EXHIBIT 10.01
EXECUTION VERSION
PURCHASE AND SALE AGREEMENT
by and between
TRIPLE NET PROPERTIES, LLC,
as Buyer
and
EBS BUILDING, L.L.C.,
as Seller,
dated as of
June ______, 2004
CONTENTS
For Reference Purposes Only
Not Part of the Purchase and Sale Agreement
TABLE OF CONTENTS
ARTICLE PAGE
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I. Purchase and Sale............................... 2
II. Representations and Warranties of Seller........ 10
III. Representations and Warranties of Buyer......... 12
IV. Conditions Precedent............................ 13
V. Covenants of Seller............................. 14
VI. Covenants of Buyer.............................. 18
VII. Casualty; Condemnation.......................... 19
VIII. Environmental Matters........................... 20
IX. Disclaimer of Representations and Warranties.... 21
X. Miscellaneous Provisions........................ 23
Exhibits
Real Property A
Personal Property B
Schedule of Leases/Rent Roll C
Schedule of Tenant Defaults C-1
Schedule of Contracts D
Legal Description of Parking Garage Property E
Receipt for Deposit F
Lease Estoppel Certificate G
Special Warranty Deed H
Xxxx of Sale and Assignment I
Assignment of Warranties, Deposits and Intangible Property J-1
Service Xxxx Assignment J-2
Assignment and Assumption of Leases K
Assignment and Assumption of Contracts L
Endorsements to Title Policy M
Form of Surveyor's Certification N
Permitted Exceptions O
Assignment and Assumption of Parking Garage Lease P
LCRA Estoppel Certificate Q
Seller's Affidavit R
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "AGREEMENT") is made and dated
as of this 17th day of June, 2004, by and between TRIPLE NET PROPERTIES, LLC, a
Virginia limited liability company ("BUYER"), and EBS BUILDING, L.L.C., a
Delaware limited liability company ("SELLER").
WITNESSETH:
WHEREAS, Seller is the owner of the real estate more particularly
described on Exhibit A attached hereto and incorporated herein by reference, and
the buildings, improvements and structures thereon, and the appurtenances and
hereditaments thereto (all being hereinafter collectively referred to as the
"REAL PROPERTY"); and
WHEREAS, Seller is the owner or lessee of the personal property more
particularly described on Exhibit B attached hereto and incorporated herein by
reference, which includes substantially all items of tangible personal property
owned or leased by Seller and located on and used in connection with the Real
Property (all being hereinafter collectively referred to as the "PERSONAL
PROPERTY"); and
WHEREAS, Seller is landlord under certain tenant leases affecting
the Real Property, which tenant leases are listed and described on the schedule
of leases (the "SCHEDULE OF LEASES") attached hereto as Exhibit C and
incorporated herein by reference (the "LEASES"); and
WHEREAS, Seller is obligee under certain service, supply and
maintenance agreements affecting the Real Property, which service, supply and
maintenance agreements are listed and described on Exhibit D attached hereto and
incorporated herein by reference (the "CONTRACTS"); and
WHEREAS, Seller is the lessee under that certain Lease dated
December 22, 1982 between Seller and the Land Clearance for Redevelopment
Authority of the City of St. Louis demising parking spaces on the fifth level of
the parking facility on City Block 118 in the City of St. Louis, Missouri, as
legally described on Exhibit E attached hereto and incorporated herein by
reference (as amended, the "PARKING GARAGE LEASE"); and
WHEREAS, the Real Property and the Personal Property comprise a
multi-story office building located in the City of St. Louis, State of Missouri,
and commonly known as One Financial Plaza (Seller's right, title and interest in
and to the Real Property, the Personal Property, the Leases, the Contracts and
the Parking Garage Lease being hereinafter sometimes collectively referred to as
the "PROPERTY"); and
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WHEREAS, Colliers Xxxxxx Xxxxxx Xxxxxx, Inc. (the "PROPERTY
MANAGER") presently manages the Property under a property management agreement
with Seller (the "MANAGEMENT CONTRACT"), and presently occupies a portion of the
Property for the management office for the Property; and
WHEREAS, the Property is presently subject to a deed of trust in
favor of Commerce Bank, N.A. recorded in Book 1698 at page 3629 in the Office of
the Recorder of Deeds of St. Louis, Missouri (the "MORTGAGE"), securing a
promissory note dated May 31, 2001 in the principal amount of up to $18,600,000
described therein; and
WHEREAS, Buyer desires to buy and Seller desires to sell the
Property, on the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants of the parties hereinafter expressed, it is hereby agreed as follows:
ARTICLE I
PURCHASE AND SALE
1.1 AGREEMENT TO SELL AND PURCHASE. In accordance with and on the
terms and conditions hereof, on the date of Closing (as hereinafter defined),
Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, the
Property.
1.2 PURCHASE PRICE. The purchase price (the "PURCHASE PRICE") to be
paid to Seller for the sale of the Property to Buyer as provided for herein
shall be Thirty Seven Million and no/100 Dollars ($37,000,000.00). The Purchase
Price shall be paid by Buyer, subject to adjustment as hereinafter provided and
subject to the terms and conditions herein contained, as follows:
(a) Within two (2) business days of the date hereof, Buyer
shall deposit as an xxxxxxx deposit, refundable only as specifically
provided in Section 9.3 of this Agreement, in escrow the sum of One
Million Dollars ($1,000,000.00) in cash by wire-transfer of good, current
funds to Title Insurers Agency, Inc., having an office address of 000
Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 (the "TITLE COMPANY") to
hold as escrow agent, such deposit to be evidenced by a receipt in the
form attached hereto as Exhibit F and incorporated herein by this
reference (such sum, as it may exist from time to time, and including all
interest and income on investments thereof as permitted herein, being
hereinafter referred to as the "DEPOSIT"). The Title Company shall hold
the Deposit, and shall make delivery of the Deposit to the party entitled
thereto under the terms hereof. Buyer may instruct the Title Company to
invest the Deposit in short-term, federally issued or insured interest
bearing securities, and all interest and income thereon shall be held by
the Title Company as an addition to and as part of the Deposit, and shall
be remitted along with the balance of the Deposit to the party entitled to
the Deposit at the time of the disposition of the Deposit hereunder. If
the sale of the Property is closed by the date fixed therefor, monies held
as the Deposit shall
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be applied and paid over to Seller in cash (pursuant to Seller's wire
transfer instructions) on the date of Closing, on account of the Purchase
Price payable under subsection (b) below (and such application shall be a
credit against the amount otherwise payable under this subsection (b)
below).
(b) Buyer shall, by noon (St. Louis time) on the date of
Closing, pay Seller the Purchase Price in the sum of Thirty Seven Million
and no/100 Dollars ($37,000,000.00) by payment of such sum, subject to
credit for any amount paid pursuant to paragraph (a) above and subject to
adjustment as provided in Section 1.3 below, in cash by wire-transfer of
good, current funds to such account for receipt of wire-transfer as Seller
shall designate in writing on or before the date of Closing.
1.3 CREDITS AND PRORATIONS. The following shall be apportioned with
respect to the Property as of the day of Closing, Buyer to have the day of
Closing unless otherwise expressly provided, and the resulting calculation shall
be an adjustment to the Purchase Price:
(a) General real property taxes (state, county, municipal,
school and fire district, and other local real estate taxes) with respect
to the Real Property accrued through the date of Closing but unpaid for
the then current tax fiscal year (based upon the latest available tax
xxxx(s) and assessment information for the preceding tax fiscal year)
shall be charged to Seller; and Buyer shall assume all liability for such
current tax fiscal year and all future tax fiscal years.
(b) Special taxes or assessments, if any, upon the Property
assessed or becoming a lien on or prior to the date of this Agreement (but
only a pro rata share of the then current installment of such special
taxes or assessments, if any) shall be charged to Seller; and Buyer shall
assume all liability for such current installment and all future
installments and for special taxes or assessments, if any, assessed or
becoming a lien after the date of this Agreement.
(c) Except for charges for utilities metered or charged
directly to, and payable directly by, tenants of the Property, fuel,
electricity, water, sewer, gas, telephone and other utility charges (based
upon meter readings on the day prior to the date of Closing, wherever
possible) accruing prior to the date of Closing shall be charged to
Seller; and Buyer shall assume all liability for such utility payments
(except such metered utility charges which Seller shall cause to be read
on the day prior to the date of Closing and billed to Seller, which Seller
shall agree to pay and discharge). Buyer shall be charged with any prepaid
charges (as to the portion of such charges attributable to the period on
and after the date of Closing) and assigned deposits as a debit to the
Purchase Price, and Seller shall be charged with any accrued but unpaid,
past due or delinquent charges (as to the portion of such charges
attributable to the period prior to the date of Closing).
(d) Seller's insurance policies on the Property shall not be
assumed by Buyer, but shall be canceled effective as of the transfer of
possession of the Property (pursuant to Section 1.4 hereof) on the date of
Closing. Buyer shall purchase and place
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(pursuant to Section 1.4 hereof) on the date of Closing. Buyer shall
purchase and place its own insurance on the Property as of Closing and
shall assume all liability for making reimbursements or charges to the
tenants under the Leases as may be required or permitted under the Leases
with respect to insurance on the Property for the period on and after
Closing. Except with respect to adjustments for insurance premiums and
costs for insurance policies included in common area maintenance
reimbursements or charges under subsection (i) of this Section 1.3, there
shall be no other adjustment between the parties with respect to insurance
premiums or costs for the period on and after the date of Closing.
(e) Amounts accrued prior to the date of Closing but unpaid,
past due and/or delinquent as of Closing under the equipment leases of the
Personal Property assumed by Buyer, if any, shall be charged to Seller;
and amounts prepaid by Seller under such equipment leases and attributable
to the period on and after the date of Closing shall be charged to Buyer.
(f) Amounts accrued prior to the date of Closing but unpaid,
past due and/or delinquent as of Closing under the Contracts assumed by
Buyer shall be charged to Seller; and amounts prepaid by Seller under such
Contracts and attributable to the period on and after the date of Closing
shall be charged to Buyer.
(g) Security deposits (as identified on Exhibit C), and base
rent paid in advance, prepaid rentals, common area maintenance charges,
tax charges and reimbursements, insurance charges and reimbursements, and
all other incidental expenses and charges paid by tenants under the Leases
shall be charged to Seller (as to the portion of such base rent paid in
advance, prepaid rentals, charges and expenses attributable to the period
subsequent to Closing) as a credit against the Purchase Price. All rentals
payable in arrears, and all other charges and expenses incurred by Seller
and payable or reimbursable in arrears shall be charged to Buyer (as to
the portion of such rentals, charges and expenses attributable to the
period through Closing) as a credit to the Purchase Price; but all
delinquent rents and other charges and expenses with respect to tenants
more than sixty (60) days past due shall not be adjusted, and Seller shall
have the right to collect the same assigned; provided, however, that after
Closing Buyer shall use best efforts to collect the same on behalf of
Seller and shall remit any payment of such rentals and other charges and
expenses to Seller.
(h) All leasing costs, such as costs of all tenant
improvements, leasing commissions, and space planning costs payable or to
be performed subsequent to Closing with respect to the Leases in effect as
of the date hereof shall be paid by Seller prior to Closing or shall be a
credit against the Purchase Price; all leasing costs in respect of any new
tenant lease or renewals of existing leases entered into after the date
hereof and incurred by Seller prior to the date of Closing shall be
charged to Buyer as a credit to the Purchase Price.
(i) Tenant obligations to pay any operating expense
contributions ("TENANT CONTRIBUTIONS") and real estate taxes and
assessments ("TAXES") paid by
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Tenants prior to the date of Closing shall be charged to Seller (as to
that portion of such payments attributable to the period subsequent to
Closing) as a credit against the Purchase Price. Neither Buyer nor Seller
shall receive credit at Closing for any payments with respect to Tenant
Obligations or Taxes due but not paid as of the date of Closing; provided,
however, that after Closing Buyer shall use best efforts to collect any
delinquent Tenant Contributions and/or Taxes on behalf of Seller and shall
remit any payment of such rentals and other charges and expenses to Seller
promptly upon receipt. As soon as reasonably possible, but in no event
later than February 28, 2005, Seller and Buyer jointly shall prepare a
statement showing precise figures and calculation of the amounts payable
by tenants of the Property. Upon the preparation of said statement by
Buyer and Seller, Buyer shall promptly forward the billing for said
amounts to the respective tenants, and Buyer shall promptly pay over to
Seller its share, if any, of said amounts. As and when the tenants remit
payment of their respective obligations for Tenant Contributions and Taxes
pursuant to the xxxxxxxx so forwarded by Buyer, Buyer shall promptly remit
to Seller its share (for the portion thereof attributable to the period
prior to Closing and not previously collected by Seller), if any, of said
payments. At its request, Seller shall have the right to collect such
Tenant Contributions and Taxes, as the case may be, in the event that
payment is not remitted by Buyer as hereinabove provided within thirty
(30) days after submission to such tenant of its billing. In the event the
jointly prepared statement reveals that Tenant Contributions and Taxes
were overestimated with respect to the period prior to Closing and Tenants
are entitled to an adjustment for said overpayment, Seller shall promptly
remit to Buyer its share (for the portion thereof attributable to the
period prior to Closing and previously collected by Seller).
In the event, on the date of Closing, the precise figures necessary
for any of the foregoing adjustments are not capable of determination, the
adjustments shall be made on the basis of the good faith estimates of Seller
(using currently available information) and final adjustments shall be made
promptly after precise figures are determined or available (and, in any event,
an interim adjustment shall be made within sixty (60) days after the date of
Closing, and a final adjustment shall be made no later than March 31, 2005).
Except as otherwise expressly specified above in this Section 1.3,
items of income and expense for the period prior to the date of Closing will be
for the account of Seller (Seller being entitled to receive income and being
obligated to pay expenses attributable to such period), and items of income and
expense for the period on and after the date of Closing will be for the account
of Buyer (Buyer being entitled to receive income and being obligated to pay
expenses attributable to such period).
In addition, certain costs incidental hereto and to the transactions
contemplated hereby shall be borne such that at (or prior to) Closing, Buyer
shall pay all survey costs (exclusive of the cost of the existing survey of the
Property delivered by Seller to Buyer), all recording fees for any Buyer-related
financing documentation, all title commitment and title insurance premiums
(including, without limitation, all costs of having any exceptions to title
either deleted or insured over, all costs of any endorsements to Buyer's title
insurance policies), and all costs of Buyer's due diligence, including, but not
limited to, the investigations, studies
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and review completed prior to entering into this Agreement as well any
additional investigations, studies and review which Buyer determines to perform.
At (or prior to) Closing, Buyer and Seller shall each pay one-half of the escrow
and closing fees, if any, charged by the Title Company. At Closing, Seller shall
pay the recording charges attributable to the recordation of the Special
Warranty Deed, and the recording charges for the recordation and filing of the
releases and UCC terminations of the Mortgage. Seller shall also pay, as a
closing cost, any commissions owing by Seller to Colliers Xxxxxx Xxxxxx Xxxxxx,
Inc. and Secured Capital Corp. (the "SALES ADVISORS") in connection with the
consummation of the transactions contemplated by this Agreement.
Except as expressly provided in this Section 1.3 or as expressly
provided elsewhere in this Agreement, Buyer and Seller shall pay their own
respective costs and expenses, including attorneys' fees and consultants' fees,
incidental to this Agreement and the transactions contemplated hereby.
The covenants and agreements contained in this Section 1.3 with
respect to adjustments and prorations, assumptions of liabilities, post-closing
payments and remittances, and closing costs shall survive Closing until March
31, 2005.
1.4 POSSESSION. Seller shall transfer possession of the Property,
subject to the Leases, to Buyer on the date of Closing effective upon receipt
from Buyer of the Purchase Price paid in accordance with Section 1.2(b) hereof,
subject to adjustments and prorations and with payment of closing costs in
accordance with Section 1.3 hereof.
1.5 CLOSING. The closing (herein referred to as the "CLOSING") of
the transactions contemplated hereby shall be on June 30, 2004. Closing shall
take place at the offices of Seller's counsel, Xxxxx Xxxx LLP, 000 Xxxxx
Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, provided that all conditions to
the Closing have been satisfied or waived in writing. Provided Buyer is not in
default hereunder, Buyer shall have the option to extend the date of Closing to
a date not later than July 31, 2004. Buyer shall exercise this option only by so
notifying Seller in writing not later than July 9, 2004. Concurrent with Buyer's
delivery of such notice and as a condition precedent to the effectiveness of
such notice, Buyer shall deposit with the Title Company, in cash by
wire-transfer of good, current funds, an additional One Million Five Hundred
Thousand Dollars ($1,500,000), which monies shall be added to and thereafter
deemed part of the Deposit and shall be refundable only as specifically provided
in Section 9.3 of this Agreement.
1.6 DOCUMENTS AT CLOSING.
(a) On the date of Closing, Seller shall execute and deliver or
cause to be executed and delivered to the Title Company, to be held in
escrow and delivered to Buyer at Closing, the following documents:
(i) A certificate signed by Seller, to which are attached
updated schedules of the Personal Property, the Leases (such
schedule in the form of an updated Schedule of Leases), and the
Contracts.
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(ii) A certificate signed by Seller, certifying that the
representations and warranties set forth in Article II hereof remain
complete, true and correct in all material respects immediately
prior to Closing, or indicating the changes that may have occurred,
to the knowledge of Seller, in the facts and circumstances reflected
in those representations and warranties.
(iii) Assignment of Warranties, Deposits and Intangible
Property, transferring and assigning to Buyer all right, title and
interest of Seller in and to any warranties or guarantees concerning
the Property which have not by their terms expired, to the extent
assignable without consent, which Assignment of Warranties, Deposits
and Intangible Property shall be in the form of Exhibit J-1 attached
hereto and incorporated herein by reference.
(iv) Service Xxxx Assignment to Buyer of Seller's
interest in the service xxxx "One Financial Plaza", which Service
Xxxx Assignment shall be in the form of Exhibit J-2 attached hereto
and incorporated herein by reference.
(v) An affidavit from Seller affirming that Seller is
not a foreign person under the Foreign Investment in Real Property
Tax Act of 1980, as amended, and that no taxes or withholding shall
be assessed or applied to Buyer in connection with the Closing and
the transactions contemplated hereby.
(vi) Such certificates of limited liability company good
standing, member consents, as may be required by the Title Company,
in form reasonably satisfactory to Seller, and a seller's affidavit
and indemnity against mechanics liens and against parties in
possession other than tenants (and subtenants or licensees) under
the Leases in substantially the form of Exhibit R attached hereto
and incorporated herein by reference, in order to issue the owner's
policy of title insurance as specified in Section 1.6(d) hereof.
(vii) Assignment and Assumption of Parking Garage Lease,
which Assignment and Assumption of Parking Garage Lease shall be in
the form of Exhibit P attached hereto and incorporated herein by
reference, which includes a Lessor's Consent to Assignment to be
executed by the LCRA; provided, however, that in the event Seller
cannot, using commercially reasonable efforts, obtain the foregoing
assignment and consent by Closing, Seller shall have the automatic
right to extend Closing to the earlier of (a) August 31, 2004 or (b)
the date five (5) business days after the date Seller obtains such
assignment and consent. As set forth in this Agreement, Seller's
obligation to use "commercially reasonable efforts" shall not
require Seller to waive or impair any legal right or expend monies.
(viii) LCRA Estoppel Certificate, which LCRA Estoppel
Certificate shall be substantially in the form of Exhibit Q attached
hereto and incorporated herein by reference; provided, however, that
in the event Seller
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cannot, using commercially reasonable efforts, obtain the foregoing
estoppel from the LCRA by Closing, Seller shall have the automatic
right to extend Closing to the earlier of (a) August 31, 2004 or (b)
the date five (5) business days from and after the date Seller
obtains such estoppel.
(b) On (or prior to) the date of Closing, Seller shall deliver
or cause to be delivered to Buyer the following:
(i) Books and records pertaining to operation of the
Property (or duplicate copies thereof) as may be in Seller's
possession;
(ii) Plans, specifications, and engineering and/or
architectural drawings of the improvements and systems of the
Property or any part of the Property (or duplicate copies thereof)
as may be in Seller's possession or control.
(iii) Equipment leases (or duplicate copies thereof) of
the Personal Property assumed by Buyer, as set forth on Exhibit B
hereto.
(iv) Leases affecting the Property, as set forth on
Exhibit C hereto.
(v) Contracts affecting the Property assumed by Buyer,
as set forth on Exhibit D hereto.
(vi) Evidence of termination of the Management Contract
affecting the Property, executed by the parties thereto, if
requested by Buyer.
(vii) Estoppel certificates (collectively, the "ESTOPPEL
CERTIFICATES") dated not sooner than the date of this Agreement from
tenants leasing in the aggregate 75% of the leased space of the Property
(as of the date of this Agreement), including Stifel Financial Corp. and
Xxxxxx, Xxxxxxxx & Company, Incorporated, Seabury & Xxxxx, Inc., and
Xxxxxx Engineering Group, Inc. (each hereinafter sometimes referred to as
a "MAJOR TENANT"). Such estoppel certificates shall state, to the tenant's
knowledge, (i) the base rent, if any, payable by the tenant thereunder,
(ii) that the subject lease is unmodified (except as disclosed) and in
full force and effect, (iii) that there is no default by lessor under the
subject lease, (iv) that there are not any existing setoffs or defenses
against enforcement of any of the terms of the subject lease on the part
of the lessee to be performed, and (v) the dates to which rentals and
other charges have been paid under the subject lease, and such estoppel
certificates to be otherwise substantially in the form set forth on
Exhibit G attached hereto and incorporated herein by reference (modified,
as may be necessary, to reflect the circumstances applicable to the
respective tenancies or to conform to the negotiated form of tenant
estoppel forming a part of its lease); provided, however, that Buyer
agrees that the forms of lease estoppel certificates may be further
modified by the tenants in a reasonable manner consistent with custom and
practice in the industry, and that lease estoppel certificates containing
such immaterial modifications to those forms will be acceptable to Buyer.
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(c) On the date of Closing, Buyer and Seller shall execute and
deliver to the Title Company, to be held in escrow delivered to the other
party at Closing, counterpart originals of the following:
(i) Special Warranty Deed, transferring and conveying to
Buyer title to the Real Property, subject to the lien of general
real estate taxes for the current tax fiscal year (to the extent not
yet delinquent) and thereafter, the lien of special assessments
becoming a lien or payable after the date hereof, the Leases and
those other exceptions identified on Exhibit O attached hereto and
incorporated herein by reference, which Special Warranty Deed shall
be in the form of Exhibit H attached hereto and incorporated herein
by reference.
(ii) Xxxx of Sale and Assignment, transferring and
conveying to Buyer the interest of Seller in and to the Personal
Property, subject to those liens, security interests, and equipment
listed on Exhibit B, which Xxxx of Sale and Assignment shall be in
the form of Exhibit I attached hereto and incorporated herein by
reference.
(iii) Assignment and Assumption of Leases, whereby
Seller assigns to Buyer and Buyer assumes all interest and
obligation of Seller as lessor, in and to the Leases (including, but
not limited to, obligations with respect to allowances and
concessions), which Assignment and Assumption of Leases shall be in
the form of Exhibit K attached hereto and incorporated herein by
reference.
(iv) Assignment and Assumption of Contracts, whereby
Seller assigns to Buyer and Buyer assumes all right, title, interest
and obligation of Seller in, to and under the Contracts, which
Assignment and Assumption of Contracts shall be in the form of
Exhibit L attached hereto and incorporated herein by reference.
(v) Closing Statement setting forth the Purchase Price
and adjustments and prorations to be made hereunder as of the date
of Closing pursuant to the terms of Section 1.3 hereof (and
containing such information as may be required by Section 1.3).
(vi) Notice letters to the tenants under the Leases
still in effect as of Closing, indicating the consummation of the
transactions contemplated by this Agreement.
(vii) Notice letters to the lessors under the equipment
leases of the Personal Property assumed by Buyer and notice letters
to the vendors under the Contracts assumed by Buyer indicating the
consummation of the transactions contemplated by this Agreement.
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(d) Upon payment and performance by Buyer of all of its obligations
hereunder and upon payment of the premium and costs therefor, the Title
Company will issue an owner's policy of title insurance from the Title
Company in the amount of the Purchase Price (or such lesser amount as may
have been requested by Buyer), insuring the title in and to the Real
Property in accordance with the title commitment obtained by Buyer, with
exception only for the exceptions set forth on Exhibit O and such other
matters, if any, as Buyer shall have approved, and containing the
endorsements described on Exhibit M.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
In order to induce Buyer to purchase the Property, Seller makes the
following representations and warranties as of the date of this Agreement. These
representations and warranties are not intended to induce Buyer to limit the
scope of its due diligence with regard to the Property, and Buyer is advised to
exercise prudence and due diligence in its undertakings, analyses, assessments
and evaluations with respect to the Property. These representations and
warranties set forth in this Article II shall survive the Closing until December
31, 2004.
2.1. AUTHORITY. With respect to Seller and its business, Seller
represents and warrants that:
(a) Seller is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware;
Seller's federal tax identification number is 00-0000000.
(b) Seller has all necessary power and authority to own, use
and transfer its properties (including the Property) and to transact the
business in which it is engaged, and has full power and authority to enter into
this Agreement, to execute and deliver the documents required of Seller herein,
and to perform its obligations hereunder.
(c) Seller is duly authorized to execute and deliver and
perform this Agreement and all documents and instruments and transactions
contemplated hereby or incidental hereto.
2.2 LEASES. With respect to the Leases, to the knowledge of Seller:
(a) The Schedule of Leases for the Property attached hereto as
Exhibit C is true, accurate and complete in all material respects.
(b) Copies of the Leases which shall have been delivered to
Buyer pursuant to Section 5.5 of this Agreement shall be true, accurate and
complete copies of all documents constituting the Leases.
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(c) The Leases and any guaranties thereof are in full force
and effect, are not subject to defenses, setoffs or counterclaims for the
benefit of the Tenants thereunder, and no Tenant under any of the Leases is in
material default in respect of its obligations thereunder except as disclosed on
Exhibit C-1 attached hereto.
(d) There is no prepaid rent (other than rent prepaid not more
than 1 month in advance pursuant to the terms of the relevant Leases) with
respect to the Property, and no security deposits relating to the Leases or
otherwise affecting any of the Property have been collected other than as
reflected on Exhibit C hereto.
(e) There are no obligations under any of the Leases to
further improve such Tenant's premises or to grant or allow any rent or other
concession except as disclosed on Exhibit C-1 attached hereto.
(f) All rental concessions or rental abatements or related
inducements (exclusive of any rent abatement granted under the terms of any
Lease which arises as a result of a particular occurrence during the term
thereof, including, but not limited to, damage or destruction or interruption of
services) granted to Tenants under the Leases will have been applied to such
Tenant's rent obligations prior to Closing.
2.3 ABSENCE OF VIOLATIONS. To the knowledge of Seller, Seller has
not received any written notice from any governmental authority having
jurisdiction over the Property of any alleged violations of law which affect the
Property in any material respect.
2.4 FIRPTA. Seller is not a "foreign person" within the meaning of
Sections 1445(f)(3) of the Internal Revenue Code of 1986, as amended.
2.5 COMMISSIONS. Seller has dealt with no broker, finder or other
person in connection with the offering, sale or negotiation of the sale of the
Property in any manner that might give rise to any claim for commission against
Buyer or any lien against the Property, excepting only the Sales Advisors, whose
commissions in connection with the transaction contemplated by this Agreement
shall be paid by Seller at and upon Closing.
2.6 FINANCIAL STATEMENTS. The December 31, 2002 and the December 31,
2003 financial statements of Seller heretofore delivered to Buyer were prepared
in accordance with generally accepted accounting principles in effect on the
date such statements were prepared and fairly present, in all material respects,
the financial condition and operations of Seller at such dates and the results
of its operations for the periods then ended. To Seller's knowledge, there were,
as of such dates, no liabilities or obligations with respect to Seller which
were required to be disclosed in accordance with generally accepted accounting
principles that were not so disclosed. The monthly operating statements
regarding the Property for each of the first three (3) months of 2004, which
have been delivered to Buyer, were prepared by or on behalf of Seller in the
ordinary course of business and remain subject to normal adjustment in
connection with the preparation of quarterly and annual financial statements in
accordance with generally accepted accounting principles.
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2.7 SELLER EMPLOYEES. Seller has no employees at the Real Property
and Seller hereby acknowledges and agrees that Buyer has no obligation to employ
or to continue to employ any individual employed by Seller in connection with
the Real Property.
Any statement contained in the representations and warranties in
this Article II and made to the "knowledge" of Seller shall mean only the actual
knowledge of Seller based upon information communicated to Seller by Xxxxxx
Xxxxx, a representative of the Asset Manager, in a certification addressed to
Seller and dated as of the date of this Agreement, a copy of which has been
furnished to Buyer; and otherwise any reference to the "knowledge" of Seller
shall not be deemed to imply any duty of investigation or inquiry by Seller, and
shall not be construed to include the knowledge of any member, partner, officer,
director, agent, employee or representative of Seller or any affiliate of
Seller, imputed to Seller or constructively attributed to Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
In order to induce Seller to sell the Property, Buyer makes the
following representations and warranties as of the date of this Agreement. The
representations and warranties set forth in Sections 3.1 and 3.2 below shall
survive the Closing of the transactions contemplated hereby.
3.1 CORPORATE AUTHORITY. With respect to Buyer and its business,
Buyer represents and warrants that:
(a) Buyer is a limited liability company, organized, validly
existing and in good standing under the laws of the State of Virginia.
(b) Buyer has all necessary power and authority to own and use
its properties and to transact the business in which it is engaged, and
has full power and authority to enter into this Agreement, to execute and
deliver the documents and instruments required of Buyer herein, and to
perform its obligations hereunder.
(c) Buyer is duly authorized to execute and deliver and
perform this Agreement and all documents and instruments and transactions
contemplated hereby or incidental hereto.
3.2 COMMISSIONS. Buyer has dealt with no broker, finder or any other
person in connection with the purchase of or the negotiation of the purchase of
the Property that might give rise to any claim for commission against Seller,
excepting only the Sales Advisors.
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ARTICLE IV
CONDITIONS PRECEDENT
4.1 CONDITIONS PRECEDENT - BUYER. The obligations of Buyer at the
Closing hereunder are subject, at Buyer's election, to the satisfaction on or
prior to the date of Closing of the conditions set forth below. Notwithstanding
the failure of any one or more of such conditions, Buyer may nevertheless
proceed with Closing without satisfaction, in whole or in part, of any one or
more of such conditions and without written waiver. To the extent that as of the
date of Closing Buyer has knowledge of the failure of any of such conditions or
the breach by Seller of any of the representations or warranties contained in
this Agreement and nevertheless proceeds with Closing, Buyer shall be deemed to
have waived for all purposes any rights or remedies it may have against Seller
by reason of the failure of any such condition or the breach of any such
representation or warranty.
(a) The representations and warranties made by Seller in this
Agreement (as updated by Seller in accordance with the terms hereof) shall
be complete, true and correct in all material respects on and as of the
date of Closing with the same effect as though such representations and
warranties had been made or given on and as of the date of Closing (except
for representations and warranties that relate to a specific date).
(b) Seller shall have performed and complied in all material
respects with all of its obligations under this Agreement which are to be
performed or complied with by Seller prior to or on the date of Closing
including, but not limited to, the deliveries set forth in Section 1.6 of
this Agreement.
(c) No Major Tenant shall have permanently ceased operating
its business in its entire premises for reasons other than casualty
damage, condemnation, remodeling or similar occurrence.
4.2 CONDITIONS PRECEDENT - SELLER. The obligations of Seller at the
Closing hereunder are subject, at Seller's election, to the satisfaction on or
prior to the date of Closing of the conditions set forth below. Notwithstanding
the failure of any one or more of such conditions, Seller may nevertheless
proceed with Closing without satisfaction, in whole or in part, of any one or
more of such conditions and without written waiver. To the extent that as of the
date of Closing Seller has knowledge of the failure of any of such conditions or
the breach by Buyer of any of the representations or warranties contained in
this Agreement and nevertheless proceeds with Closing, Seller shall be deemed to
have waived for all purposes any rights or remedies it may have against Buyer by
reason of failure of any condition or the breach of any such representation or
warranty.
(a) The representations and warranties made by Buyer in this
Agreement shall be complete, true and correct in all material respects on
and as of the date of Closing with the same effect as though such
representations and warranties had
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been made or given on and as of the date of Closing (except for
representations and warranties that relate to a specific date).
(b) Buyer shall have performed and complied in all material
respects with all of its obligations under this Agreement which are to be
performed or complied with by Buyer prior to or on the date of Closing.
ARTICLE V
COVENANTS OF SELLER
Seller covenants and agrees as follows:
5.1 OPERATION AND MAINTENANCE. Seller shall, from and after the date
of this Agreement and until Closing, continue to operate the Property in the
ordinary course of business consistent with the present business and operations
thereof and Seller shall continue to maintain the buildings and improvements
that constitute the Property in "AS IS" condition and repair, normal wear and
tear and casualty damage excepted.
5.2 ACCESS AND INFORMATION. Seller will, from and after the date of
this Agreement and until Closing, permit Buyer the following access and provide
Buyer the following information:
(a) Seller shall, insofar as reasonably necessary, allow the
employees, advisors, attorneys and accountants of Buyer to observe and to
communicate with representatives of the Property Manager during normal
business hours on weekdays for the purpose of affording the opportunity to
Buyer to gain familiarity with the operations and procedures for the
operations of the Property.
(b) Seller shall, insofar as reasonably necessary, allow the
employees, advisors, attorneys and accountants of Buyer reasonable access
to the Property (other than premises subject to the Leases) during normal
business hours on weekdays. Buyer shall notify Seller not less than 48
hours in advance of each request for such access. Accordingly, the access
shall be allowed to Buyer and shall be exercised by Buyer in a manner that
will avoid any interruption of the management and operation of the
Property and that will avoid any interference with the businesses of the
tenants and occupants of the Property. The access shall be limited to
visual inspections of improvements and systems and review of
documentation; no samplings, borings, testing or like studies may be
conducted in connection with such access without the prior consent of
Seller.
(c) Seller shall, insofar as reasonably necessary, allow the
employees, advisors, attorneys and accountants of Buyer to contact and
interview Tenants at such times and under such conditions as such Tenants
may agree. Buyer shall notify Seller not less than 48 hours in advance of
any such interview and Buyer acknowledges and agrees that no Tenant has
any obligation to consent to any such interview. Buyer shall exercise its
rights hereunder in a manner that will avoid any interruption of the
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management and operation of the Property and that will avoid any
interference with the use and enjoyment of the Property by the tenants and
any other occupants of the Property.
(d) Buyer agrees that the access permitted under this
Agreement shall be undertaken at its sole risk and expense. Buyer hereby
releases Seller and its managers, members, officers, employees and agents,
as well as the Property Manager and its shareholders, directors, officers,
employees and agents, from any liability associated with such access.
(e) Buyer hereby agrees to indemnify, protect, defend and hold
Seller and its partners, trustees, beneficiaries, shareholders, members,
managers, advisors and other agents and their respective partners,
trustees, beneficiaries, employees, officers, directors, shareholders and
members (collectively, the "INDEMNIFIED PARTIES") harmless from and
against any and all liabilities, demands, actions, causes of action,
suits, claims, losses, damages, costs and expenses (including, without
limitation, reasonable attorneys' fees, court costs and litigation
expenses) suffered or incurred by any of the Indemnified Parties as a
result of or in connection with any activities of Buyer (including
activities of any of Buyer's employees, consultants, contractors or other
agents) relating to the Property or arising out of this Agreement,
including, without limitation, mechanics' liens, damage to the Property,
injury to persons or property resulting from such activities in connection
therewith; provided, however, that such indemnity shall be limited to the
extent such liabilities, demands, actions, causes of action, suits,
claims, losses, damages, costs or expenses arise from the gross negligence
or willful misconduct of any of the Indemnified Parties. In the event that
the Property is disturbed or altered in any way as a result of such
activities, Buyer shall promptly restore the Property to its condition
existing prior to the commencement of such activities which disturb or
alter the Property. Notwithstanding any other provision of this Agreement
to the contrary, the indemnity granted by Buyer under this Section 5.02(e)
will survive the Closing or termination of this Agreement.
5.3 INSURANCE. Seller will, from and after the date of this
Agreement and until the transfer of possession of the Property as set forth in
Section 1.4 hereof on the date of Closing, cause the Property to continue to be
insured against all ordinary and insurable risks (except in respect of any
leased Personal Property where the terms of the equipment lease do not impose on
lessee the obligation to maintain insurance) in accordance with its current
insurance program. Buyer will, from and after the date of this Agreement and
until the transfer of possession of the Property as set forth in Section 1.4
hereof on the date of Closing, maintain commercial general liability insurance
with limits of not less than $1,000,000 per occurrence and contractual indemnity
insurance in an amount satisfactory to Seller, in each case with carriers
satisfactory to Seller, in connection with Buyer's access to the Property
pursuant to Section 5.2 hereof.
5.4 OPERATING AGREEMENTS. Seller shall not, from and after the date
of this Agreement and until Closing, (i) modify or amend in any material manner
any of the equipment leases relating to the Personal Property, any of the
Leases, or any of the Contracts, or accept termination or surrender of any of
the Leases, other than any termination or surrender pursuant to
15
the terms of the Leases or pursuant to any agreements for termination or
surrender of the Leases noted on the Schedule of Leases or any termination, (ii)
enter into any new tenant leases for space within the Real Property without
Buyer's consent, (iii) enter into any service, supply, maintenance or other
contracts pertaining to the Property or the operation of the Property which are
not at market rates and which are not cancelable without penalty after Closing,
upon thirty (30) days' prior notice, (iv) purchase, lease or contract to
purchase or lease new items of equipment or inventory with respect to the
Property other than in the ordinary course of business, or (v) remove existing
items of equipment or other personal property other than in the ordinary course
of business; without, in each instance, obtaining the prior written consent of
Buyer, which consent shall not be unreasonably withheld, conditioned or delayed.
Any request by Seller for Buyer's approval shall be deemed granted if Buyer
shall not have objected in writing within five (5) business days of Buyer's
receipt of Seller's request.
Any new tenant leases or contracts entered into after the date hereof
shall thereafter be deemed to be "Leases" or "Contracts", as the case may be, as
such terms are defined herein (including, but not limited to, for purposes of
the closing adjustments in Section 1.3 hereof and the conveyance documents
identified in Section 1.6 hereof), and any existing Leases or Contracts which by
their terms expire or which are terminated with the prior written consent of
Buyer prior to Closing shall no longer thereafter be deemed to be "Leases" or
"Contracts", as the case may be, as such terms are defined herein, without any
adjustments to the Purchase Price or other charge to Seller. Buyer shall be
deemed to have assumed the obligation to pay all leasing costs, including
brokerage commissions, for any tenant leases entered into after the date of this
Agreement and approved by Buyer. Any new equipment leases of personal property
entered into after the date hereof (and, if required hereunder, with Buyer's
prior written consent as herein provided) shall thereafter be deemed to be
"equipment leases of Personal Property" as defined herein (including, but not
limited to, for purposes of the closing adjustments in Section 1.3 hereof and
the conveyance documents identified in Section 1.6 hereof). Any equipment leases
of Personal Property described on Exhibit B which require the consent of the
lessor thereunder in order to assign the same may, in the event such consent
cannot be obtained by Seller without cost to Seller prior to Closing, be
canceled by Seller, and upon any such cancellation the equipment lease(s) so
canceled shall thereafter no longer be deemed to be "equipment leases of
Personal Property" as defined herein and shall be excluded in all respects from
the sale of the Property and the conveyance documents identified in Section 1.6
hereof, without any adjustments to the Purchase Price or other charge to Seller.
5.5 PROPERTY INFORMATION. Seller has delivered or shall within ten
(10) days of the date hereof cause to be delivered to, or made available for
Buyer's review, copies of the following items to the extent in Seller's actual
possession or control:
(a) all leases and occupancy agreements affecting the Property;
(b) all service contracts and equipment leases;
(c) monthly operating statements for the current year and year-end
financial statements for the two prior years;
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(d) real estate tax bills for the current and prior year;
(e) all environmental reports;
(f) the most recent existing survey;
(g) plans and specifications;
(h) preliminary title report;
(i) underlying title documents;
(j) general ledger report;
(k) CAM reconciliation/CAM budget;
(l) utility bills;
(m) engineering/physical condition report;
(n) site plan;
(o) seismic report (if applicable);
(p) certificate of occupancy (shell and all suites);
(q) original Property photos;
(r) REA (declarations) (if applicable to the Real Property);
(s) evidence of flood plan insurance (if applicable);
(t) litigation (if any);
(u) roof/parking information; and
(v) development agreement (if any).
Seller shall also deliver, promptly upon receipt, copies of all correspondence
from Seller to a Major Tenant or from a Major Tenant to Seller regarding
discontinuance of operations, bankruptcy, default or renegotiation of said Major
Tenant's lease from and after the date of this Agreement through the date of
Closing.
In the event Closing does not occur, such documents shall be returned to Seller.
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5.6 TENANT SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENTS.
Seller hereby covenants and agrees to use commercially reasonable efforts to
obtain a subordination, attornment and non-disturbance agreement from each
Tenant (the "SNDAs"), which agreement shall be in substantially the form as
Buyer or its lender shall supply and shall include such additional terms or
conditions as any such Lease shall require. The agreements set forth in this
Section 5.6 are not a condition precedent to Closing and Buyer shall have no
right to terminate this Agreement or to delay Closing if such SNDAs are not
delivered by Seller.
ARTICLE VI
COVENANTS OF BUYER
Buyer covenants and agrees as follows:
6.1 POST-TERMINATION. In the event Closing does not occur due to the
failure of a condition precedent to Buyer's obligations, then, at the option and
written request of Seller, Buyer will transfer to Seller (to the extent Buyer is
allowed to do so) copies of information in the possession or under the control
of Buyer and submitted to Buyer in the course of the inspections and evaluations
of the Property, at Buyer's cost of reproduction and delivery. This Section 6.1
shall survive any termination of this Agreement.
6.2 POST-CLOSING. For the period after Closing until March 31, 2005,
Buyer shall allow Seller, Property Manager, and their respective employees,
agents, contractors and consultants access to those books and records of Buyer
pertaining to the operations and financial status of the Property and relating
to the xxxxxxxx for and collections of income and the incurrence and payment of
expenses associated with the adjustments and prorations required under Section
1.3 hereof, in order to assure proper crediting and application of payments
received after the date of Closing as to which further adjustments and
prorations are to be made, such access to be exercised during normal business
hours and without interfering with Buyer's operations as reasonably requested by
Seller and such information to be subject to the agreements on confidentiality
set forth in Section 10.4 hereof, and in connection therewith Buyer shall lend
friendly assistance to Seller in the development of information on an accurate
basis with respect to such access. This Section 6.2 shall survive Closing and
the delivery of the Special Warranty Deed and the other conveyance documents
identified in Section 1.6 hereof.
6.3 TITLE COMMITMENT AND BUYER'S SURVEY. Buyer acknowledges receipt
from Seller of a copy of the updated Title Company Commitment No. 00101299,
dated effective May 6, 2004, for title insurance covering the Real Property (the
"TITLE COMMITMENT"), and survey of the Real Property. Buyer may, at Buyer's
option and expense, obtain from any title company a commitment for title
insurance covering the Real Property in form and substance satisfactory to
Buyer. Buyer may also, at Buyer's option and expense, cause to be prepared a
current boundary survey (the "BUYER'S SURVEY") of the Real Property prepared by
a registered public surveyor. Notwithstanding the foregoing, obtaining Title
Commitment and Buyer's Survey shall not delay the Closing and Seller shall have
no obligation to cure defects in title or other matters disclosed by the Title
Commitment or the Buyer's Survey.
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ARTICLE VII
CASUALTY; CONDEMNATION
7.1 CASUALTY.
(a) In the event of the damage or destruction of all or any part of
the Property prior to Closing, the aggregate cost to repair, replace and/or
restore of which shall be $5,000,000.00 or more (as estimated by Seller's
insurance carrier), prior to Closing, Buyer may, at its option, exercisable only
by written notice to Seller, either (i) terminate this Agreement, whereupon
neither party will have any further obligations hereunder (except as otherwise
expressly provided in this Agreement), and the Deposit shall be returned to
Buyer, or (ii) continue under this Agreement, whereupon Seller will assign to
Buyer its interest in and to any insurance policies and proceeds thereof payable
as a result of such damage or destruction, and pay over to Buyer, as a credit
against the Purchase Price, the amount of any applicable deductible under such
insurance policies, less such portion thereof as shall first be expended by or
reimbursed to Seller for the costs of any restoration work incurred by Seller
prior to Closing.
(b) In the event of the damage or destruction of any part of the
Property prior to Closing, the aggregate cost to repair, replace and/or restore
of which shall be less than $5,000,000.00 (as estimated by Seller's insurance
carrier), Buyer shall have the further right to terminate this Agreement on
account thereof if under the terms of a Major Tenant's Lease such damage or
destruction gives such Major Tenant the right to terminate its lease or to
complete or partial rent abatement for any period after the Closing and such
Major Tenant shall not have waived such right prior to the date of Closing or
Seller has not agreed to assign any insurance proceeds covering such lost rental
for the period after the Closing, whereupon neither party will have any further
obligations hereunder (except as otherwise expressly provided in this Agreement
(and the Deposit shall be returned to Buyer).
(c) In the event of the damage or destruction of any part of the
Property prior to Closing, the aggregate cost to repair, replace and/or restore
of which shall be less than $5,000,000.00 (as estimated by Seller's insurance
carrier) and does not give a Major Tenant the right to terminate its Lease on
account thereof (or such right shall have been waived prior to the date of
Closing), Buyer shall have no right to terminate this Agreement on account
thereof, but Seller shall (i) assign to Buyer all of its interest in and to any
insurance policies and the proceeds thereof payable as a result of such damage
or destruction, (ii) pay over to Buyer the amount of any applicable deductible
under such insurance policies, less such portion thereof as shall first be
expended by or reimbursed to Seller for the costs of any restoration work
incurred by Seller prior to Closing, and (iii) pay over to Buyer, as a credit
against the Purchase Price, such additional amount, if any, of the cost to
repair, replace and/or restore such damage or destruction (as estimated by
Seller's insurance carrier) which exceeds the amounts assigned, paid or credited
to Buyer under clauses (i) and (ii) above; provided, however, that in the event
the sum of Seller's projected obligations under clauses (ii) and (iii) above
exceeds $500,000.00, Seller shall have the right to terminate this Agreement,
whereupon neither party will have any further obligations
19
hereunder (except as otherwise expressly provided in this Agreement), and the
Deposit shall be returned to Buyer.
(d) Seller shall not, in any event, be obligated to effect any
repair, replacement, and/or restoration, but may do so at its option.
7.2 CONDEMNATION. In the event of the taking of all or any material
part of the Property prior to Closing, by eminent domain or condemnation, then
Buyer at its option, exercisable only by written notice to Seller, may either
(i) terminate this Agreement, whereupon neither party shall have any further
obligation hereunder (and the Deposit shall be returned to Buyer), or (ii)
continue under this Agreement, whereupon at Closing Seller will assign to Buyer
all its interest in and to any award and proceeds thereof payable as a result of
such taking. In the event of the taking of any non-material part of the Property
prior to Closing, by eminent domain or condemnation, Buyer shall have no right
to terminate this Agreement on account thereof, but at Closing Seller shall
assign to Buyer all of its interest in and to any award and proceeds thereof
payable as a result of such taking.
ARTICLE VIII
ENVIRONMENTAL MATTERS
8.1 ENVIRONMENTAL REVIEW. Buyer, by and through its employees,
attorneys, agents and consultants, has been afforded the opportunity to make
such investigations and inspections (including, without limitation,
environmental audit(s) and/or assessment(s)) of the Property as Buyer and its
employees, attorneys, agents and consultants deem necessary or appropriate.
Seller is delivering the Property in "as is" condition, without any
representations or warranties of any kind regarding the physical condition or
state of repair of the Property, the presence or absence thereon or thereunder
(or on or under any adjoining property) of anything that is or may constitute a
hazardous substance or material, or which now or hereafter may be regulated
under any applicable federal, state or local laws or regulations (the
"ENVIRONMENTAL CONDITION OF THE PROPERTY"). Buyer assumes all liability with
respect to the clean-up and/or remediation of any existing or future hazardous
substance or material affecting the Property or migrating into or under
adjoining property. Buyer, for itself, its successors and assigns, and
affiliated entities, releases Seller from all contractual, statutory and common
law claims and liabilities with respect to the Environmental Condition of the
Property. Buyer also agrees to indemnify, protect, defend and save harmless
Seller from and against any and all claims, actions, demands, costs, expenses
and liability whatsoever, including attorneys' fees and expenses, on account of
or arising out of the Environmental Condition of the Property. This Section 8.1
shall survive Closing and delivery of the Special Warranty Deed and the other
conveyance documents identified in Section 1.6 hereof.
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ARTICLE IX
DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
9.1 SELLER'S DISCLAIMER. BUYER ACKNOWLEDGES THAT PRIOR TO ENTERING
INTO THIS AGREEMENT, BUYER HAS UNDERTAKEN AND APPROVED SUCH INDEPENDENT TITLE,
SURVEY, LEASING, MARKET, TRADE AREA, COMPETITION AND REVENUE AND EXPENSE
REVIEWS, ANALYSES AND STUDIES, AND HAS DEVELOPED AND APPROVED SUCH INDEPENDENT
PROJECTIONS AND ASSUMPTIONS, AS BUYER HAS DEEMED NECESSARY OR APPROPRIATE, AND
BUYER HAS NOT RELIED ON ANY OFFERING MATERIALS OR ANY REVIEWS, ANALYSES,
STUDIES, PROJECTIONS OR ASSUMPTIONS PREPARED OR PROVIDED BY SELLER, THE PROPERTY
MANAGER, OR THE SALES ADVISORS. BUYER AGREES THAT BUYER HAS PERFORMED OR WILL
PERFORM SUCH EXAMINATIONS AND INVESTIGATIONS OF THE PROPERTY AS BUYER DEEMS
NECESSARY OR APPROPRIATE PRIOR TO ENTERING INTO THIS AGREEMENT, AND THAT BUYER
WILL RELY SOLELY UPON SUCH EXAMINATIONS AND INVESTIGATIONS IN PURCHASING THE
PROPERTY.
BUYER FURTHER ACKNOWLEDGES THAT SELLER HAS DISCLOSED TO BUYER THAT
THE BARREL-SHAPED ROOF OVER THE TOWER PORTION OF ONE FINANCIAL PLAZA IS IN NEED
OF REPAIR AND THAT CONSULTANTS HAVE RECOMMENDED TO OWNERSHIP THAT THE ROOF
SYSTEM, INCLUDING THE COPPER PANELS AND SUBSTRATE, BE REPLACED PROMPTLY. ROOF
REPAIRS SELLER HAS PREVIOUSLY EFFECTED SHOULD PROVIDE SUFFICIENT LIFE FROM THE
EXISTING ROOF TO DESIGN AND COMPLETE PRE-CONSTRUCTION ACTIVITIES RELATED TO A
REPLACEMENT ROOF. BUYER IS ALSO AWARE THAT THE CAULKING AND SEALANT AROUND
VARIOUS OF THE WINDOWS AT THE PROPERTY IS AT OR NEAR THE END OF ITS USEFUL LIFE.
BUYER ACKNOWLEDGES THAT IT SHALL PERFORM ITS OWN DUE DILIGENCE RELATIVE TO THE
PHYSICAL CONDITION OF THE PROPERTY AND THE MAINTENANCE ITEMS IDENTIFIED IN THIS
SECTION 9.1.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT BUYER IS ACQUIRING THE PROPERTY "AS IS" AND "WHERE
IS", AND "WITH ALL FAULTS", AND THAT NEITHER SELLER, NOR THE PROPERTY MANAGER,
NOR THE SALES ADVISORS, NOR ANYONE ELSE ACTING ON THEIR BEHALF HAS MADE ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OTHER THAN AS EXPRESSLY
RECITED HEREIN, WITH RESPECT TO THE TITLE, QUALITY, PHYSICAL CONDITION, VALUE OF
THE PROPERTY OR IMPROVEMENTS THEREON, INCOME TO BE DERIVED FROM THE PROPERTY,
EXPENSES OF OPERATING THE PROPERTY, QUALITY OF CONSTRUCTION OR MATERIALS AND/OR
THE STATE OF REPAIR OF THE PROPERTY, OR ANY OTHER MATTER OR THING AFFECTING OR
RELATED TO THE PROPERTY OR THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OF HABITABILITY, WARRANTIES OF MERCHANTABILITY AND/OR
21
FITNESS FOR A PARTICULAR PURPOSE), WHICH MIGHT BE PERTINENT IN CONSIDERING THE
MAKING OF THE PURCHASE OF THE PROPERTY OR THE ENTERING INTO OF THIS AGREEMENT;
AND BUYER DOES HEREBY EXPRESSLY ACKNOWLEDGE THAT NO SUCH REPRESENTATIONS HAVE
BEEN MADE. BUYER DOES HEREBY FURTHER EXPRESSLY ACKNOWLEDGE AND AGREE THAT SELLER
SHALL NOT BE LIABLE OR BOUND IN ANY MANNER BY, AND IS HEREBY RELEASED WITH
RESPECT TO, ANY REPRESENTATIONS, WARRANTIES, GUARANTEES, PROMISES, STATEMENTS,
OR INFORMATION PERTAINING TO THE PROPERTY MADE OR FURNISHED BY THE PROPERTY
MANAGER, THE SALES ADVISORS, OR ANY OTHER BROKER, AGENT, EMPLOYEE, CONTRACTOR,
ATTORNEY, CONSULTANT, OR OTHER PERSON REPRESENTING OR PURPORTING TO REPRESENT
SELLER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER DOES HEREBY
EXPRESSLY ACKNOWLEDGE AND AGREE THAT NO REPRESENTATIONS OR WARRANTIES OF ANY
KIND, EXCEPT THOSE SET FORTH IN ARTICLE II OF THIS AGREEMENT, HAVE BEEN MADE
DIRECTLY OR INDIRECTLY TO BUYER OR PERSONS ON BEHALF OF BUYER BY SELLER, THE
PROPERTY MANAGER, THE SALES ADVISORS, OR ANY OTHER BROKER, AGENT, EMPLOYEE,
CONTRACTOR, ATTORNEY, CONSULTANT OR OTHER PERSON REPRESENTING SELLER OR
PURPORTING TO REPRESENT SELLER WITH RESPECT TO THE PROPERTY, AND THAT ANY
STATEMENTS WHATSOEVER MADE OUTSIDE OF ARTICLE II ARE NOT MATERIAL AND HAVE NOT
BEEN RELIED UPON BY BUYER.
9.2 MATTERS RELATING TO INFORMATION SUPPLIED TO BUYER. Buyer
acknowledges that Seller has previously delivered, caused to be delivered or
made available to Buyer certain information relating to the leasing, management
and operation of the Property and Buyer has been afforded the opportunity to
verify and confirm independently such information on or prior to the date
hereof. Buyer acknowledges that the information Seller has furnished to it
includes highly confidential, proprietary information. Buyer agrees that such
information has been and will be used for the sole purposes of ascertaining the
desirability and efficacy of acquiring the Property. Buyer further agrees that
any statements whatsoever made by Seller or Seller's agents or consultants to
Buyer or to Buyer's agents or consultants with regard to such information
outside of Article II hereof are not material and have not been relied upon by
Buyer.
9.3 REMEDIES.
(a) FAILURE OF A CONDITION PRECEDENT. In the event the sale of the
Property does not close by the date fixed therefor owing to failure of
satisfaction of a condition precedent to Buyer's obligations, the Deposit
shall be returned and refunded to Buyer promptly after the termination of
this Agreement, whereupon neither party shall have any further liability
hereunder except as expressly specified herein to the contrary.
(b) SELLER BREACH. If the sale of the Property is not closed by the
date fixed therefor owing to failure of performance by Seller, the Deposit
shall be returned and refunded to Buyer, without prejudice to any other of
Buyer's rights or remedies at law or in equity, including, but not limited
to, specific performance.
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(c) BUYER BREACH. If the sale of the Property is not closed by the
date fixed therefor owing to failure of performance by Buyer, the Deposit
shall be forfeited by Buyer and paid over to Seller, it being expressly
acknowledged and agreed that in the event of the breach of any of the
representations and warranties, covenants or agreements of Buyer in this
Agreement (exclusive of any breach by Buyer of the provisions of Sections
3.2 or 10.12 of this Agreement and any indemnification or other obligation
which by its terms survives the Closing or termination of this Agreement),
Buyer's liability hereunder for such breach shall not exceed the amount of
the Deposit in the aggregate, Seller hereby releasing Buyer from any
liability beyond such amount of monetary damages other than with respect
to claims arising out of any willful misconduct or fraudulent act (or
failure to act) of Buyer or Buyer's officers, employees, agents,
contractors, servants or representatives relating to the obligations of
Buyer hereunder.
9.4 LIMITATION ON SELLER'S LIABILITY. It is expressly acknowledged
and agreed that in the event of the breach of any of the representations and
warranties or covenants, agreements and indemnities of Seller in this Agreement,
Seller's liability hereunder shall not exceed the amount of $500,000 in the
aggregate, Buyer hereby releasing Seller from any liability beyond such amount
of monetary damages other than with respect to claims arising out of any willful
misconduct or fraudulent act (or failure to act) of Seller or Seller's officers,
employees, agents, contractors, servants or representatives relating to the
obligations of Seller hereunder. It is further expressly acknowledged and agreed
that Seller shall have no liability whatsoever with respect to the
representations and warranties in Article II therefor subsequent to December 31,
2004, and Buyer hereby releases Seller, effective as of December 31, 2004, from
any such liability therefor.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 BINDING AGREEMENT. This Agreement shall be binding on and shall
inure to the benefit of the parties named herein and to their respective heirs,
administrators, executors, personal representatives, successors and assigns.
10.2 ASSIGNMENT. Seller may assign all or any part of its rights,
interests or obligations hereunder. Buyer may not assign its rights or interests
hereunder or delegate its duties hereunder without the prior written consent of
Seller; provided, however, that Buyer (Triple Net Properties, LLC) may assign
its rights and interests to an affiliated entity which is directly or indirectly
wholly owned by Buyer (Triple Net Properties, LLC) or which is under common
control with Buyer (Triple Net Properties, LLC) or is managed by Buyer (Triple
Net Properties, LLC) provided that notice of such assignment shall be furnished
in writing to Seller at least five (5) business days prior to the date of
Closing, accompanied by copies of the assignment and assumption documentation,
pursuant to which (i) the assignee shall assume in writing all representations,
warranties, covenants, assignments and other obligations of "Buyer" hereunder
for the benefit of Seller, its successors and assigns (and such assumption shall
contain representations and warranties as to the assignee similar to those set
forth in Section 3.1 hereof
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as to the assignor, and shall be delivered to Seller with the notice of
assignment) and (ii) Buyer (Triple Net Properties, LLC) shall not be released
from any liability hereunder on account of such assignment, but shall be and
shall remain co-maker and co-obligor with the assignee, jointly and severally,
in all respects concerning the representations, warranties, covenants,
agreements and other obligations of "Buyer" under or in connection with this
Agreement, including, but not limited to, the obligations under Section 1.3
hereof and the other obligations that survive Closing hereunder. In the event
Buyer elects to assign its rights hereunder after the date upon which Seller
shall have delivered certain third party documents (including, but not limited
to, the LCRA Estoppel Certificate, Estoppel Certificates and SNAs) for
signature, Buyer agrees that Seller shall have no obligation to have such
documents reissued or re-executed and Buyer shall have no right to delay Closing
or terminate this Agreement if Seller delivers said documents bearing the name
of Buyer (Triple Net Properties, LLC).
10.3 NOTICES. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given if the same
shall be in writing and shall be delivered personally, sent by registered or
certified mail, postage pre-paid, delivered by expedited prepaid delivery
services, either commercial or United States Postal service, with proof of
attempted delivery, or by telecopier (with answer back acknowledged), and
addressed as set forth below:
(a) If to Buyer:
Triple Net Properties, LLC
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
With copies to:
Xxxxxxxxx Xxxxxxxxx, PC
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. XxXxxxx, Esq. and Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
(b) If to Seller:
EBS Building, L.L.C.
c/o FTI Consulting, Inc.
0000 Xxxxxxxxx Xx., Xxxxx 0000
000 Xxxxxxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
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With copies to:
Heitman Capital Management LLC
000 X. Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
and with copies to:
Xxxxx Xxxx LLP
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Any party may change the address to which notices are to be
addressed by giving the other parties notice in the manner herein set forth. A
notice shall be deemed to have been given: in the case of hand delivery, at the
time of delivery; in the case of registered or certified mail, when delivered or
the first attempted delivery on a business day; or in the case of expedited
prepaid delivery and telecopy, upon the first attempted delivery on a business
day.
10.4 NATURE OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS. Except for the covenants and agreements which by the express terms
set forth herein survive the Closing, the representations and warranties,
covenants, agreements and indemnities made by Seller and contained in this
Agreement shall be merged into the delivery of the Special Warranty Deed and the
other conveyance documents identified in Section 1.6 hereof upon Closing.
10.5 GOVERNING LAW. This Agreement shall be construed and
interpreted according to the laws of the State of Missouri.
10.6 TIME OF THE ESSENCE. Time is of the essence with respect to
each and every provision of this Agreement.
10.7 PERFORMANCE ON BUSINESS DAYS. If any date for the occurrence of
an event or act under this Agreement falls on a Saturday or Sunday or legal
holiday in the State of Missouri, then the time for the occurrence of such event
or act shall be extended to the next succeeding business day.
10.8 SCHEDULES AND EXHIBITS. From and after the date hereof, should
Seller obtain any information which should be disclosed on a schedule in order
to make the related disclosure, representation or warranty complete, true and
accurate in all material respects, Seller shall so advise Buyer by written
notice, which notice shall contain a description of such information. In the
event such information has a material adverse effect on the value of the
Property, in Buyer's reasonable determination, Buyer shall have the right to
terminate this Agreement by written notice to Seller delivered within two (2)
business days of the date of
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Seller's notice to Buyer. Notwithstanding the foregoing, in the event the
information reported by Seller has a material adverse effect on the value of the
Property but is capable of cure, Seller shall have the right to (a) cure the
same (including a right to extend Closing for a period not to exceed sixty (60)
days to complete such cure) or (b) to negotiate with Buyer for a reasonable
credit to the Purchase Price to offset such material adverse effect. Buyer and
Seller hereby agree to negotiate said credit in good faith and if no agreement
as to the reasonable credit can be reached within ten (10) business days, Buyer
shall have the right to terminate this Agreement and the Deposit shall be
returned to Buyer. In the event Buyer does not exercise its termination option
or such information does not have such a material adverse effect, such
information shall be deemed to have been added to the appropriate schedule(s)
without any further action of Buyer or Seller.
10.9 ENTIRE AGREEMENT. This Agreement, together with all the
Exhibits attached hereto and incorporated by reference herein, constitutes the
entire undertaking between the parties hereto, and supersedes any and all prior
agreements, arrangements and understandings between the parties.
10.10 COUNTERPARTS. This Agreement be executed in counterparts, each
of which shall constitute an original.
10.11 FACSIMILE DELIVERY. Delivery of executed copies of this
Agreement by facsimile shall constitute valid and binding delivery of this
Agreement. Any party executing this Agreement and delivering executed copies of
this Agreement by facsimile shall concurrently send an original executed
Agreement to the other party, but failure to do so shall not affect the validity
of the facsimile copy.
10.12 CONFIDENTIALITY/PUBLICITY. Seller and Buyer hereby covenant
and agree that at all times after the date of execution hereof and continuing
after Closing, unless consented to in writing by the other party, no press
release or other public disclosure concerning this transaction shall be made,
and each party agrees to use best efforts to prevent disclosure of this
transaction. Buyer further agrees that all of the terms, conditions and other
provisions of this Agreement and all surveys, reports and the like, including,
without limitation, environmental reports, submitted to Buyer in the course of
the inspections and evaluations of the Property shall be held in strict
confidence, except to the extent disclosure is necessary in order to comply with
applicable governmental laws, rules or regulations, including securities laws.
The provisions of this Section 10.12 shall survive Closing or any termination of
this Agreement. The provisions of this Section 10.12 shall not prevent Buyer
from disclosing the transaction contemplated by this Agreement to brokers and
prospective investors.
10.13 ATTORNEYS' FEES AND COSTS. In the event suit or action is
instituted to interpret or enforce the terms of this Agreement, or in connection
with any arbitration or mediation of any dispute, the prevailing party shall be
entitled to recover from the other party such sum as the court, arbitrator or
mediator may adjudge reasonable as such party's costs and attorney's fees,
including such costs and fees are incurred in any trial, on any appeal, in any
bankruptcy proceeding (including the adjudication of issues peculiar to
bankruptcy law) and in any petition for review. Each party shall also have the
right to recover its reasonable costs and
26
attorney's fees incurred in collecting any sum or debt owed to it by the other
party, with or without litigation, if such sum or debt is not paid within
fifteen (15) days following written demand therefor. The provisions of this
Section 10.13 will survive Closing or any termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
TRIPLE NET PROPERTIES, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
"Buyer"
EBS BUILDING, L.L.C.
By: FTI Consulting, Inc., its Manager
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
Senior Managing Director
"Seller"
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