Exhibit 10.2
PURCHASE AND SALE AGREEMENT
(ADJACENT REAL PROPERTY - TRACT "B")
BY THIS PURCHASE AND SALE AGREEMENT (this "AGREEMENT") entered into as of
the 31st day of January, 2000, THE TESSERACT GROUP, INC., a Minnesota
corporation ("SELLER"), and EDUCATION PROPERTY INVESTORS, INC., a Nevada
corporation ("BUYER"), agree as follows:
1. PURCHASE AND SALE.
Subject to the terms and conditions set forth in this Agreement, Seller
agrees to sell to Buyer, and Buyer agrees to purchase from Seller, that real
property legally described on EXHIBIT "A" attached hereto, together with all of
Seller's right, title and interest in all rights, easements and interests
appurtenant thereto, including but not limited to, any streets or other public
ways adjacent to such real property and any development rights, water or mineral
rights owned by, or lease to, Seller, if any (the "SALE PROPERTY").
2. ESCROW.
Upon execution of this Agreement by Seller and Buyer, the parties shall
cause an escrow (the "ESCROW") to be established with Chicago Title Insurance
Company, 0000 X. Xxxxxxxxx Xxxx, Xxxxx 00, Xxxxxxx, Xxxxxxx 00000 Escrow
Officer: Xxxx Xxxxx within three (3) business days ("ESCROW AGENT"). As used
herein, the term "OPENING OF ESCROW" shall mean the day on which Escrow Agent
receives a copy of this Agreement executed by both Buyer and Seller, and Escrow
Agent shall immediately notify Seller and Buyer of the Opening of Escrow. The
parties shall deliver to Escrow Agent an executed copy of this Agreement, which
shall constitute instructions to Escrow Agent, and Escrow Agent shall execute
this Agreement to acknowledge acceptance of the Escrow.
3. CLOSING.
Consummation of the sale provided for herein (the "CLOSING") shall take
place on the closing date (the "CLOSING DATE") defined in the Purchase and Sale
Agreement (FF&E - North Scottsdale) by and between Buyer and Seller of even date
herewith (the "FF&E PURCHASE AND SALE AGREEMENt") through the Escrow at the
offices of Escrow Agent or at such other place as Buyer and Seller mutually
agree in writing. At or prior to the Closing, each of the parties shall execute
and deliver such documents and perform such acts as are provided for herein, or
as are necessary, to consummate the transaction contemplated hereunder. All
obligations of the parties to be performed at or prior to Closing are conditions
precedent to the Closing as well as covenants.
4. PURCHASE PRICE AND PAYMENT TERMS.
4.1. PURCHASE PRICE. The total purchase price to be paid for the Sale
Property shall be ONE MILLION FOUR HUNDRED SIXTY-TWO THOUSAND AND NO/100 DOLLARS
($1,462,000.00) (the "PURCHASE PRICE"), to be paid by Buyer to Seller in cash or
by wire transfer of cash credit through Escrow at or before Closing.
4.2. INVESTMENT OF DEPOSITED FUNDS. All funds deposited by Buyer pursuant
hereto shall be invested by Escrow Agent in such investments as may be directed
from time to time by Seller and Buyer. All earnings on such invested funds shall
belong to the party receiving said funds pursuant to the terms hereof (provided
that if the sale of the Sale Property is consummated, Buyer shall receive a
credit toward the purchase price, and a corresponding credit toward the cash
payable by Buyer at Closing, in the amount of the accrued interest) and shall be
paid at such time as said party receives said funds.
5. TITLE REPORT AND SURVEY.
Promptly after Opening of Escrow, (i) Seller shall deliver to Buyer a copy
of the existing ALTA survey of the Sale Property in Buyer's possession (the
"SURVEY"), (ii) Escrow Agent shall issue to Buyer a preliminary title report
incident to the issuance of the title policy referred to in Section 7.2,
together with legible copies of matters shown on Schedule "B" thereto (the
"TITLE REPORT"), and (iii) Buyer shall have prepared, at Buyer's expense, an
update of the existing Survey (the "UPDATE").
6. INSPECTION PERIOD.
6.1. INSPECTION. Within five (5) days of Opening of Escrow, Seller shall
provide Buyer with any existing A.L.T.A. Survey Seller has in its possession
regarding this property. Buyer warrants and represents that it will conduct, and
will be responsible for, such examinations, inspections or tests as Buyer deems
necessary and appropriate, and Buyer will comply with all federal, state and
local laws which might have in any way related to any such examinations,
inspections or tests. Buyer warrants and represents that it will not damage the
Sale Property in the course of performing its investigations. Buyer shall, on
demand by Seller, defend, hold harmless, reimburse and indemnify Seller from,
for, of and against any and all direct and indirect, known and unknown,
obligations, actions, liabilities, judgments, claims, demands, losses, damages,
costs, including costs of defense, expenses and fees (including reasonable
attorneys' fees and costs) arising from or relating to any such entry,
examinations, inspections, tests or restoration of the Sale Property including
without limitation any costs, expenses and fees (including attorneys' fees),
incurred to establish a right to indemnification, regardless of whether a
proceeding is instituted. Buyer's indemnity shall survive the Closing and any
termination of this Agreement. Buyer acknowledges the importance of inspections,
including tests, survey, and other studies to determine the value and condition
of the Sale Property. Buyer acknowledges that more than one inspection can be
required to perform the selected inspections. The inspections may include
physical, environmental, and other types of inspections including, but not
limited to, soil, square footage/acreage, designated flood hazard areas, xxxxx,
possible environmental hazards (including, but not limited to, radon gas, fuel
or chemical storage tanks, hazardous waste, petrochemicals, pesticides,
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industrial polymers, lead, sulfuric acid of high fertilizer concentrates, and
other substances, materials or products which are not natural to the Sale
Property or which are subject to regulation under environmental or public health
and welfare laws and ordinances, location in a federal or state Superfund area),
geologic conditions, location of property lines and water/utility use
restrictions and fees for services (such as garbage or fire protection). Buyer
also acknowledges the importance of further inquiries and consultations of
governmental agencies, lenders, insurance agents, architects, and other
appropriate persons and entities concerning the use of the Sale Property and the
surrounding areas under applicable building, zoning, fire, health, and safety
codes, and for evaluation of potential hazards. Buyer specifically releases
Seller of any liability for any defects in the Sale Property, including, but not
limited to, those which could have been discovered by such inspections. Buyer
shall provide, at no cost, copies of any and all reports concerning the Sale
Property obtained by Buyer, without representation or warranty. If, on or before
5:00 p.m. (Arizona time) on February 15, 2001 (the "REVIEW DEADLINE") Seller has
not received written notice from Buyer of any objections that may arise in the
course of its investigations, then Buyer shall be deemed to have approved all
matters relating to the physical condition and use of the Sale Property, and
shall thereafter waive any right to raise any objections with respect to the
physical condition and/or use of the Sale Property (except with respect, and
only with respect to, any Material New Matter (defined below). Buyer shall have
the right to object to any new material adverse condition that arises after the
Review Deadline and before the Closing Date (any such matter being referred to
herein as a "MATERIAL NEW MATTER"); provided, however, Buyer must deliver to
Seller written objection with respect to any Material New Matter on or before
the date that is three (3) business days after Buyer obtains knowledge thereof.
If Seller has not received written notice from Buyer of any objections to any
Material New Matter within such three (3) business day period, then Buyer shall
be deemed to have approved such Material New Matter(s), and shall thereafter
waive any right to raise any objections with respect to such Material New
Matter(s). Upon timely receipt of written objection(s) from Buyer, Seller shall
thereafter have five (5) business days following its receipt thereof within
which to notify Buyer in writing as to whether Seller, in its sole and absolute
discretion, will cure any of the matters to which Buyer has objected, provided,
however, Seller shall have no obligation whatsoever to cure any objections
raised by Buyer. If Seller fails to notify Buyer within such five (5) business
day period whether Seller will cure or remove the exceptions, defects or matters
to which Buyer has objected, then (a) Seller shall be deemed to have elected not
to cure such matter, and (b) Buyer shall elect either (i) to terminate this
Agreement, or (ii) waive its objections and purchase the Sale Property subject
to the matters objected to but which Seller has elected not to cure. If Seller
timely notifies Buyer of its intention to cure any matter to which Buyer has
objected, Seller shall have until Closing to cure such matter.
6.2. SOPHISTICATED PARTY. Buyer warrants and represents that it is a
sophisticated party, knowledgeable and experienced in the acquisition of real
property, and, that condition of title, survey results and inspections and
investigations are very important aspects in the purchase and sale of real
property.
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7. CLOSING DOCUMENTS.
7.1. DEED AND OTHER CONVEYANCE DOCUMENTS. On or before the Closing Date,
Seller and Buyer shall execute where indicated (or obtain the execution of),
have acknowledged as appropriate, and deliver to Escrow Agent the following
documents:
(a) A Special Warranty Deed executed by Seller in favor of Buyer or
its Assignee, as defined in Section 14.4, in the form attached hereto as
EXHIBIT "B" (the "DEED");
(b) An Affidavit of Real Property Value executed by Buyer and Seller;
(c) A Non-Foreign Affidavit executed by Seller in the form attached as
EXHIBIT "C"; and
(d) Such other documents as Buyer, Seller or Escrow Agent may
reasonably request in connection with this transaction consistent with the
terms and conditions hereof.
7.2. OWNER'S POLICY. At Closing, Escrow Agent shall furnish to Buyer (or
its Assignee), at Buyer's expense, a standard coverage ALTA owner's title
insurance policy (or, at Buyer's option, an extended coverage policy, subject to
Buyer's payment of additional charges associated therewith as provided
hereinafter) issued by Escrow Agent, or the unconditional commitment of Escrow
Agent to issue such policy (which commitment shall be deemed made upon the
recordation by Escrow Agent of the Deed), in the amount of the Purchase Price,
insuring the title to the Sale Property in Buyer, subject only to the printed
exceptions normally contained in such policies, and the matters approved by
Buyer pursuant to SECTION 5. The policy shall be standard or extended coverage,
at Buyer's option; provided, however, Buyer shall pay the premium for such
policy. In no event shall Closing be extended because of Buyer's election of
extended coverage.
7.3. INABILITY TO ISSUE. If Escrow Agent is unwilling or unable to issue
the policy or commitment described above, then the Closing Date shall be
extended for a period of up to fifteen (15) days, at Seller's option, to allow
Seller, if it so elects, to attempt to eliminate the matter preventing issuance
of the policy. If, however, Seller does not elect to so extend the Closing Date
or if Escrow Agent remains unable or unwilling to issue the policy or commitment
on the extended Closing Date, then this Agreement shall automatically terminate,
and the parties hereto shall have no further liability to each other under this
Agreement, except as otherwise specifically set forth in this Agreement.
8. REPRESENTATIONS AND WARRANTIES.
8.1. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller hereby makes the
following representations and warranties:
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(a) Seller is duly organized, validly existing and in good standing
under the laws of the state of Minnesota, is qualified to do business in
Arizona and, subject only to approval of the Court, has full power and
authority to enter into and to perform its obligations under this
Agreement.
(b) This Agreement and each of the documents and agreements to be
delivered by Seller at the Closing, constitutes a valid, legally binding
obligation of Seller, enforceable against Seller in accordance with its
terms subject only to approval by the Court.
(c) Seller is not a "foreign person" as defined in Section 1445 of the
Internal Revenue Code of 1986, as amended, and any related regulations.
8.2. RELEASE FROM OTHER REPRESENTATIONS AND WARRANTIES. Seller is hereby
released from all responsibility and liability regarding the condition,
valuation or utility of the Sale Property. Buyer expressly acknowledges that
Buyer has not relied on any warranties, promises, understandings or
representations, express or implied, of Seller or any agent of Seller relating
to the present or future physical condition, development potential, operation,
income generated by, or any other matter or thing affecting or related to the
Sale Property which are not contained in this Agreement and no such
representation or warranty shall be implied. Buyer is acquiring the Sale
Property in its present condition and state of repair, "AS IS". Buyer
acknowledges that any and all engineering data, soil reports, or other
information of any type which Buyer has received or may receive from Seller or
Seller's agents is furnished without any warranty whatsoever. Buyer agrees that
Buyer will not attempt to assert any liability against Seller for furnishing any
such information. In particular, but without in any way limiting the foregoing,
Buyer hereby releases Seller from any and all responsibility, liability and
claims for or arising out of the presence on or about the Sale Property or any
property in the vicinity of the Sale Property (including in the soil, air,
structures and surface and subsurface water) of materials, wastes or substances
that are or become regulated under, or that are or become classified as toxic or
hazardous, under any Environmental Law, including, without limitation,
petroleum, oil, gasoline or other petroleum products, byproducts or waste. As
used herein, "Environmental Law" shall mean, as amended and in effect from time
to time, any federal, state or local statute, ordinance, rule, regulation,
judicial decision, or the judgment or decree of a governmental authority,
arbitrator or other private adjudicator by which Buyer or the Sale Property is
bound, pertaining to health, industrial hygiene, occupational safety or the
environment, including, without limitation, the Comprehensive Environmental
Response, Compensation & Liability Act of 1980, the Resource, Conservation &
Recovery Act of 1976, and the Arizona Environmental Quality Act, Title 49,
Arizona Revised Statutes, and all rules adopted and guidelines promulgated
pursuant to the foregoing.
8.3. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer hereby makes the
following representations and warranties:
(a) Buyer is duly organized, validly existing and in good standing
under the laws of the state of its organization, is qualified to do
business in Arizona and has full power and authority to enter into and to
perform its obligations under this Agreement. The person executing this
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Agreement on behalf of Buyer has full power and authority to do so and to
perform every act and to execute and deliver every document and instrument
necessary or appropriate to consummate the transactions contemplated
hereby.
(b) This Agreement and each of the documents and agreements to be
delivered by Buyer at the Closing, constitute valid, legally binding
obligations of Buyer, enforceable against Buyer in accordance with its
terms.
9. CONDITIONS TO CLOSING.
9.1. SELLER'S CONDITIONS TO CLOSING. The following conditions are precedent
to Seller's obligations to sell the Sale Property and deliver the Deed:
(a) This Agreement shall not have terminated pursuant to any other
provision hereof;
(b) The FF&E Purchase and Sale Agreement (of which this Agreement is
an attached schedule) shall not have terminated and shall close
simultaneously herewith;
(c) Buyer shall not be in material default of any of the terms and
provisions required of Buyer hereunder;
(d) All of Buyer's representations and warranties contained herein
shall have been materially true when made and shall be materially true and
correct as of the Closing Date; and
(e) Entry of an order by the Bankruptcy Court in Seller's Chapter 11
case approving this Agreement and the sale of the Sale Property free and
clear of all liens, encumbrances, claims, security interests and adverse
interests of any kind pursuant to the Bankruptcy Code ss.363 (the "SALE
ORDER").
9.2. BUYER'S CONDITIONS TO CLOSING. The following conditions are precedent
to Buyer's obligations to buy the Sale Property and deliver the Purchase Price:
(a) This Agreement shall not have terminated pursuant to any other
provision hereof;
(b) The FF&E Purchase and Sale Agreement (of which this Agreement is
an attached schedule) shall not have terminated and shall close
simultaneously herewith;
(c) Seller shall not be in material default of any of the terms and
provisions required of Buyer hereunder;
(d) All of Seller's representations and warranties contained herein
shall have been materially true when made and shall be materially true and
correct as of the Closing Date;
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(e) Entry of the Sale Order; and
(f) The simultaneous closing of the transaction set forth in the Real
Estate Purchase and Sale Agreement Chicago Title Insurance Company Escrow
No. 2015243-42 dated January 12, 2001 by and between Buyer, as seller, and
Assignee, as buyer (the "CHURCH AGREEMENT").
10. COMMISSIONS.
Each party hereto represents and warrants to the other that it has not
employed any other broker or finder in connection with the transaction
contemplated by this Agreement nor has it had any dealings with any person which
may entitle such person to a fee or commission from any party hereto. Each party
shall defend and hold the other harmless from all liability and expense
including, without limitation, reasonable attorneys' fees arising from any claim
by any other broker, agent or finder for commissions, finder's fees or similar
charges, because of any act of such party.
11. CONDEMNATION.
In the event of condemnation or notice of condemnation of all or a
substantial portion of the Sale Property prior to Closing, Buyer shall have the
right to terminate this Agreement by written notice delivered to Seller and
Escrow Agent no later than ten (10) days after the date of Buyer's receipt of
notice of such condemnation. If Buyer elects to terminate this Agreement, the
parties shall have no further obligations to each other under this Agreement,
except as specifically set forth in this Agreement. If Buyer does not elect to
terminate this Agreement, the parties shall proceed to Closing with no reduction
in the purchase price and at Closing, Seller shall (i) pay to Buyer through
Escrow any condemnation proceeds received by Seller with respect to the Sale
Property, less fees, costs and expenses incurred by Seller in connection
therewith; and (ii) assign to Buyer all of Seller's right, title and interest in
and to any condemnation proceeds with respect to the Sale Property, less fees,
costs and expenses incurred by Seller in connection therewith.
12. PRORATIONS, CLOSING COSTS.
12.1. PRORATIONS. At the Closing, the parties shall obtain all necessary
information and shall prorate and adjust or direct Escrow Agent to prorate and
adjust through Escrow, real estate taxes and assessments based on the most
recent information and such proration shall be final. All cash on hand as of
12:01 a.m., Phoenix time, on the Closing Date and all cash in any operating or
other accounts on the Closing Date shall belong to Seller. The existing
insurance coverage for the Sale Property, if any, shall terminate at Closing and
any refund in premium shall be paid to Seller.
12.2. CLOSING COSTS. All recording and similar charges shall be allocated
between Buyer and Seller in Escrow Agent's customary manner and Escrow Agent's
fees shall be paid one-half by Buyer and one-half by Seller; provided, however,
that the defaulting party shall be responsible to pay any escrow cancellation
fees if the Escrow fails to close. All other costs of Closing shall be allocated
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between Seller and Buyer in accordance with the standard custom and practice of
Escrow Agent. Seller and Buyer shall each pay their respective financial
advisors' attorneys' and other professionals' fees.
12.3. POSSESSION. Seller will deliver and Buyer will accept possession of
the Sale Property on the Closing Date.
13. REMEDIES.
13.1. SELLER'S REMEDIES. In the event of any default in this Agreement by
Buyer, actual damages to Seller will be difficult to calculate but Buyer and
Seller agree that the amount of Fifty Thousand and 00/100 Dollars ($50,000.00)
("LIQUIDATED DAMAGES") designated above is a reasonable approximation thereof.
Accordingly, if Buyer defaults, Seller shall be entitled as its sole remedy, to
terminate this Agreement and immediately upon such termination by Seller, Buyer
shall pay to Seller, as Seller's sole remedy, Liquidated Damages and any other
monies paid on behalf of Seller. If, however, Buyer contests or opposes Seller's
right to collect Liquidated Damages or other sums or fails to cooperate with
Seller in collecting the same, Seller shall also be entitled to the additional
remedies provided for in SECTION 13.3 below. Nothing contained in this Section
shall prevent Seller from enforcing Buyer's obligations and liabilities which
survive a termination of this Agreement as to which Seller shall have all rights
and remedies provided for or allowed by law or in equity.
13.2. BUYER'S REMEDIES. In the event of a default hereunder by Seller, then
Buyer's sole and exclusive remedy shall be either to (i) terminate this
Agreement or (ii) xxx for specific performance of this Agreement. Buyer hereby
expressly waives any and all claims for damages against Seller. As a condition
precedent to any suit for specific performance, Buyer shall, on or before the
Closing Date, shall have performed all of its obligations hereunder.
13.3. COSTS AND FEES. If either party hereto breaches any term of this
Agreement, the breaching party agrees to pay the non-breaching party all
attorneys' fees, expert witness fees, investigation costs, costs of tests and
analysis, travel and accommodation expenses, deposition and trial transcript
costs, court costs and other costs and expenses incurred by the non-breaching
party in enforcing this Agreement or preparing for legal or other proceedings,
whether or not instituted. If any legal or other proceedings are instituted, the
party prevailing in any such proceeding shall be paid all of the aforementioned
costs, expenses and fees by the other party, and if any judgment is secured by
such prevailing party, all such costs, expenses, and fees shall be included in
such judgment, attorneys' fees to be set by the court and not by the jury.
13.4. Intentionally Omitted.
13.5. WAIVER. Excuse or waiver of the performance by the other party of any
obligation under this Agreement shall only be effective if evidenced by a
written statement signed by the party so excusing. No delay in exercising any
right or remedy shall constitute a waiver thereof, and no waiver by Seller or
Buyer of the breach of any covenant of this Agreement shall be construed as a
waiver of any preceding or succeeding breach of the same or any other covenant
or condition of this Agreement.
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13.6. Intentionally Omitted.
14. MISCELLANEOUS.
14.1. NOTICES. No notice, consent, approval or other communication provided
for herein or given in connection herewith shall be validly given, made,
delivered or served unless it is in writing and delivered personally, sent by
overnight courier, or sent by registered or certified United States mail,
postage prepaid, with return receipt requested, if to:
Seller, at: THE TESSERACT GROUP, INC.
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Ph.D.
With a copy to: XXXXX XXXX LLP
Renaissance Xxx
Xxx Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Buyer, at: Education Property Investors, Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx, Esq., Legal Department
With a copy to: Education Property Investors, Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx, Esq.
Escrow Agent, at: Chicago Title Insurance Company
0000 X. Xxxxxxxxx Xxxx, Xxxxx 00
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx Xxxxx
or to such other addresses as any party hereto may from time to time designate
in writing and deliver in a like manner to the other party. Notices, consents,
approvals, and communications given by mail shall be deemed delivered upon the
earlier of forty-eight (48) hours after deposit in the United States mail in the
manner provided above or upon delivery to the respective addresses set forth
above if delivered personally or sent by overnight courier.
14.2. RIGHT TO BID. Buyer acknowledges and understands that the Court may
consider higher and better offers for the Sale Property. Notwithstanding any
other language to the contrary herein, Buyer acknowledges and agrees that Buyer
shall not be entitled to receive any overbid protections, breakup fees or other
buyer protections, if Buyer is not ultimately approved as the buyer of the Sale
Property.
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14.3. INTERPRETATION. The captions of the Sections of this Agreement are
for convenience only and shall not govern or influence the interpretation
hereof. This Agreement is the result of negotiations between the parties and,
accordingly, shall not be construed for or against either party regardless of
which party drafted this Agreement or any portion thereof. Time is of the
essence of this Agreement.
14.4. SUCCESSORS AND ASSIGN. All of the provisions hereof shall inure to
the benefit of and be binding upon the personal representatives, heirs,
successors and assigns of Seller and Buyer. Buyer shall have no right to assign
its interest hereunder without the prior written consent of Seller in Seller's
sole and absolute discretion, and any such assignment shall not release Buyer
hereunder, and any such assignment without Seller's consent shall be void at
Seller's option. Seller hereby consents to the assignment of this Agreement to
Xxxxxx X. X'Xxxxx, Xxxxxx of the Roman Catholic Church of the Diocese of Phoenix
("ASSIGNEE"). If Buyer is a corporation, partnership, limited liability company
or trust, the transfer or assignment of any stock, interest, membership or
beneficial interest in such corporation, partnership, limited liability company
or trust in excess of forty-nine percent (49%) shall be deemed an assignment
within the meaning of this paragraph.
14.5. NO PARTNERSHIP, THIRD PERSON. It is not intended by this Agreement
to, and nothing contained in this Agreement shall, create any partnership, joint
venture or other similar arrangement between Seller and Buyer. No term or
provision of this Agreement is intended to, or shall, be for the benefit of any
person, firm, corporation or other entity not a party hereto (including, without
limitation, any broker), and no such party shall have any right or cause of
action hereunder.
14.6. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between and reflects the reasonable expectations of the parties pertaining to
the subject matter hereof. All prior and contemporaneous agreements,
representations and understandings of the parties, oral or written, are hereby
superseded and merged herein. No change or addition is to be made to this
Agreement except by a written agreement executed by all of the parties. Buyer
shall not record this Agreement nor any memorandum thereof in the public records
without the prior written approval of Seller, which approval may be withheld in
Seller's sole and absolute discretion.
14.7. FURTHER DOCUMENTS. Buyer and Seller shall execute and deliver all
such documents and perform all such acts as reasonably requested by the other
party from time to time, prior to and following the Closing, to carry out the
matters contemplated by this Agreement.
14.8. INCORPORATION OF EXHIBITS. All exhibits attached to this Agreement
are by this reference incorporated herein.
14.9. ARIZONA LAW. This Agreement shall be governed by the laws of the
State of Arizona and, as applicable, Title 11 of the United States Code (the
"Bankruptcy Code").
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14.10. DATE OF PERFORMANCE. If the date of performance of any obligation or
the last day of any time period provided for herein should fall on a Saturday,
Sunday or legal holiday, then said obligation shall be due and owing, and said
time period shall expire, on the first day thereafter which is not a Saturday,
Sunday or legal holiday. Except as may otherwise be set forth herein, any
performance provided for herein shall be timely made if completed no later than
5:00 p.m., Phoenix time, on the day of performance. The funds required from
Buyer and all acts required of Buyer in order to close the Escrow pursuant
hereto shall be deposited with Escrow Agent and be performed no later than 10:00
a.m., Phoenix time, on the Closing Date and shall be available for immediate
distribution to Seller at Closing.
14.11. Intentionally Omitted.
14.12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and delivered by facsimile transmission. Each such counterpart
hereof shall be deemed an original, but all counterparts shall constitute but
one agreement.
14.13. EXCULPATION. Notwithstanding anything to the contrary provided in
this Agreement, the liability of Seller, if any, under this Agreement and any
other document or agreement executed by Seller in connection with the Closing
shall not extend to nor be enforceable against the assets of Seller or any
partner or member of any partner in Seller except to the extent of their
interest in the Sale Property.
14.14. BANKRUPTCY COURT APPROVAL. Seller shall file a motion seeking
bankruptcy court approval of the transactions addressed herein promptly upon the
execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
THE TESSERACT GROUP, INC.,
a Minnesota corporation
By: /S/ XXXXXX XXXXXXX
----------------------------
Name: XXXXXX XXXXXXX
Title: CFO
"SELLER"
EDUCATION PROPERTY INVESTORS, INC.,
a Nevada corporation
By: /S/ XXXXX XXXXX
----------------------------
Name: XXXXX XXXXX
Title: SENIOR VICE PRESIDENT
"BUYER"
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ACCEPTANCE BY ESCROW AGENT
Escrow Agent agrees to act as escrow holder and Escrow Agent in accordance with
the terms of this Agreement.
ESCROW AGENT:
By: /S/ XXXX XXXXX
----------------------------
Name: XXXX XXXXX
Its: MANAGER
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EXHIBIT "A"
(Legal Description)
EXHIBIT "B"
SPECIAL WARRANTY DEED
WHEN RECORDED, RETURN TO:
______________________________
______________________________
______________________________
______________________________
SPECIAL WARRANTY DEED
For Ten Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
_________________________________ __________________________________
("Grantor"), hereby grants, sells and conveys to
____________________________________________ ("GRANTEE"), that Sale Property
located in Maricopa County, Arizona and legally described on EXHIBIT "A"
attached hereto and incorporated herein by this reference, together with all
interests, privileges and easements appurtenant thereto and any and all
improvements located thereon (the "PROPERTY").
SUBJECT TO: current taxes not yet due and payable, assessments and any
other liens arising therefrom, all reservations in patents, deed restrictions,
if any, all easements, rights of way, covenants, conditions, restrictions,
encroachments, liens, encumbrances, obligations and liabilities as may appear of
record, all other matters that can be determined by a visual inspection or a
complete and accurate survey of the Property, and those matters set forth on
EXHIBIT "B".
Notwithstanding any warranty which may otherwise be implied from the use of
any word, phrase or clause herein, Grantor warrants title to the Property,
subject to the matters referred to above, only against its own acts, but not the
acts of any others.
DATED as of this _____ day of ___________________, 200__.
___________________________________,
___________________________________
BY: _______________________________,
_______________________________
By: ________________________
Name: ________________________
Title: ________________________
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing document was acknowledged before me this _____ day of
_______________, 200__, by ____________________________, the ___________________
of ____________________________, a(n) ___________________________, for and on
behalf of said ________________________________.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
________________________________
Notary Public
My commission expires:
________________________________
Exhibit "A" to the Deed
Legal Description of the Property
Exhibit "B" to the Deed
Permitted Exceptions
EXHIBIT "C"
SELLER'S NON-FOREIGN AFFIDAVIT
NON-FOREIGN AFFIDAVIT
Section 1445 of the Internal Revenue Code of 1986 provides that a transferee of
a United States Sale Property interest must withhold tax if the transferor is a
foreign person. To inform the transferee that withholding tax is not required
upon disposition of a U.S. Sale Property interest by
______________________________________________________________ ("Transferor") to
______________________________________________________________ ("Transferee"),
the undersigned hereby certifies the following on behalf of the Transferor:
1. Transferor is not a foreign corporation, partnership, trust, estate,
or individual as those terms are defined in the Internal Revenue Code
and Income Tax Regulations;
2. Transferor's U.S. Employer Identification Number is _________________;
and
3. Transferor's principal office is: ________________________________.
Transferor understands that this certification may be disclosed to the Internal
Revenue Service by Transferee and that any false statement made herein could be
punished by fine, imprisonment, or both.
Under penalties of perjury, I, the undersigned, declare that I have examined
this certification and to the best of my knowledge and belief it is true,
correct and complete, and I further declare that I have all authority to sign on
behalf of Transferor.
DATED this _____ day of _______________________, 200__.
___________________________________,
___________________________________
By: ____________________________
Name: ____________________________
Title: ____________________________
THIS AFFIDAVIT must be retained until the end of the fifth (5th) taxable year
following the taxable year in which the transfer referred to above takes place.
[ACKNOWLEDGMENT ON FOLLOWING PAGE]
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing document was acknowledged before me this _____ day of
_______________, 200__, by ____________________________, the ___________________
of ____________________________, a(n) ___________________________, for and on
behalf of said ________________________________.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
________________________________
Notary Public
My commission expires:
________________________________
