EXHIBIT 10.6
AGREEMENT FOR THE PURCHASE AND SALE OF REAL PROPERTY
BETWEEN LINCOR CENTENNIAL, LTD.
AND
XXXXX REAL ESTATE FUND X, L.P.
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
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THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (the "Agreement"), is
made and entered into as of the 14th day of November, 1997 , by and between
LINCOR CENTENNIAL, LTD., a Colorado limited partnership (hereinafter referred to
as "Seller"), and XXXXX REAL ESTATE FUND X, L.P., a Georgia limited partnership
(hereinafter referred to as "Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property (as hereinafter defined) subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, the mutual
agreements contained herein, the sum of Ten Dollars ($10.00) in hand paid by
Purchaser to Seller at and before the sealing and delivery of these presents and
for other good and valuable consideration, the receipt, adequacy, and
sufficiency which are hereby expressly acknowledged by the parties hereto, the
parties hereto do hereby covenant and agree as follows:
1. Purchase and Sale of Property. Subject to and in accordance with the
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terms and provisions of this Agreement, Seller hereby agrees to sell to
Purchaser and Purchaser hereby agrees to purchase from Seller, the Property,
which term "Property" shall mean and include the following:
(a) all that tract or parcel of land located in the
City of Louisville, County of Boulder, State of Colorado containing
approximately 15 acres, and being more particularly described on Exhibit
"A" attached hereto and by this reference made a part hereof (herein
referred to as the "Land"); and
(b) Seller's interest in all rights, privileges, and easements
appurtenant to the Land, including all water rights, mineral rights,
reversions, or other appurtenances to said Land, and all right, title, and
interest of Seller, if any, in and to any land lying in the bed of any
street, road, alley, or right-of-way, open or proposed, adjacent to or
abutting the Land; and
(c) all buildings, structures, and improvements situated on the
Land, including, without limitation, that certain two story
office/production building containing approximately 106,750 square feet of
space (including approximately 50,300 square feet of office space), the
parking areas containing approximately 500 parking spaces and other
amenities constructed on the Land, and all apparatus, built-in appliances,
equipment, pumps, machinery, plumbing, heating, air conditioning,
electrical and other fixtures owned by Seller and located on or to be
located on the Land (all of which are herein collectively referred to as
the "Improvements"); and
(d) all personal property owned by Seller and located on or to be
located on or in, or used in connection with, the Land and Improvements
(all of which are herein collectively referred to as the "Personal
Property"); and
(e) all of Seller's right, title, and interest, as landlord or lessor,
in and to the Lease (as hereinafter defined); and
(f) all of Seller's right, title, and interest, if any, in and to the
plans and specifications with respect to the Improvements and any
guarantees, trademarks, rights of copyright, warranties, or other rights
related to the ownership of or use and operation of the Land, Personal
Property, or Improvements, all governmental licenses and permits, and all
intangibles associated with the Land, Personal Property, and Improvements,
including Seller's interest in the name of the Improvements and the logo
therefor, if any.
2. Xxxxxxx Money. Within two (2) business days after the Effective Date
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(as defined in Section 29), Purchaser shall deliver to Land Title Guarantee
Company ("Escrow Agent"), whose offices are at 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000, Purchaser's check, payable to Escrow Agent, in the
amount of $50,000.00 (the "Initial Xxxxxxx Money"). In the event this Agreement
is not sooner terminated, Purchaser shall also deposit with Escrow Agent an
additional $50,000.00 (the "Additional Xxxxxxx Money") on or before January 7,
1998. The Initial Xxxxxxx Money and Additional Xxxxxxx Money is referred to
herein as the Xxxxxxx Money. The Xxxxxxx Money shall be held and disbursed by
Escrow Agent pursuant to a written Escrow Agreement, a copy of which is attached
hereto as Exhibit "C" and by this reference made a part hereof (the "Escrow
Agreement"). The Xxxxxxx Money shall be paid by Escrow Agent to Seller at
Closing (as hereinafter defined) and shall be applied as a credit to the
Purchase Price (as hereinafter defined), or shall otherwise be paid to Seller or
refunded to Purchaser in accordance with the terms of this Agreement and the
Escrow Agreement. All interest and other income from time to time earned on the
Xxxxxxx Money shall belong to Purchaser and shall be disbursed to Purchaser at
any time and from time to time as Purchaser shall direct Escrow Agent, all as
provided in the Escrow Agreement. In no event shall any such interest or other
income be deemed a part of the Xxxxxxx Money.
3. Purchase Price. Subject to adjustment and credits as otherwise
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specified in this Agreement, the purchase price (the "Purchase Price") to be
paid by Purchaser to Seller for the Property shall be TEN MILLION THREE HUNDRED
TWENTY FIVE THOUSAND DOLLARS ($10,325,000.00). The Purchase Price shall be paid
by Purchaser to Seller at the Closing (as hereinafter defined) by wire transfer
of immediately available federal funds subject to prorations, adjustments and
credits as otherwise specified in this Agreement.
4. Purchaser's Inspection and Review Rights. Commencing on the Effective
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Date and ending on the date of Closing, and subject to the rights of the Tenant
(as hereinafter defined), Purchaser and its agents, engineers, or
representatives, with Seller's reasonable, good faith cooperation, shall have
the privilege of going upon the Property as needed to inspect, examine, test,
and survey the Property at all reasonable times and from time to time upon 24
hours advance notice, which notice may be given to Broker. Purchaser agrees not
to interfere with the operation of Tenant's business. Such privilege shall
include the right to make tests, borings, and other tests to obtain information
necessary to determine surface and subsurface conditions, provided, however,
that no borings shall be made without the advance consent of Seller, which
consent shall not be unreasonably withheld. Such privilege shall also include
the right to make any other tests deemed reasonably necessary by Purchaser.
Purchaser hereby agrees to indemnify and hold Seller harmless from any liens,
claims, liabilities, expenses and damages, including, without limitation,
reasonable attorney's fees, incurred through the exercise of such privilege;
Purchaser further agrees to repair any damage to the Property caused by the
exercise of such privilege; and said indemnities shall survive any termination
of this Agreement. At all reasonable times prior to the Closing (as hereinafter
defined), Seller shall make available to Purchaser, or Purchaser's agents and
representatives, at the offices of Broker and for copying at Purchaser's
expense, all books, records, and files in Seller's possession relating to the
ownership and operation of the Property, including, without limitation, title
matters, surveys, tenant files, service and maintenance agreements, and other
contracts, books, records, operating statements, and other information relating
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to the Property. Seller further agrees to in good faith assist and cooperate
with Purchaser in coming to a thorough understanding of the books, records, and
files relating to the Property. Seller further agrees to provide copies of any
of such books, records, and files as may be reasonably requested by Purchaser,
with the copying costs to be borne by Purchaser. Seller further agrees to
provide to Purchaser prior to the date which is five (5) business days after the
Effective Date the most current surveys of the Land and Improvements in the
possession of Seller. Seller further agrees to provide to Purchaser prior to the
date which is five (5) days after the Effective Date, a statement setting forth
all revenues from the Property and setting forth all costs and expenses of
operating, maintaining, and repairing the Property (and the costs of replacing
component parts thereof) incurred by Seller, in each case during the entire
period from the date of Seller's acquisition of the Property, through September
30, 1997, which statement shall be certified by Seller to the best of Seller's
knowledge after diligent inquiry and review of records, to be complete and
accurate in all material respects. Seller shall update said statement through
December 31, 1997, as soon as possible after December 31, 1997.
5. Special Condition to Closing. Purchaser shall have until the 21st
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business day after the Effective Date (the "Inspection Period") to make
investigations, examinations, inspections, market studies, feasibility studies,
lease reviews, and tests relating to the Property and the operation thereof in
order to determine, in Purchaser's sole opinion and discretion, the suitability
of the Property for acquisition by Purchaser. Purchaser shall have the right to
terminate this Agreement at any time prior to the expiration of the Inspection
Period by giving written notice to Seller of such election to terminate prior to
5:00 p.m. Louisville, Colorado time on the last day of the Inspection Period. In
the event this Agreement is so terminated, Seller shall be entitled to receive
the sum of One Hundred Dollars ($100), whereupon, except as expressly provided
to the contrary in this Agreement, no party hereto shall have any other or
further rights or obligations under this Agreement. Seller acknowledges that the
sum of $100 is good and adequate consideration for the termination rights
granted to Purchaser hereunder.
6. General Conditions Precedent to Purchaser's Obligations Regarding the
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Closing. In addition to any other conditions to Purchaser's obligations
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hereunder, the obligations and liabilities of Purchaser hereunder shall in all
respects be conditioned upon the satisfaction of each of the following
conditions prior to or simultaneously with the Closing (as hereinafter defined),
any of which may be waived by written notice from Purchaser to Seller:
(a) Seller shall have complied in all material respects with and
otherwise performed in all material respects each of the covenants and
obligations of Seller set forth in this Agreement.
(b) All representations and warranties of Seller as set forth in this
Agreement shall be true and correct in all material respects as of the date
of Closing.
(c) There shall have been no material adverse change to the title to
the Property which has not been cured and the Title Company (as hereinafter
defined) shall have issued the Title Commitment (as hereinafter defined) on
the Land and Improvements without exceptions other than as have been
approved by Purchaser as Permitted Exceptions (as hereinafter defined) and
the Title Company shall be prepared to issue to Purchaser upon the Closing
a fee simple owner's title insurance policy on the Land and Improvements
pursuant to such Title Commitment.
(d) Purchaser shall have received the Tenant Estoppel Certificate (as
hereinafter defined), duly executed by the Tenant (as hereinafter defined).
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(e) Purchaser shall have received the Title Commitment, marked to
change the effective date thereof through the date and time of recording
the Warranty Deed from Seller to Purchaser, to reflect that Purchaser is
vested with the fee simple title to the Land and the Improvements, and to
reflect that all requirements for the issuance of the final title policy
pursuant to such Title Commitment have been satisfied.
(f) There shall have been no material adverse change in the condition
of the Property or the improvements thereon subsequent to the Inspection
Period.
7. Title and Survey. Seller covenants and agrees that Seller, at its sole
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cost and expense, shall, on or before ten (10) days after the Effective Date of
this Agreement cause Old Republic National Title Insurance Company, or such
other such title insurance company acceptable to Purchaser (herein referred to
as the "Title Company"), to deliver to Purchaser its commitment (herein referred
to as the "Title Commitment") to issue to Purchaser, upon the recording of the
Warranty Deed conveying title to the Property from Seller to Purchaser, the
payment of the Purchase Price, and the payment to the Title Company of the
policy premium therefor, an owner's policy of title insurance with extended
coverage, in the amount of the Purchase Price, insuring good and marketable fee
simple record title to the Property to be in Purchaser without exception
(including any general exception) except for matters set forth on Exhibit "B"
attached hereto and by this reference made a part thereof (herein referred to as
the ("Permitted Exceptions"). The Title Policy to be issued shall not contain
any exception for mechanic's or materialman's liens or any exception for unpaid
taxes other than an exception for taxes not yet due and payable. Such Title
Policy shall not contain any exception for rights of parties in possession
other than an exception for the right of the Tenant (as hereinafter defined)
under the Lease. If the Title Commitment shall contain an exception for the
state of facts which would be disclosed by a survey of the Property or an "area
and boundaries" exception, the Title Commitment shall provide that such
exception will be deleted upon the presentation of an "as-built" survey, in
which case the Title Commitment shall be amended to contain an exception only
for the matters shown on the as-built survey which Seller shall obtain at its
sole cost and expense for the benefit of Purchaser. Seller shall also cause to
be delivered to Purchaser together with such Title Commitment, legible copies of
all documents and instruments referred to therein. Purchaser, upon receipt of
the Title Commitment and the copies of the documents and instruments referred to
therein, shall then have ten (10) days during which to examine the same, after
which Purchaser shall notify Seller of any defects or objections affecting the
marketability of the title to the Property including the Permitted Exceptions.
Seller shall then have until the Closing to cure such defects and objections and
shall, in good faith, exercise reasonable diligence to cure such defects and
objections. If Seller fails to satisfy such defects or objections by the date of
Closing, then, at the option of Purchaser: (i) if any such defects or objections
arose by, through, or under Seller or if any such defects or objections consist
of taxes, mortgages, deeds of trust, deeds to secure debt, mechanic's or
materialman's liens, or other such monetary encumbrances, Purchaser shall have
the right to cure such defects or objections, in which event the Purchase Price
shall be reduced by an amount equal to the costs and expenses incurred by
Purchaser in connection with the curing of such defects or objections, and upon
such curing, the Closing hereof shall proceed in accordance with the terms of
this Agreement; or (ii) Purchaser shall have the right to terminate this
Agreement by giving written notice of such termination to Seller, whereupon any
Xxxxxxx Money shall be refunded promptly to Purchaser, and Purchaser and Seller
shall have no further rights, obligations, or liabilities hereunder, except as
may be expressly
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provided to the contrary herein; or (iii) Purchaser shall have the right to
accept title to the Property subject to such defects and objections with no
reduction in the Purchase Price, in which event such defects and objections
shall be deemed "Permitted Exceptions"; or (iv) Purchaser may elect to extend
the Closing for thirty (30) days in order to allow Seller additional time to
satisfy such defects and objections. If the Purchaser elects option (iv) above,
and such defects and objections are not cured by Seller to the satisfaction of
Purchaser within such extended time period, Purchaser shall then have the
options set forth in items (i), (ii), and (iii) above.
8. Representations and Warranties of Seller. Seller hereby makes the
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following representations and warranties to Purchaser:
(a) Lease. Attached hereto as Exhibit "D" and by this reference made
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a part hereof are true and accurate copy of the lease in effect with OHMEDA
INC., a Delaware corporation ("Tenant") relating to the Property, together
with all modifications and amendments to such lease, including the guaranty
of THE BOC GROUP, INC., a Nevada corporation (such lease, as modified and
amended, being herein referred to as the "Lease"). Seller is the "landlord"
under the Lease and owns unencumbered legal title to the Lease and the
rents and other income thereunder.
(b) Lease - Assignment. To Seller's knowledge, the Tenant has not
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assigned its interest in the Lease or sublet any portion of the premises
leased to the Tenant under the Lease.
(c) Lease - Default. (i) Seller has not received any notice of
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termination or default under the Lease, (ii) there are no existing or
uncured defaults by Seller or, to the Seller's knowledge, by the Tenant
under the Lease, (iii) there are no events which with the passage of time
or notice, or both, would constitute a default by Seller or, to the
Seller's knowledge, by the Tenant, and Seller has complied with each and
every undertaking, covenant, and obligation of Seller under the Lease, and
(iv) Seller has not received notice that Tenant has asserted any defense,
set-off, or counterclaim with respect to its tenancy or its obligation to
pay rent, additional rent, or other charges pursuant to the Lease.
(d) Lease - Rents and Special Consideration. Tenant: (i) has not
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prepaid rent for more than one month in advance under the Lease, (ii) has
not received and is not entitled to receive any rent concession in
connection with its tenancy under the Lease, except as expressly set forth
in the Lease (iii) is not entitled to any special work (not yet performed),
or consideration (not yet given) in connection with its tenancy under the
Lease, except that expressly described in the Second Amendment to Lease
included in Exhibit "D" hereto, and sufficient funds will be escrowed at
Closing to satisfy Seller's obligations with respect thereto; and (iv) does
not have any deed, option, or other evidence of any right or interest in or
to the Property, except as evidenced by the express terms of the Lease.
(e) Lease - Commissions. No rental, lease, or other commissions with
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respect to the Lease are payable to any party. All commissions payable
under, relating to, or as a result of the Lease have been cashed-out and
paid and satisfied in full by Seller or by Seller's predecessor in title to
the Property or will be so satisfied on or before Closing.
(f) Service Contracts. Attached hereto and incorporated herein by
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this reference as Exhibit "E" is a complete and accurate list and
description of all of the service contracts, management agreements, or
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other agreements (other than the Lease) which are in effect and which
relate to the operation, management, or maintenance the Property (said
agreements being herein collectively referred to as the "Service
Contracts"). Seller shall provide Purchaser with complete and accurate
copies of all Service Contracts within five (5) business days after the
effective date of this Agreement. All such Service Contracts are in full
force and effect in accordance with their respective provisions, and to
Seller's knowledge there is no default, or claim of default, or any event
which with the passage of time or notice, or both, would constitute a
default on the part of any party to any of such Service Contracts. Seller
agrees to cancel any of the Service Contracts specified by Purchaser in a
written notice to Seller to the extent permitted by the terms of the
Service Contracts. Seller has cancelled or will cancel, effective as of the
Closing, any agreement in the nature of a management agreement or service
contract between Seller or any party affiliated with or related.
(g) No Other Agreements. Other than the Lease, the Service Contracts
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and the Permitted Exceptions, Seller has not entered into any leases,
service contracts, management agreements, or other agreements or
instruments, to which Seller is a party and that grant to any person
whomsoever or any entity whatsoever any right, title, interest or benefit
in or to all or any part of the Property or any rights relating to the use,
operation, management, maintenance, or repair of all or any part of the
Property.
(h) No Litigation. There are no actions, suits, or proceedings
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pending, or to Seller's knowledge, threatened by any organization, person,
individual, or governmental agency against Seller with respect to the
Property or against the Property, nor does Seller have any knowledge of any
basis for such action. Seller has no knowledge of any pending or threatened
application for changes in the zoning applicable to the Property or any
portion thereof.
(i) Condemnation. To Seller's knowledge no condemnation or other
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taking by eminent domain of the Property or any portion thereof has been
instituted and, there are no pending or threatened condemnation or eminent
domain proceedings (or proceedings in the nature or in lieu thereof)
affecting the Property or any portion thereof or its use.
(j) Violations. Seller has not received written notice of any
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violations of law, municipal or county ordinances, or other legal
requirements with respect to the Property that remain uncured. Seller will
obtain a letter from applicable authorities addressed to Purchaser and
confirming that the Property is currently zoned in a classification such as
will permit the operation of the Property as an office building and the
conditions, if any, to the granting of the zoning of the Property have been
satisfied.
(k) Employees. There are no employment, collective bargaining, or
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similar agreements or arrangements between Seller and any of its employees
or others which will be binding on Purchaser or any of Purchaser's
successors in title.
(l) Bankruptcy. Seller is solvent and has not made a general
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assignment for the benefit of creditors nor been adjudicated a bankrupt or
insolvent, nor has a receiver, liquidator, or trustee for any of Seller's
properties (including the Property) been appointed or a petition filed by
or to Seller's knowledge against Seller for bankruptcy, reorganization, or
arrangement pursuant to the Federal Bankruptcy Act or any similar Federal
or state statute, or any proceeding instituted for the dissolution or
liquidation of Seller.
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(m) Pre-existing Right to Acquire. No person or entity has any right
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or option to acquire the Property or any portion thereof which will have
any force or effect after the execution of this Agreement, other than
Purchaser, except as set forth in the Lease.
(n) Effect of Certification. Neither this Agreement nor the
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transactions contemplated herein will constitute a breach or violation of,
or default under, or will be modified, restricted, or precluded by the
Lease, the Service Contracts, or the Permitted Exceptions.
(o) Authorization. This Agreement has been duly authorized and
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executed on behalf of Seller and constitutes the valid and binding
agreement of Seller, enforceable in accordance with its terms, and all
necessary action on the part of Seller to authorize the transactions herein
contemplated has been taken, and no further action is necessary for such
purpose.
(p) Seller Not a Foreign Person. Seller is not a "foreign person"
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which would subject Purchaser to the withholding tax provisions of Section
1445 of the Internal Revenue Code of 1986, as amended.
(q) Utilities. All installation and connection charges for
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utilities serving the Property have been paid in full.
(r) Property Taxes. All property taxes required to be paid with
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respect to the Property under any law, ordinance rule, regulation, order,
or requirement of any governmental authority have been, or will be, as the
case may be, truthfully, correctly, and timely paid. Seller agrees to
provide copies of all ad valorem tax bills for 1997, within five business
days of the Effective Date.
At Closing, Seller shall represent and warrant to Purchaser that all
representations and warranties of Seller in this Agreement remain true and
correct as of the date of the Closing, except for any changes in any such
representations or warranties that occur and are disclosed by Seller to
Purchaser expressly and in writing at any time and from time to time prior to
Closing, which disclosures shall thereafter be updated by Seller to the date of
Closing. If there is any change in any representations or warranties and Seller
does not cure or correct such changes prior to Closing, then Purchaser may, at
Purchaser's option, (i) close and consummate the transaction contemplated by
this Agreement, or (ii) terminate this Agreement by written notice to Seller,
whereupon any Xxxxxxx Money shall be immediately returned by Escrow Agent to
Purchaser, and thereafter the parties hereto shall have no further rights or
obligations hereunder, except only for such rights or obligations that, by the
express terms hereof, survive any termination of this Agreement.
9. Seller's Additional Covenants. Seller does hereby further covenant and
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agree as follows:
(a) Operation of Property. Seller hereby covenants that, from the
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date of this Agreement up to and including the date of Closing or earlier
termination hereof, Seller shall: (i) not negotiate with any third party
respecting the sale of the Property or any interest therein, (ii) not
modify, amend, or terminate the Lease or enter into any new lease,
contract, or other agreement respecting the Property, without the consent
of Purchaser, which consent shall not be withheld or delayed and (iii) not
grant or otherwise create or consent to the creation of any easement,
restriction, lien, assessment, or encumbrance respecting the Property.
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(b) Preservation of Lease. Seller shall, from and after the date of
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this Agreement to the date of Closing, use its best efforts to perform and
discharge all of the duties and obligations and shall otherwise comply with
every covenant and agreement of the landlord under the Lease, at Seller's
expense, in the manner and within the time limits required thereunder.
Furthermore, Seller shall, for the same period of time, use diligent and
good faith efforts to cause the Tenant under the Lease to perform all of
its duties and obligations and otherwise comply with each and every one of
its covenants and agreements under such Lease and shall take such actions
as are reasonably necessary to enforce the terms and provisions of the
Lease. Seller shall obtain execution of the Second Amendment to Lease, a
copy of which is included with Exhibit "D", by the proper parties on or
before the end of the Inspection Period.
(c) Tenant Estoppel Certificates. Prior to Closing, Seller shall
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use its best efforts to obtain and deliver to Purchaser a fully completed
and duly executed estoppel certificate from Tenant in the form attached
hereto as Exhibit "F" (herein referred to as the "Tenant Estoppel
Certificate"). The Tenant Estoppel Certificate shall be executed as of a
date not more than twenty (20) days prior to Closing.
(d) Insurance. From and after the date of this Agreement to the date
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and time of Closing, Seller shall, at its expense, continue to maintain the
insurance policies covering the Property which are currently in force and
effect.
(e) Securities Act Compliance. Seller acknowledges that Purchaser
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may be required by the Securities and Exchange Commission to file audited
financial statements for one to three years with regard to the Property. At
no cost or liability to Seller, Seller shall (i) cooperate with Purchaser,
its counsel, accountants, agents, and representatives, provide them with
access to Seller's books and records with respect to the ownership,
management, maintenance, and operation of the Property for the applicable
period, and permit them to copy the same, (ii) execute a form of "rep"
letter in form and substance reasonably satisfactory to Seller, and (iii)
furnish Purchaser with such additional information concerning the same as
Purchaser shall reasonably request. Purchaser will pay the costs associated
with any such audit.
10. Closing. Provided that all of the conditions set forth in this
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Agreement are theretofore satisfied or performed in all material respects, it
being fully understood and agreed, however, that Purchaser may expressly waive
in writing, at or prior to Closing, any conditions that are unsatisfied or
unperformed at such time, the consummation of the sale by Seller and purchase by
Purchaser of the Property (herein referred to as the "Closing") shall be held on
or before February 20, 1998, and at such specific time and date (but not earlier
than January 2, 1998) as shall be designated by Purchaser in a written notice to
Seller not less than five (5) business days prior to Closing at the office of
the Title Company, and, absent notice, at 1:00 p.m., local time, on February 20,
1998.
11. Seller's Closing Documents. For and in consideration of, and as a
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condition precedent to, Purchaser's delivery to Seller of the Purchase Price,
Seller shall obtain or execute, at Seller's expense, and deliver to Purchaser at
Closing the following documents (all of which shall be duly executed,
acknowledged, and notarized where required):
(a) Special Warranty Deed. A Special Warranty Deed ("Warranty Deed")
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in the form of Exhibit "G" hereto conveying to Purchaser marketable fee
simple title to the Land and Improvements, together with all rights,
members, easements, and appurtenances thereto, subject only to the
Permitted Exceptions. The legal description set forth in the Warranty Deed
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shall be as set forth on Exhibit "A" attached hereto. In the event
Purchaser shall obtain a new or updated survey of the Land and Improvements
and the legal description set forth in Purchaser's survey shall differ from
the legal description set forth on Exhibit "A" hereto, Seller shall execute
and deliver to Purchaser a quitclaim deed containing a legal description
based upon such survey obtained by Purchaser;
(b) Xxxx of Sale. A Xxxx of Sale conveying to Purchaser marketable
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title to the Personal Property in the form and substance of Exhibit "H"
attached hereto and by this reference made a part hereof;
(c) Blanket Transfer. A Blanket Transfer and Assignment in the form
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and substance of Exhibit "I" attached hereto and by this reference made a
part hereof;
(d) Assignment and Assumption of Lease. An Assignment and
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Assumption of Lease in the form and substance of Exhibit "J" attached
hereto and by this reference made a part hereof, assigning to Purchaser all
of Seller's right, title, and interest in and to the Lease and the rents
thereunder;
(e) ALTA Affidavit. A customary ALTA affidavit in the form required
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by the Title Company;
(f) FIRPTA Certificate. A FIRPTA Certificate in the form and
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substance of Exhibit "K" attached hereto and by this reference made a part
hereof;
(g) Surveys and Plans. Such surveys, site plans, plans and
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specifications, and other matters relating to the Property as are described
in subparagraph (a) of the Blanket Transfer and Assignment and are in the
possession of Seller or Seller's agents;
(h) Certificates of Occupancy. The original certificates of
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occupancy for all space within the Improvements;
(i) Lease. An original executed counterpart or certified copy of the
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Lease and all amendments to and modifications thereof;
(j) Estoppel Certificates. The Tenant Estoppel Certificate;
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(k) Keys and Records. All of the keys to any doors or locks on the
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Property and the original tenant files and other books and records relating
to the Property in Seller's possession;
(l) Tenant Notice. Notice from Seller to the Tenant of the sale of
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the Property to Purchaser in the form of Exhibit "L" hereto;
(m) Settlement Statement. A settlement statement setting forth the
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amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement; and
(n) Other Documents. Such other documents as shall be reasonably
---------------
required by Purchaser's counsel.
12. Purchaser's Closing Documents. Purchaser shall deliver the balance
-----------------------------
of the Purchase Price and shall obtain or execute and deliver to Seller at
Closing the following documents, all of which shall be duly executed and
acknowledged where required and shall survive the Closing:
9
(a) Assignment and Assumption of Lease. The Assignment and
----------------------------------
Assumption of Lease in the form and substance of Exhibit "J" hereto;
(b) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement;
(c) Other Documents. Such other documents as shall be reasonably
---------------
required by Seller's counsel.
13. Closing Costs. Seller shall pay the cost of the Title Commitment,
-------------
including the cost of the examination of title to the Property made in
connection therewith, the premium for the owner's policy of title insurance
issued pursuant thereto (with extended coverage but not with endorsements not
expressly called for herein), the cost of the as-built survey, the cost (to the
extent it is customary for Seller to pay such costs) of any documentary,
transfer, recording or other similar tax imposed by the State of Colorado,
Boulder County and local transfer taxes, if any, upon the conveyance of the
Property pursuant hereto, the attorneys' fees of Seller, one-half of any escrow
fee and all other costs and expenses incurred by Seller in closing and
consummating the purchase and sale of the Property pursuant hereto. Purchaser
shall pay its attorneys' fees, the cost (to the extent it is customary for
Purchaser to pay such costs) of any documentary, transfer, recording or other
similar tax imposed by the State of Colorado, Boulder County and local transfer
taxes, if any, upon the conveyance of the Property pursuant hereto, the costs of
any endorsements to the Title Policy not expressly provided for herein, one-half
of any escrow fee and all other costs and expenses incurred by Purchaser in
closing and consummating the purchase and sale of the Property pursuant hereto.
14. Prorations. The following items shall be prorated and/or credited
----------
between Seller and Purchaser as of Midnight preceding the date of Closing:
(a) Rents. Rents, additional rents, operating costs, and other income
-----
of the Property (other than security deposits) collected by Seller from
Tenant for the month of Closing. Purchaser shall also receive a credit
against the Purchase Price payable by Purchaser to Seller at Closing for
any rents or other sums (not including security deposits) prepaid by Tenant
for any period following the month of Closing. Seller hereby acknowledges
that Purchaser shall not be legally responsible to Seller for the
collection of any uncollected rent or other income under the Lease that is
past due or otherwise due and payable as of the date of Closing. Purchaser
agrees that if (i) Tenant is in arrears on the date of Closing in the
payment of rent or other charges under the Lease, and (ii) upon Purchaser's
receipt of any rental or other payment from such Tenant, such Tenant is, or
after application of a portion of such payment will be, current under the
Lease in the payment of all accrued rental and other charges that become
due and payable on the date of Closing or thereafter and in the payment of
any other obligations of Tenant to Purchaser, then Purchaser shall refund
to Seller, out of and to the extent of the portion of such payment
remaining after Purchaser deducts therefrom any and all sums due and owing
to Purchaser from Tenant from and after the date of Closing, an amount up
to the full amount of any arrearage existing on the date of Closing.
(b) Property Taxes. Except for such taxes which are the
--------------
responsibility of Tenant and for which Seller has not received payment,
City, state, county, and school district ad valorem taxes based on the ad
valorem tax bills for the Property, if then available, or if not, then on
the basis of the latest available tax figures and information. Should such
proration be based on such latest available tax figures and information and
10
prove to be inaccurate upon receipt of the ad valorem tax bills for the
Property for the year of Closing, either Seller or Purchaser, as the case
may be, may demand at any time after Closing a payment from the other
correcting such malapportionment. In addition, if after Closing there is an
adjustment or reassessment by any governmental authority with respect to,
or affecting, any ad valorem taxes for the Property for the year of Closing
or any prior year, any additional tax payment or refund for the Property
required to be paid or refunded with respect to the year of Closing shall
be prorated between Purchaser and Seller and any such additional tax
payment or refund for the Property for any year prior to the year of
Closing shall be paid by or to Seller, as the case may be.
(c) Utility Charges. Except for utilities which are the
---------------
responsibility of Tenant and for which Seller has not received payment,
Seller shall pay all utility bills received prior to Closing and shall be
responsible for utilities furnished to the Property prior to Closing.
Purchaser shall be responsible for the payment of all bills for utilities
furnished to the Property subsequent to the Closing. Seller and Purchaser
hereby agree to prorate and pay their respective shares of all utility
bills received subsequent to Closing.
(d) Service Contracts. Except for Service Contracts which are paid
-----------------
by Tenant and for which Seller has not received payment, charges under any
Service Contracts shall be prorated as of Midnight preceding the date of
Closing.
15. Purchaser's Default. In the event of default by Purchaser under the
-------------------
terms of this Agreement, Seller's sole and exclusive remedy shall be to receive
the Xxxxxxx Money as liquidated damages and thereafter the parties hereto shall
have no further rights or obligations hereunder whatsoever. It is hereby agreed
that Seller's damages will be difficult to ascertain and that said sum
constitutes a reasonable liquidation thereof and is intended not as a penalty,
but as fully liquidated damages.
16. Seller's Default. In the event of default by Seller under the terms
----------------
of this Agreement, and in addition to the other remedies specifically set forth
herein, at Purchaser's option: (i) Purchaser may terminate this Agreement by
written notice to Seller, whereupon any Xxxxxxx Money shall be immediately
returned by Escrow Agent to Purchaser, and the parties hereto shall have no
further rights or obligations hereunder whatsoever, or (ii) Purchaser shall be
entitled to pursue the remedy of specific performance as its sole and exclusive
remedy, and to the extent consistent therewith to receive an immediate refund of
any Xxxxxxx Money.
17. Condemnation. If, prior to the Closing, all or any part of the
------------
Property valued at more than $100,000 is subjected to a bona fide threat of
condemnation by a body having the power of eminent domain or is taken by eminent
domain or condemnation (or sale in lieu thereof), or if Seller has received
notice that any condemnation action or proceeding with respect to the Property
is contemplated by a body having the power of eminent domain, Seller shall give
Purchaser immediate written notice of such threatened or contemplated
condemnation or of such taking or sale, and Purchaser may by written notice to
Seller given within ten (10) days of the receipt of such notice from Seller,
elect to cancel this Agreement. If Purchaser chooses to cancel this Agreement in
accordance with this Paragraph, then any Xxxxxxx Money shall be returned
immediately to Purchaser and except as otherwise provided herein, the rights,
duties, obligations, and liabilities of the parties hereunder shall immediately
terminate and be of no further force and effect. If Purchaser does not elect to
cancel this Agreement in accordance herewith or the portion of the Property in
question is valued at less than $100,000, this Agreement shall remain in full
11
force and effect and the sale of the Property contemplated by this Agreement,
less any interest taken by eminent domain or condemnation, or sale in lieu
thereof, shall be effected with no further adjustment and without reduction of
the Purchase Price, and at the Closing, Seller shall assign, transfer, and set
over to Purchaser all of the right, title, and interest of Seller in and to any
awards that have been or that may thereafter be made for such taking.
18. Damage or Destruction. If any of the Improvements shall be destroyed
---------------------
or damaged prior to the Closing, and the estimated cost of repair or replacement
exceeds One Hundred Thousand Dollars ($100,000) or if the Lease shall terminate
as a result of such damage, Purchaser may, by written notice given to Seller
within ten (10) days after receipt of written notice from Seller of such damage
or destruction, elect to terminate this Agreement, in which event any Xxxxxxx
Money shall immediately be returned to Purchaser and except as expressly
provided herein to the contrary, the rights, duties, obligations, and
liabilities of all parties hereunder shall immediately terminate and be of no
further force or effect. If Purchaser does not elect to terminate this Agreement
pursuant to this Paragraph, or has no right to terminate this Agreement (because
the damage or destruction does not exceed $100,000 and the Lease remains in full
force and effect), and the sale of the Property is consummated, Purchaser shall
be entitled to receive all insurance proceeds paid or payable to Seller by
reason of such destruction or damage under the insurance required to be
maintained by Seller pursuant to Paragraph 9(d) hereof (less amounts of
insurance theretofore received and applied by Seller to restoration) and Seller
shall pay to Purchaser the amount of any deductible thereunder. If the amount of
said casualty or rent loss insurance proceeds is not settled by the date of
Closing, Seller shall execute at Closing all proofs of loss, assignments of
claim, and other similar instruments to ensure that Purchaser shall receive all
of Seller's right, title, and interest in and under said insurance proceeds.
19. Hazardous Substances. To the Seller's knowledge: (a) there are not
--------------------
"hazardous substances" (as defined in Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq. as
------
amended) at the Property; (b) there has been no release or threat of release of
any such hazardous substance; (c) the Property is not subject to regulation by
any governmental entity as result of the presence of (i) stored, leaked or
spilled petroleum products, (ii) underground storage tanks, (iii) an
accumulation of rubbish, debris or other solid waste, or because of the
presence, release, threat of release, discharge, storage, treatment, generation
or disposal of any "hazardous waste" (as defined in the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901 et seq., as amended),
-------
or "toxic substance" (as defined in the Toxic Substance Control Act,
15 U.S.C. Section 2601 et seq., as amended), including without limitation
------
asbestos and items or equipment containing polychlorinated biphenyls (PCBs) in
excess of 50 parts per million; and (d) no environmental condition exists on the
Property that either (X) requires the owner of the Property to report such
condition to any authority or agency of the State of Colorado or (Y) requires
the owner of the Property to make a notation of such condition in any public
records or conveyancing instrument upon the conveyance of the Property. Seller
covenants during the period of this Agreement not to discharge or store any such
materials on the Property.
20. Assignment. Purchaser's rights and duties under this Agreement shall
----------
be freely transferable and assignable by Purchaser, either in full or in part,
but in the event of any such transfer or assignment, Purchaser shall remain
liable for the performance of all obligations, covenants, conditions, and
agreements imposed upon Purchaser pursuant to the terms of this Agreement.
21. Broker's Commission. Seller has by separate agreement agreed to pay a
-------------------
real estate commission to Prime West Real Estate Services, Inc. (the "Broker").
Purchaser and Seller hereby represent each to the other that they have not
discussed this Agreement or the subject matter hereof with any real estate
broker or agent other than Broker so as to create any legal right in any such
broker or agent to claim a real estate commission with respect to the
12
conveyance of the Property contemplated by this Agreement. Seller shall and does
hereby indemnify and hold harmless Purchaser from and against any claim, whether
or not meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Seller. Likewise, Purchaser shall and does hereby
indemnify and hold harmless Seller from and against any claim, whether or not
meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Purchaser, except any such claim asserted by Broker or
any broker or agent claiming under Broker.
22. Notices. Wherever any notice or other communication is required or
-------
permitted hereunder, such notice or other communication shall be in writing and
shall be delivered by overnight courier, by hand, or sent by U.S. registered or
certified mail, return receipt requested, postage prepaid, to the addresses set
out below or at such other addresses as are specified by written notice
delivered in accordance herewith:
PURCHASER: c/x Xxxxx Capital, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
with a copy to: X'Xxxxxxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. X'Xxxxxxxxx, Xx., Esq.
SELLER: LINCOR CENTENNIAL LTD.,
a Colorado limited partnership
c/o Merit Properties Group, LLC
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
with copy to: Xxxxxxxxxx Hyatt Xxxxxx & Xxxxxxxxxx
22nd Floor
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Any notice or other communication given as hereinabove provided shall be deemed
effectively given or received on the date of delivery.
23. Possession. Possession of the Property shall be granted by Seller to
----------
Purchaser on the date of Closing, subject only to the Lease and the Permitted
Exceptions.
24. Time Periods. If the time period by which any right, option, or
------------
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day in Louisville, Colorado.
25. Survival of Provisions. All covenants, warranties, and agreements set
----------------------
forth in this Agreement shall survive the execution or delivery of any and all
deeds and other documents at any time executed or delivered under, pursuant to,
or by reason of this Agreement, and shall survive the payment of all monies made
under, pursuant to, or by reason of this Agreement, for a period of 18 months.
26. Severability. This Agreement is intended to be performed in
------------
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules, and regulations. If any provision of this Agreement, or the
13
application thereof to any person or circumstance, shall, for any reason and to
any extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent permitted
by law.
27. Authorization. Purchaser represents to Seller that this Agreement has
-------------
been duly authorized and executed on behalf of Purchaser and constitutes the
valid and binding agreement of Purchaser, enforceable in accordance with its
terms, and all necessary action on the part of Purchaser to authorize the
transactions herein contemplated has been taken, and no further action is
necessary for such purpose.
28. General Provisions. No failure of either party to exercise any power
------------------
given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon the parties
hereto unless such amendment is in writing and executed by all parties hereto.
The provisions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective, permitted heirs, legal
representatives, successors, and assigns. Time is of the essence of this
Agreement. This Agreement may be executed in multiple counterparts, each of
which shall constitute an original, but all of which taken together shall
constitute one and the same agreement. The headings inserted at the beginning of
each paragraph are for convenience only, and do not add to or subtract from the
meaning of the contents of each paragraph. This Agreement shall be construed and
interpreted under the laws of the State of Colorado. Except as otherwise
provided herein, all rights, powers, and privileges conferred hereunder upon the
parties shall be cumulative but not restrictive to those given by law. All
personal pronouns used in this Agreement, whether used in the masculine,
feminine, or neuter gender shall include all genders, and all references herein
to the singular shall include the plural and vice versa.
29. Effective Date. The "Effective Date" of this Agreement shall be
--------------
deemed to be the date this Agreement is fully executed by both Purchaser and
Seller and a fully executed original counterpart of this Agreement has been
received by both Purchaser and Seller. If the Effective Date does not occur on
or before November 18, 1997, this Agreement shall be null and void and of no
further force and effect.
[Remainder of page intentionally left blank]
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective seals to be affixed hereunto as of the day,
month and year first above written.
"SELLER":
LINCOR CENTENNIAL LTD., a Colorado
limited partnership
By: ATC CONSOLIDATED PROPERTIES LIMITED PARTNERSHIP,
an Arizona limited partnership,
General Partner
By: ATC CONSOLIDATED PROPERTIES, INC.,
an Arizona corporation,
General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Its: Secretary
(CORPORATE SEAL)
"PURCHASER":
XXXXX REAL ESTATE FUND X, L.P.,
a Georgia limited partnership
By: Xxxxx Partners, L.P., a Georgia limited
partnership, General Partner
By: Xxxxx Capital, Inc., a Georgia
corporation, General Partner
By: /s/ Xxx X. Xxxxx
------------------------------
Its:
----------------------------
(CORPORATE SEAL)
15
