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EXHIBIT 2.1
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
By and Between
XXXXX INDUSTRIES-WICHITA WESTGATE LIMITED PARTNERSHIP,
a Kansas limited partnership,
as Seller
THE PRICE REIT, INC.
a Maryland corporation,
as Buyer
and
SECURITY ABSTRACT & TITLE COMPANY,
as Escrow Holder
November 12, 1996
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ARTICLE I PROPERTY 1
1.1 LAND 1
1.2 APPURTENANCES 1
1.3 IMPROVEMENTS 2
1.4 LEASES AND RENTS 2
1.5 PERSONAL PROPERTY 2
1.6 INTANGIBLE PROPERTY 2
ARTICLE II PURCHASE PRICE 2
2.1 PURCHASE PRICE 2
2.2 PAYMENT OF PURCHASE PRICE 3
2.3 XXXXXXX MONEY DEPOSIT 3
2.4 INVESTMENT OF DEPOSIT 3
2.5 DEPOSIT AS LIQUIDATED DAMAGES 3
ARTICLE III TITLE TO PROPERTY 4
3.1 TITLE 4
3.2 OTHER CONVEYANCE DOCUMENTS 4
ARTICLE IV CONDITIONS TO CLOSING 5
A. BUYER'S CONDITIONS TO CLOSING 5
4.1 NON-FOREIGN STATUS OF SELLER 5
4.2 REVIEW AND APPROVAL OF TITLE AND SURVEY 5
4.3 REVIEW AND APPROVAL OF OTHER MATTERS 5
4.4 SERVICE AND OTHER CONTRACTS 6
4.5 PHYSICAL CHARACTERISTICS OF THE PROPERTY 6
4.6 GOVERNMENTAL PERMITS, APPROVALS AND REGULATIONS 7
4.7 REPRESENTATIONS AND WARRANTIES 7
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4.8 IMPAIRMENT OF PROPERTY 7
4.9 APPROVAL 7
4.10 OBJECTIONS TO TITLE OR SURVEY 7
4.11 OBJECTIONS TO PROPERTY OR OTHER MATTERS 8
4.12 TENANT MATTERS 8
4.13 REA ESTOPPELS 9
4.14 RENT SUPPORT AGREEMENT 9
4.15 OCCUPANCY. 9
4.16 DELIVERY OF DOCUMENTS 9
B. SELLER'S CONDITIONS TO CLOSING 9
4.16 DELIVERY OF DOCUMENTS AND PURCHASE PRICE 9
ARTICLE V CLOSING, RECORDING AND TERMINATION 10
5.1 DEPOSIT WITH ESCROW HOLDER AND ESCROW INSTRUCTIONS 10
5.2 CLOSING 10
5.3 DELIVERY BY SELLER 10
5.4 DELIVERY BY BUYER 11
5.5 OTHER INSTRUMENTS 12
5.6 PRORATIONS 12
5.7 COSTS AND EXPENSES 13
5.8 CLOSING AND RECORDATION 14
5.9 TERMINATION OF AGREEMENT 14
ARTICLE VI REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER 14
6.1 AUTHORITY 15
6.2 TITLE 15
6.3 THE LEASES 15
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6.4 NO LITIGATION OR ADVERSE EVENTS 15
6.5 COMPLIANCE WITH LAWS 15
6.6 NO DEFAULTS IN OTHER AGREEMENTS 15
6.7 EMINENT DOMAIN 16
6.8 LICENSES, PERMITS, CO'S, ZONING, ETC. 16
6.9 TAXES AND ASSESSMENTS 16
6.10 ENVIRONMENT 16
6.11 PHYSICAL CONDITION 17
6.12 EMPLOYEES 17
6.13 MECHANIC'S LIENS 18
6.14 OPERATING STATEMENTS 18
6.15 DISCLOSURE 18
6.16 NO LEASES OF PROPERTY OR ASSETS 18
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF BUYER 18
7.1 REPRESENTATIONS AND WARRANTIES OF BUYER 18
ARTICLE VIII POSSESSION, DESTRUCTION AND CONDEMNATION 19
8.1 POSSESSION 19
8.2 LOSS, DESTRUCTION AND CONDEMNATION 19
ARTICLE IX MAINTENANCE AND OPERATION OF THE PROPERTY; COVENANTS 21
9.1 MAINTENANCE 21
9.2 LEASES AND OTHER AGREEMENTS 21
9.3 ENCUMBRANCES 22
9.4 CONSENTS AND NOTICES 22
9.5 AUDIT COOPERATION 22
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ARTICLE X MISCELLANEOUS 22
10.1 NOTICES 22
10.2 BROKERS AND FINDERS 23
10.3 SUCCESSORS AND ASSIGNS 23
10.4 AMENDMENTS 24
10.5 CONTINUATION AND SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES AND POST-CLOSING OBLIGATIONS 24
10.6 INTERPRETATION 24
10.7 GOVERNING LAW 24
10.8 MERGER OF PRIOR AGREEMENTS 24
10.9 ATTORNEYS' FEES 24
10.10 NOTICE OF TERMINATION 24
10.11 SPECIFIC PERFORMANCE; DAMAGES 25
10.12 RELATIONSHIP 25
10.13 COUNTERPARTS 25
10.14 TIME OF THE ESSENCE 25
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INDEX TO SCHEDULES
Schedule A Legal Description of the Land
Schedule B Form of Deed
Schedule C Form of Assignment and Assumption of Leases and Rents
Schedule D Form of Xxxx of Sale
Schedule E Form of Assignment of Contracts, Intangible Property, Warranties and Guarantees
Schedule F Form of Non-Foreign Certificate
Schedule G Form of Tenant Estoppel Certificate
Schedule H Rent Roll
Schedule I Form of Rent Support Agreement
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DEFINITIONS
The following is a list of defined terms used herein and the
sections in which such terms are defined.
Term Section
---- -------
AGREEMENT INTRODUCTION
APPROVED CONTRACTS 4.4
APPURTENANCES 1.2
ASSIGNMENT OF INTANGIBLE PROPERTY,
WARRANTIES AND GUARANTEES 1.6
ASSIGNMENT OF LEASES AND RENTS 1.4
XXXX OF SALE 1.5
BUYER INTRODUCTION
BUYER APPROVAL 4.9
CLOSING 5.2
CLOSING DATE 5.2
CODE 4.1
CONTRACTS 4.4
DEED 1.1
XXXXXXX MONEY DEPOSIT 2.3
ESCROW HOLDER INTRODUCTION
IMPROVEMENTS 1.3
INTANGIBLE PROPERTY 1.6
LAND 1.1
LEASES 1.4
MAJOR LEASE 4.8
RENT SUPPORT AGREEMENT 4.13
NON-FOREIGN CERTIFICATE 4.1
OUTSIDE CLOSING DATE 5.2
PERSONAL PROPERTY 1.5
PERMITTED EXCEPTIONS 4.10
PHASE I REPORT 4.5
PROPERTY 1.6
PURCHASE PRICE 2.1
REAL PROPERTY 1.6
RENT ROLL 6.3
RENTS 1.4
REVIEW PERIOD 4.11
SELLER INTRODUCTION
SURVEY 4.2(C)
TITLE COMPANY 3.1
TITLE POLICY 3.1
TITLE REPORT 4.2(A)
VACANT SPACE 4.13
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PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
("AGREEMENT") is made and entered into as of November __, 1996, by and between
XXXXX INDUSTRIES-WICHITA WESTGATE LIMITED PARTNERSHIP, a Kansas limited
partnership ("SELLER"), THE PRICE REIT, INC., a Maryland corporation ("BUYER"),
and SECURITY ABSTRACT & TITLE COMPANY ("ESCROW HOLDER"), with reference to the
following facts:
A. Seller is the owner of the Property, as hereinafter
defined.
B. Buyer desires to purchase from Seller and Seller
desires to sell to Buyer the Property, all on the terms and conditions set
forth herein.
NOW, THEREFORE, IN CONSIDERATION of the foregoing and the
mutual agreements herein set forth, and other valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Seller and Buyer, and
where appropriate Escrow Holder, agree as follows:
ARTICLE I
PROPERTY
Seller hereby agrees to sell and convey to Buyer, and Buyer
hereby agrees to purchase from Seller, subject to the terms and conditions set
forth herein, the following:
1.1 Land. That certain real property (the "LAND")
described in Schedule A hereto, all of which shall be conveyed to Buyer
pursuant to a deed in the form of Schedule B hereto (the "DEED");
1.2 Appurtenances. All rights, privileges and easements
appurtenant to and for the benefit of the Land, including, without limitation,
all minerals, oil, gas and other hydrocarbon substances on and under the Land,
as well as all development rights, air rights, water, water rights and water
stock relating to the Land and any other easements, rights-of-way or
appurtenances owned by Seller and used in connection with the beneficial
operation, use and enjoyment of the Land, the Leases, the Rents, the
Improvements, the Intangible Property, or any other appurtenance, together with
all rights of Seller in and to public and xxxxxxx xxxxxxx, xxxxx, xxxxxxx,
alleys and passageways, sidewalks, driveways, parking areas and areas adjacent
thereto or used in connection therewith (open or proposed, in front of or
abutting the Land), and all rights of Seller in any land lying in the bed of
any existing or proposed street adjacent to the Land, all strips or gores of
land adjoining the Land, and any awards made or to be made and any unpaid award
for damage to the Land by reason of any change of grade of any such street,
road, avenue, alley or passageway (all of which are collectively referred to as
the "APPURTENANCES");
1.3 Improvements. All improvements and fixtures located
or to be located on the Land, including, without limitation, all buildings and
structures presently
Index to Schedules
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located on the Land or to be located thereon on the Closing Date, all
apparatus, equipment and appliances presently located on the Land and used in
connection with the operation or occupancy thereof, such as heating and air
conditioning systems and facilities used to provide any utility services,
parking services, refrigeration, ventilation, garbage disposal, recreation or
other services thereto, and all landscaping and leasehold improvements of
tenants, if any, which become the property of the owner of the Land (all of
which are collectively referred to as the "IMPROVEMENTS");
1.4 Leases and Rents. All leases, occupancy agreements
and other similar agreements to which Seller is a party or by which it is
bound, together with all modifications, extensions and renewals thereof, and
any guarantees of any of the foregoing with respect to or demising any part of
the Land, Appurtenances or Improvements (the "LEASES"), all income, receipts,
funds and revenues of any kind whatsoever payable under the Leases or otherwise
with respect to all or any portion of the Land, Appurtenances or Improvements
(the "RENTS"), all of which Leases and Rents shall be transferred and assigned
to Buyer pursuant to an instrument in the form of Schedule C hereto (the
"ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS");
1.5 Personal Property. All tangible personal property
located or to be located on, or situated or to be situated in and used in
connection with, the Land and/or the Improvements ("PERSONAL PROPERTY"), and
all of which Personal Property shall be transferred and assigned to Buyer
pursuant to an instrument in the form of Schedule D hereto (the "XXXX OF
SALE");
1.6 Intangible Property. All of the interest of Seller
in (i) any intangible personal property which relates to and is reasonably
required for the operation and functioning of the Land, Improvements or
Personal Property generally, and (ii) any and all warranties, guarantees,
permits, contracts and other rights owned by Seller relating to the ownership,
operation or functioning of all or any part of the Property, as defined below
(including without limitation all third party guarantees and warranties,
express or implied, in connection with the construction of the Improvements)
(all of which are collectively referred to as the "INTANGIBLE PROPERTY"), and
all of which shall be assigned to Buyer pursuant to one or more (as determined
by Buyer) assignments in the form of Schedule E hereto (the "ASSIGNMENT OF
CONTRACTS, INTANGIBLE PROPERTY, WARRANTIES AND GUARANTEES"); and
All of the items described in Sections 1.1, 1.2, 1.3, 1.4, 1.5
and 1.6 above are hereinafter collectively referred to as the "PROPERTY." The
items described in Sections 1.1, 1.2, and 1.3 above are hereinafter referred to
collectively as the "REAL PROPERTY."
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The purchase price for the Property
shall be Nine Million Eight Hundred Thousand Dollars ($9,800,000.00) (the
"PURCHASE PRICE"). The Purchase Price shall be allocated among Land,
Improvements and Personal Property as Buyer shall reasonably determine.
2.2 Payment of Purchase Price. The Purchase Price shall
be paid by Buyer into the escrow for this Agreement to be maintained by Escrow
Holder ("ESCROW")
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at the Closing by wire transfer of immediately available funds in accordance
with wiring instructions to be provided by Escrow Holder; provided, however,
that Buyer shall adjust the funds to be wired pursuant to this Section 2.2 for
the following: (i) the amount of credits due to Buyer, or debits due from
Buyer (as the case may be) for prorations hereunder, and (ii) the amount of the
Xxxxxxx Money Deposit (hereinafter defined) plus earnings thereon.
2.3 Xxxxxxx Money Deposit. Concurrently with the
delivery of one (1) fully executed copy of this Agreement with Escrow Holder,
Buyer shall deposit with Escrow Holder the sum of One Hundred Thousand Dollars
($100,000.00) (the "XXXXXXX MONEY DEPOSIT") in the form of a check or wire
transfer. The Xxxxxxx Money Deposit shall become nonrefundable after the end
of the Review Period, unless this Agreement terminates other than due to a
default of Buyer hereunder.
2.4 Investment of Deposit. Escrow Holder shall place the
Xxxxxxx Money Deposit in an interest-bearing account with a bank or savings
association, the deposits of which are federally insured, as Buyer may select.
All interest on the Xxxxxxx Money Deposit shall accrue for the benefit of Buyer
until the Closing. Notwithstanding the foregoing, however, in the event of any
default by Buyer hereunder, all interest earned on such account shall accrue to
the benefit of Seller. Seller shall not be responsible for, nor bear the risk
of loss of, the Xxxxxxx Money Deposit, and shall not be responsible for the
rate of return thereon.
2.5 Deposit As Liquidated Damages. IF THE SALE OF THE
PROPERTY AS CONTEMPLATED HEREUNDER IS NOT CONSUMMATED SOLELY BECAUSE OF A
DEFAULT UNDER THIS AGREEMENT ON THE PART OF BUYER, ESCROW HOLDER SHALL PROMPTLY
PAY OVER TO SELLER THE XXXXXXX MONEY DEPOSIT, IF ANY, THEN BEING HELD BY ESCROW
HOLDER, AND SELLER SHALL RETAIN THE XXXXXXX MONEY DEPOSIT AS LIQUIDATED
DAMAGES. THE PARTIES ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF
A DEFAULT BY BUYER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE.
THEREFORE, BY PLACING THEIR SIGNATURES BELOW, THE PARTIES EXPRESSLY AGREE AND
ACKNOWLEDGE THAT THE XXXXXXX MONEY DEPOSIT HAS BEEN AGREED UPON, AFTER
NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES.
THEREFORE, IF, AFTER SATISFACTION OR WAIVER OF ALL CONDITIONS PRECEDENT TO
BUYER'S OBLIGATIONS UNDER THIS AGREEMENT, BUYER BREACHES THIS AGREEMENT AND
WRONGFULLY FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY AS PROVIDED HEREIN,
SELLER SHALL BE ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE XXXXXXX
MONEY DEPOSIT. ON RECEIPT AND RETENTION BY SELLER OF THE XXXXXXX MONEY
DEPOSIT, THIS AGREEMENT SHALL TERMINATE AND BUYER SHALL HAVE NO FURTHER
OBLIGATIONS OR LIABILITY HEREUNDER. THE PARTIES FURTHER ACKNOWLEDGE THAT THE
XXXXXXX MONEY DEPOSIT HAS BEEN AGREED UPON AS SELLER'S EXCLUSIVE REMEDY AGAINST
BUYER IN THE EVENT OF A DEFAULT ON THE PART OF BUYER.
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Seller:
Dated:_______________________
XXXXX INDUSTRIES-WICHITA WESTGATE LIMITED
PARTNERSHIP, a Kansas limited partnership
By: XXXXX INDUSTRIES II, L.C.,
its general partner
By:___________________________
Its:__________________________
Buyer:
THE PRICE REIT, INC.
Dated:_______________________ By:_____________________________________
Its:____________________________________
ARTICLE III
TITLE TO PROPERTY
3.1 Title. At the Closing, Seller shall convey to Buyer
marketable and insurable fee simple title to the Property pursuant to the Deed.
In furtherance thereof, Seller shall cause Security Abstract & Title Company,
as issuing agent for Chicago Title Insurance Company (the "TITLE COMPANY") to
issue an ALTA extended coverage Owner's Policy of Title Insurance (Form B, Rev.
10/17/70), together with such endorsements thereto as Buyer may request (the
"TITLE POLICY") in the full amount of the Purchase Price, insuring fee simple
title to the Real Property in Buyer, subject only to (i) the lien of real
property taxes for the then applicable fiscal year, to the extent not yet due
and payable, (ii) the lien of supplemental taxes imposed by reason of transfer
on or after the Closing, and (iii) the Permitted Exceptions.
3.2 Other Conveyance Documents. At the Closing, Seller
shall (i) assign the Leases and Rents to Buyer pursuant to the Assignment and
Assumption of Leases and Rents; (ii) transfer title to the Personal Property to
Buyer pursuant to the Xxxx of Sale, and (iii) transfer and assign to Buyer all
of Seller's rights in and to the Intangible Property pursuant to the Assignment
of Contracts, Intangible Property, Warranties and Guarantees; such title and
rights to be free of any liens, encumbrances or interests of third parties
other than the Permitted Exceptions.
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ARTICLE IV
CONDITIONS TO CLOSING
A. Buyer's Conditions to Closing.
The complete satisfaction as of the expiration of the Review
Period (or such other date as may be specified herein) with respect to those
matters described in Sections 4.2-4.6 and 4.10 hereof, and as of the Closing
Date with respect to the balance of the following conditions, is a condition
precedent to Buyer's obligation to purchase the Property:
4.1 Non-Foreign Status of Seller. Seller's execution and
delivery to Buyer, on the Closing Date, of Seller's certificate in the form
attached hereto as Schedule F (the "NON-FOREIGN CERTIFICATE") stating, under
penalty of perjury, that (a) Seller is not a "foreign person" for the purposes
of Section 1445 of the Internal Revenue Code of 1986, as amended (the "CODE"),
and that withholding of tax will not be required thereunder, and (b)
withholding is not required under the provisions of any state laws in
connection with the contemplated transfer of the Property by Seller to Buyer.
4.2 Review and Approval of Title and Survey. There shall
be no exceptions to title to the Property other than the Permitted Exceptions.
In connection with Buyer's review of title and related matters, Seller shall,
at its sole cost and expense and as soon as practicable, but in no event later
than ten (10) days after the date of this Agreement, deliver to Buyer or cause
Escrow Holder to deliver to Buyer the following:
(a) a current extended coverage commitment (ALTA Form
1970) for title insurance for the Property issued by the Title
Company (the "TITLE REPORT"), accompanied by legible record
copies of all of the documents referred to in the Title
Report;
(b) copies of all existing easements, covenants,
restrictions, agreements or other documents which affect the
ownership of or title to the Property and which are not
disclosed by the Title Report for the Property, if any, but
which are known to Seller; and
(c) a current ALTA survey of the Property, certified to
Buyer in a form reasonably required by Buyer (the "SURVEY").
4.3 Review and Approval of Other Matters. In connection
with Buyer's review of other matters, Seller shall deliver to Buyer, within
fifteen (15) business days after the date of this Agreement, true, complete and
correct copies of the following items, to the extent in Seller's or Seller's
manager's possession:
(a) Copies of all soils and hazardous materials reports,
termite reports, engineering studies, topographical maps,
appraisals and other reports, studies, maps and analyses with
respect to the Property;
(b) Copies of subdivision maps and condominium plans;
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(c) Copies of all approvals, permits and licenses
relating to the Property;
(d) Copies of all correspondence, documents and
certificates from appropriate governmental authorities
relating to the zoning, building and platting status of the
Property;
(e) A description of existing and proposed local
improvements affecting the Property, including assessment
levels;
(f) Copies of all service contracts relating to the
Property;
(g) Copies of the real property and personal property
tax bills for the Property for the previous three (3) years;
(h) Copies of all tenant leases and proposed tenant
leases on the Property;
(i) Copies of all plans and construction drawings for all
buildings constructed or to be constructed on the Property;
and
(j) Copies of all insurance policies maintained
by Seller with respect to the Property within the last three
(3) years.
4.4 Service and Other Contracts. Buyer's review and
approval, in its sole and absolute discretion, of all utility contracts, water
and sewer service contracts, service contracts, warranties, permits, soils
reports, and other contracts or documents of any nature relating to the
Property or any portion thereof (the "CONTRACTS"; those Contracts which Buyer
approves in writing prior to the end of the Review Period (and prior to the
Closing Date in the case of contracts not entered into or delivered to the
Buyer until after the expiration of the Review Period) shall be referred to as
the "APPROVED CONTRACTS"). Buyer's remedy if it disapproves any Contract(s)
shall be (i) to the extent such disapproved Contract(s) can be terminated, to
compel the Seller to terminate such disapproved Contract(s) on or prior to the
Closing, which Seller hereby agrees to do at its sole cost and expense if so
requested by Buyer, or (ii) to the extent Seller cannot terminate such
disapproved Contract(s), Buyer shall have the option, which must be exercised
within ten (10) days of Buyer's receipt of Seller's notice to Buyer that Seller
cannot terminate such disapproved Contract(s), or Closing (whichever is
earlier), (a) to waive Buyer's disapproval of the Contract(s) and purchase the
Property as otherwise contemplated in this Agreement, and Seller shall convey
the Property to Buyer, or (b) to terminate this Agreement by written notice to
Seller and Escrow Holder, whereupon any and all right and obligations of Buyer
and Seller hereunder shall terminate and within five (5) days after Buyer has
provided notice to Escrow Holder, Escrow Holder shall deliver to Buyer the
Xxxxxxx Money Deposit, together with interest thereon.
4.5 Physical Characteristics of the Property. Buyer's
review and approval, in its sole and absolute discretion, of (a) an
environmental assessment (which shall, without limiting the scope of the
report, contain an assessment of asbestos and radon affecting the Property) by
an environmental consultant of Buyer's choice and at Buyer's cost (the "PHASE I
REPORT"), and (b) the results of Buyer's physical inspection and testing of the
Property, or any portion thereof (which testing shall be conducted at Buyer's
expense, and may include, but shall not be limited to, testing for the presence
of asbestos,
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PCBs, as defined below, and other Hazardous Materials, as defined below,
including without limitation the performance of core sampling, drilling and
other intrusive testing), of the structural, mechanical, electrical and other
physical or environmental characteristics of the Property, including any tenant
improvements or other construction installed or to be installed as of the
Closing Date. To the extent not prohibited by the Leases, Seller shall allow
Buyer reasonable access to the Property to perform any physical inspection
thereof which Buyer reasonably deems appropriate.
4.6 Governmental Permits, Approvals and Regulations.
Buyer shall have confirmed that all governmental permits and approvals with
respect to the Property relating to the zoning, entitlements, construction,
operation, use or occupancy of the Property or any portion thereof, are in full
force and effect.
4.7 Representations and Warranties. All of Seller's
representations and warranties contained herein or made in writing by Seller
shall have been true and correct in all material respects when made and shall
be true and correct in all material respects as of the Closing Date, as though
made at, and as of, the Closing Date, and Seller shall have executed and
delivered all documents and complied with all of Seller's covenants and
agreements contained in or made pursuant to this Agreement.
4.8 Impairment of Property. No material adverse change
shall have occurred in the condition or ownership of the Property or any part
thereof from and after the conclusion of the Review Period. As of the Closing
no part of the Property, or any interest of Seller therein, shall be encumbered
by any lien, pledge, security interest, financing or due and unpaid charge, tax
or other imposition (other than Permitted Exceptions and items which will be
removed on or prior to the Closing Date), or damaged and not repaired to
Buyer's satisfaction or taken in condemnation or other like proceeding and no
such proceeding shall be pending or threatened, except as otherwise provided in
Section 8.2 hereof. There shall have occurred no material adverse change in
the financial condition of any tenant under any of the Leases demising five
thousand (5,000) square feet or more of the Improvements (each, a "MAJOR
LEASE"), and there shall be no default, or event that with the giving of notice
or the passage of time or both would constitute a default, under any Major
Lease.
4.9 Approval of Buyer's Board of Directors. This
Agreement and the transactions contemplated hereby shall have been approved by
Buyer's board of directors (the "BUYER APPROVAL") on or before December 1,
1996.
4.10 Objections to Title or Survey. Buyer shall have
until the expiration of ten (10) days from the later to occur of (i) delivery
of the Title Report and (ii) delivery of the Survey, to notify Escrow Holder
and Seller in writing of Buyer's disapproval of the condition of title. Buyer
shall give Seller and Escrow Holder written notice outlining in detail any
title items objected to and specifying Buyer's desired cure. Seller shall have
ten (10) days after receipt of Buyer's notice to advise Buyer and Escrow
Holder, in writing, as to whether Seller shall cure said objections prior to
the Closing (and should Seller fail to advise Buyer of Seller's objection
within such ten(10) day period, Seller shall be deemed to have elected to
refuse to cure said objections). In the event that Seller elects not to cure
such objections, or elects to cure such objections and fails or refuses to cure
said objections, Buyer shall have the option, which must be exercised within 10
days of Buyer's receipt of Seller's response or deemed response, or Closing
(whichever is earlier), (a) to waive Buyer's objections and purchase the
Property as otherwise contemplated in this Agreement, notwithstanding such
objections, in which event the subject matter of such
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waived objections shall be included within Permitted Exceptions, and Seller
shall convey the Property to Buyer, subject to the Permitted Exceptions, or (b)
to terminate this Agreement by written notice to Seller and Escrow Holder,
whereupon any and all right and obligations of Buyer and Seller hereunder shall
terminate and within five (5) days after Buyer has provided notice to Escrow
Holder, Escrow Holder shall deliver to Buyer the Xxxxxxx Money Deposit,
together with interest thereon. All exceptions to title to, and/or
encumbrances against, the Property shown on the Title Report or Survey but not
objected to by Buyer, and those items referred to in items (i) and (ii) of the
second sentence of Section 3.1 hereof, shall be deemed "PERMITTED EXCEPTIONS";
provided, however, that Seller covenants to remove all monetary encumbrances
(other than those with respect to the liens referred to in items (i) and (ii)
of the second sentence of Section 3.1 hereof) affecting the Property or any
portion thereof prior to Closing, and Seller further agrees that no monetary
encumbrances other than the liens referred to in items (i) and (ii) of the
second sentence of Section 3.1 hereof shall be Permitted Exceptions.
4.11 Objections to Property or Other Matters. To the
extent there is a change in any of the matters described in this Article IV.A,
or any such matters first become available or are supplemented after the date
hereof, Seller shall immediately inform Buyer of such change in circumstances
and deliver any such new or supplemental information to Buyer. Buyer shall
have until the date that is thirty (30) days after the date of the full
execution and delivery of this Agreement (the "REVIEW PERIOD"), to notify
Seller of any objections Buyer has to the physical or financial state of the
Property, to the Phase I environmental report, to any contracts or leases
relating to the Property, to any item delivered (or not delivered) by Seller to
Buyer, or to any other matter covered by this Article IV.A other than Title or
Survey; provided that Buyer shall have until the Closing Date to approve the
items specified in Sections 4.1, 4.8, 4.12 and 4.13 hereof. If Buyer shall
object as provided herein, then this Agreement shall terminate and any and all
right and obligations of Buyer and Seller hereunder shall terminate, and within
five (5) days after Buyer provides notice of such termination to Escrow Holder,
Escrow Holder shall pay to Buyer the Xxxxxxx Money Deposit, together with
interest thereon. If Buyer does not give notice to Seller of its objections
prior to the end of the Review Period, Buyer shall be conclusively deemed to
have waived any right to object.
4.12 Tenant Matters. Buyer shall have received and approved
written estoppel statements, in substantially the form as that attached hereto
as Schedule G, from each of the tenants under the Major Leases, and tenants
holding leases upon not less than eighty-five percent (85%) of the remaining
gross leasable area in the Property. Each such estoppel statement shall be in
form and substance acceptable to Buyer. Buyer shall have 5 days after the date
of Buyer's receipt of each such tenant estoppel to notify Seller of any
objection Buyer may have regarding such estoppel, and in the event Buyer fails
to so notify Seller, Buyer shall be deemed to have approved such estoppel.
4.13 REA Estoppels. Buyer shall have received and approved
such written estoppel statements from each holder of a reciprocal easement
agreement affecting the Property as Buyer shall reasonably require. Each such
estoppel statement shall be in form and substance reasonably acceptable to
Buyer. Buyer shall have 5 days after the date of Buyer's receipt of each such
"REA Estoppel" to notify Seller of any objection Buyer may have regarding such
estoppel, and in the event Buyer fails to so notify Seller, Buyer shall be
deemed to have approved such estoppel.
4.14 Rent Support Agreement. Unless the 5,600 net rentable
square feet shown as vacant on the Rent Roll as of the date hereof (the "VACANT
SPACE") shall have
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been fully leased (with such approval of Buyer as may be required pursuant to
Section 9.2 hereof) upon the Closing, Seller shall have executed and delivered
a Rent Support Agreement in the form attached hereto as Schedule I (the "RENT
SUPPORT AGREEMENT") with respect to the portion of the Vacant Space remaining
unleased at Closing.
4.15 Occupancy. All buildings on the Property leased to
tenants, as set forth on the Rent Roll, shall be occupied by such tenants, and
each tenant to which a portion of the Property has been leased, as set forth on
the Rent Roll, shall have opened for business to the general public and shall
be paying scheduled monthly rent under the Lease with respect thereto.
4.16 Delivery of Documents. The due and timely delivery by
Seller of executed documents required by this Agreement, including without
limitation all of the documents and items specified in Section 5.3 below.
The foregoing conditions contained in this Article IV.A
(except to the extent otherwise provided in Article IV.B hereof) are intended
solely for the benefit of, and may be waived by, Buyer.
B. Seller's Conditions to Closing.
The following conditions are conditions precedent to Seller's
obligation to sell the Property:
4.16 Delivery of Documents and Purchase Price. Buyer's
due and timely execution and delivery of all documents and items to be executed
and delivered by Buyer (including without limitation the Purchase Price)
pursuant to this Agreement, including without limitation all of the documents
and items specified in Section 5.4 below.
The foregoing conditions contained in this Article IV.B are
intended solely for the benefit of Seller (except to the extent otherwise
provided in Article IV.A hereof).
ARTICLE V
CLOSING, RECORDING AND TERMINATION
5.1 Deposit with Escrow Holder and Escrow Instructions.
Promptly after execution of this Agreement, the parties hereto shall deliver
one (1) fully executed copy of this Agreement to the Escrow Holder and this
instrument shall serve as the escrow instructions to the Escrow Holder for
consummation of the purchase and sale contemplated hereby. Seller and Buyer
agree to execute such additional and supplementary escrow instructions as may
be appropriate to enable the Escrow Holder to comply with the terms of this
Agreement; provided, however, that in the event of any conflict between the
provisions of this Agreement and any supplementary escrow instructions, the
terms of this Agreement shall control.
5.2 Closing. (a) The Closing Date shall occur
no later than the date (the "OUTSIDE CLOSING DATE") which is twenty-five (25)
days after the conclusion of the Review Period. The Closing and the Closing
Date shall not have occurred until the Purchase Price shall have been paid by
Buyer to Escrow Holder as provided herein. The "CLOSING" shall be deemed to
have occurred on the date that all of the events specified in
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Section 5.8 of this Agreement shall have occurred. The "CLOSING DATE" shall be
the date on which the Closing occurs.
(b) In the event the Closing does not occur on or
before the Outside Closing Date, subject to any extension to the Outside
Closing Date contemplated by Article VIII hereof, the Escrow Holder shall,
unless it is notified by Buyer to the contrary within five (5) days after such
date, return to the depositor thereof all items which may have been deposited
with Escrow Holder hereunder. Any such return shall not, however, relieve
either party hereto of any liability it may have for its wrongful failure to
close. Buyer shall, within five (5) days after the termination of this
Agreement in accordance with the terms hereof, return to Seller all documents
and materials delivered to Buyer hereunder by or on behalf of Seller.
5.3 Delivery by Seller. At the Closing, Seller shall
deposit with the Escrow Holder, for the benefit of Buyer, or deliver directly
to Buyer the following:
(a) The Deed and the Assignment and Assumption of Leases
and Rents, each duly executed and acknowledged by Seller, in
recordable form, and ready for recordation in the official
records of the jurisdiction in which the Land is located (the
"OFFICIAL RECORDS");
(b) The Xxxx of Sale duly executed by Seller;
(c) A certificate from the office of the county clerk of
the county in which the Land is located and of the county in
which Seller's principal office is located, together with a
certificate from the Office of the Secretary of State of the
State of Kansas, each dated within thirty (30) days after the
Closing Date, listing, as of the date of such certificate, all
filings against Seller in said offices under the Commercial
Code of Kansas which would be a lien on any of the Personal
Property, together with fully executed termination statements
with respect to such filings;
(d) originals or copies of any warranties and guaranties
received by Seller and to be assigned to Buyer, from any
contractors, subcontractors, suppliers or materialmen in
connection with any construction, repairs or alterations of
the Improvements or any tenant improvements;
(e) The Assignment of Contracts, Intangible Property,
Warranties and Guarantees, duly executed by Seller and
acknowledged, assigning all of Seller's interest in the
Intangible Property, together with written terminations of any
Contracts which are not Approved Contracts;
(f) Originals or copies of all certificates of occupancy,
licenses and permits for the Improvements;
(g) All existing as-built plans and specifications for
the Improvements in the possession of Seller or its manager;
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(h) A closing statement prepared by Escrow Holder in form
and content consistent with this Agreement and otherwise
reasonably satisfactory to Buyer and Seller;
(i) The Non-Foreign Certificate, duly executed by Seller;
(j) If required by Section 4.13 hereof, the Rent Support
Agreement duly executed by Seller; and
(k) Complete originals of the Leases with respect to the
Property and copies of all records, books of account, ledgers,
statements and other business records relating to the
ownership and operation of the Property and/or the
administration of the Leases, in whatever mode maintained,
including information contained on computer disks.
Buyer may waive compliance on Seller's part under any of the
foregoing items by an instrument in writing.
5.4 Delivery By Buyer. Buyer shall execute and deliver
to Escrow Holder, for the benefit of Seller, or directly to Seller such
documents and instruments as may be required to the close the transactions
contemplated hereby (including without limitation, if required by Section 4.13
hereof, the Rent Support Agreement, duly executed by Buyer), which documents
and instruments shall be in form and substance reasonably acceptable to Buyer.
After Buyer's or Escrow Holder's receipt of all of the items specified in
Section 5.3 hereof, after the complete satisfaction of all of the conditions
precedent to Buyer's obligations hereunder, and after the expiration of the
Review Period, Buyer shall deliver the Purchase Price to Escrow Holder as
provided in Section 2.2 above.
5.5 Other Instruments. Seller and Buyer shall each
deposit such other instruments as are reasonably required by Escrow Holder or
otherwise required to close the escrow and consummate the purchase of the
Property in accordance with the terms hereof.
5.6 Prorations. At Closing, the parties shall prorate
(with Buyer being deemed to be the owner of the Property for the date of the
Closing) as of the date on which the Closing occurs, on the basis of a thirty
(30) day month, the following with respect to the Property:
(a) Rents. All rents and other receipts payable
for the month in which the Closing occurs shall be prorated as
of the Closing. If any tenant under a Lease is delinquent in
such month, Seller shall pay to Buyer the pro-rated amount of
the scheduled monthly rent under such Lease. Buyer shall use
reasonable efforts after the Closing to collect delinquent
rents for the period up to the Closing; provided, however,
that all collections shall be applied first to periods
commencing after the Closing, and then to periods prior to the
Closing. Percentage Rents (if any) shall be prorated by Buyer
reasonably promptly after receipt thereof by Buyer, based on
twelve thirty (30) day months.
(b) Common Area Maintenance Charges. All
reimbursable expenses shall be reconciled at Closing, such
that if
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Seller has collected sums in excess of its reimbursable
expenses under the Leases, Seller shall pay such excess to
Buyer. In the event that such reconciliation shows that
Seller has collected less than its incurred reimbursable
expenses under the Leases, Buyer shall remit the excess (to
the extent, and only to the extent, that such excess is
actually collected by Buyer, with all payments on arrearages
to be applied first to the period after the Closing Date) to
Seller not later than the expiration of three months after the
conclusion of the twelve-month period then in progress with
respect to the budgeting of such expenses under the Leases.
(c) Taxes. Unless such items are subject to
proration under subparagraph (b) above, real estate taxes,
recurring assessments, and personal property taxes, if any, on
all or any portion of the Property, based on the regular and
supplemental tax bills for the calendar year in which the
Closing occurs (or, if such tax xxxx has not been issued as of
the date of Closing the regular and supplemental tax xxxx for
the calendar year preceding that in which the Closing occurs,
with such increase thereto as Buyer reasonably estimates will
occur) shall be prorated as of the Closing. If any
supplemental real estate taxes are levied for any period
preceding the Closing, the parties will, immediately after the
Closing or the issuance of the supplemental real estate tax
xxxx (whichever last occurs), prorate between themselves, in
cash, without interest and to the date of the Closing Date,
the supplemental real estate taxes shown by such xxxx.
(d) Utilities. Unless such items are subject to
proration under subparagraph (b) above, all utilities,
including gas, water, sewer, electricity, telephone and other
utilities supplied to the Property shall be read as of the
Closing Date. Seller shall pay, prior to the Closing Date,
all such amounts for which a xxxx has been received or for
which payment is otherwise due prior to the Closing Date, and
Buyer shall be credited, and Seller shall be debited, with an
amount equal to all utility charges for the period from the
date such bills were issued or such payments were due until
the Closing Date. Seller shall be credited for the amount of
any deposits made by Seller for utility services which have
not been refunded to Seller and which are assigned to Buyer on
or prior to the Closing Date.
(e) Service Contracts. Amounts payable under Approved
Contracts shall be prorated on an accrual basis. Seller shall
pay, prior to the Closing Date, all such amounts for which a
xxxx has been received or for which payment is otherwise due
prior to the Closing Date, and Buyer shall be credited, and
Seller shall be debited, with an amount equal to all amounts
accrued under the Approved Contracts from the date such bills
were issued or such payments were due until the Closing Date.
Seller shall deliver to Escrow, for the benefit of Buyer,
evidence of the cancellation or termination of all Contracts
other than Approved Contracts, and Seller shall be responsible
for all such cancellation costs.
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(f) Improvement Lien Assessments. All
improvement lien assessments shall be paid in full by Seller
at Closing.
(g) Other Items. All other proratable items, including
without limitation licenses and permits and other income from,
and expenses associated with, the Property shall be prorated
between Buyer and Seller as of the Closing.
Buyer and Seller's obligation to prorate shall survive the Closing for a period
of one (1) year (unless within such time Buyer or Seller makes a claim against
the other party to this Agreement with respect to such obligation to prorate,
in which case such obligation shall survive without limitation), and Buyer and
Seller shall use good faith efforts to conclude prorations with respect to
percentage Rent and common area maintenance charges as soon as practicable
after the determination of the amounts thereof.
5.7 Costs and Expenses. Seller and Buyer shall each bear
and pay one-half (1/2) of the fees of Escrow Holder. Seller shall for the cost
of the Survey, the Title Policy, all legal fees and costs incurred by Seller,
the cost of any recordation fees and documentary or other transfer taxes
applicable with respect to the sale of the Real Property, all sales tax, if
any, applicable with respect to the sale of the Personal Property and/or the
Intangible Property, and other fees and charges which are typically borne by
sellers in Wichita, Kansas. Buyer shall pay for its out-of-pocket expenses,
all due diligence, all legal fees and costs incurred by Buyer in connection
herewith, and other fees and charges which are typically borne by buyers in
Wichita, Kansas.
5.8 Closing and Recordation. Provided that Escrow Holder
has received all of the items required to be delivered pursuant to this Article
V (or a waiver from the party for whose benefit such item is being delivered)
and that it has not received prior written notice from Buyer that Buyer has
elected to terminate its rights and obligations hereunder pursuant to Article
IV, Article VIII and/or Section 5.9, and provided that Buyer has received
either the Title Policy or the irrevocable commitment of Title Company to
provide it with the Title Policy immediately after recordation of the Deed,
Escrow Holder is authorized and instructed (a) with respect to the Property, to
cause the Title Company to record the documents delivered to the Escrow Holder
in accordance with recording instructions set forth in a letter to be delivered
to Escrow Holder and Title Company by Buyer (or if no such letter is received
prior to the Closing, in accordance with customary practice), (b) to deliver
those other documents and instruments delivered into Escrow to the party for
whose benefit such documents or instruments were made and (c) to deliver the
Purchase Price, as adjusted pursuant to Section 5.6 hereof, upon receiving
confirmation of recording of the Deed.
5.9 Termination of Agreement.
(a) Failure of Buyer's Conditions. If any one or more of
the conditions to Buyer's obligations, as set forth in Article IV.A, Section
5.3 or elsewhere in this Agreement, is not either fully performed, satisfied or
waived in writing (or deemed waived as provided herein) on or before the
Closing Date or such earlier date as provided elsewhere herein, then Buyer may
elect, by written notice as provided in Section 10.10 hereof, to terminate this
Agreement, in which case neither party shall have any further obligation to the
other. Nothing in this paragraph shall be construed to limit any of Buyer's
rights or remedies at law or equity in the event of a default by Seller.
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(b) Failure of Seller's Conditions. If any one or more
of the conditions to Seller's obligations, as set forth in Article IV.B,
Section 5.4 or elsewhere in this Agreement, is not either fully performed,
satisfied or waived in writing (or deemed waived as provided herein) on or
before the Closing Date or such earlier date as provided elsewhere herein, then
Seller may elect, by written notice as provided in Section 10.10 hereof, to
terminate this Agreement and neither party shall have any further obligation to
the other.
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
As an inducement to Buyer to enter into this Agreement and the
consummation of the transaction contemplated hereby, Seller hereby represents
and warrants to and agrees with Buyer both as of the date hereof and again as
of the Closing Date, and as of all dates and times in between (except as
specifically provided to the contrary herein), as set forth below. As used
herein and elsewhere in this Agreement, the term "SELLER'S ACTUAL KNOWLEDGE"
shall mean the actual knowledge of each of Messrs. S. Xxxxxx Xxxxxxx,
Xxxxxx Xxxxxxxx and Xxxxx Xxxxxxxx, without any duty of investigation of any
kind. Seller hereby represents and warrants that the foregoing persons are the
persons employed by Seller or Seller's manager with executive, managerial or
daily supervisory responsibility with respect to the Property.
6.1 Authority. Seller is duly organized and validly
existing under the laws of the jurisdiction of its organization, is duly
qualified to conduct business and own real property in the State of Kansas, and
has all requisite power to own all of its properties and assets and to carry on
its business as presently conducted. The execution, delivery and performance
of this Agreement and all other agreements contemplated hereby has been duly
and validly authorized by all necessary action of Seller and the Agreement and
all other agreements contemplated thereby are and will be valid and binding
obligations of Seller, enforceable against Seller in accordance with their
respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
generally the enforcement of creditors' rights and general principles of
equity.
6.2 Title. Seller holds fee simple title to the
Property, and to Seller's actual knowledge, such fee simple title is free and
clear of all liens, encumbrances, security interests, charges, adverse claims
and other exceptions to title, except for the Leases, Contracts, matters of
record, matters disclosed by the Survey and the Permitted Exceptions.
6.3 The Leases. A list of the current Leases is set
forth in the rent roll attached hereto as Schedule H (the "RENT ROLL"). The
Rent Roll is true, complete and correct in all respects and except for the
Leases set forth in the Rent Roll, there are no other leases, licenses or other
agreements affecting the occupancy of the Property. With respect to each
Lease: (i) the Lease is in full force and effect, and constitutes the valid and
binding legal obligation of Seller and the respective tenant, enforceable
against each of them in accordance with its terms; (ii) there are no
understandings, oral or written, between the parties to the Lease which in any
manner vary the obligations or rights of either party; (iii) except as
indicated on the Rent Roll, there is no default by Seller under the Lease and
to Seller's actual
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knowledge, by the tenant under the Lease; and (iv) no rent or additional rent
under the Lease has been paid for more than thirty (30) days in advance of its
due date.
6.4 No Litigation or Adverse Events. Seller has received
no written notice of, and to Seller's actual knowledge, there are no, pending
or threatened investigations, actions, suits, proceedings or claims against or
affecting Seller, the Property, any tenant, or any adjacent property, at law or
in equity or before or by any federal, state, municipal or other governmental
department, commission, board, agency, or instrumentality, domestic or foreign.
6.5 Compliance with Laws. To Seller's actual knowledge,
Seller is in compliance in all material respects with all applicable laws,
ordinances, rules and regulations (including without limitation those relating
to zoning and the Americans With Disabilities Act) applicable to the ownership
or operation of the Property. Seller has not received from any insurance
company or Board of Fire Underwriters any notice, which remains uncured, of any
defect or inadequacy in connection with the Property or its operation.
6.6 No Defaults in Other Agreements. To Seller's actual
knowledge, neither Seller nor any other party is in material default under any
Contract affecting the Property, and no event exists which, with the passage of
time or the giving of notice or both, will become a material default thereunder
on the part of the Seller or any other party thereto. To Seller's actual
knowledge, Seller is in compliance in all material respects with the terms and
provisions of the covenants, conditions, restrictions, rights-of-way or
easements affecting the Property.
6.7 Eminent Domain. To Seller's actual knowledge, there
is no existing or proposed or threatened eminent domain or similar proceeding,
or private purchase in lieu of such a proceeding which would affect the
Property in any material way.
6.8 Licenses, Permits, CO's, Zoning, etc. To Seller's
actual knowledge, all permits, certificates of occupancy, business licenses and
all other notices, licenses, permits, certificates and authority required as of
the date hereof and as of the Closing Date in connection with the use or
occupancy of the Property have been obtained and are in full force and effect
and in good standing.
6.9 Taxes and Assessments. To Seller's actual knowledge,
all real property taxes, and all Seller's personal property taxes, relating to
the Property, excepting those for the current tax year which are not yet
overdue (i.e., which are still payable without interest or penalty), have been
paid in full. To Seller's actual knowledge, there is no existing or proposed
assessment that has or may become a lien on the Property.
6.10 Environment. (i) Seller has not engaged in any
operations or activities upon, or any use or occupancy of the Property, or any
portion thereof, for the purpose of or in any way involving the handling,
manufacture, treatment, storage, use, generation, release, discharge, refining,
dumping or disposal of any Hazardous Materials (whether legal or illegal,
accidental or intentional) on, under, in or about the Property, or transported
any Hazardous Materials to, from or across the Property, except in all cases in
material compliance with Environmental Requirements and only in the course of
legitimate business operations at the Property (which shall not include any
business primarily or substantially devoted to the handling, manufacture,
treatment, storage, use, generation, release, discharge, refining, dumping or
disposal of Hazardous Materials); (ii) to Seller's actual knowledge, no tenant,
occupant or user of the Property, nor any other person, has engaged in or
permitted any operations or activities upon, or any use or occupancy of the
Property, or any portion thereof,
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for the purpose of or in any material way involving the handling, manufacture,
treatment, storage, use, generation, release, discharge, refining, dumping or
disposal of any Hazardous Materials (whether legal or illegal, accidental or
intentional) on, under, in or about the Property, or transported any Hazardous
Materials to, from or across the Property, except in all cases in material
compliance with Environmental Requirements and only in the course of legitimate
business operations at the Property (which shall not include any business
primarily or substantially devoted to the handling, manufacture, treatment,
storage, use, generation, release, discharge, refining, dumping or disposal of
Hazardous Materials); (iii) to Seller's actual knowledge, no Hazardous
Materials are presently constructed, deposited, stored, or otherwise located
on, under, in or about the Property except in all cases in material compliance
with Environmental Requirements and only in the course of legitimate business
operations at the Property (which shall not include any business primarily or
substantially devoted to the handling, manufacture, treatment, storage, use,
generation, release, discharge, refining, dumping or disposal of Hazardous
Materials); (iv) to Seller's actual knowledge, no Hazardous Materials have
migrated from the Property upon or beneath other properties; and (v) to
Seller's actual knowledge, no Hazardous Materials have migrated or threaten to
migrate from other properties upon, about or beneath the Property.
As used herein:
"ENVIRONMENTAL REQUIREMENTS" shall mean all applicable present
statutes, regulations, rules, ordinances, codes, licenses, permits, orders,
approvals, plans, authorizations, concessions, franchises and similar items, of
all governmental agencies, departments, commissions, boards, bureaus or
instrumentalities of the United States, states and political subdivisions
thereof and all applicable judicial and administrative and regulatory decrees,
judgments and orders relating to the protection of human health or the
environment, including, without limitation: (i) all requirements, including
but not limited to those pertaining to reporting, licensing, permitting,
investigation and remediation of emissions, discharges, releases or threatened
releases of "Hazardous Materials," chemical substances, pollutants,
contaminants or hazardous or toxic substances, materials or wastes whether
solid, liquid or gaseous in nature, into the air, surface water, ground water
or land, or relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of chemical substances,
pollutants, contaminants or hazardous or toxic substances, materials, or
wastes, whether solid, liquid or gaseous in nature; and (ii) all requirements
pertaining to the protection of the health and safety of employees or the
public.
"HAZARDOUS MATERIALS" shall mean (i) any flammable, explosive
or radioactive materials, hazardous wastes, toxic substances or related
materials including, without limitation, substances defined as "hazardous
substances," "hazardous materials," "toxic substances" or "solid waste" in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. Sec. 9601, et seq.; the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801, et seq.; the Toxic Substances
Control Act, 15 U.S.C., Section 2601 et seq.; the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. Section 6901 et seq.; and in the regulations
adopted and publications promulgated pursuant to said laws; (ii) those
substances listed in the United States Department of Transportation Table (49
C.F.R. 172.101 and amendments thereto) or by the Environmental Protection
Agency (or any successor agency) as hazardous substances (40 C.F.R. Part 302
and amendments thereto); (iii) those substances defined as "hazardous wastes,"
"hazardous substances" or "toxic substances" in any similar federal, state or
local laws or in the regulations adopted and publications promulgated pursuant
to any of the foregoing laws or which otherwise are regulated by any
governmental authority, agency, department, commission, board or
instrumentality of the United States of America, the State of Kansas or
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any political subdivision thereof, (iv) any pollutant or contaminant or
hazardous, dangerous or toxic chemicals, materials, or substances within the
meaning of any other applicable federal, state, or local law, regulation,
ordinance, or requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning any
hazardous, toxic or dangerous waste, substance or material, all as amended; (v)
petroleum or any by-products thereof; (vi) any radioactive material, including
any source, special nuclear or by-product material as defined at 42 U.S.C.
Sections 2011 et seq., as amended, and in the regulations adopted and
publications promulgated pursuant to said law; (vii) asbestos in any form or
condition; and (viii) polychlorinated biphenyls.
6.11 Physical Condition. To Seller's actual knowledge: (i)
there are no material structural defects in the Improvements located on or at
the Property; and (ii) the Improvements and Personal Property (including
without limitation plumbing equipment, HVAC, electric wiring and fixtures, gas
distribution system, water and sewage systems, and security systems) are in
good working order and condition, except for defects or required repairs that
are not material.
6.12 Employees. Seller has no employees.
6.13 Mechanic's Liens. All bills and claims for labor
performed and materials furnished to or for the benefit of the Property
currently due and contracted for by Seller or its manager have been paid in
full, and there are no mechanic's or materialmen's liens (whether or not
perfected) on or affecting the Property as a result of labor performed or
materials furnished and contracted for by the Partnership or its manager.
6.14 Operating Statements. The financial statements
delivered by Seller to Buyer fairly present the profit or loss from the
management and operation of the Property for the periods covered thereby and,
in all material respects, accurately reflect all rents and other gross
receipts, and all amounts paid by Seller for electricity, water, sewer, other
utility services, insurance, fuel, maintenance and repairs (whether capitalized
or expensed), real estate taxes, payroll and payroll taxes and all other
operating and other expenses associated with the Property.
6.15 Disclosure. No representation or warranty of Seller
in this Agreement, or any information, statement or certificate furnished or to
be furnished by Seller or at Seller's direction pursuant to this Agreement or
in connection with the transactions contemplated hereby, contains or shall
contain any materially untrue statement of a material fact or omits or shall
omit to state a material fact necessary to make the statements contained
therein not misleading. To Seller's actual knowledge, there is no material
misstatement or omission in the copies of contracts, agreements and other
documents delivered by Seller in connection with the transactions contemplated
hereby.
6.16 No Leases of Property or Assets. No material portion
of the Personal Property or fixtures with respect to the Property (other than
fixtures owned or installed by tenants) is leased by the Seller as lessee.
The representations and warranties set forth in this Article
VI shall survive the execution and delivery of this Agreement, the delivery of
the Deed and transfer of title to the Property, until the date that is one (1)
year after the Closing Date; provided however, that in the event Buyer makes a
written claim against Seller with respect to any representation or warranty
prior to the date which is one (1) year after the Closing Date,
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then such representation or warranty shall survive without limitation as to
such written claim.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF BUYER
7.1 Representations and Warranties of Buyer. Buyer
hereby represents and warrants to Seller as follows: Buyer is a corporation
duly organized under the laws of the State of Maryland; subject to receipt of
the Buyer Approval, this Agreement and all documents executed by Buyer which
are to be delivered to Seller at the Closing are and as of the Closing Date
will be duly authorized, executed and delivered by Buyer, and are and as of the
Closing Date will be legal, valid and binding obligations of Buyer, and do not
and as of the Closing Date will not violate any provisions of any agreement or
judicial order to which Buyer is a party or to which it is subject.
ARTICLE VIII
POSSESSION, DESTRUCTION AND CONDEMNATION
8.1 Possession. Possession of the Property shall be
delivered to Buyer on the Closing Date, subject to the Leases described on the
Rent Roll or otherwise approved by Seller. Without limiting any other
provisions of this Agreement, Seller shall afford authorized representatives of
Buyer reasonable access to the Property for the purposes of determining
Seller's compliance herewith (provided that Seller or Seller's agent shall be
allowed to accompany Buyer in any visit to the Property Buyer may make for the
purposes of determining such compliance); however, in no event shall such right
give rise to any obligation of Buyer to determine compliance or noncompliance.
8.2 Loss, Destruction and Condemnation.
(a) Definition of Material Damage. For the
purposes of this Section 8.2, damage to the Property is material if (i) the
actual cost of repairing or replacing the damaged portions of the Improvements
on the Property exceeds $250,000.00, or (ii) if it would take longer than
ninety (90) days to perform such repair or replacement using reasonably
diligent efforts, or (iii) if any lessee has the right to xxxxx any rent under
its lease as a result of such damage and there is not full rental interruption
coverage with respect thereto available to Buyer through and after the Closing
Date until the date that is ninety (90) days beyond the estimated date of
reconstruction, or (iv) if any lessee has a right to terminate its lease as a
result of such damage.
(b) Effect of Non-Material Damage to
Improvements. If prior to the Closing the Improvements on the Property are
damaged by casualty and such damage is not material, (i) this Agreement may not
be terminated by reason of such casualty (provided that this does not waive
Buyer's other termination rights under this Agreement) and (ii) Seller will, at
Buyer's option, either (a) cause the damaged portion of the Improvements to be
repaired at Seller's sole cost and expense within ninety (90) days after the
date of such damage or (b) reduce the Purchase Price by an amount equal to the
actual, reasonable and necessary cost of repairing or replacing the damaged
portions of the Improvements. Seller will notify Buyer within five (5) days
(but in any event prior to the
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Closing Date) of Seller's receipt of knowledge of any casualty which occurs
after the date of this Agreement and on or prior to the Closing Date.
(c) Effect of Material Damage to Improvements.
If prior to the Closing the Improvements are damaged by casualty and such
damage is material, Seller shall notify Buyer in writing of such casualty as
soon as practicable. Within ten (10) days after the occurrence of such
casualty, Seller will, as soon as is practicable, commence restoration of the
damaged Improvements, and shall complete such restoration in compliance with
all laws and the representations and warranties set forth herein and shall
restore such Improvements their condition prior to the occurrence of the
casualty promptly (but in no event more than ninety (90) days thereafter), and
the Closing Date shall be extended (but in no event by more than ninety (90)
days) until such damaged Improvements are complete. If Seller does not
commence or complete such restoration within such time period, then Buyer may
elect pursuant to a writing delivered to Seller and Escrow Holder to (i)
continue this Agreement, provided, however, that Seller shall assign to Buyer
at the Closing any insurance proceeds to which Seller is entitled with respect
to such damage (in which event the Purchase Price shall be reduced by the
amount of any deductible with respect thereto); (ii) continue this Agreement,
provided, however, that Seller shall reduce the Purchase Price by an amount
equal to the reasonable cost of repairing or replacing the damaged portion(s)
of the Improvements reasonably estimated by Buyer (in which event Seller shall
be entitled to retain any insurance proceeds with respect to such damage), or
(iii) terminate this Agreement, in which case Buyer shall have no further
rights and obligations to the Seller under this Agreement (but Buyer shall
retain its rights and remedies against Seller) and Escrow Holder shall
immediately return the Xxxxxxx Money Deposit (with interest thereon) to Buyer.
Buyer's failure to have elected any of these options within the time allotted
therefor shall be deemed to be an election of option (iii).
(d) Definition of Material Taking. For the
purposes of this Section 8.2, a taking or threatened taking by eminent domain
or similar proceedings shall be deemed material if (i) the value of that
portion of the Property to be so taken exceeds $100,000.00, (ii) the portion of
the Property taken includes any access to the Property or any portion of the
parking area; (iii) Buyer determines that the Property so affected is
materially and adversely affected by such taking or threatened taking, (iv) any
lessee has the right to xxxxx any rent under its lease as a result of such
taking or threatened taking, or (v) any lessee has the right to terminate its
lease as a result of such taking or threatened taking.
(e) Effect of Non-Material Taking. If prior to
the Closing there is a taking or threatened taking of a portion of the Property
which is not material, (i) this Agreement may not be terminated and (ii) Seller
will assign to Buyer at the Closing all of Seller's rights in and to any
condemnation award with respect to such non-material taking, and there will be
no reduction in the Purchase Price. Seller will deliver written notice to
Escrow Holder and Buyer within one (1) day after Seller receives notice of or
otherwise becomes aware of any taking or threatened taking affecting the
Property.
(f) Effect of Material Taking. If prior to the
Closing there is a taking or threatened taking of a material portion of the
Property or all of it, Seller shall notify Buyer in writing of such taking or
threatened taking, and within ten (10) days after Buyer's receipt of such
notice, Seller and Buyer shall endeavor to agree upon whether the Property
shall be purchased by Buyer, and any reduction in the Purchase Price, and any
assignment of any condemnation award with respect to such taking. If within
such ten (10)
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day period Buyer and Seller have not reached a mutually acceptable agreement as
to those matters, Buyer within ten (10) days thereafter may elect in writing to
(i) continue this Agreement subject to the taking or threatened taking with an
assignment of all of Seller's rights to condemnation awards, severance damages,
payments-in-lieu thereof or the like; or (ii) terminate this Agreement, in
which case Buyer and Seller shall have no further rights or obligations to one
another under this Agreement, and Escrow Holder shall immediately return the
Xxxxxxx Money Deposit (with interest thereon) to Buyer. Buyer's failure to
have elected any of these options within the time period allotted therefor
shall be deemed to be an election of option (ii).
(g) Extension of Outside Closing Date. Upon the
occurrence of any damage to the Property, the Outside Closing Date shall be
extended to the date upon which Seller is required hereunder to have such
damage repaired, but in no event shall any such extension extend the Outside
Closing Date to a date which is more than ninety (90) days after the date of
such damage to the Property.
ARTICLE IX
MAINTENANCE AND OPERATION OF THE PROPERTY; COVENANTS
9.1 Maintenance. In addition to Seller's other
obligations hereunder, Seller shall, upon and after the date of this Agreement
and to and including the Closing Date, at Seller's sole cost and expense,
maintain the Property in the ordinary course of business consistent with past
practice, pay all taxes, assessments, fines, penalties, charges and other
operating expenses, and shall make all repairs, maintenance and replacements of
the Improvements and any Personal Property and otherwise operate the Property
in its ordinary and customary manner, and otherwise in the same manner as
before the making of this Agreement, the same as though Seller were retaining
the Property. Seller shall not make any alterations to the Property without
first receiving Buyer's prior written consent thereto.
9.2 Leases and Other Agreements. Seller shall not, on or
after the date of this Agreement and on or prior to the Closing Date, enter
into any Lease pertaining to the Property except pursuant to the terms and
conditions set forth in this Section 9.2. At any time prior to the Closing
Date, in the event that Seller intends to enter into a lease with respect to
any portion of the Property, Seller shall deliver to Buyer a complete copy of
the proposed lease, financial information as to the proposed lessee (with
credit reports), and copies of all brokerage agreements (or a detailed list of
all brokerage obligations) with respect to such lease. Buyer shall review and
approve or disapprove of such lease within ten (10) days after the receipt of
all of the foregoing materials. If all such materials are delivered to Buyer
on or prior to ten (10) days prior to conclusion of the Review Period, and if
(a) such lease (and any brokerage commissions with respect thereto) was
negotiated by Seller in good faith and is on market terms, (b) the proposed
lessee is creditworthy as determined by Buyer in its reasonable judgment, (c)
the proposed use of the premises under such Lease is compatible with the other
uses in the Property and is not inconsistent with the general leasing policies
of Buyer, as determined by Buyer in its reasonable judgment, and (d) the terms
and conditions of such Lease and any brokerage commissions payable with respect
thereto are otherwise acceptable to Buyer in its reasonable discretion, then
Buyer shall approve such lease and if and when the Closing occurs, Buyer shall
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assume all obligations under such lease to pay for or construct tenant
improvements and shall assume and pay, as and when due, all brokerage
commissions with respect to such lease which commissions were disclosed to and
approved by Buyer. In the event that Buyer does not affirmatively approve in
writing such lease within such ten (10) day period, then Buyer shall be deemed
to have disapproved such lease and as long as this Agreement remains effective
Seller shall not enter into such lease. Seller's sole remedy with respect to
any such disapproval shall be to terminate this Agreement, by written notice to
Buyer not later than five (5) days later the expiration of such ten (10) day
period, in which case the Xxxxxxx Money Deposit, with all interest thereon,
shall be refunded to Buyer and this Agreement, and each party's obligations
hereunder, shall terminate. Notwithstanding the foregoing, after the
conclusion of the Review Period, in no event shall Seller enter into any lease
with respect to the Property without Buyer's prior written consent, which will
not be unreasonably withheld or delayed. After the date hereof, without
Buyer's prior written consent (which will not be unreasonably withheld) in no
event shall Seller enter into any agreement or contract with respect to the
Property (other than a lease, which shall be governed by the foregoing
provisions) which is not terminable on thirty (30) days' prior notice (without
premium or penalty).
9.3 Encumbrances. Seller shall not, in between the date
of this Agreement and the Closing Date, mortgage, encumber or suffer to be
encumbered all or any portion of the Property, which encumbrances would survive
the Closing Date, without the prior written consent of Buyer.
9.4 Consents and Notices. Seller and Buyer shall
cooperate with each other and exercise commercially reasonable efforts to
obtain as of the Closing Date, all consents from, and provide all notices to,
any third party and any governmental or regulatory authority which are required
pursuant to any Contract or any applicable laws as a condition to or in
connection with the execution, delivery or performance of this Agreement or
other documents and instruments contemplated thereby.
9.5 Audit Cooperation. Until the date that is one (1)
year after the Closing Date, Seller hereby agrees to cooperate with Buyer in
producing Buyer's audited financial statements for the Property for such
periods as may be requested by Buyer. Such cooperation shall include, without
limitation, the execution and delivery by Seller to Buyer's auditors of such
confirmations and letters as such auditors may reasonably require.
ARTICLE X
MISCELLANEOUS
10.1 Notices. Any notice required or permitted to be
given under this Agreement shall be in writing and personally delivered or sent
by United States mail, registered or certified mail, postage prepaid, return
receipt requested, or by electronic facsimile transmission, or sent by Federal
Express or similar nationally recognized overnight courier service, and
addressed as follows, and shall be deemed to have been given upon the date of
delivery (or refusal to accept delivery) at the address specified below as
indicated on the return receipt or air xxxx:
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If to Seller: XXXXX INDUSTRIES-WICHITA WESTGATE
LIMITED PARTNERSHIP
00000 Xxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: S. Xxxxxx Xxxxxxx
Fax No.: (000)000-0000
with a copy to: Xxxxxxxx & Knight, P.C.
0000 Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxx
Fax No.: (000)000-0000
If to Buyer: The PRICE REIT, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn.: Xxxxxx Xxxxxxxxxx
Fax No.: (000) 000-0000
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Fax No.: (000) 000-0000
If to Escrow Security Abstract & Title Company
Holder: 000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Attn: Xx. Xxxx Xxxxxxx
Fax No.: (000) 000-0000
or such other address as either party may from time to time specify in writing
to the other in the manner aforesaid.
10.2 Brokers and Finders. Buyer and Seller each hereby
represents and warrants that no broker was involved in this Agreement or the
transactions contemplated hereby except for Marcus & Millichap, and K&F
Development, whose commissions are to be paid by Seller. In the event of a
claim for a broker's fee, finder's fee, commission or other similar
compensation in connection herewith other than as set forth above, (i) Buyer,
if such claim is based upon any agreement alleged to have been made by Buyer,
hereby agrees to reimburse Seller for any liability, loss, cost, damage or
expense (including reasonable attorneys' and paralegals' fees and costs) which
Seller may sustain or incur by reason of such claim and (ii) Seller, if such
claim is based upon any agreement alleged to have been made by Seller, hereby
agrees to indemnify, defend, protect and hold Buyer harmless against any and
all liability, loss, cost, damage or expense (including reasonable attorneys'
and paralegals' fees and costs) which Buyer may sustain or incur by reason of
such claim. The provisions of this Section 10.2 shall survive the Closing or
earlier termination of this Agreement.
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10.3 Successors and Assigns. This Agreement shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns, except that neither Seller's nor Buyer's
interest under this Agreement may be assigned, encumbered or otherwise
transferred whether voluntarily, involuntarily, by operation of law or
otherwise, without the prior written consent of the other; provided, however,
that Buyer may assign, encumber or otherwise transfer Buyer's interest under
this Agreement, without the prior written consent of Seller (which will not be
unreasonably withheld, conditioned or delayed), to any subsidiary or affiliate
of Buyer, provided, however, that such assignment shall not release Buyer from
its obligations under this Agreement. There shall be no third party
beneficiaries to this Agreement.
10.4 Amendments. This Agreement may be amended or
modified only by a written instrument executed by the party asserted to be
bound thereby.
10.5 Continuation and Survival of Indemnities,
Representations, Warranties and Post-Closing Obligations. Except as provided
in the last paragraph of Article VI of this Agreement, all indemnities,
representations and warranties by, and all of the post-closing obligations, if
any, of, the respective parties contained herein or made in writing pursuant to
this Agreement or any other instrument delivered by Seller pursuant hereto are
intended to and shall remain true and correct and binding as of the time of
Closing and shall survive the execution and delivery of this Agreement, the
delivery of the Deed and transfer of title.
10.6 Interpretation. Whenever used herein, the term
"including" shall be deemed to be followed by the words "without limitation."
Words used in the singular number shall include the plural, and vice-versa, and
any gender shall be deemed to include each other gender. The captions and
headings of the Articles and Sections of this Agreement are for convenience of
reference only, and shall not be deemed to define or limit the provisions
hereof.
10.7 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Kansas.
10.8 Merger of Prior Agreements. This Agreement
(including the exhibits hereto) constitutes the entire agreement between the
parties with respect to the purchase and sale of the Property specifically
described herein and supersedes all prior and contemporaneous (whether oral or
written) agreements and understandings between the parties hereto relating to
the specific subject matter hereof.
10.9 Attorneys' Fees. In the event of any action or
proceeding at law or in equity between Buyer and Seller (including an action or
proceeding between Buyer and the trustee or debtor in possession while Seller
is a debtor in a proceeding under the Bankruptcy Code (Title 11 of the United
States Code) or any successor statute to such Code) to enforce or interpret any
provision of this Agreement or to protect or establish any right or remedy of
either Buyer or Seller hereunder, the unsuccessful party to such action or
proceeding shall pay to the prevailing party all costs and expenses, including
without limitation reasonable attorneys' and paralegals' fees and expenses
(including without limitation fees, costs and expenses of experts and
consultants), incurred in such action or proceeding and in any appeal in
connection therewith by such prevailing party, together with all costs of
enforcement and/or collection of any judgment or other relief. If such
prevailing party shall recover judgment in any such action, proceeding or
appeal, such
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costs, expenses and attorneys' and paralegals' and others' fees shall be
included in and as a part of such judgment.
10.10 Notice of Termination. If either Buyer or Seller
elects to terminate this Agreement, it will submit to Escrow Holder and the
other party hereto a notice of termination in duplicate. If Escrow Holder
receives a notice of termination, it is instructed to mail and fax one copy to
the other such party within one (1) business day. If Escrow Holder has not
received a written objection from the other party within five (5) business days
after mailing and faxing the copy, Escrow Holder is to (i) comply with the
instructions contained in the notice of termination, (ii) pay cancellation
charges out of any funds on deposit in this Escrow, (iii) return the Xxxxxxx
Money Deposit (and interest thereon) to Buyer, and (iv) cancel this Agreement.
10.11 Specific Performance; Damages. The parties understand
and agree that the Property is unique and for that reason, among others, Buyer
will be irreparably damaged in the event that this Agreement is not
specifically enforced. Accordingly, in the event of any breach or default in
or of this Agreement or any of the warranties, terms or provisions hereof by
Seller, Buyer shall have the right to demand and have specific performance of
this Agreement. The foregoing shall not limit or otherwise diminish the other
remedies available to Buyer at law or equity, including, without limitation,
the right to recover damages, provided, however, that such damages shall be
limited to Buyer's actual out-of-pocket costs in an amount that shall in no
event exceed the sum of One Hundred Fifty Thousand Dollars ($150,000.00).
10.12 Relationship. It is not intended by this Agreement to,
and nothing contained in this Agreement shall, create any partnership, joint
venture, financing arrangement or other agreement between Buyer and Seller. No
term or provision of this Agreement is intended to be, or shall be, for the
benefit of any person, firm, organization or corporation not a party hereto,
and no such other person, firm, organization or corporation shall have any
right or cause of action hereunder.
10.13 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
10.14 Time of the Essence. Time is of the essence in this
Agreement and with respect to all of its terms.
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IN WITNESS WHEREOF, Seller, Buyer, and Escrow Holder have
executed this Agreement as of the date first above written.
BUYER: THE PRICE REIT, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------
Its: President/CEO
----------------------------
SELLER: XXXXX INDUSTRIES-WICHITA WESTGATE
LIMITED PARTNERSHIP
By: Xxxxx Industries II, L.C.,
its general partner
By: /s/ S. Xxxxxx Xxxxxxx
-------------------------
S. Xxxxxx Xxxxxxx
Its: Vice President
------------------------
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CONSENT OF ESCROW COMPANY
The undersigned Escrow Company agrees to (i) accept the
foregoing Agreement, (ii) be Escrow Holder under the Agreement*, and (iii) be
bound by the Agreement in the performance of its duties as Escrow Holder;
however, the undersigned will have no obligations, liability or responsibility
under (a) this consent or otherwise, unless and until the Agreement, fully
signed by the parties, has been delivered to the undersigned, or (b) any
amendment to the Agreement unless and until the amendment is accepted by the
undersigned in writing.
___________
* As amended by letter dated November 12, 1996 to Xxxx X. Xxxxxx.
Dated: November 12, 1996
SECURITY ABSTRACT & TITLE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx, Escrow Officer
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34
SCHEDULE A
LEGAL DESCRIPTION OF THE LAND
Lot 1, The Xxxxx Centre, Second, an Addition to Wichita, Kansas,
Sedgwich County, Kansas and;
That part of Xxx 0, Xxx Xxxxx Xxxxxx, an Addition to Wichita, Kansas,
Sedgwich County, Kansas, described as beginning at the Southeast corner of said
Lot 3; thence north along the east line of said Lot, 221.5 feet to the South
line of said The Xxxxx Centre Second; thence west along the South line of said
The Xxxxx Centre Second, 67.4 feet to the Southwest corner thereof; thence
south parallel with the East line of said Lot 3, 215.43 feet to the South line
thereof; thence east along south line of said Lot 3, 67.54 feet to beginning.
Schedule A
35
SCHEDULE B
KANSAS SPECIAL WARRANTY DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
--------------------------------------------------------------------------------
KANSAS SPECIAL WARRANTY DEED
THIS INDENTURE is made this ____ day of _____________, 1996,
by XXXXX INDUSTRIES-WICHITA WESTGATE LIMITED PARTNERSHIP, a Kansas limited
partnership ("Grantor") in favor of THE PRICE REIT, INC., a Maryland
corporation ("Grantee"). Mailing address of Grantee is 000 Xxxxx Xxxxxxx
Avenue, Fourth Floor, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
WITNESSETH, that Grantor, in consideration of the sum of Ten
Dollars ($10.00) and other good and valuable consideration to Grantor duly
paid, the receipt and sufficiency of which are hereby acknowledged, does by
these presents SELL and CONVEY unto Grantee and Grantee's successors and
assigns, the following described property (the "Property"):
(A) That certain real property described in Exhibit A
hereto (the "LAND");
(B) All rights, privileges and easements appurtenant to
and for the benefit of the Land, including, without limitation, all minerals,
oil, gas and other hydrocarbon substances on and under the Land, as well as all
development rights, air rights, water, water rights and water stock relating to
the Land and any other easements, rights-of-way or appurtenances owned by
Seller and used in connection with the beneficial operation, use and enjoyment
of the Land or the Improvements or any other appurtenance, together with all
rights of Seller in and to public and xxxxxxx xxxxxxx, xxxxx, xxxxxxx, alleys
and passageways, sidewalks, driveways, parking areas and areas adjacent thereto
or used in connection therewith (open or proposed, in front of or abutting the
Land), and all rights of Seller in any land lying in the bed of any existing or
proposed street adjacent to the Land, all strips or gores of land adjoining the
Land, and any awards made or to be made and any unpaid award for damage to the
Land by reason of any change of grade of any such street, road, avenue, alley
or passageway;
(C) All improvements and fixtures located or to be
located on the Land, including, without limitation, all buildings and
structures presently located on the Land, all apparatus, equipment and
appliances presently located on the Land and used
Schedule B
36
in connection with the operation or occupancy thereof, such as heating and air
conditioning systems and facilities used to provide any utility services,
parking services, refrigeration, ventilation, garbage disposal, recreation or
other services thereto, and all landscaping and leasehold improvements of
tenants, if any, which become the property of the owner of the Land (the
"IMPROVEMENTS");
SUBJECT TO only such matters as may be set forth in any title
insurance policy received by Buyer concurrently herewith.
TO HAVE AND TO HOLD the Property with all and singular the
tenements, hereditaments and appurtenances thereto belonging or in any wise
appertaining, unto Grantee and Grantee's successors and assigns, forever,
Grantor hereby covenanting that the Property is free and clear from any
encumbrance done or suffered by Grantor except as set forth above, and that
Grantor will warrant and defend title to the Property unto Grantee and
Grantee's successors and assigns forever against the claims and demands of
persons claiming or to claim the same by, through or under Grantor, except as
set forth above.
IN WITNESS WHEREOF, the Grantor has caused this Deed to be
executed and delivered as of the date first above written.
XXXXX INDUSTRIES-WICHITA WESTGATE
LIMITED PARTNERSHIP
By: Xxxxx Industries II, L.C.,
its general partner
By: ________________________________
S. Xxxxxx Xxxxxxx
Its: Vice President
Schedule B
37
SCHEDULE C
ASSIGNMENT AND ASSUMPTION OF LEASE AND RENTS
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
================================================================================
ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS
For valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, XXXXX INDUSTRIES-WICHITA WESTGATE LIMITED PARTNERSHIP, a
Kansas limited partnership ("Assignor"), hereby assigns, sets over, transfers
and delegates to THE PRICE REIT, INC., a Maryland corporation ("Assignee"), all
of the landlord's right, title, interest, claim and estate in and to all
leases, occupancy agreements and similar agreements, together with all
modifications, extensions and renewals thereof, all security therefor, and all
guaranties of any of the foregoing (collectively, the "Leases") which demise
all or an part of, or interest in, the real property more particularly
described on Exhibit A attached hereto and incorporated herein (the "Land"),
together with all income, receipts, fund and revenues of any kind whatsoever
payable under the Leases or otherwise with respect to the Land, whether
heretofore accrued or hereafter arising.
Assignee hereby assumes all of Assignor's obligations under or with
respect to the Leases described on Exhibit B attached hereto, which obligations
arise out of and relate to the period commencing on the date hereof. Assignor
hereby agrees to indemnify, defend, protect and hold Assignee harmless from and
against any and all loss, claim, obligation, cost or expense (including without
limitation reasonable attorneys fees) relating to or in connection with any
obligations of the landlord under the Leases, which obligations arise out of or
relate to the period prior to the date hereof.
If any litigation between Assignor and Assignee arises out of the
obligations of the parties under this Assignment or concerning the meaning or
interpretation of any provision contained herein, the losing party shall pay
the prevailing party's costs and expenses of such litigation including, without
limitation, reasonable attorneys' fees. Any such attorneys' fees and other
expenses incurred by either party in enforcing a judgment in its favor under
this Assignment shall be recoverable separately from and in addition to any
other amount included in such judgment, and such attorneys' fees obligation is
intended to
Schedule C
38
be severable from the other provisions of this Assignment and to survive and
not be merged into any such judgment.
This Assignment may be executed and delivered in any number of
counterparts, each of which so executed and delivered shall be deemed to be an
original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement
effective as of this ______ day of _______________, 1996.
ASSIGNOR:
XXXXX INDUSTRIES-WICHITA WESTGATE LIMITED PARTNERSHIP
By: Xxxxx Industries II, L.C., its general partner
By: _______________________________
S. Xxxxxx Xxxxxxx
Its: Vice President
ASSIGNEE:
THE PRICE REIT, INC.
By:________________________________________________
Its:_______________________________________________
Schedule C
39
EXHIBIT "A" TO ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS
LEGAL DESCRIPTION OF PROPERTY
Schedule C
40
EXHIBIT "B" TO ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS
ASSUMED LEASES
Schedule C
41
SCHEDULED
XXXX OF SALE
For valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, XXXXX INDUSTRIES-WICHITA WESTGATE LIMITED PARTNERSHIP, a
Kansas limited partnership ("Seller"), hereby transfers, conveys and assigns to
THE PRICE REIT, INC., a Maryland corporation ("Buyer"), and its successors and
assigns forever, any and all tangible personal property owned by Seller and
located on or about and used in connection with the real property more
particularly described on Exhibit A attached hereto and made a part hereof (the
"Property") or any improvements thereon, including but not limited to fixtures,
furnishings, furniture, tools machinery and/or equipment, operational
instructions and/or specifications, surveys, drawings, business records and the
personal property listed on any schedule attached hereto.
If any litigation between Seller and Buyer arises out of the
obligations of the parties under this Xxxx of Sale or concerning the meaning or
interpretation of any provision contained herein, the losing party shall pay
the prevailing party's costs and expenses of such litigation including, without
limitation, reasonable attorneys, fees. Any such attorneys' fees and other
expenses incurred by either party in enforcing a judgment in its favor under
this Xxxx of Sale shall be recoverable separately from and in addition to any
other amount included in such judgment, and such attorneys' fees obligation is
intended to be severable from the other provisions of this Xxxx of Sale and to
survive and not be merged into any such judgment.
IN WITNESS WHEREOF, Seller has caused this instrument to be executed
and delivered as of this ______ day of __________, 1996.
XXXXX INDUSTRIES-WICHITA WESTGATE LIMITED PARTNERSHIP
By: Xxxxx Industries II, L.C., its general partner
By: _______________________________
S. Xxxxxx Xxxxxxx
Its: Vice President
Schedule D
42
EXHIBIT "A" TO XXXX OF SALE
DESCRIPTION OF PROPERTY
Schedule D
43
SCHEDULE E
ASSIGNMENT OF CONTRACTS, INTANGIBLE PROPERTY, WARRANTIES AND GUARANTEES
THIS ASSIGNMENT OF CONTRACTS, INTANGIBLE PROPERTY, WARRANTIES AND
GUARANTIES (this "Assignment") is made as of the ___ day of ____________, 1996,
by XXXXX INDUSTRIES-WICHITA WESTGATE LIMITED PARTNERSHIP, a Kansas limited
partnership ("Assignor"), in favor of THE PRICE REIT, INC., a Maryland
corporation ("Assignee").
RECITALS;
Pursuant to that certain Purchase and Sale Agreement and Escrow
Instructions dated as of November ____, 1996 by and between Assignor, Assignee
and ____________________ Title Insurance Company (the "Agreement"), Assignee
has this day acquired from Assignor certain interests in land, buildings and
improvements more particularly described on Exhibit A attached hereto and made
a part hereof (the "Property"). Capitalized terms not otherwise defined herein
shall have the meanings given them in the Agreement.
In consideration of the acquisition of the Property by Assignee and
other good and valuable consideration, the mutual receipt and legal sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
Assignor hereby assigns, transfers and delegates to Assignee all of
Assignor's right, title and interest in and to the following (collectively, the
"Assigned Property"): (i) any intangible personal property which relates to
and is reasonably required for the operation and functioning of the Land,
Improvements or Personal Property, including without limitation all
transferable licenses and governmental approvals and permits of any nature
relating to the Property or the Improvements or any repairs or renovations to
such Improvements, and (ii) any and all warranties, guaranties, contracts and
other rights owned by Assignor relating to the ownership, operation or
functioning of all or any part of the Property (including without limitation
all third party guarantees and warranties, express or implied, in connection
with the construction of the Improvements and any deposits given by Assignor in
connection with the installation or provision of utility services, to the
extent such deposits have not been returned to Assignor as of the date hereof).
If any litigation between Assignor and Assignee arises out of the
obligations of the parties under this Assignment or concerning the meaning or
interpretation of any provision
Schedule E
44
contained herein, the losing party shall pay the prevailing party's costs and
expenses of such litigation including, without limitation, reasonable
attorneys, fees. Any such attorneys' fees and other expenses incurred by
either party in enforcing a judgment in its favor under this Assignment shall
be recoverable separately from and in addition to any other amount included in
such judgment, and such attorneys' fees obligation is intended to be severable
from the other provisions of this Assignment and to survive and not be merged
into any such judgment.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment effective as of the date set forth below.
Executed as of the date first above written.
ASSIGNOR:
XXXXX INDUSTRIES-WICHITA WESTGATE LIMITED PARTNERSHIP
By: Xxxxx Industries II, L.C., its general partner
By: _______________________________
S. Xxxxxx Xxxxxxx
Its: Vice President
Schedule E
45
EXHIBIT "A" TO ASSIGNMENT OF CONTRACTS, INTANGIBLE
PROPERTY, WARRANTIES AND GUARANTEES
LEGAL DESCRIPTION OF PROPERTY
Schedule E
46
SCHEDULE F
CERTIFICATION OF NON-FOREIGN STATUS
(FOREIGN INVESTMENT IN REAL PROPERTY TAX ACT)
Internal Revenue Code Section 1445 provides that a transferee
of a United States real property interest must withhold tax if the transferor
is a foreign person. To inform THE PRICE REIT, INC. ("Transferee") that
withholding of tax is not required upon the disposition of a United States real
property interest by the undersigned ("Transferor"), Transferor hereby
certifies and declares as follows:
1. Transferor's U.S. tax identification/social security
number is: _______________________________________;
2. Transferor's principal office address is
_________________________________; and
3. Transferor is not a foreign person (foreign
corporation, foreign partnership, foreign trust, foreign estate or non-
resident alien), as defined in the Internal Revenue Code and Income Tax
Regulations.
Transferor acknowledges that this certification may be
disclosed by Transferee to the Internal Revenue Service and that any false
statement contained in this certification may be punished by fine or
imprisonment or both.
Transferor understands that Transferee is relying on this
certification to determine whether withholding is required by Transferee
pursuant to Internal Revenue Code Section 1445.
Under penalties of perjury, the undersigned signatory declares
that: I have examined this certification, to the best of my knowledge and
belief it is true and complete, and I am duly authorized to execute this
certification on behalf of Transferor.
Dated: _______________________________, 1996
XXXXX INDUSTRIES-WICHITA WESTGATE
LIMITED PARTNERSHIP
By: Xxxxx Industries II, L.C., its general partner
By: _______________________________
S. Xxxxxx Xxxxxxx
Its: Vice President
Schedule F
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SCHEDULE G
TENANT ESTOPPEL CERTIFICATE
THIS TENANT ESTOPPEL CERTIFICATE ("Certificate"), dated as of
_____________, 1996, is executed by ________________________ ("Tenant") in
favor of THE PRICE REIT, INC. ("Buyer").
R E C I T A L S
A. Buyer and XXXXX INDUSTRIES-WICHITA WESTGATE LIMITED
PARTNERSHIP ("Landlord"), have entered into that certain Purchase and Sale
Agreement and Escrow Instructions, dated as of November ___, 1996 (the
"Purchase Agreement"), whereby Buyer has agreed to purchase, among other
things, the improved real property located in the City of Wichita, County of
___________, State of Kansas, more particularly described on Schedule "A"
attached to the Purchase Agreement (the "Property").
B. Tenant and Landlord have entered into that certain Lease
Agreement, dated as of ________________ (together with all amendments,
modifications, supplements, guarantees and restatements thereof, the "Lease"),
for a portion of the Property.
C. Pursuant to the Lease, Tenant has agreed that upon the request
of Landlord, Tenant would execute and deliver an estoppel certificate
certifying the status of the Lease.
D. In connection with the Purchase Agreement, Landlord has
requested that Tenant execute this Certificate.
NOW, THEREFORE, Tenant certifies, warrants, and represents to Buyer as
follows:
AGREEMENT
Section 1. Lease.
Attached hereto as Exhibit "A" is a true, correct, and complete copy
of the Lease, including the following amendments, modifications, supplements,
guarantees and restatements thereof, which together represent all of the
amendments, modifications, supplements. guarantees and restatements thereof:
________________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
Section 2. Leased Premises.
Pursuant to the Lease, Tenant leases those certain Premises (the
"Leased Premises") consisting of approximately ______________________
(______________) rentable square
Schedule G
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feet within the Property, as more particularly described in the Lease. In
addition, pursuant to the terms of the Lease, Tenant has the [non-exclusive]
right to use [___________ parking spaces/the parking area] located on the
Property during the term of the Lease. [Cross-out the preceding sentence or
portions thereof if inapplicable.]
Section 3. Full Force of Lease.
The Lease is in full force and effect, has not been terminated, and is
enforceable in accordance with its terms.
Section 4. Complete Agreement
The Lease constitutes the complete agreement between Landlord and
Tenant for the Leased Premises and the Property.
Section 5. Acceptance of Leased Premises.
Tenant has accepted and is currently occupying the Leased Premises.
Section 6. Lease Term.
The term of the Lease commenced on _____________________ and ends on
_______________________, subject to the following options to extend: ___________
________________________________________________________________________________
(If none, please state "None.")
Section 7. Purchase Rights.
Tenant has no option, right of first refusal, right of first offer, or
other right to purchase all or any portion of the Leased Premises or all or any
portion of the Property, except as follows: ____________________________________
________________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
Section 8. Rights of Tenant.
Except as expressly stated in this Certificate, Tenant:
(a) has no right to renew or extend the term of the Lease;
(b) has no option or other right to purchase all or any part of
the Leased Premises or all or any part of the Property;
(c) has no right, title, or interest in the Leased Premises, other
than as Tenant under the Lease.
Schedule G
49
Section 9. Rent.
(a) The rent under the Lease is current, and Tenant is not in
default in the performance of any of its obligations under the Lease.
(b) Tenant is currently paying base rent under the Lease in the
amount of ________________________ Dollars ($_________) per month. Tenant has
not received and is not, presently, entitled to any abatement, refunds,
rebates, concessions or forgiveness of rent or other charges, free rent,
partial rent, or credits, offsets or reductions in rent, except as follows:
________________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
(c) Tenant's estimated share of operating expenses, common area
charges, insurance, real estate taxes and administrative and over-head expenses
is ___________ percent (______%) and is currently being paid at the rate of
____________________________________ Dollars ($__________) per month, payable
to ______________________________________________.
(d) There are no existing defenses or offsets against rent due or
to become due under the terms of the Lease, and there presently is no default
or other wrongful act or omission by Landlord under the Lease or otherwise in
connection with Tenant's occupancy of the Leased Premises, except as
follows:________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
Section 10. Security Deposit.
The amount of Tenant's security deposit held by Landlord under the
Lease is _________________________________ Dollars ($_____________).
Section 11. Prepaid Rent.
The amount of prepaid rent, separate from the security deposit, is
__________________________________ Dollars ($_____________), covering the
period from ________ to ________.
Section 12. Insurance.
All insurance, if any, required to be maintained by Tenant under the
Lease is presently in effect.
Schedule G
50
Section 13. Pending Actions.
There are no actions, whether voluntary or otherwise, pending against
the Tenant (or any guarantor of the Tenant's obligations under the Lease)
pursuant to the bankruptcy or insolvency laws of the United States or any state
thereof.
Section 14. Landlord's Obligations
As of the date of this Certificate, Landlord has performed all obligations
required of Landlord pursuant to the Lease and no offsets. counterclaims, or
defenses of Tenant under the Lease exist against Landlord. As of the date of
this Certificate, no events have occurred that, with the passage of time or the
giving of notice, would constitute a basis for offsets, counterclaims, or
defenses against the Landlord, except as follows:
________________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
(If none, please state "None.")
Section 15. Assignments by Landlord.
Tenant has received no notice of any assignment, hypothecation or
pledge of the Lease or rentals under the Lease by Landlord.
Section 16. Assignments by Tenant.
Tenant has not sublet or assigned the Leased Premises or the Lease or
any portion thereof to any sublessee or assignee. No one except Tenant and its
employees will occupy the Leased Premises except as permitted under the Lease.
The address for notices to be sent to Tenant is as set forth in the Lease.
Section 17. Environmental Matters.
The operation and use of the Leased Premises does not involve the
generation, treatment, storage, disposal or release into the environment of any
hazardous materials, regulated materials and/or solid waste, except those used
in the ordinary course of operating a retail store or restaurant (if so
permitted by the Lease) or otherwise used in accordance with all applicable
laws.
Section 18. Notification by Tenant.
From the date of this Certificate and continuing the earlier to occur
of (i) December 31, 1996 and (ii) Buyer's acquisition of title to the Property,
Tenant agrees to immediately notify Buyer, in writing, at the following
address, on the occurrence of any event or the discovery of any fact that would
make any representation contained in this Certificate inaccurate:
Schedule G
51
The PRICE REIT, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn.: Xxxxxx Xxxxxxxxxx
Fax No.: (000) 000-0000
Tenant makes this Certificate with the knowledge that it will be
relied upon by Buyer in agreeing to purchase the Property. In the event that
Buyer acquires the Property, nothing in this Section 18 shall limit Tenant's
obligations under the Lease.
Tenant his executed this Certificate as of the date first written
above by the person named below, who is duly authorized to do so.
TENANT
____________________________________
By:_________________________________
Name:
Its:
Schedule G
52
SCHEDULE H
RENT ROLL
Attached.
Schedule H
53
SCHEDULE I
FORM OF RENT SUPPORT AGREEMENT
Attached.
Schedule I
