxx Companies US, Inc.
000 Xxxxxxxxxxxxx Xxxxxx
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxx
with a copy to: Xxxx Companies US, Inc.
000 Xxxxxxxxxxxxx Xxxxxx
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx
Any notice or other communication mailed as herein above provided shall be
deemed effectively given or received on the date of delivery, if delivered by
telecopy, hand or by overnight courier, or otherwise on the third (3rd) business
day following the postmark date of such notice or other communication.
22. Possession. Possession of the Property shall be granted by Seller to
----------
Purchaser on the date of Closing, subject only to the Lease and the Permitted
Exceptions.
23. Time Periods. If the time period by which any right, option, or
------------
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day.
24. Survival of Provisions. All covenants, warranties, and agreements set
----------------------
forth in this Agreement shall survive the execution or delivery of any and all
deeds and other documents at any time executed or delivered under, pursuant to,
or by reason of this Agreement, and shall survive the payment of all monies made
under, pursuant to, or by reason of this Agreement for a period of two years
from Closing except with respect to paragraphs 8(u) and 32 which shall survive
for an unlimited time.
14
25. Severability. This Agreement is intended to be performed in
------------
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules, and regulations. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent permitted
by law.
26. Authorization. Purchaser represents to Seller that this Agreement has
-------------
been duly authorized and executed on behalf of Purchaser and constitutes the
valid and binding agreement of Purchaser, enforceable in accordance with its
terms, and all necessary action on the part of Purchaser to authorize the
transactions herein contemplated has been taken, and no further action is
necessary for such purpose.
27. General Provisions. No failure of either party to exercise any power
------------------
given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon the parties
hereto unless such amendment is in writing and executed by all parties hereto.
The provisions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, legal representatives,
successors, and assigns. Time is of the essence of this Agreement. This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one and
the same agreement. The headings inserted at the beginning of each paragraph are
for convenience only, and do not add to or subtract from the meaning of the
contents of each paragraph. This Agreement shall be construed and interpreted
under the laws of the State of Arizona. Except as otherwise provided herein, all
rights, powers, and privileges conferred hereunder upon the parties shall be
cumulative but not restrictive to those given by law. All personal pronouns used
in this Agreement, whether used in the masculine, feminine, or neuter gender
shall include all genders, and all references herein to the singular shall
include the plural and vice versa.
29. Effective Date. The "effective date" of this Agreement shall be
--------------
deemed to be the date set forth in the preamble of this Agreement.
30. Contingency Regarding Other Contracts. Simultaneously with the
-------------------------------------
execution hereof, the parties have entered into other purchase agreements which
are listed on Exhibit "G" hereto, and it shall be a condition of the parties
obligations hereunder that the closings with respect to the properties described
therein shall occur simultaneously with the closing herein.
31. Duties as Escrow Agent. In performing its duties hereunder, Escrow
----------------------
Agent shall not incur any liability to anyone for any damages, losses or
expenses, except for its gross negligence or willful misconduct, and it shall
accordingly not incur any such liability with respect to any action taken or
omitted in good faith upon advice of its counsel or in reliance upon
15
any instrument, including any written notice or instruction provided for in this
Agreement, not only as to its due execution and the validity and effectiveness
of its provision, but also as to the truth and accuracy of any information
contained therein that Escrow Agent shall in good faith believe to be genuine,
to have been signed or presented by a proper person and to conform to the
provisions of this Agreement. Seller and Purchaser hereby agree to indemnify and
hold harmless Escrow Agent against any and all losses, claims, damages,
liabilities and expenses, including reasonable costs of investigation and legal
fees and disbursements, that may be imposed upon Escrow Agent or incurred by
Escrow Agent in connection with its acceptance or performance of its duties
hereunder as escrow agent, including without limitation, any litigation arising
out of this Agreement. If any dispute shall arise between Seller and Purchaser
sufficient in the discretion of Escrow Agent to justify its doing so, Escrow
Agent shall be entitled to tender into the registry or custody of the clerk of
the Court for the county in which the Property is located or the clerk for the
United States District Court having jurisdiction over the county in which the
Property is located, any or all money (less any sums required to pay Escrow
Agent's attorneys' fees in filing such action), property or documents in its
hands relating to this Agreement, together with such pleadings as it shall deem
appropriate, and thereupon be discharged from all further duties under this
Agreement. Seller and Purchaser shall bear all costs and expenses of any such
legal proceedings.
32. Expansion. If Buyer proposes to expand the building which is a part
---------
of the Property, it will negotiate in good faith with Seller to provide
design/build services with respect to such expansion and will contract with
Seller for such work if its proposal therefore is competitive and is otherwise
approved by the Tenant.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day, month and year first above written.
"SELLER":
XXXX COMPANIES US, INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Its: Vice President
-------------------------------
"PURCHASER":
XXXXX CAPITAL, INC.
By: /s/ Xxx X. Xxxxx
-------------------------------
Its: President
------------------------------
"ESCROW AGENT":
OLD REPUBLIC TITLE AGENCY
By: /s/ Xxxx Xxxxxxx
--------------------------------
Its: Vice President 2/24/00
------------------------------
16
