EXHIBIT 10.41
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
FOR THE METRIS BUILDING
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 July, 1999, by and between MERIDIAN
TULSA L.L.C., an Oklahoma limited liability company ("Seller") and XXXXX
CAPITAL, INC., a Georgia corporation ("Purchaser").
W I T N E S S E T H:
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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
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the terms and provisions of this Agreement, Seller hereby agrees to sell to
Purchaser and Purchaser hereby agrees to purchase from Seller, the Property,
which term "Property" shall mean and include the following:
(a) all that tract or parcel of land (the "Land") located in Tulsa,
Oklahoma, containing approximately 14.641 acres, having an address of 4848 South
129 th East Avenue, and being more particularly described on Exhibit "A" hereto;
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and
(b) all rights, privileges, and easements appurtenant to the Land,
including all water rights, mineral rights, reversions, or other appurtenances
to said Land to the extent owned by Seller, 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 building containing
approximately 100,000 square feet of leasable space, the parking areas
containing approximately 700 parking spaces and other amenities to be
constructed on the Land and owned by Seller, and all apparatus, built-in
appliances, equipment, pumps, machinery, plumbing, heating, air conditioning,
electrical and other fixtures relating thereto (all of which are
herein collectively referred to as the "Improvements"); and
(d) all personal property now owned by Seller and located on or to be
located on or in, the Land and Improvements ("Personal Property"); and
(e) all of Seller's right, title, and interest, as landlord or lessor,
in and to that certain lease agreement (the "Lease") with METRIS DIRECT,
INC.("Tenant"),dated March 3, 1999; and
(f) all of Seller's right, title, and interest in and to the plans and
specifications with respect to the Improvements and any guarantees, trademarks,
rights of copyright, warranties, or other rights related to the ownership of or
use and operation of the Land, Personal Property, or Improvements, all
governmental licenses and permits, and all intangibles associated with the Land,
Personal Property, and Improvements, including the name of the Improvements and
the logo therefor, if any; and
(g) all of Seller's right, title and interest in and to the contracts
described on Exhibit "B" hereto (the "Contracts"), to the extent the same
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survive Closing or require performance after Closing.
2. Xxxxxxx Money. Within two (2) business days after the full
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execution of this Agreement, Purchaser shall deliver to American Guaranty Title
Company ("Escrow Agent"), whose offices are at 0000 Xxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxxxx 00000, ph: #(405)942-4848, Purchaser's check, payable to Escrow Agent,
in the amount of $250,000.00 (the "Xxxxxxx Money"), which Xxxxxxx Money shall be
held and disbursed by Escrow Agent in accordance with this Agreement. The
Xxxxxxx Money shall be paid by Escrow Agent to Seller at Closing (as hereinafter
defined) and shall be applied as a credit to the Purchase Price (as hereinafter
defined), or shall otherwise be paid to Seller or refunded to Purchaser in
accordance with the terms of this Agreement. All interest and other income from
time to time earned on the Xxxxxxx Money shall belong to Purchaser and shall be
disbursed to Purchaser at any time or from time to time as Purchaser shall
direct Escrow Agent. In no event shall any such interest or other income be
deemed a part of the Xxxxxxx Money.
3. Purchase Price. Subject to adjustment and credits as otherwise
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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 TWELVE MILLION SEVEN
HUNDRED THOUSAND AND 00/100 DOLLARS ($12,700,000.00). The Purchase Price shall
be paid by Purchaser to Seller at the Closing (as hereinafter defined) by
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wire transfer of immediately available federal funds, less the amount of Xxxxxxx
Money and subject to prorations, adjustments and credits as otherwise specified
in this Agreement.
4. Purchaser's Inspection and Review Rights. Subject to the rights of
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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 provided
Landlord's construction activities are in no manner impaired by Purchaser.
Purchaser hereby agrees to hold Seller harmless from any liens, claims,
liabilities, and damages incurred through the exercise of such privilege, and
Purchaser further agrees to repair any damage to the Property caused by the
exercise of such privilege. At all reasonable times prior to the Closing (as
hereinafter defined), Seller shall make available to Purchaser, or Purchaser's
agents and representatives, for review and copying, all books, records, and
files in Seller's possession relating to the ownership and operation of the
Property, including, without limitation, title matters, surveys, tenant files,
service and maintenance agreements, and other contracts, books, records,
operating statements, and other information relating to the Property. Seller
further agrees to in good faith assist and cooperate with Purchaser in coming to
a thorough understanding of the books, records, and files relating to the
Property. Seller further agrees to provide to Purchaser prior to the date which
is five (5) days after the effective date of this Agreement the most current
surveys of the Land and Improvements and any title insurance policies, building
inspection reports and environmental reports relating thereto and in the
possession or under the control of Seller.
5. Special Condition to Closing. Purchaser shall have thirty (30)
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days from the effective date of this Agreement (the "Inspection Period") to make
investigations, examinations, inspections, market studies, feasibility studies,
lease reviews, and tests relating to the Property and the operation thereof in
order to determine, in Purchaser's sole opinion and discretion, the suitability
of the Property for acquisition by Purchaser. Purchaser shall have the right to
terminate this Agreement at any time prior to the expiration of the Inspection
Period by giving written notice to Seller of such election to terminate. In the
event Purchaser so elects to terminate this Agreement, Seller shall be entitled
to receive and retain the sum of Twenty-Five Dollars ($25.00) of the Xxxxxxx
Money, and the balance of the Xxxxxxx Money shall be promptly refunded by Escrow
Agent to Purchaser, whereupon, except as expressly provided to the contrary in
this Agreement, no party hereto shall have any other or further
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rights or obligations under this Agreement. Seller acknowledges that the sum of
$25.00 is good and adequate consideration for the termination rights granted to
Purchaser hereunder.
6. General Conditions Precedent to Purchaser's Obligations Regarding
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the Closing. In addition to the conditions to Purchaser's obligations set forth
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in Paragraph 5 above, the obligations and liabilities of Purchaser hereunder
shall in all respects be conditioned upon the satisfaction of each of the
following conditions, any of which may be waived by written notice from
Purchaser to Seller:
(a) Seller shall have complied in all material respects with and
otherwise performed in all material respects each of the covenants and
obligations of Seller set forth in this Agreement, as of the date of Closing (as
hereinafter defined).
(b) All representations and warranties of Seller as set forth in this
Agreement shall be true and correct in all material respects as of the date of
Closing.
(c) There shall have been no adverse change to the title to the
Property which has not been cured and the Title Company (as hereinafter defined)
shall have issued the Title Commitment (as hereinafter defined) on the Land and
Improvements without exceptions other than as described in paragraph 7 and the
Title Company shall be prepared to issue to Purchaser upon the Closing a fee
simple owner's title insurance policy on the Land and Improvements pursuant to
such Title Commitment.
(d) Purchaser shall have received the Final Tenant Estoppel
Certificate (as elsewhere defined herein),duly executed by the Tenant (as
hereinafter defined) at least five (5) days prior to the date of Closing.
(e) Intentionally Omitted.
(f) Seller shall have caused the Lease to be amended so that Sections
35 and 37 shall have been deleted therefrom.
(g) Seller shall have caused the Architect to execute and deliver to
Purchaser, its certificate setting forth the number of rentable square feet in
the building and stating that the Improvements have been substantially completed
in accordance with the Plans and Specifications and comply with all applicable
zoning laws, ordinances and regulations.
(h) Seller shall have delivered to Purchaser the certificate of the
applicable governing authority stating the
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zoning classification of the Property and that the Improvements constructed on
the Property are in compliance with all applicable zoning laws, rules and
regulations.
7. to the Title and Survey. Seller covenants and agrees that Seller,
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at its sole cost and expense, shall, on or before ten (10) days after the
Effective Date of this Agreement, cause American Guaranty Title 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
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, in the amount of the Purchase
Price, insuring marketable fee simple record title to the Property to be in
Purchaser subject only to the Permitted Exceptions (as hereinafter defined),
with affirmative coverage over any mechanic's, materialman's and subcontractor's
liens and with full extended coverage over all general exceptions, and
containing the following endorsements: zoning, survey, contiguity, access and
compliance with recorded covenants and restrictions. Such Title Commitment 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 ALTA/ASCM survey acceptable to Title
Company, in which case the Title Commitment shall be amended to contain an
exception only for the matters shown on the as-built survey which Seller shall
obtain at its sole cost and expense for the benefit of Purchaser. Said survey
shall include a certification that the Property is zoned in a classification
which will permit the operating of the Property as an office building and any
conditions to the granting of such zoning have been satisfied. Seller shall also
cause to be delivered to Purchaser together with such Title Commitment, legible
copies of all documents and instruments referred to therein. Purchaser, upon
receipt of the Title Commitment and the copies of the documents and instruments
referred to therein, shall then have 15 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. Seller shall then have until the
Closing to cure such defects and objections and shall, in good faith, exercise
reasonable diligence to cure such defects and objections.
8. Representations and Warranties of Seller. Seller hereby
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makes the following representations and warranties to Purchaser, each of which
shall be deemed material:
(a) Lease. Attached hereto as Exhibit "C" is a true and accurate copy
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of the only lease in effect relating to the Property, together with all
modifications and amendments (other than Amendment required by this Agreement)
to such lease (such lease, as modified and amended, being herein referred to as
the "Lease"). Seller is the "landlord" under the Lease and owns unencumbered
legal and beneficial title to the Lease and the rents and other income
thereunder, subject only to the collateral assignment of the Lease and the rents
thereunder in favor of the holder of an existing mortgage or deed of trust
encumbering the Property, which mortgage or deed of trust shall be cancelled and
satisfied by Seller at the Closing.
(b) Lease - Assignment. To the best of Seller's knowledge, the Tenant
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has not assigned its interest in the Lease or sublet any portion of the premises
leased to the Tenant under the Lease.
(c) Lease - Default.(I) Seller has not received any notice of
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termination or default under the Lease,(ii) there are no existing or uncured
defaults by Seller or by the Tenant under the Lease, (iii) to the best of
Seller's knowledge, there are no events which with the passage of time or
notice, or both, would constitute a default by Seller or by the Tenant, and
Seller has complied with each and every undertaking, covenant, and obligation of
Seller under the Lease, and (iv) Tenant has not asserted any defense, set-off,
or counterclaim with respect to its tenancy or its obligation to pay rent,
additional rent, or other charges pursuant to the Lease.
(d) Lease - Rents and Special Consideration. Tenant:(I) has not
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prepaid rent for more than the current month under the Lease, (ii) has not
received and is not entitled to receive any rent concession in connection with
its tenancy under the Lease other than as described in the Lease, (iii) except
for the construction of the improvements described therein, is not entitled to
any special work (not performed prior to the Closing Date),or consideration (not
yet given) in connection with its tenancy under the Lease, and (iv) does not
have any deed, option, or other evidence of any right or interest in or to the
Property, except for the Tenant's tenancy as evidenced by the express terms of
the Lease, and except for the rights under Sections 35 and 37 which shall be
extinguished on or before Closing.
(e) Lease - Commissions. All commissions payable under, relating to,
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or as a result of the Lease will be cashed-out
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and paid and satisfied in full by Seller at or prior to Closing.
(f) Lease - Acceptance of Premises. On or before Closing (I) Tenant
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will have accepted its leased premises located within the Property, including
any and all work performed therein or thereon pursuant to the Lease, (ii) Tenant
will be in full and complete possession of its premises under the Lease, and
(iii) Seller will not have received notice from the Tenant that the Tenant's
premises are not in full compliance with the terms and provisions of Tenant's
Lease or are not satisfactory for Tenant's purposes.
(g) No Other Agreements. Other than the Lease, the Contracts and the
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Permitted Exceptions, there are no leases, service contracts, management
agreements, or other agreements or instruments in force and effect, oral or
written, to which Seller is a party and that grant to any person whomsoever or
any entity whatsoever any right, title, interest or benefit in or to all or any
part of the Property or any rights relating to the use, operation, management,
maintenance, or repair of all or any part of the Property.
(h) No Litigation. There are no actions, suits, or proceedings
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pending, or, to the best of Seller's knowledge, threatened by any organization,
person, individual, or governmental agency against Seller with respect to the
Property or against the Property, nor does Seller know of any basis for such
action. Seller has no knowledge of any pending or threatened application for
changes in the zoning applicable to the Property or any portion thereof.
(I) Condemnation. No condemnation or other taking by eminent domain
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of the Property or any portion thereof has been instituted and, to the best of
Seller's knowledge, there are no pending or threatened condemnation or eminent
domain proceedings (or proceedings in the nature or in lieu thereof) affecting
the Property or any portion thereof or its use.
(j) Proceedings Affecting Access. The Property is served by curb cuts
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for direct vehicular access to and from South 000xx Xxxx Xxxxxx and East 48th
Street South adjoining the Property. Said streets are public streets. There are
no pending or, to the best of Seller's knowledge, threatened proceedings that
could have the effect of impairing or restricting access between the Property
and either of such adjacent public roads.
(k) No Assessments. To the best of Seller's knowledge, no assessments
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have been made against the Property that are unpaid, whether or not they have
become liens.
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(l) Conditions of Improvements. Upon "Completion of Construction" (as
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elsewhere defined herein), there will be no structural or other defects, in the
Improvements, the heating, ventilating, air conditioning, electrical, plumbing,
water, elevator(s), roofing, storm drainage and sanitary sewer systems at or
servicing the Land and Improvements will be in good condition and working order,
and there will be no defects or deficiencies, latent or otherwise, therein.
(m) Certificates. Upon Completion of Construction, there will be in
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effect permanent certificates of occupancy, licenses, and permits as may be
required for the Property, and the use and occupancy of the Property will be in
compliance and conformity with the certificates of occupancy and all licenses
and permits, and there will be no notice or request of any municipal department,
insurance company or board of fire underwriters (or organization exercising
functions similar thereto), or mortgagee directed to Seller and requesting the
performance of any work or alteration to the Property which has not been
complied with.
(n) Violations. To the best of Seller's knowledge, there are no
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violations of law, municipal or county ordinances, or other legal requirements
with respect to the Property, and upon Completion of Construction, the
Improvements thereon will comply with all applicable legal requirements with
respect to the use, occupancy, and construction thereof.
(o) Utilities. All utilities and utility equipment, facilities and
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services necessary for the operation of the Improvements as contemplated by the
Plans and Specifications (as elsewhere defined herein) will be installed and
connected pursuant to valid permits and will meet the requirements of Tenant
pursuant to the Lease, including water, sanitary sewer, storm sewer and
electricity.
(p) Tax Returns. All property tax returns required be filed by Seller
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relating 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 filed. Seller shall pay, or cause to be
paid, all installments of general real estate taxes, special taxes or
assessments, service charges, water and sewer charges, private maintenance
charges, and other prior lien charges by whatever name called, which are due and
payable on or prior to the Closing Date.
(q) Bankruptcy. Seller is "solvent as said term is defined by
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bankruptcy law" and has not made a general assignment for the benefit of
creditors nor been adjudicated a bankrupt or
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insolvent, nor has a receiver, liquidator, or trustee for any of Seller's
properties (including the Property)been appointed or a petition filed by or
against Seller for bankruptcy, reorganization, or arrangement pursuant to the
Federal Bankruptcy Act or any similar Federal or state statute, or any
proceeding instituted for the dissolution or liquidation of Seller.
(r) Pre-existing Right to Acquire. Other than Purchaser, no person or
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entity has any right or option to acquire the Property or any portion thereof
which will have any force or effect after the execution of this Agreement, other
than Tenant, which rights will be extinguished by lease amendment.
(s) Effect of Certification. To the best of Seller's knowledge,
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neither this Agreement nor the transactions contemplated herein will constitute
a breach or violation of, or default under, or will be modified, restricted, or
precluded by the Lease or the Permitted Exceptions.
(t) Authorization. Seller is a duly organized and validly existing
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limited liability company under the laws of the State of Oklahoma. This
Agreement has been duly authorized and executed on behalf of Seller and
constitutes the valid and binding agreement of Seller, enforceable in accordance
with its terms, and all necessary action on the part of Seller to authorize the
transactions herein contemplated has been taken, and no further action is
necessary for such purpose.
(u) 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.
(v) Year 2000 Compliance. Seller has taken all necessary and
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appropriate steps to assure that all building systems and material computer
applications will recognize correctly and perform date sensitive functions
involving certain dates prior to and after December 31, 1999.
(w) Plans and Specifications. Attached hereto as Exhibit "D" is a
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complete list (to date) of all Plans and Specifications relating to the
Improvements, including all change orders, shop drawings, bulletins and other
documents varying or interpreting the architectural or other drawings. The
Improvements, when completed in accordance with the Plans and Specifications,
and when fully equipped with all of the building equipment will be ready for use
and in conformity in all material respects with all applicable laws, rules,
regulations, ordinances
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and statutes and the Lease. Seller shall cause all amendments to the Plans and
Specifications to be prepared in compliance in all material respects with (I)
the requirements and standards set forth in the Lease, (ii) all applicable
governmental requirements, and (iii) all private covenants, conditions and
restrictions of record that encumber all or any part of the Land. Seller shall
not amend the Plans and Specifications in any manner which would have a material
adverse effect on the value of the Property or without the consent of the Tenant
without the prior written consent of Purchaser, except as otherwise expressly
permitted herein. Purchaser's approval of the Plans and Specifications shall not
constitute, and shall not be deemed to constitute, an acknowledgment by
Purchaser that the Plans and Specifications comply with the requirements of the
immediately preceding sentence, nor shall Purchaser's approval of the Plans and
Specifications in any way constitute a waiver of (or diminish Seller's
obligation to satisfy fully) the requirements of the immediately preceding
sentence.
(x) Approvals. The requirements of all covenants, conditions and
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restrictions of record relating to the development or construction of the
Improvements, including all covenants requiring consent from any third party,
have been, or on the Closing Date will be, fully satisfied and complied with in
all material respects.
(y) Contracts. Attached hereto as Exhibit "B" is a complete list and
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description of all contracts and agreements known to Seller or to which Seller
is a party relating to or affecting the Land or the development or construction
of the Improvements thereon, including without limitation any contracts or
agreements with the Architect, General Contractor, any construction manager,
other professionals or specialists, or utility companies. All such contracts or
agreements listed on said Exhibit "B" are in full force and effect. To Seller's
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knowledge, neither party to any such contract is in default thereunder and no
event has occurred which, with the mere passage of time or the delivery of
notice or both, would constitute a default or breach thereunder. Except as
otherwise herein expressly provided, Seller shall not enter into any service,
management or maintenance contract, or amend, cancel or otherwise revise any
such contract or agreement currently in effect, without the prior written
consent of Purchaser, except that Seller shall have the right, without the
consent of Purchaser, to enter into any such contracts which are either
terminable by Seller (or, after the Closing Date, by Purchaser) upon not more
than thirty (30) days notice, or which, by their terms, have been fully
performed, complied with or terminated (and are of no further force or effect)
on or as of the Closing Date.
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(z) Inducements. To Seller's knowledge, there are no donations of
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monies or land or payments (other than general real estate taxes) for schools,
parks, fire departments or any other public facilities or for any other reason
which are or will be required to be made by an owner of the Improvements, and
there are no obligations burdening the Improvements created by any so-called
"recapture agreement" involving refund for sewer or water extension or other
improvement to any sewer or water systems, oversizing utility, lighting or like
expense or charge for work or services done upon or relating to the Improvements
which will bind the Purchaser or the Improvements from and after the closing.
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 upon their occurrence, which disclosures shall thereafter be updated by
Seller to the date of Closing. Each and all of the express warranties,
covenants, and indemnifications made and given by Seller to Purchaser herein
shall survive the execution and delivery of the Warranty Deed by Seller to
Purchaser for one year. 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, except that after such closing and
consummation Purchaser shall have the right to seek monetary damages from Seller
for any such changes willfully caused by Seller or any such representations or
warranties willfully breached by Seller, or (ii) terminate this Agreement by
written notice to Seller, whereupon the 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 (1) for such rights
or obligations that, by the express terms hereof, survive any termination of
this Agreement, and (2) that Purchaser shall have the right to seek monetary
damages from Seller for any changes in such representations and warranties
willfully caused by Seller or any such representations and warranties willfully
breached by Seller and not within the actual knowledge of Purchaser at the time
of Closing.
9. Seller's Additional Covenants. Seller does hereby further covenant
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and 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
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of Closing, Seller shall: (I) not negotiate with any third party respecting the
sale of the Property or any interest therein, (ii) not modify, amend, or
terminate the Lease or enter into any new lease, contract, or other agreement
respecting the Property, except as required hereunder, (iii) not grant or
otherwise create or consent to the creation of any easement, restriction, lien,
assessment, or encumbrance respecting the Property, other than utility easements
or ingress/egress easements necessary for the Property's development, and (iv)
cause the Property to be operated, maintained, and repaired in the same manner
as the Property is currently being operated, maintained, and repaired.
(b) Preservation of Lease. Seller shall, from and after the date of
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this Agreement to the date of Closing, use its good faith efforts to perform and
discharge all of the duties and obligations and shall otherwise comply with
every covenant and agreement of the landlord under the Lease, at Seller's
expense, in the manner and within the time limits required thereunder.
Furthermore, Seller shall, for the same period of 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 hereby agrees
that from and after full execution of this Agreement, Seller shall not credit
any portion of the security deposit, if any, against defaults or delinquencies
of the Tenant under the Lease. On or before Closing, Seller shall cause the
Lease to be amended to reflect as the legal description of the Land (as defined
in the Lease), the legal description attached hereto as Exhibit A.
(c) Tenant Estoppel Certificate. At least five (5) days prior to the
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end of the Inspection Period, Seller shall obtain and deliver to Purchaser a
fully completed estoppel certificate with respect to the Lease in substantially
the form of Exhibit "E" (the "Initial Tenant Estoppel Certificate"), duly
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executed by the Tenant thereunder. At least five (5) days prior to Closing,
Seller shall obtain and deliver to Purchaser a fully completed estoppel
certificate with respect to the Lease in substantially the form of Exhibit "F"
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(the "Final Tenant Estoppel Certificate"), duly executed by the Tenant
thereunder.
(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, cause to be maintained in
full force and effect the insurance coverage described in Exhibit "G".
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(e) Permits, etc. At least five (5) days prior to the
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Closing Date, Seller shall obtain and deliver to Purchaser copies of (I) all
building permits and other necessary governmental licenses or approvals required
in connection with the development and operation of the Improvements (to the
extent such permits are issuable as of the Closing Date); (ii) true and correct
copies of the most recent real estate tax bills and notices of assessed
valuation pertaining to the Improvements; (iii) true and correct copies of all
insurance policies and certificates of insurance in Seller's possession relating
to the Improvements or delivered to Seller by Tenant.
(f) CAD Disk. On or before the Closing Date, Seller shall deliver to
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Purchaser as built drawings depicting the Improvements as constructed, such
drawings to be delivered on a CAD disk.
(g) Assignment of Contracts. With respect to the Contracts and
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warranties which are being assigned to Purchaser, there shall have been
delivered to Purchaser, at or prior to the Closing, written instruments from the
contracting parties whereby they consent to the assignment of the contract,
warranties and guaranties.
(h) Covenant to Satisfy Conditions; Effect of Failure to Satisfy.
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Seller hereby agrees to use commercially reasonable efforts to cause each of the
conditions precedent to the obligations of Purchaser to be fully satisfied,
performed and discharged, on and as of the Closing Date.
(I) Completion of Construction. Seller agrees that it shall, with
--------------------------
diligence and continuity, cause the Improvements to be completed in accordance
with the Plans and Specifications and the Lease.
(j) Action with Respect to the Property. Seller shall not in any
-----------------------------------
manner sell, convey, assign, transfer or encumber the Improvements or the Lease
or any part thereof or interest therein (except to secure, refinance or extend
any existing construction loan which shall be paid off on or before Closing), or
otherwise dispose of the Improvements or the Lease, or any part thereof or
interest therein, or alter or amend the zoning classification of the
Improvements, or otherwise perform or permit any act or deed which shall
materially diminish, encumber or affect Seller's rights in and to the
Improvements or prevent it from performing fully its obligations hereunder, nor
enter into any agreement to do so.
(k) Books and Records. Seller shall maintain, or cause to be
-----------------
maintained, complete books and records with respect to the
-13-
Improvements. At all reasonable times, and upon prior notice, Purchaser shall
have the right, from time to time upon request therefor, to inspect and make
copies of all books and records of Seller relating to the Improvements, and
Seller agrees to cause the same to be made available to Purchaser for such
purpose during regular business hours at the principal offices or, at Seller's
option after notice to Purchaser, at or in the vicinity of the Improvements.
(l) Purchaser's Access. At all reasonable times and upon the request
------------------
by Purchaser, Seller shall grant to Purchaser and its engineers, architects and
other agents or representatives of Purchaser, access to the Improvements for the
purpose of making a physical inspection thereof, and each of its component
parts; provided, however, all such persons shall comply with reasonable safety
requirements of Seller, and Seller shall have no liability or obligation to any
of such persons for any injury or loss suffered while said persons are upon the
Improvements. Purchaser shall restore the Land to its condition existing
immediately before Purchaser's entry upon the Land, and Purchaser shall
indemnify and defend Seller against and hold Seller harmless from all claims,
demands, liabilities, losses, damages, costs and expenses, including reasonable
attorneys' fees and disbursements (collectively, "Claims"), in any manner
------
arising from or caused by Purchaser in connection with entry on the Land by
Purchaser pursuant hereto; provided, however, Purchaser's foregoing obligations
shall not include any obligation or duty with respect to Claims (including
Claims that the Land has declined in value) arising out of, resulting from or
incurred in connection with (I) the discovery or presence of any Hazardous
Substances on the Land not brought on the Land by Purchaser or the Release
(other than by Purchaser) of any Hazardous Substances on the Land, or (ii) the
results, findings, tests or analyses of Purchaser's environmental investigation
of the Land.
(m) Progress Reports. Seller shall report to Purchaser in writing,
----------------
from time to time, but not less frequently than monthly, as to (I) the progress
of construction of the Improvements (such reports to include, without
limitation, an updated construction schedule, photographs of construction
progress to date and a monthly progress report of the General Contractor); and
(ii) such other information with respect to the Improvements and its operation
as Purchaser may reasonably request from time to time. Seller shall report to
Purchaser in writing any construction defects or material deviations from the
Plans and Specifications promptly upon Seller becoming aware of same, which
notice shall describe the nature of such defect or deviation in reasonable
detail.
-14-
(n) Default Notices. Seller shall deliver or cause to be delivered
---------------
to Purchaser, promptly upon receipt thereof by Seller, copies of any written
notices of default, or the occurrence of any event which could result in a
default, under any construction loan, mortgage, lease, contract or agreement now
or at any time hereafter in effect with respect to the Improvements, and shall
report to Purchaser, from time to time, the status of any alleged default
thereunder. Seller shall advise Purchaser in writing, promptly upon obtaining
actual knowledge of the occurrence of any event or circumstance which
constitutes a breach of any of the representations or warranties or covenants of
Seller herein contained, which notice shall describe the nature of such event or
circumstance in reasonable detail. Seller agrees that it will use commercially
reasonable efforts at all times to correct any such event or circumstance within
Seller's reasonable control and, to the extent the same is within the reasonable
control of Seller, to cause all representations and warranties of Seller herein
contained to be true and correct on and as of the Closing Date, and to cause
Seller to be in compliance with its covenants and obligations hereunder. Seller
shall advise Purchaser promptly in writing of the receipt, by Seller or any of
its affiliates, of notice of: (I) the institution or threatened institution of
any judicial, quasi-judicial or administrative inquiry or proceeding with
respect to the Improvements; (ii) any notice of violation issued by any
governmental or quasi-governmental authority with respect to the Improvements,
(iii) any proposed special assessments, or (iv) any defects or inadequacies in
the Improvements or any part thereof issued by any insurance company or fire
rating bureau.
(o) Warranties. With respect to any warranties or guaranties relating
----------
to the Improvements which are assigned, or required to be assigned, to Purchaser
pursuant to Section 1(f), or otherwise, and which, by their terms or otherwise
expire, terminate or lapse at any time prior to the date which is one year
following the Substantial Completion Date (as defined in the Lease) (the
"Warranty Date"), Seller hereby assumes and agrees to pay, perform and discharge
all of the liabilities and obligations of the various contractors, suppliers and
others providing warranties or guarantees as above provided for the period from
the date of expiration thereof to and including the Warranty Date, it being the
intention of the parties hereto that such guarantees or warranties which have
expired, terminated or lapsed prior to the Warranty Date shall be extended by
the provisions of this Subsection and shall be the liability and obligation of
Seller during such extended period.
(p) Punch List Work. The parties acknowledge that
---------------
-15-
certain portions of the building and the building equipment constituting a part
of the Improvements may not have been finally completed on the Closing Date.
Accordingly, the Architect shall determine the amount (the "Punch List Amount")
as may be necessary to (I) satisfactorily complete any items of construction, or
to provide any items of building equipment, required by the Plans and
Specifications which, while substantially complete, have not been finally
completed or provided on the Closing Date, other than the Seasonal Punch List
Work referred to below (the "Regular Punch List Work"); (ii) satisfactorily
complete any landscaping required by the Plans and Specifications which cannot
then be completed on account of weather or the season (the "Seasonal Punch List
Work"); and (iii) correct any material defects ("Defects") in the design or
construction of the Improvements or the materials incorporated therein (the
Defects, together with the Regular Punch List Work and the Seasonal Punch List
Work being collectively called the "Punch List Work"). If the Punch List Amount
exceeds One Hundred Thousand Dollars ($100,000), the Closing may, at the option
of Purchaser, be deferred until such time as a sufficient amount of work shall
have been performed with respect to the Seasonal Punch List Work, the Defects or
the Regular Punch List Work so that the Punch List Amount shall be reduced to an
amount within the limit prescribed. As expeditiously and prudently as possible
after the Closing Date, Seller shall complete, or cause to be completed, all of
the Punch List Work. Seller's covenant to complete the Punch List Work shall
survive the Closing and any release of construction holdbacks by Tenant under
the Lease.
(q) As-Built Survey. Not less than fifteen (15) days prior to the
---------------
Closing, Seller shall deliver to Purchaser a new, "as built" survey of the Land
and the Building (the "As-built Survey") dated not more than thirty (30) days
prior to the Closing certified to Purchaser and to the Title Company showing the
boundaries and the legal description of the Land, which survey shall be made in
compliance with the "Minimum Standard Detail Requirements for Land Title
Surveys" established by the ALTA/ACSM and currently in effect and shall contain
and disclose the matters and information set forth in Exhibit "H". The As-built
----------
Survey shall disclose no encroachments or improvements from or upon adjoining
properties, shall show the availability of all utility services at the perimeter
of the Land, and shall otherwise be in form and content sufficient to enable the
Title Company to issue its standard form of survey modification endorsement
modifying the general exception for matters of survey. The costs of each survey
delivered by Seller pursuant hereto shall be borne entirely by Seller.
10. Closing. Provided that all of the conditions set forth in this
-------
Agreement are theretofore fully satisfied or performed, it
-16-
being fully understood and agreed, however, that Purchaser may expressly waive
in writing, at or prior to Closing, any conditions that are unsatisfied or
unperformed at such time, the consummation of the sale by Seller and purchase by
Purchaser of the Property (herein referred to as the "Closing") shall be held at
9:00 a.m., local time, on the fifth (5th) business day following Completion of
Construction, at the offices of Title Company, or at such earlier time as shall
be designated by Purchaser in a written notice to Seller not less than two (2)
business days prior to Closing; and the Purchase Price shall arrive in good
funds no later than noon Central Standard Time on the Closing Date, or proration
shall be adjusted by one day. The Closing shall take place through an escrow
established with the Title Company (the "Escrow") by means of a so-called New
York style closing, with the concurrent delivery of Seller's deed and other
documents of title, the delivery of the Title Policy (or marked title
commitment) described below, and the payment of the Purchase Price.
11. Seller's Closing Documents. For and in consideration of, and as a
--------------------------
condition precedent to, Purchaser's delivery to Seller of the Purchase Price
described in Paragraph 3 hereof, Seller shall obtain or execute, at Seller's
expense, and deliver to Purchaser at Closing the following documents (all of
which shall be duly executed, acknowledged, and notarized where required and
shall survive the Closing):
(a) Special Warranty Deed. A Special Warranty Deed conveying to
---------------------
Purchaser insurable fee simple title to the Land and Improvements, together with
all rights, easements, and appurtenances thereto, subject only to the Permitted
Exceptions. The legal description set forth in the Warranty Deed shall be as set
forth on Exhibit "A". 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", the Special Warranty Deed shall convey title by the legal description based
---
upon such survey;
(b) Xxxx of Sale. A Xxxx of Sale conveying to Purchaser marketable
------------
title to the Personal Property in the form and substance of Exhibit "I";
-----------
(c) Blanket Transfer. A Blanket Transfer and Assignment in the form
----------------
and substance of Exhibit "J";
-----------
(d) Assignment and Assumption of Lease. An Assignment and Assumption
----------------------------------
of Lease in the form and substance of Exhibit "K",assigning to Purchaser all of
-----------
Seller's right, title, and interest in and to the Lease and the rents thereunder
and pursuant
-17-
to which Purchaser shall assume all obligations under the Lease accruing after
the date of said assignment;
(e) Seller's Affidavit. A customary seller's affidavit in the form
------------------
required by the Title Company;
(f) FIRPTA Certificate. A FIRPTA Certificate in such form as Purchaser
------------------
shall reasonably approve;
(g) Certificates of Occupancy. The original Certificates of occupancy
-------------------------
for all space within the Improvements;
(h) Marked Title Commitment. The Title Commitment, marked to change
-----------------------
the effective date thereof through the date and time of recording the Special
Warranty Deed 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;
(I) Keys and Records. The original tenant files and other books and
----------------
records (other than matters solely between Seller and the general contractor
relating to the construction contract) relating to the Property in Seller's
possession;
(j) Tenant Notice. Notice from Seller to the Tenant of the sale of the
-------------
Property to Purchaser in such form as Purchaser shall reasonably approve;
(k) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and Seller
pursuant to this Agreement; and
(l) Other Documents. Such other documents as shall be reasonably
---------------
required by Purchaser's counsel.
12. Purchaser's Closing Documents. Purchaser shall obtain or execute
-----------------------------
and deliver to Seller at Closing the following documents, all of which shall be
duly executed and acknowledged where required and shall survive the Closing:
(a) Blanket Transfer. The Blanket Transfer and Assignment;
----------------
(b) Assignment and Assumption of Lease. The Assignment and Assumption
----------------------------------
of Lease;
(c) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited
-18-
to each of Purchaser and Seller pursuant to this Agreement; and
(d) Other Documents. Such other documents as shall be reasonably
required by Seller's counsel.
13. Closing Costs. Seller shall pay the cost of the Title Commitment
-------------
(excluding endorsements), including the cost of the examination of title to the
Property made in connection therewith, the premium (excluding endorsements) for
the owner's policy of title insurance issued pursuant thereto, the cost of any
transfer or documentary tax imposed by any jurisdiction in which the Property is
located, the cost of the as-built survey, the attorneys' fees of Seller, and all
other costs and expenses incurred by Seller in closing and consummating the
purchase and sale of the Property pursuant hereto. Purchaser shall pay the cost
of endorsements to the Title Policy, the attorneys' fees of Purchaser, and all
other costs and expenses incurred by Purchaser in closing and consummating the
purchase and sale of the Property pursuant hereto. Each party shall pay one-
half of any escrow fees.
14. Prorations. The following items shall be prorated and/or credited
----------
between Seller and Purchaser as of Midnight preceding the date of Closing:
(a) Rents. Rents, additional rents, and other income of the Property
-----
(other than security deposits, which shall be assigned and paid over to
Purchaser) collected by Seller from Tenant for the month of Closing. Purchaser
shall also receive a credit against the Purchase Price payable by Purchaser to
Seller at Closing for any rents or other sums (not including security deposits)
prepaid by Tenant to Seller for any period following the month of Closing, or
otherwise.
(b) Property Taxes. Except for such taxes which are the responsibility
--------------
of Tenant, City, state, county, and school district ad valorem taxes based on
the ad valorem tax bills for the Property, if then available, or if not, then on
the basis of the latest available tax figures and information. Should such
proration be based on such latest available tax figures and information and
prove to be inaccurate upon receipt of the ad valorem tax bills for the Property
for the year of Closing, either Seller or Purchaser, as the case may be, may
demand at any time after Closing a payment from the other correcting such
malapportionment. In addition, if after Closing there is an adjustment or
reassessment by any governmental authority with respect to, or affecting, any ad
valorem taxes for the Property for the year of Closing or any prior year, any
additional tax payment for the Property required to be paid with respect to the
-19-
year of Closing shall be prorated between Purchaser and Seller and any such
additional tax payment for the Property for any year prior to the year of
Closing shall be paid by Seller. This agreement shall expressly survive the
Closing.
(c) Utility Charges. Except for utilities which are the responsibility
---------------
of Tenant, Seller shall pay all utility bills received prior to Closing and
shall be responsible for utilities furnished to the Property prior to Closing.
Purchaser shall be responsible for the payment of all bills for utilities
furnished to the Property subsequent to the Closing. Seller and Purchaser hereby
agree to prorate and pay their respective shares of all utility bills received
subsequent to Closing, which agreement shall survive Closing.
The information to be furnished by Seller on which the computation of
prorations is based shall be true, correct and complete in all respects.
15. Purchaser's Default. In the event of default by Purchaser under
-------------------
the terms of this Agreement, Seller's sole and exclusive remedy shall be to
receive the Xxxxxxx Money as liquidated damages and thereafter the parties
hereto shall have no further rights or obligations hereunder whatsoever. It is
hereby agreed that Seller's damages will be difficult to ascertain and that the
Xxxxxxx Money constitutes a reasonable liquidation thereof and is intended not
as a penalty, but as fully liquidated damages. Seller agrees that in the event
of default by Purchaser, it shall not initiate any proceeding to recover damages
from Purchaser, but shall limit its recovery to the retention of the Xxxxxxx
Money.
Seller's Initial ILLEGIBLE Purchaser's Initials ILLEGIBLE
--------- ---------
16. Seller's Default. In the event of default by Seller under the
----------------
terms of this Agreement, at Purchaser's option: (I) 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 reasonable
third-party out-of-pocket costs and expenses incurred by Purchaser in connection
with the curing of such defects or objections, and upon such curing, the Closing
hereof shall proceed in accordance with the terms of this Agreement; or (ii)
Purchaser shall have the right to terminate this Agreement by giving written
notice of such termination to Seller, whereupon Escrow Agent shall promptly
refund all Xxxxxxx Money to Purchaser, and Purchaser and Seller shall have no
further rights, obligations, or liabilities
-20-
hereunder, except as may be expressly provided to the contrary herein; or (iii)
Purchaser shall have the right to accept title to the Property subject to such
defects and objections with no reduction in the Purchase Price, in which event
such defects and objections shall be deemed "Permitted Exceptions"; or (iv)
Purchaser may elect to seek specific performance of this Agreement.
17. Condemnation. If, prior to the Closing, all or any part of the
------------
Property (which part allows the Tenant under the Lease to terminate the Lease or
otherwise reduce the rent payable thereunder) is subjected to a bona fide threat
of condemnation by a body having the power of eminent domain or is taken by
eminent domain or condemnation (or sale in lieu thereof), or if Seller has
received notice that any condemnation action or proceeding with respect to the
Property is contemplated by a body having the power of eminent domain, Seller
shall give Purchaser immediate written notice of such threatened or contemplated
condemnation or of such taking or sale, and Purchaser may by written notice to
Seller given within thirty (30) days of the receipt of such notice from Seller,
elect to cancel this Agreement. If Purchaser chooses to cancel this Agreement in
accordance with this Paragraph 17, then the Xxxxxxx Money shall be returned
immediately to Purchaser by Escrow Agent and the rights, duties, obligations,
and liabilities of the parties hereunder shall immediately terminate and be of
no further force and effect. If Purchaser does not elect to cancel this
Agreement in accordance herewith, this Agreement shall remain in full force and
effect and the sale of the Property contemplated by this Agreement, less any
interest taken by eminent domain or condemnation, or sale in lieu thereof, shall
be effected with no further adjustment and without reduction of the Purchase
Price, and at the Closing, Seller shall assign, transfer, and set over to
Purchaser all of the right, title, and interest of Seller in and to any awards
that have been or that may thereafter be made for such taking.
18. Damage or Destruction. If any of the Improvements shall be
---------------------
destroyed or damaged prior to the Closing, and the estimated cost of repair or
replacement exceeds One Hundred Thousand Dollars ($100,000.00) or if the Lease
shall terminate as a result of such damage, Purchaser may, by written notice
given to Seller within twenty (20) days after receipt of written notice from
Seller of such damage or destruction, elect to terminate this Agreement, in
which event the Xxxxxxx Money shall immediately be returned by Escrow Agent to
Purchaser and except as expressly provided herein to the contrary, the rights,
duties, obligations, and liabilities of all parties hereunder shall immediately
terminate and be of no further force or effect. If Purchaser does not elect to
terminate this Agreement pursuant to this Paragraph
-21-
18, or has no right to terminate this Agreement (because the damage or
destruction does not exceed $100,000.00 and the Lease remains in full force and
effect), and the sale of the Property is consummated, Purchaser shall be
entitled to receive all insurance proceeds paid or payable to Seller by reason
of such destruction or damage under the insurance required to be maintained by
Seller pursuant to Paragraph 9(d) hereof (less amounts of insurance theretofore
received and applied by Seller to restoration). If the amount of said casualty
or rent loss insurance proceeds is not settled by the date of Closing, Seller
shall execute at Closing all proofs of loss, assignments of claim, and other
similar instruments to ensure that Purchaser shall receive all of Seller's
right, title, and interest in and under said insurance proceeds.
19. Hazardous Substances. Seller hereby warrants and represents, to
--------------------
the best of Seller's knowledge that, except as may be disclosed in that certain
Phase I Environmental Assessment dated February 18, 1999, revised March 5, 1999
performed by A&M Engineering and Environmental Services, Inc., Project No. 1659-
001, (I) no "hazardous substances", as that term is defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601, et. seq., the Resource Conservation and Recovery Act, as
-- ---
amended, 42 U.S.C. Section 6901 et. seq., and the rules and regulations
-- ---
promulgated pursuant to these acts, any so-called "super-fund" or "super-lien"
laws or any applicable state or local laws, nor any other pollutants, toxic
materials, or contaminants have been or shall prior to Closing be discharged,
disbursed, released, stored, treated, generated, disposed of, or allowed to
escape on the Property, (ii) no asbestos or asbestos containing materials have
been installed, used, incorporated into, or disposed of on the Property, (iii)
no polychlorinated biphenyls are located on or in the Property, in the form of
electrical transformers, fluorescent light fixtures with ballasts, cooling oils,
or any other device or form, (iv) no underground storage tanks are located on
the Property or were located on the Property and subsequently removed or filled,
(v) no investigation, administrative order, consent order and agreement,
litigation, or settlement with respect to Hazardous Substances is proposed,
threatened, anticipated or in existence with respect to the Property, and (vi)
the Property has not previously been used as a landfill, cemetery, or as a dump
for garbage or refuse. Seller hereby indemnifies Purchaser and holds Purchaser
harmless from and against any loss, cost, damage, liability or expense due to or
arising out of the breach of any representation or warranty contained in this
Paragraph.
20. Assignment. Purchaser's rights and duties under this Agreement
----------
shall not be assignable except to an affiliate of Purchaser without the consent
of Seller which consent shall not be
-22-
unreasonably withheld.
21. Broker's Commission. Seller has by separate agreement agreed to
-------------------
pay a brokerage commission to First Fidelity Mortgage Corp.(the "Broker").
Purchaser and Seller hereby represent each to the other that they have not
discussed this Agreement or the subject matter hereof with any real estate
broker or agent other than Broker so as to create any legal right in any such
broker or agent to claim a real estate commission with respect to the conveyance
of the Property contemplated by this Agreement. Seller shall and does hereby
indemnify and hold harmless Purchaser from and against any claim, whether or not
meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Seller, including any claim asserted by Brokers and any
broker or agent claiming under Broker. Likewise, Purchaser shall and does
hereby indemnify and hold harmless Seller from and against any claim, whether or
not meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Purchaser, except any such claim asserted by Broker and
any broker or agent claiming under Brokers. This Paragraph 21 shall survive
the Closing or any termination of this Agreement.
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. Xxx X. Xxxxx, III
with a copy to: X'Xxxxxxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxxxx, X. X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. X'Xxxxxxxxx, Esq.
SELLER: c/o TOLD Development Company
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
with a copy to : c/o TOLD Development Company
-23-
00000 Xxxxxxx Xxxxx, Xxxxx #000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Any notice or other communication mailed as hereinabove provided shall be deemed
effectively given or received on the date of delivery, if delivered by hand or
by overnight courier, or otherwise on the third (3rd) business day following the
postmark date of such notice or other communication.
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.
25. Indemnities. Seller hereby agrees to indemnify, defend and hold
-----------
Purchaser free and harmless of and from any and all claims of any kind or
nature, arising out of or based on any failure of Seller to perform all
obligations of Seller in accordance with the Lease or any contracts or permits
relating to the construction, ownership, operation, leasing of the Improvements
(or any event by Seller or condition that, after notice or the passage of time,
or both, would constitute a breach, default or violation by Seller) under any of
the foregoing arising on or prior to the Closing Date, or any personal injury or
property damage (other than damage to the Land, the building or the building
equipment) occurring in, on or about the Improvements before the Closing Date,
except to the extent any of the foregoing shall be expressly assumed by
Purchaser pursuant to the provisions hereof. With respect to any liabilities or
obligations which, after the Closing Date, are the liabilities or obligations of
Purchaser under the provisions of this Agreement, or which have been expressly
assumed in writing by Purchaser, or which arise solely as a result of the acts
of Purchaser, Purchaser shall indemnify, defend, and hold Seller, free and
harmless from any and all claims in connection therewith.
26. 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,
-24-
pursuant to, or by reason of this Agreement for a period of one year from
Closing except with respect to paragraph 19 which shall survive for an unlimited
time.
27. Severability. This Agreement is intended to be performed in
------------
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules, and regulations. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent permitted
by law.
28. 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.
29. General Provisions. No failure of either party to exercise any
------------------
power given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon the parties
hereto unless such amendment is in writing and executed by all parties hereto.
The provisions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, legal representatives,
successors, and assigns. Time is of the essence of this Agreement. This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one and
the same agreement. The headings inserted at the beginning of each paragraph are
for convenience only, and do not add to or subtract from the meaning of the
contents of each paragraph. This Agreement shall be construed and interpreted
under the laws of the State of Oklahoma. 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
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and vice versa.
30. 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.
31. Duties as Escrow Agent. In performing its duties hereunder, Escrow
----------------------
Agent shall not incur any liability to anyone for any damages, losses
or expenses, except for its gross negligence or willful misconduct,
and it shall accordingly not incur any such liability with respect to
any action taken or omitted in good faith upon advice of its counsel
or in reliance upon any instrument, including any written notice or
instruction provided for in this Agreement, not only as to its due
execution and the validity and effectiveness of its provision, but
also as to the truth and accuracy of any information contained therein
that Escrow Agent shall in good faith believe to be genuine, to have
been signed or presented by a proper person and to conform to the
provisions of this Agreement. Seller and Purchaser hereby agree to
indemnify and hold harmless Escrow Agent against any and all losses,
claims, damages, liabilities and expenses, including reasonable costs
of investigation and legal fees and disbursements, that may be imposed
upon Escrow Agent or incurred by Escrow Agent in connection with its
acceptance or performance of its duties hereunder as escrow agent,
including without limitation, any litigation arising out of this
Agreement. If any dispute shall arise between Seller and Purchaser
sufficient in the discretion of Escrow Agent to justify its doing so,
Escrow Agent shall be entitled to tender into the registry or custody
of the clerk of the Court for the county in which the Property is
located or the clerk for the United States District Court having
jurisdiction over the county in which the Property is located, any or
all money (less any sums required to pay Escrow Agent's attorneys'
fees in filing such action), property or documents in its hands
relating to this Agreement, together with such pleadings as it shall
deem appropriate, and thereupon be discharged from all further duties
under this Agreement. Seller and Purchaser shall bear all costs and
expenses of any such legal proceedings.
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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":
MERIDIAN TULSA L.L.C.,
an Oklahoma limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
Its: Manager
"PURCHASER":
XXXXX CAPITAL, INC.
By: /s/ Xxx X. Xxxxx
---------------------------------
Its: President
---------------------------------
"ESCROW AGENT":
AMERICAN GUARANTY TITLE COMPANY
By: /s/ ILLEGIBLE
---------------------------------
Its: Sr. Vice President
---------------------------------
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Schedule of Exhibits
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Exhibit "A" - Description of Land
Exhibit "B" - Contracts
Exhibit "C" - Copy of Lease
Exhibit "D" - List of Plans and Specifications
Exhibit "E" - Form of Initial Tenant Estoppel Certificate
Exhibit "F" - Form of Final Tenant Estoppel Certificate
Exhibit "G" - Schedule of Insurance Policies
Exhibit "H" - Survey Requirements
Exhibit "I" - Xxxx of Sale Form
Exhibit "J" - Blanket Transfer and Assignment Form
Exhibit "K" - Assignment and Assumption of Lease Form
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EXHIBIT "A"
LEGAL DESCRIPTION
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EXHIBIT "A"
-----------
Beginning at the Northwest corner of Xxx 0, Xxxxx 0 of the AmberJack
Subdivision, an addition to the City of Tulsa, Tulsa County, Oklahoma. According
to the recorded plat thereof; thence along a curve to the left, having a central
angle of 25-02-41 and a radius of 384.0 feet, a distance of 167.85 feet; thence
S 89-55-46 E, a distance of 233.89 feet; thence along a curve to the left,
having a central angle of 06-37-00 and a radius of 1022.0 feet, a distance of
118.02 feet; thence N 83-27-14 E, a distance of 136.06 feet; thence along a
curve to the right, having a central angle of 06-37-00 and a radius of 978.0
feet, a distance of 112.94 feet; thence S 89-55-46 E, a distance of 62.16 feet;
thence along a curve to the right, having a central angle of 90-00-00 and a
radius of 30.0 feet, a distance of 47.12 feet; thence S 00-04-14 W, a distance
of 818.30 feet to the Southeast corner of said Lot 2; thence S 00-04-14 W, a
distance of 255.06 feet; thence N 89-55-39 W, a distance of 40.76 feet; thence
along a curve to the right, having a central angle of 64-20-01 and a radius of
150.0 feet, a distance of 168.43 feet; thence N 25-35-38 W, a distance of 61.30
feet; thence along a curve to the left, having a central angle of 30-52-07 and a
radius of 350.0 feet, a distance of 188.57 feet; thence N 56-27-45 W, a distance
of 457.44 feet; thence along a curve to the right, having a central angle of
45-52-49 and a radius of 225.0 feet, a distance of 180.17 feet; thence N
10-34-56 W, a distance of 235.91 feet; thence N 25-32-15 E, a distance of 50.89
feet; thence N 10-34-56 W, a distance of 156.31 feet to the point of beginning.
Containing 14.641 acres, more or less.
EXHIBIT "B"
LIST OF CONTRACTS
-----------------
1. Standard form of Agreement between Owner and Architect - Meridian
Properties Real Estate Development LLC, as Owner, KKE Architects, as
Architect dated August 8, 1998 (Consent of Architect necessary for
assignment).
2. Standard form of Agreement between Owner and Contractor (with GMAX) between
Meridian Tulsa L.L.C. (Owner) and Manhattan Construction Company,
Contractor dated February 26, 1999.
