CONTRACT OF SALE
between
DERMOT BIG CURVE, LLC
SELLER
AND
UNITED INVESTORS REALTY TRUST
BUYER
pertaining to the sale and purchase of
Big Curve Shopping Center
Yuma, Arizona
CONTRACT OF SALE
----------------
This Contract of Sale (the "Contract") is made and entered into by and
between DERMOT BIG CURVE, LLC an Arizona limited liability company, having its
principal office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxx, Xxxxxxxxxx 00000 ("Seller"),
and UNITED INVESTORS REALTY TRUST, a Texas real estate investment trust having
its principal office at 0000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000
("Buyer").
ARTICLE I
DEFINED TERMS
1.1 Definitions. As used herein, the following terms shall have the
meanings set forth below:
"Anchor Tenant" means any Tenant at the Project listed on Exhibit "J"
attached hereto.
"Business Day" means any day other than a Saturday or Sunday on which
Federal Savings Banks in Yuma, Arizona are open for business.
"Closing" means consummation of the purchase of the Project by Buyer from
Seller in accordance with the terms and conditions of Article VIII.
"Closing Date" means the date specified in Section 8.1 on which the Closing
will be held.
"Contract Date" means the later of the two dates set forth immediately
above each of the signatures of the parties hereto, on the signature page
hereof.
"Delivery Date" means the date specified in Section 5.2(a).
"Xxxxxxx Money Deposit" means the moneys deposited by Buyer in escrow with
the Title Company at the time and in the amount specified in Section 3.2. ,
"Improvements" means the neighborhood shopping center (the "Shopping Center")
known as Big Curve Shopping Center (excluding the Albertsons, Western Warehouse
and Michaels parcels), containing approximately 126,402 square feet of improved
retail space, located in Yuma, Arizona, the fixtures and other improvements now
or hereafter situated upon the tract of land described on Exhibit "A".
"Inspection Period" means the period commencing on the Contract Date and
ending 30 days thereafter.
"Land" means that certain tract of land located in Yuma County, Arizona,
and being more fully described on Exhibit "A", together with all rights
appurtenant thereto.
"Leases" means all currently effective leases for space in the
Improvements, including all amendments and modifications thereto and any and all
other agreements with Tenants.
"Permitted Exceptions" means those exceptions or conditions that affect or
may affect title to the Project that are approved or deemed to be approved by
Buyer in accordance with Section 4.3 or Section 4.4.
"Personal Property" means (a) all tangible personal property owned by
Seller and located on, attached to, and used in connection with, the operation
of the Real Property (but not including any tangible personal property owned or
leased by Tenants), (b) Seller's interest in all personal property leases,
licenses, permits, plans, studies, and utility arrangements with respect to the
Real Property, (c) Seller's interest in all service, maintenance, management or
other contracts relating to the ownership or operation of the Real Property, and
(d) Seller's interest in all warranties and guaranties, if any, relating to the
Real Property.
"Project" means, collectively, the Real Property, the Leases, and the
Personal Property for the Shopping Center.
"Purchase Price" means the total consideration to be paid by Buyer to
Seller for the purchase of the Project.
"Real Property" means the Land and the Improvements for the Shopping
Center.
"Rent Roll" means a schedule for the Project identifying the Tenants at the
Project and providing certain information with respect to the Leases in
accordance with Section 5.2 (a)(i).
"Tenants" means those persons holding rights as tenants of the Shopping
Center.
"Title Company" means Chicago Title Insurance Company, whose address is
0000 Xxxxxx Xxx Xxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxx Xxxxxxxx, Escrow Officer.
"Trade Name" means the name "Big Curve Shopping Center", as well as any
other name utilized in conjunction with the operation of the Project.
1.2 Other Defined Terms. Certain other defined terms shall have the
respective meanings assigned to them elsewhere in this Contract.
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ARTICLE II
AGREEMENT OF PURCHASE AND SALE
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On the terms and conditions stated in this Contract, Seller hereby agrees
to sell and convey to Buyer, and Buyer hereby agrees to purchase and acquire
from Seller, the Project.
ARTICLE III
PURCHASE PRICE
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3.1 Purchase Price. The Purchase Price (herein so called) to be paid by
Buyer to Seller equals Eight Million Nine Hundred Thousand and No/100 Dollars
($8,900,000.00). The Purchase Price, net of all prorations set forth in this
Contract, shall be payable to Seller as follows:
(a) $150,000.00, as an xxxxxxx money deposit (the "Xxxxxxx Money
Deposit"), shall be deposited by Buyer in cash or by cashier's check or
wire transfer of cash credit with Title Company simultaneously upon Buyer's
execution of this Contract and shall be paid to Seller at Closing;
(b) Approximately $5,977,122.00 shall be paid by Buyer to Seller in
the form of Buyer's assumption of the existing promissory note and deed of
trust on the Project (the "Existing Loan"), in favor of Liberty Mortgage
Acceptance Corporation or its successors or assigns (the "Existing
Lender"), in accordance with Section 3.3 below; and
(c) The remainder of the Purchase Price (which shall be adjusted based
on the actual amount of the Existing Loan at Closing) shall be deposited by
Buyer in cash or by wire transfer of cash credit with Title Company on or
before to the Closing Date and shall be paid to Seller at Closing.
3.2 Xxxxxxx Money Deposit. The Xxxxxxx Money Deposit shall be invested in
short-term commercial paper having a maturity of thirty (30) days or less and
rated P-1 by Xxxxx'x Investor Service, Inc. or A-1 by Standard & Poor's Corp.,
or in some other interest-bearing investment acceptable to the Buyer and Seller.
All interest earned thereon shall become part of the Xxxxxxx Money Deposit. If
the purchase and sale hereunder are consummated in accordance with the terms and
conditions hereof, the Xxxxxxx Money Deposit shall be applied to the Purchase
Price at the Closing. After expiration of the Inspection Period, the Xxxxxxx
Money Deposit shall be non-refundable to Buyer.
3.3 Assumption of Existing Loan. Buyer understands that the sale
transaction contemplated herein is contingent upon Buyer qualifying and being
approved by Existing Lender for the assumption of the Existing Loan and upon
Seller being released from all obligations and liability thereunder. Buyer shall
pay all application fees, assumption fees, title insurance premiums and all
other costs, fees and expenses relating to the assumption of the Existing Loan,
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regardless of whether the Closing occurs. Buyer agrees to provide to Existing
Lender, within five (5) days after the date hereof, that information listed on
Exhibit "B" hereto with respect to the assumption of the Existing Loan.
Thereafter, Buyer will provide any other information Existing Lender deems
pertinent to the financial condition of Buyer within five (5) days after
Existing Lender requests such information and in the format required by Existing
Lender. Buyer agrees that Existing Lender may determine the suitability of
Buyer's creditworthiness based upon standards that Existing Lender determines
are appropriate. Existing Lender may seek any other information it deems
necessary or required from any source Existing Lender may choose. Buyer
understands that if such information is not provided in the 5-day periods
described above, Seller shall have the right to terminate this Agreement
immediately upon notice to Buyer and Escrow Agent. Buyer's obligation to pay all
fees, costs and expenses associated with the assumption of the Existing Loan
shall survive the Closing or any termination of this Agreement.
3.4 Escrow Instructions. The parties shall deliver to Title Company an
executed copy of this Contract, which shall constitute the sole instructions to
Title Company. Buyer and Seller may elect, in their sole discretion, to execute
preprinted escrow instructions; provided that in the event of any conflict
between the preprinted escrow instructions and the provisions of this Contract,
the provisions of this Contract shall control.
ARTICLE IV
TITLE AND SURVEY AND INSPECTION
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4.1 Title Commitment. Within three (3) days after the Contract Date, Seller
shall order, at its sole cost and expense, a current commitment for Title
Insurance for the Project (the "Title Commitment"), which Title Commitment shall
be furnished to Buyer. The Title Commitment shall contain the express commitment
of the Title Company to issue a standard coverage ALTA owner's title insurance
policy to the extent permitted by Arizona law for the Project, which shall
otherwise be in form and content satisfactory to Buyer. The Title Commitment
shall be accompanied by legible copies of all instruments that create or
evidence title exceptions affecting the Real Property.
4.2 Survey. Within three (3) days after the Contract Date, Seller shall
deliver to Buyer the existing survey for the Project in its possession. The
existing survey is the survey dated as of September 4, 1996, prepared by
Nicklaus Engineering, Inc. for the Project (as may be updated, the "Survey").
Buyer shall be responsible for any updates to the Survey requested by Buyer or
Existing Lender.
4.3 Review of Title Commitment and Survey. Buyer shall have until the
expiration of the Inspection Period (the "Title Review Period") in which to
review the Title Commitment and the Survey and give written notice to Seller
specifying Buyer's objections to any matters shown on the Title Commitment or
Survey, if any, that would materially and adversely affect Buyer's contemplated
use of the Project as a retail shopping center or to which Existing Lender
objects (the "Objections"). Any Objections shall specify in reasonable detail
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the manner in which any matter materially and adversely affects Buyer's
contemplated use of the Project or to which Existing Lender objects. If Buyer
shall fail to give written notice of Objections to Seller prior to the
expiration of the Title Review Period, then Buyer shall be deemed to have
approved the condition of title and all exceptions to title shown on the Title
Commitment and Survey shall be deemed to be Permitted Exceptions.
4.4 Seller's Obligation to Cure; Buyer's Right to Terminate. If Buyer shall
have timely notified Seller in writing of Objections to the Title Commitment or
Survey, then Seller may, but shall not be obligated to, at any time prior to the
expiration of the Inspection Period (the "Cure Period"), give written notice
("Seller's Title Cure Notice") to Buyer of Seller's intention to satisfy the
Objections prior to the Closing Date. If Seller fails to timely give Buyer the
Seller's Title Cure Notice, then Buyer shall have the option, on or before the
expiration of the Inspection Period, to either (i) waive the unsatisfied
Objections, in which event those unsatisfied Objections shall become Permitted
Exceptions, or (ii) terminate this Contract, in which event the Xxxxxxx Money
Deposit shall be returned to Buyer and Seller and Buyer shall have no further
obligations, one to the other, with respect to the subject matter of this
Contract, except as otherwise set forth herein. If Buyer does not terminate this
Contract before the Inspection Period, then Buyer shall be deemed to have waived
the unsatisfied Objections, in which event they shall become Permitted
Exceptions.
4.5 Title Policies. At the Closing, Title Company shall issue to Buyer a
standard coverage ALTA owner's title insurance policy (the "Owner's Title
Policy"). The Owner's Title Policy shall insure that Buyer has good and
indefeasible fee simple title to the Project, subject only to the Permitted
Exceptions. The Owner's Title Policy shall contain no exceptions, other than (i)
rights of tenants in possession, as tenants only, (ii) visible and apparent
easements as shown on the Survey, and (iii) Permitted Exceptions. The basic
premium for the ALTA standard coverage shall be paid by Seller or, at Buyer's
option, the cost of the Owner's Title Policy shall be credited against the
Purchase Price, in which event the requirement for title insurance shall be
waived. At Buyer's option and cost, Title Company shall deliver an extended
coverage policy, together with such endorsements as Buyer may require, so long
as the Closing is not delayed and Buyer pays the incremental increase to the
premium for such policy. The tax exception shall be limited to taxes for the
year of Closing and subsequent years not yet due and payable and subsequent
assessments for prior years due to change in land usage or ownership.
4.6 Inspection.
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(a) Buyer shall have the right during the Inspection Period, to
conduct, and Buyer shall be responsible for, such examinations, studies,
tenant credit checks, appraisals, inspections, engineering, environmental
and insurance underwriting tests and investigations (the "Inspections") of
the Project and the assumption of the Existing Loan as Buyer may deem
advisable. Buyer shall comply with all federal, state and local laws which
in any way relate to the Inspection. Such Inspections shall include,
without limitation, review of current operating statements, operating
statements for the prior calendar year, current rent roll, true copies of
the latest real estate tax bills, true and complete
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copies of all service contracts affecting the Project, and any and all
other contracts and agreements relating to the Project. Buyer's conduct
upon the Project shall not disrupt the normal operation of the business
upon the Project at any time, and Buyer shall promptly restore the Project
after any such entry. Buyer shall, on demand by Seller, defend, hold
harmless, reimburse and indemnify Seller from, for, of and against any and
all direct and indirect, known and unknown, obligations, actions,
liabilities, judgments, claims, demands, losses, including consequential
losses, damages, costs, including costs of defense, expenses and fees
(including reasonable attorneys' fees and costs) arising from or relating
to the Inspections or any restoration of the Project, except to the extend
arising directly from the gross negligence or wilful misconduct of Seller.
Buyer's indemnification obligations set forth herein shall survive the
Closing and any termination of this Contract. Seller shall reasonably
cooperate with Buyer in making available the Project for Buyer's
Inspections, including any and all non-confidential books and records
relating thereto in Seller's possession. Buyer may also reinspect the
Project prior to Closing to verify that the Project has remained in the
same physical shape, ordinary wear and tear excepted, as the Project was
during the Inspection Period, subject to all the conditions and obligations
of Buyer set forth above with respect to the initial Inspection.
(b) If Buyer determines, in Buyer's sole and absolute discretion, that
the Project is not suitable for Buyer's contemplated purposes, then Buyer
shall be entitled to terminate this Contract by written notice delivered to
Seller and Title Company at any time on or before the expiration of the
Inspection Period. If Buyer fails to notify Seller and Escrow Agent prior
to the expiration of the Inspection Period that the Project is suitable for
Buyer's contemplated purposes and Buyer intends to continue with this
Contract, then Buyer shall be deemed to have terminated this Contract
pursuant to this Section. In the event of such termination by Buyer, the
Xxxxxxx Money Deposit shall be refunded to Buyer and the parties hereto
shall have no further obligations to each other under this Contract except
as otherwise set forth in this Contract. After expiration of the Inspection
Period, the Xxxxxxx Money Deposit shall be non-refundable to Buyer. If
Buyer fails to consummate this transaction, Buyer shall promptly deliver to
Seller true and current copies of all data, reports, analyses, pro formas,
test results, studies and other non-confidential documents generated by the
Inspection or otherwise in Buyer's possession pertaining to the Project.
ARTICLE V
REPRESENTATIONS, WARRANTIES, COVENANTS,
AND AGREEMENTS OF SELLER
5.1 Representations and Warranties of Seller. Seller's representations and
warranties set forth in this Contract are true and correct in all material
respects as of the Contract Date and will be true and correct in all material
respects on the Closing Date except as otherwise disclosed to Buyer. Such
representations and warranties shall survive the Closing for a period of six (6)
months only and shall not be merged therein. Seller hereby represents and
warrants to Buyer as follows:
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(a) Seller has the full right, power, and authority to sell and convey
to Buyer the Project as provided in this Contract and to carry out Seller's
obligations hereunder, and all requisite action necessary to authorize
Seller to enter into this Contract and to carry out Seller's obligations
hereunder has been, or on the Closing Date will have been, taken.
(b) To Seller's knowledge, there are no adverse or other parties in
possession of the Project, or of any part thereof as lessees, tenants at
sufferance, or trespassers, except Tenants referenced in the Rent Roll to
be delivered pursuant to Section 5.2(a)(i).
(c) The Service Contracts (as defined in Section 5.2(a)(v) below),
Leases and other agreements delivered to Buyer pursuant to this Contract
constitute all contracts, leases or agreements affecting the Project (and
the ownership and use thereof). To Seller's knowledge, the Ownership
Documents delivered pursuant to Section 5.2(a) herein are true and correct
copies of the originals and no other amendments or modifications exist
thereto.
(d) The executed Leases, which are to be delivered by Seller to Buyer
at Buyer's principal office in accordance with the terms of this Contract,
are true and correct copies of all the Leases. No Leases shall be further
modified or amended without the prior written consent of Buyer, which
consent shall not be unreasonably withheld. Except as reflected on the
current Rent Roll to be delivered to Buyer pursuant to the provisions of
Section 5.2(a)(i) below, no Tenant has given Seller notice of its intention
to vacate its leased premises prior to the end of the primary term (or any
current renewal or extended term). To Seller's knowledge, all of the Leases
are in full force and effect without current default by Seller or the
respective Tenants, except as otherwise disclosed to Buyer.
(e) To Seller's knowledge, the Rent Roll and Service Contracts
delivered by Seller to Buyer are true and correct in all material respects
and there are no omissions of any material facts relating thereon.
(f) To Seller's knowledge, Seller has not received any written notice
that the Project is in violation of any applicable laws, rules, regulations
or ordinances.
(g) To Seller's knowledge, Seller has not received any written notice
of any pending condemnation action with respect to all or any portion of
the Project.
(h) To Seller's knowledge, there is no pending litigation affecting
the Project other than as incurred in the normal course of business and
with respect to which Seller's insurance underwriter is responsible, except
as disclosed to Buyer prior to the expiration of the Inspection Period.
(i) Seller is not a foreign person or entity pursuant to the Foreign
Investment in Real Property Tax Act or the Tax Reform Act of 1986, and
Buyer is not obligated to withhold any portion of the Purchase Price for
the benefit of the Internal Revenue Service.
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As used herein, the term "Seller's knowledge" shall mean the current, actual
knowledge of Xxxxxxx Xxxxx, an officer of the manager of Seller, without any
imputation of knowledge or any duty of inquiry whatsoever.
5.2 Covenants and Agreements of Seller. Seller covenants and agrees with
Buyer as follows:
(a) Within ten (10) business days following the Contract Date (the
"Delivery Date"), Seller shall deliver or make available during the
Inspection Period to Buyer the following items to the extent in Seller's
possession or control (the "Ownership Documents") with respect to the
Project:
(i) Current Rent Roll, accounts receivable report, amortization
of fees and commissions and operating statements for the Project,
which shall set forth with respect to each Tenant the following;
(A) the name and street or unit number of the Tenant;
(B) the term of the Tenant's Lease, its commencement and
expiration dates, any renewal terms or extensions and the base
rent and percentage rent, if any, payable thereunder;
(C) the amount of monthly base rent and the percentage
amount of percentage rent, if any, payable by and portion of the
Project's CAM and real estate taxes and insurance premiums
recoverable from each Tenant and any other payments for which
such Tenant is liable;
(D) amount of prepaid rent and the amount of refundable
security and other deposits due under the Lease and held by
Landlord;
(E) the amount of any ongoing Lease commission obligations,
if any, and to whom such commission is owed and copies of all
brokerage commission agreements relating to the Leases;
(F) any uncured defaults and the amounts of any unpaid
rents, percentage rents, and other payments past due thereunder;
(G) the amount of any offsets or credits against rental, if
any; and
(H) any concessions granted to the Tenant, including,
without limitation, free rent, rental rebates or credits, lease
take-over arrangements, cash payments, and moving allowances;
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(ii) Copies of any engineering reports, soil reports or current
certificates of occupancy for the Project;
(iii) A schedule setting forth property and liability insurance
coverage on or affecting the Project and the current premiums therefor
together with a brief summary of all claims made against the Project's
insurance policies since January 1, 1996;
(iv) Copy of the most recent or current real estate and personal
property tax bills or other documentation showing the amount of
current real property taxes and the assessed value of the Project;
(v) Copies of all existing service, maintenance, operations, and
management and other contracts relating to the management, operation
or maintenance of the Project (the "Service Contracts"), and any
commission agreements affecting the Project;
(vi) Copies of operating income and expense statements with
respect to the Project for calendar years 1996 and 1997 and for
year-to-date 1998;
(vii) A brief summary of all capital expenditures for the Project
for the calendar years 1996 and 1997 and for year-to-date 1998; and
(viii) True and complete copies of all Leases, including all
amendments, extensions and modifications thereof.
All materials delivered by Seller to Buyer pursuant to this Section 5.2(a) shall
be held in confidence by Buyer and disclosed only to its attorneys, accountants,
and prospective lenders and securities underwriters and their respective
attorneys. If the parties fail to consummate the transaction described herein
for any reason other than the Seller's default, Buyer shall return to Seller all
materials delivered by or on behalf of Seller pursuant to or in connection with
this Contract.
(b) From the Contract Date until the Closing Date, Seller undertakes
and agrees, with respect to the Project, that it will:
(i) Operate and maintain the Project as currently operated in its
current condition and in accordance with all applicable laws;
(ii) Following the expiration of the Inspection Period, not
terminate or modify any Lease or commence any judicial action against
any Tenant other than in the normal course of business without the
prior written consent of Buyer, which consent shall not be
unreasonably withheld;
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(iii) Following the expiration of the Inspection Period, not
execute any new lease or agree to the terms of any lease renewal
without the prior written consent of the Buyer, which consent shall
not be unreasonably withheld;
(iv) Promptly notify Buyer in writing of any notice received from
a Tenant of its election to vacate its leased premises or terminate
its Lease, or of any election by Seller to terminate any Lease or
commence any judicial action against any Tenant;
(v) Not sell, exchange, transfer, assign, convey or encumber or
otherwise dispose of all or any part of the Project or any interest
therein except with respect to a 1031 exchange as set forth in Section
12.9, nor shall Seller remove any Personal Property unless Seller
shall replace the removed items with similar items of comparable
quality;
(vi) Maintain the Project in its existing condition, subject to
normal wear and tear;
(vii) There will be no rental or other concessions of any nature
granted to any Tenant other than those set forth in the Leases and on
the Rent Roll delivered to Buyer pursuant to Section 5.2 (a)(i),
above;
(viii) Not, without the prior written consent of the Buyer, which
consent shall not be unreasonably withheld, enter into or modify any
Service Contracts which are not terminable without cause on or before
the Closing Date; or
(ix) Not, without the prior written consent of Buyer, which
consent shall not be unreasonably withheld, consent to any assignment
or sublease or other encumbrance by a Tenant of its interest, or any
part thereof, in its Lease, except as may be permitted or required by
the terms of the Lease.
5.3 Agreements Concerning Existing Loan.
(a) Seller agrees to reasonably cooperate with Buyer, at no cost or
liability to Seller, in connection with Buyer's assumption of the Existing
Loan as set forth herein.
(b) Buyer agrees to pay to Existing Lender any transfer fee or other
costs charged by Existing Lender, in connection with its agreement and
consent to permit the transfer of the Project to the Buyer as set forth
herein.
(c) Seller shall not, at any time, either prior to or after Closing,
alter, renew, rearrange, restructure or refinance any indebtedness
evidenced by the Existing Loan or modify the Existing Loan or any
instrument securing the Existing Loan, without the prior written consent of
Buyer; and Seller shall neither accept nor request any extension,
postponement, indulgence or forgiveness of the Existing Loan or the
indebtedness evidenced thereby, without the prior written consent of Buyer.
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ARTICLE VI
REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS OF BUYER
6.1 Buyer represents, warrants, covenants, and agrees with, Seller as of
the Contract Date, that Buyer has the full right, power, and authority to
purchase the Project from Seller as provided in this Contract and to carry out
Buyer's obligations under this Contract, and all requisite action necessary to
authorize Buyer to enter into this Contract and to carry out Buyer's obligations
hereunder has been, or on the Closing Date will have been, taken.
6.2 No Contracts. Buyer represents, warrants, covenants, and agrees with,
Seller, as of the Contract Date, that Buyer is not a party to any contracts or
other obligations for the sale, exchange or transfer of the Project or any
portion thereof.
6.3 "AS IS" Condition. Except as otherwise specifically set forth herein,
Buyer acknowledges and agrees that Seller makes no representations and
warranties, express or implied, including, without limitation, any warranties of
habitability, good and workmanlike construction, suitability and fitness for
intended purpose, with respect to any aspect of the Project. Buyer is purchasing
the Project strictly in "AS IS" condition. Buyer accepts and agrees to bear all
risks regarding all attributes and conditions, latent or otherwise of the
Project. Buyer has made or will make prior to the Closing its own inspection and
investigation of the Project and surrounding area, including, without
limitation, its subsurface, soil, engineering and other conditions and
requirements, whether there are any eminent domain or other public or
quasi-public takings of the Project contemplated, and all zoning and regulatory
matters pertinent to the Project and to the present use or occupancy of the
Project. Buyer is entering into this Contract and purchasing the Project based
upon its own inspection and investigation and not in reliance on any statement,
representation, inducement or agreement of Seller except as specifically
provided herein. Buyer agrees that neither Seller nor anyone acting on behalf of
Seller has made any representation, guarantee or warranty whatsoever, either
written or oral, concerning the Project except as specifically set forth herein.
Any engineering data, soils reports, or other information that Seller or any
other party may have delivered to Buyer, including without limitation the
Ownership Documents, is furnished without any representation or warranty
whatsoever. Except as otherwise specifically set forth herein, Seller shall have
no responsibility, liability or obligation following the Closing relating to any
conditions whatsoever respecting in any way the Project, and Buyer hereby
releases Seller, its officers, directors, employees and agents with respect to
such conditions. In particular, but without in any way limiting the foregoing,
Buyer hereby releases Seller from any and all responsibility, liability and
claims for or arising out of the presence on or about the Project or any
property in the vicinity of the Project (including in the soil, air, structures
and surface and subsurface water) of materials, wastes or substances that are or
become regulated under, or that are or become classified as toxic or hazardous,
under any Environmental Law, including, without limitation, petroleum, oil,
gasoline or other petroleum products, byproducts or waste. As used herein,
"Environmental Law" shall mean, as amended and in effect from time to time, any
federal, state or local statute, ordinance, rule, regulation, judicial decision,
or the judgment or decree of a governmental authority, arbitrator or other
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private adjudicator by which Buyer or the Project is bound, pertaining to
health, industrial hygiene, occupational safety or the environment, including,
without limitation, the Comprehensive Environmental Response, Compensation &
Liability Act of 1980, the Resource, Conservation & Recovery Act of 1976, and
the Arizona Environmental Quality Act, Title 49, Arizona Revised Statutes, and
all rules adopted and guidelines promulgated pursuant to the foregoing.
ARTICLE VII
CONDITIONS PRECEDENT TO PERFORMANCE
7.1 Conditions Precedent to Buyer's Obligations. Buyer shall not be
obligated to consummate the transaction described in this Contract unless:
(a) Seller shall have furnished or caused to be furnished or made
available to Buyer all of the items required to be furnished by Seller
under Section 5.2(a);
(b) Seller shall have performed in all material respects all of the
agreements, covenants and obligations contained in this Contract to be
performed or complied with by Seller on or prior to the Closing Date;
(c) All representations and warranties made by Seller hereunder shall
be true, complete and accurate in all material respects as of the Closing
Date; and
(d) Tenant Estoppel Certificates in the form attached hereto as
Exhibit "I" or such other form as required in each of the Leases shall have
been received by Buyer from (i) all of the Anchor Tenants, and (ii) at
least 75% (by square footage at the Project), of all Tenants at the
Project, which Estoppel Certificates shall confirm the information set
forth on the Rent Roll delivered (A) as part of the Ownership Documents, as
modified to reflect any non-substantive changes thereto, or (B) with
respect to Tenants who have executed new leases since the Contract Date, as
reflected on the Rent Roll to be delivered in connection with the Closing;
and as to the remaining 25% of the Tenants, either Tenant Estoppel
Certificates in the form required in the applicable Leases have been
received by Buyer or Seller has certified to Seller's knowledge the same
information set forth in such Estoppel Certificates as to such remaining
Tenants.
(e) No Anchor Tenant shall have filed a petition under any section of
the Bankruptcy Code, as amended, and no Anchor Tenant shall have ceased
operations in its space at the Project or shall have notified Seller in
writing of its intention to do so.
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7.2 Conditions Precedent to Seller's Obligations. Seller shall not be
obligated to consummate the transaction described in the Contract unless:
(a) The assumption of the Existing Loan by Buyer representing a
portion of the Purchase Price hereunder pursuant to Section 3.1 above and
the release of Seller from all obligations and liability thereunder; and
(b) Buyer shall have performed in all material respects all of the
agreements, covenants and obligations contained in this Contract to be
performed or complied with by Seller on or prior to the Closing Date; and
(c) All representations and warranties made by Seller hereunder shall
be true, complete and accurate in all material respects as of the Closing
Date.
ARTICLE VIII
CLOSING
8.1 Date and Place of Closing. The Closing (herein so called) of this
transaction shall take place at the offices of the Title Company on or before
twenty (20) days after the end of the Inspection Period (the "Closing Date").
8.2 Items to be Delivered at or Prior to the Closing.
(a) Seller. At the Closing, Seller shall deliver or cause to be
delivered to Buyer or the Title Company, the following items fully executed
and acknowledged where so indicated by all necessary parties in respect to
the Project:
(i) A Special Warranty Deed, duly executed and acknowledged by
Seller, in the form of Exhibit "C";
(ii) The original Leases, or, if any original Leases are not
available, copies of any such Leases certified by Seller as being
true, correct and complete;
(iii) Duplicate originals of an assignment and assumption of
leases (the "Assignment of Leases") in the form attached hereto as
Exhibit "D", duly executed by Seller;
(iv) A xxxx of sale and assignment in the form, attached hereto
as Exhibit "E", duly executed by Seller;
(v) Duplicate originals of an assignment and assumption of
Service Contracts (the "Assignment of Service Contracts") in the form
or substantially the form, attached hereto as Exhibit "F", duly
executed by Seller;
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(vi) An affidavit, in the form, or substantially in the form,
attached as Exhibit "G", in compliance with Section 1445 of the
Internal Revenue Code of 1986, as amended, and any regulations
promulgated thereunder, stating under penalty of perjury the Seller's
United States identification number and that Seller is not a "foreign
person" as that term is defined in Section 1445, duly executed and
acknowledged by Seller;
(vii) A notice of sale in the form, or substantially in the form,
attached hereto as Exhibit "H", (the "Tenant Notice Letter") for each
of the Tenants, duly executed by Seller and Buyer;
(viii) All keys or other access devices in the possession of
Seller or its agents to all locks located at the Project;
(ix) Originals of all Service Contracts, plans, governmental
approvals, and other contracts and agreements in Seller's possession
relating to the ownership and operation of the Project;
(x) A certificate by Seller that the representations and
warranties of Seller set forth in this Contract are true and correct
as of the Closing Date, except as otherwise disclosed to Buyer with
respect to any matters beyond Seller's control;
(xi) Letters to all utility companies advising of the change of
ownership of the Project;
(xii) An Affidavit of Real Property Value; and
(xiii) Any other items reasonably requested by the Title Company
as administrative requirements for consummating the Closing.
At the Closing, Buyer shall have the right to copy all non-confidential books
and records in Seller's possession pertaining to the operation of the Project
for the calendar years 1996 and 1997 and for year-to-date 1998.
(b) Buyer. At the Closing, Buyer shall deliver or cause to be
delivered to Seller or the Title Company, the following items:
(i) The cash sum required by Section 3.1;
(ii) All documents necessary for Buyer's assumption of the
Existing Loan;
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(iii) Duplicate originals of the Assignment of Leases duly
executed by Buyer;
(iv) Duplicate originals of the Assignment of Service Contracts
duly executed by Buyer;
(v) Appropriate evidence of authorization reasonably satisfactory
to Seller and the Title Company for the consummation of the
transaction contemplated by this Contract;
(vi) A certificate by Buyer that the representations and
warranties of Buyer set forth in this Contract are true and correct as
of the Closing Date;
(vii) An Affidavit of Real Property Value; and
(viii) Any other items reasonably requested by the Title Company
as administrative requirements for consummating the Closing.
8.3 Adjustments at Closing. Notwithstanding anything to the contrary
contained in this Contract or applicable law, the provisions of this Section 8.3
shall survive the Closing. All income and obligations attributable to days
preceding the Closing Date shall be allocated to Seller, and all income and
obligations attributable to days from and after the Closing Date shall be
allocated to Buyer. Without limitation upon the foregoing, the following items
shall be adjusted or prorated between Seller and Buyer as set forth below:
(a) Ad valorem and personal property taxes relating to the Project for
the calendar year in which the Closing occurs shall be prorated between
Seller and Buyer as of the Closing Date based upon taxes actually paid by
Seller for the calendar year in which the Closing occurs, if Seller has
paid such taxes prior to Closing, and otherwise upon the ad valorem and
personal property taxes due assuming payment in December of the year of
Closing. If the actual amount of taxes for the calendar year in which the
Closing shall occur is not known as of the Closing Date, the proration
shall be based on the amount of taxes due and payable with respect to the
Project using the latest assessed value and tax rate. All other assessments
affecting the Project, if any, assessed prior to Closing Date, shall be
paid by the Seller and if assessed after the Closing Date, shall be paid by
the Buyer.
(b) Base rents, escalation or reimbursement payments for real estate
and personal property taxes, insurance premiums, CAM or other operating
expenses and charges, payable with respect to the Project for the then
current month shall be prorated as of the Closing Date. Percentage rents
for each Tenant obligated therefor shall be prorated on the basis of the
number of days lapsed during the Tenant's percentage rent period as of the
Closing Date and not on the basis of the amount of the Tenant's sales which
accrued during the current percentage rent period as of the Closing Date.
If the actual amount of percentage rents for the period in which Closing
shall occur is not known as of the Closing Date, the proration shall be
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estimated based on the amount of percentage rents that were due and payable
during the previous percentage rent period, and shall be adjusted between
the parties post-Closing to reflect the actual amounts at the end of the
current percentage rent period. The obligation of the parties to adjust,
post-Closing, the percentage rents shall survive the Closing and any
amounts owed shall be paid by the party responsible therefor within ten
(10) days after written demand therefor has been made. With respect to any
Tenant who owes rents and other charges which at Closing are past due
("Delinquent Tenant"), such past due rents and other charges
("Delinquencies") shall not be prorated. Buyer shall use good faith efforts
to collect such Delinquencies, if any, and Buyer shall remit such
Delinquencies to Seller immediately as and when collected by Buyer,
provided, however, that any payment received by Buyer from a Delinquent
Tenant may be applied first to any rents or other sums that are past due by
such Delinquent Tenant from and after the Closing Date. The right to
receive and collect all rents and profits, delinquent or otherwise, shall
be assigned by Seller to Buyer at Closing, subject to any adjustment for
percentage rents as set forth above.
(c) All other income and ordinary operating expenses of the Project,
including, without limitation, public utility charges, maintenance,
management, and other service charges, and all other normal operating
charges shall be prorated at the Closing effective as of the Closing Date
based upon the best available information. The obligation of the parties to
adjust, post-Closing, and any operating expenses as of the Closing Date,
shall, to the extent unknown or not provided for at Closing, survive the
Closing and shall be paid by the party responsible therefor within ten (10)
days after written demand therefor has been made. Such demand shall include
a copy of the invoice(s) for which payment or reimbursement is sought.
8.4 Deferred Leasing Commissions. The amount of any unpaid leasing
commissions payable on account and over the term of existing Leases shall either
be paid by Seller or treated as a credit to Buyer. Commissions payable on
account of Leases which are subject to renewal at the option of the Tenant and
with respect to which the options have not been exercised prior to the Closing
Date shall not be covered by the preceding sentence and shall be paid by Buyer.
Buyer shall pay to Seller in cash at Closing, in addition to the Purchase Price,
the unamortized portion of all commissions and tenant improvement costs and
expenses paid by Seller for any new Lease executed after the Contract Date,
based on the amortization of such commissions and costs and expenses over the
term of the new Lease.
8.5 Cash. All cash on hand and in any operating or other accounts on the
Closing Date shall belong to Seller and Buyer shall receive a credit for all
refundable security deposits under the Leases as of the Closing Date.
8.6 Possession. Possession of the Project shall be delivered to Buyer by
Seller at the Closing, subject to the rights of the Tenants.
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8.7 Costs of Closing. Each party shall be responsible for paying the legal
fees of its counsel in negotiating, preparing, and closing the transaction
contemplated by this Contract. Seller shall pay for the cost of the title policy
premium for a standard ALTA coverage. Buyer shall pay the balance of the Owner's
Title Policy premium (including the premium for endorsements required by Buyer),
and for the cost of its own, surveying, engineering and environmental
inspections. All sales, transfer, excise, transaction, privilege, documentary
stamp or similar taxes or fees, and all recording costs and similar closing
costs shall be paid by Buyer in connection with the sale and purchase of the
Project under the terms hereof. The parties shall split the cost of any title
company escrow fees. Any other expenses that are incurred by either party that
are expressly identified herein as being the responsibility of a particular
party shall be paid by such party. All other expenses shall be allocated between
the parties in the customary manner for sales of commercial real properties
similar to the Project which are located in Yuma, Arizona.
8.8 Provisions of Article VIII to Survive Closing. The provisions of this
Article VIII shall survive the Closing.
ARTICLE IX
DEFAULTS AND REMEDIES
9.1 Default by Buyer. If Buyer defaults hereunder, actual damages to Seller
will be difficult to calculate but Buyer and Seller agree that the amount of the
Xxxxxxx Money designated above is a reasonable approximation thereof.
Accordingly, if Buyer defaults, Seller shall be entitled to terminate this
Contract and immediately upon such termination by Seller, Title Company shall
pay to Seller, as Seller's sole remedy, the Xxxxxxx Money Deposit. If, however,
Buyer contests or opposes Seller's right to collect the Xxxxxxx Money Deposit or
fails to cooperate with Seller in collecting same from Title Company and Buyer
is not the prevailing party in the subsequent proceedings, Seller shall also be
entitled to the additional remedies provided for in Sections 9.3 and 9.4 below.
Nothing contained in this Section shall prevent Seller from enforcing Buyer's
obligations and liabilities which survive a termination of this Contract.
9.2 Default by Seller. If Seller defaults hereunder, then Buyer may, as
Buyer's sole and exclusive remedy for such default, either (i) bring an action
against the Seller for specific performance of the Seller's obligations under
this Contract, or (ii) terminate this Contract by giving written notice thereof
to Seller and the Title Company at or prior to the Closing Date, whereupon the
Title Company shall deliver the Xxxxxxx Money Deposit (including the interest
earned thereon) to Buyer and thereafter neither party hereto shall have any
further rights or obligations hereunder, except as otherwise set forth herein.
If Buyer institutes proceedings for specific performance, the date of entry of
final judgment on the complaint for specific performance is referred to herein
as the "Judgment Date." If Buyer is the prevailing party in its action for
specific performance on the Judgment Date, the parties shall proceed to Closing
in accordance with the provisions of this Contract. The Closing Date, for
purposes of this paragraph, shall be that day on which all applicable appeal
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periods have expired. If Seller is the prevailing party in such proceedings on
the Judgment Date, this Contract shall automatically terminate, Title Company
shall pay the Xxxxxxx Money Deposit to Seller, and the parties shall have no
further obligations to each other under this Contract except as otherwise
specifically set forth in this Contract. In the event Seller conveys or
hypothecates the Project to a third party in violation of the terms hereof,
Buyer shall have the right to prosecute an action for damages against Seller in
an amount not to exceed Buyer's actual, out-of-pocket costs and expenses
incurred in connection with the negotiation and enforcement of this Contract and
the Inspection of the Project. In no event shall Buyer be entitled to seek any
punitive, consequential, special or indirect damages from Seller with respect to
any matter arising out of or in connection with this Contract and Buyer hereby
waives any and all rights to seek such damages.
9.3 Costs and Fees. If either party hereto breaches any term of this
Contract, the breaching party agrees to pay the non-breaching party all
reasonable attorneys' fees, expert witness fees, investigation costs, costs of
tests and analysis, travel and accommodation expenses, deposition and trial
transcript costs, court costs and other costs and expenses incurred by the
non-breaching party in enforcing this Contract or preparing for legal or other
proceedings, at the trial or appellate level, whether or not such proceedings
are instituted. If any legal or other proceedings are instituted, the party
prevailing in any such proceeding shall be paid all of the aforementioned costs,
expenses and fees by the other party, and if any judgment is secured by such
prevailing party, all such costs, expenses, and fees shall be included in such
judgment, attorneys' fees to be set by the court and not by the jury.
9.4 Default Interest. If any monies become payable by one party to the
other pursuant to this Contract and are not paid when due then all sums unpaid
shall bear interest at the then highest lawful contractual rate from the due
date or, if there is no maximum rate then in existence, at the per annum rate
equal to the greater of (i) 18%, or (ii) 3% in excess of that rate announced
from time to time by Bank One, Arizona, NA, or its successors, as its "prime
rate." The rate provided for in (ii) above shall change together with and be
effective on the date of any change in said "prime rate."
9.5 Waiver. Excuse or waiver of the performance by the other party of any
obligation under this Contract shall only be effective if evidenced by a written
statement signed by the party so excusing. No delay in exercising any right or
remedy shall constitute a waiver thereof, and no waiver by Seller or Buyer of
the breach of any covenant of this Contract shall be construed as a waiver of
any preceding or succeeding breach of the same or any other covenant or
condition of this Contract.
9.6 Xxxxxxx Money. In the event either Seller or Buyer becomes entitled to
the Xxxxxxx Money Deposit upon cancellation of this Contract in accordance with
its terms, such party may deliver a letter of instruction to the Title Company
directing disbursement of the Xxxxxxx Money Deposit to the party entitled
thereto. The party delivering such notice to the Title Company shall
concurrently deliver a copy of the notice to the other party hereto. Upon the
expiration of three (3) business days after its receipt of the letter of
instructions, the Title Company may deliver the Xxxxxxx Money Deposit to the
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party as specified in the letter of instructions unless, within such three (3)
business day period, the Title Company shall have received a written objection
to such delivery from the other party hereto. In such event, the Title Company
shall not deliver the Xxxxxxx Money Deposit to either party unless it has a
written authorization to do so signed by both parties or a court order has been
issued by a court of competent jurisdiction to deliver the Xxxxxxx Money Deposit
to one of the parties hereto. The Title Company may deposit the Xxxxxxx Money
Deposit into a court of competent jurisdiction and thereafter shall have no
further interest in or responsibility for this Contract or for the Xxxxxxx Money
Deposit.
ARTICLE X
BROKERAGE COMMISSIONS
10.1 Amount. If, and only if Closing occurs, Seller hereby agrees to pay a
real estate brokerage commission to Xxxx Commercial Brokerage (the "Broker")
pursuant to a separate agreement between Seller and Broker. Broker shall be
responsible for cooperating brokerage agreements with CB Commercial.
10.2 Indemnity. Seller hereby represents and warrants to Buyer that it has
not contacted or entered into any agreement with any real estate broker, agent,
finder, or any other party in connection with this transaction other than as
identified in Section 10.1, and that Seller has not taken any action which would
result in any real estate broker's, finder's, or other fees or commissions being
due or payable to any other party with respect to the transaction contemplated
hereby except as set forth above. Buyer hereby represents and warrants to Seller
that Buyer has not contracted or entered into any agreement with any real estate
broker, agent, finder, or other party in connection with this transaction, other
than as identified in Section 10.1, and that Buyer has not taken any action
which would result in any real estate broker's, finder's, or other fees or
commissions being due or payable to any other party with respect to the
transaction contemplated hereby. Each party hereby indemnifies and agrees to
hold the other party harmless from any loss, liability, damage, cost, or expense
(including, but not limited to, reasonable attorneys' fees) resulting to the
other party by reason of a breach of the representation and warranty made by
such party in this Section 10.2. The indemnities set forth in this Section 10.2
shall survive the Closing.
ARTICLE XI
CASUALTY OR CONDEMNATION
11.1 Damage or Destruction. Prior to Closing, Seller shall bear the risk of
loss to the Project. Seller shall not be liable to Buyer in any way if there is
any damage or destruction (due to fire or other casualty) to the Project prior
to Closing. Seller, however, shall elect, by delivering written notice to Buyer
and Title Company within fifteen (15) days after such damage or destruction, to
either: (a) repair said damage or destruction, or (b) assign to Buyer all
insurance proceeds, or rights thereto, payable as a result of such damage or
destruction and Buyer shall receive a credit for any deductible amount under the
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insurance coverage. If Seller fails to deliver the notice to Buyer and Title
Company within the 15-day period, Seller shall be deemed to have elected option
(b). If Seller elects option (a), then Seller shall exercise reasonable
diligence in making such repairs and shall restore the Project to an equal or
better condition than existed prior to such damage and destruction. If such
repair is effected prior to the Closing Date, Closing shall occur on the terms
and conditions provided for herein. If such repair cannot be effected prior to
the Closing Date, the Closing Date shall be extended, for a period not to exceed
sixty (60) days, to the day after such repairs are completed. If Seller elects
option (b), then the parties shall proceed to Closing with no reduction in the
Purchase Price and Buyer shall receive a credit for any deductible amount under
the insurance coverage. If Seller elects or is deemed to have elected option (b)
and the total damage and destruction exceeds five percent (5%) of the Purchase
Price, Buyer shall have the right to terminate this Contract by written notice
to Seller and the Title Company on or before the earlier of (i) the Closing
Date, or (ii) ten (10) days after Seller elects or is deemed to have elected
option (b).
11.2 Condemnation. Seller shall not be liable to Buyer in any way if there
is a condemnation (or sale in lieu thereof) of the Project prior to Closing.
Seller shall elect, by delivering written notice to Buyer and Title Company
within fifteen (15) days after Seller receives an offer of award from the
condemning authority, to either (a) terminate this Contract, or (b) proceed to
Closing, subject to the provisions set forth below. If Seller fails to deliver
the notice to Buyer and Title Company within the 15-day period, Seller shall be
deemed to have elected option (b). If Seller elects, or is deemed to have
elected option (b), then Closing shall occur with no reduction in the Purchase
Price. At Closing, Seller shall (i) pay to Buyer through escrow any condemnation
proceeds received by Seller with respect to the Project, less reasonable fees,
costs and expenses incurred by Seller in connection therewith; and (ii) assign
to Buyer all of Seller's right, title and interest in and to any future
condemnation proceeds with respect to the Project, less reasonable fees, costs
and expenses incurred by Seller in connection therewith. If Seller elects or is
deemed to have elected option (b) and the condemned area constitutes more than
twenty percent (20%) of the gross leasable area of the Project as determined in
accordance with industry standards, Buyer shall have the right to terminate this
Contract by written notice to Seller and the Title Company on or before the
earlier of (i) the Closing Date, or (ii) ten (10) days after Seller elects or is
deemed to have elected option (b). If this Agreement is terminated pursuant to
this Section, the Xxxxxxx Money Deposit shall be refunded to Buyer and the
parties shall have no further obligations to each other under this Contract,
except as otherwise set forth in this Contract.
ARTICLE XII
MISCELLANEOUS
12.1 Notices. All notices, demands, requests, and other communications
required or permitted hereunder shall be in writing, and shall be deemed to be
delivered on receipt if delivered by hand, overnight delivery, or by facsimile,
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or whether actually received or not, three (3) days after having been deposited
in a regularly maintained receptacle for the United States mail, registered or
certified, return receipt requested, postage prepaid, addressed as follows:
If to Seller: Dermot Big Curve, LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With Copy to: Xxxxxxx Xxxx, P.A.
Renaissance Xxx
Xxx Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn. Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Buyer: United Investors Realty Trust
0000 Xxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxx
Chief Operating Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a Copy to: Xxxxx X. Xxxxxxx, Esq.
United Investors Realty Trust
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxx, Xxxxxxx & Xxxxxxxx, P.C.
Attn: Xxxxxx X. Xxxxxxx, Esq.
8th Floor Texas Commerce Bank Bldg.
000 Xxxx Xxxx
Xx Xxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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12.2 Governing Law. This Contract is being executed and delivered, and is
intended to be performed, in the State of Arizona, and the laws of Arizona shall
govern the validity, construction, enforcement, and interpretation of this
Contract.
12.3 Entirety and Amendments. This Contract embodies the entire agreement
between the parties and supersedes all prior agreements and understandings, if
any, relating to the Project, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
12.4 Parties Bound. This Contract shall be binding upon and inure to the
benefit of Seller and Buyer, and their respective heirs, personal
representatives, successors and permitted assigns, but shall not inure to the
benefit of another party.
12.5 Saturday, Sunday or Legal Holiday. If any date set forth in this
Contract for the performance of any obligation by Buyer or Seller or for the
delivery of any instrument or notice should be on other than a Business Day, the
compliance with such obligations or delivery shall be deemed acceptable on the
next following Business Day.
12.6 Time is of the Essence. It is expressly agreed by Seller and Buyer
that time is of the essence with respect to this Contract.
12.7 Exhibits. The Exhibits which are referenced in, and attached to, this
Contract are incorporated in, and made a part of, this Contract for all
purposes.
12.8 Attorney's Fees. If either party hereto shall be required to employ an
attorney to enforce or defend the rights of such party hereunder, the prevailing
party shall be entitled to recover its reasonable attorney's fees and costs.
12.9 1031 Exchange. Buyer acknowledges that Seller may wish to perform an
"exchange" pursuant to Section 1031 of the Internal Revenue Code and Buyer
agrees to cooperate with Seller and execute any documents necessary to
effectuate such exchange, subject to the following terms and conditions:
(a) Buyer shall not be required to take title to any property other
than the Project;
(b) Such exchange shall be at Seller's sole cost and expense; and
(c) There shall be no delay in the dates of performance hereunder as a
result of such exchange.
12.10 Utility Refunds. No agreements or contracts in existence at the
Closing relating to utility refunds or deposit returns are included in the
Purchase Price provided for in this Contract, and Buyer shall have no right,
title or interest therein or in any monies now or hereafter due Seller
thereunder. All refunds, credits and discounts of any nature received by or
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accruing to the benefit of Buyer at any time after the Closing relative to the
Project or any part thereof or to any utility for any part of the Project that
were earned or agreed to prior to Closing shall be immediately remitted by Buyer
to Seller in cash. Notwithstanding the foregoing, all amounts deposited with
vendors regularly delivering inventory and supplies to the Project shall, at
Buyer's election, (i) remain on deposit, and such amounts shall be purchased by
Buyer in cash through escrow at Closing, or (ii) be returned to Seller by such
vendors.
12.11 Confidentiality. Neither Buyer nor Title Company shall disclose the
terms or existence of this Contract or make, authorize, consent to or confirm
any announcement of the transaction evidenced hereby prior to the Closing or any
termination of this Agreement without the prior written consent of Seller.
12.12 Expiration of Offer. The execution by one party hereto and delivery
to the other party hereto of an executed counterpart of this Contract shall
constitute an offer to sell or purchase the Project, as may be the case, upon
the terms stated herein. If a counterpart of this Contract executed by one party
hereto without modification is not received by the other party hereto within
three (3) business days after the time and date of the execution by the first,
as indicated below, the offer contained in this Contract shall be null and void.
12.13 Multiple Counterparts. This Contract may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
agreement, and either of the parties hereto may execute this Contract by signing
any such counterpart.
12.14 Severability. If any provision of this Contract shall, for any
reason, is held to violate any applicable law, and so much of this Contract is
held to be unenforceable, then the invalidity of such specific provision shall
not be held to invalidate any other provision of this Contract which shall
remain in full force and effect.
12.15 Assignment. Buyer shall have no right to assign its interest
hereunder without the prior written consent of Seller, and any such assignment
without Seller's consent shall be void at Seller's option. If Buyer is a
corporation, partnership or trust, the transfer or assignment of any stock,
interest or beneficial interest in such corporation, partnership or trust in
excess of forty-nine percent (49%) shall be deemed an assignment within the
meaning of this paragraph. Seller shall not unreasonably withhold its consent to
an assignment by Buyer of its interest hereunder to a wholly-owned subsidiary of
Buyer, provided that the assigning party shall remain liable for all obligations
of Buyer hereunder.
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EXECUTED by Buyer on the ______ day of ___________, 1998.
BUYER: UNITED INVESTORS REALTY TRUST, a Texas
real estate investment trust
By: /s/ Xxxxxxx Xxxxx
------------------------------
Xxxxxxx Xxxxx,
Chief Operating Officer
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EXECUTED by Seller on the ______ day of ____________, 1998.
SELLER: DERMOT BIG CURVE, LLC, an Arizona
limited liability company
By: XXXXXX REALTY, LTD., a California
corporation, its manager
By:______________________________
Name:____________________________
Title:___________________________
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Receipt of a fully executed copy of the Contract and a check, subject to
collection for the Xxxxxxx Money Deposit received this _________day of
_________________1998.
TITLE COMPANY: CHICAGO TITLE INSURANCE COMPANY
By:______________________________
Name:____________________________
Title:___________________________
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