EXHIBIT 10.4
AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY AND ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS
("Agreement") between XXXXX-AMBEROAKS, LP, a Texas limited partnership, NNN
AMBEROAKS 1, LLC, a Texas limited liability company, NNN AMBEROAKS 2, LLC, a
Texas limited liability company, NNN AMBEROAKS 3, LLC, a Texas limited liability
company (collectively, "Seller"), and XXXXX XXXXXXX, L.P., a Delaware limited
partnership or its assigns ("Buyer"), is made and entered into as of the later
of (i) the date this Agreement is executed by Seller and (ii) the date this
Agreement is executed by Buyer (the "Effective Date"), with reference to the
following facts:
A. Seller owns certain real property located in Xxxxxxxxxx County,
Texas and more specifically described in Exhibit A attached
hereto (the "Land"), commonly known as Xxxxx Xxxx III and such
other assets, as the same are herein described.
B. Subject to the terms and conditions in this Agreement, Seller
desires to sell to Buyer and Buyer desires to purchase from
Seller the Land and the associated assets.
C. Buyer is party to a Purchase and Sale Agreement ("Xxxxx Xxxx V
Agreement") with GREIT-Amberoaks, L.P. ("Xxxxx Xxxx V Seller")
for the purchase and sale of that certain real property located
in Xxxxxxxxxx County, Texas and commonly known as Xxxxx Xxxx V
and such other assets, as the same are therein described ("Xxxxx
Xxxx V Property").
NOW, THEREFORE, in consideration of the mutual covenants, premises and
agreements herein contained, the parties hereto do hereby agree as follows:
1. Purchase and Sale.
The purchase and sale includes, and at Closing (hereinafter defined)
Seller shall sell, assign, grant and transfer to Buyer, all of Seller's
right and title, estate interest in and to all of the following
(hereinafter sometimes collectively, the "Property"):
1.1 The Land, described on Exhibit A attached hereto, together with
all structures, buildings, improvements, machinery, fixtures,
and equipment affixed or attached to the Land and all easements
and rights appurtenant thereto, including: (i) all easements,
privileges and rights belonging or in any way appurtenant to the
Land, (ii) any land lying in the bed of any street, road, alley
or right-of-way, open or closed, adjacent to or abutting the
Land, and (iii) any and all air rights, subsurface rights,
development rights, and water rights permitting to the Land (all
of the foregoing being collectively referred to herein as the
"Land");
1.2 All leases listed on Exhibit B (the "Leases"), including
associated amendments, with all persons ("Tenants") leasing the
Real Property or any part thereof or hereafter entered into in
accordance with the terms hereof prior to Closing, together with
all security deposits, other deposits held in connection with
the Leases, Lease and all of Seller's right, title and interest
in and to all guarantees, letters of credit and other similar
credit enhancements providing additional security for such
Leases;
1.3 All tangible and intangible personal property owned by Seller
located on or used in connection with the Real Property,
including, specifically, without limitation, all sculptures,
paintings and other artwork, all equipment, furniture, tools and
supplies, all plans and specifications and other architectural
and engineering drawings, if any, with respect to the Land and
the Improvements, and any other personal property and all
related intangibles as are owned by Seller and currently located
in, on or about or are used for the operation, maintenance,
administration or repair of the Real Property, including
Seller's interest, if any, in the common name of the Real
Property (the "Personal Property");
1.4 All service contracts, agreements, warranties and guaranties
relating to the operation of the Property as of the Effective
Date, to the extent assignable, and any other service and
operating agreements pertaining to the Property that are entered
into by Seller after the date of this Agreement and prior to the
Closing in accordance with the terms of this Agreement, in each
case to the extent approved by Buyer in accordance with this
Agreement (collectively, the "Contracts"); provided, however,
any Contracts not so approved by Buyer shall be terminated by
Seller, at Buyer's expense, on or before the Closing; and
1.5 To the extent transferable, all building permits, certificates
of occupancy and other certificates, permits, consents,
authorizations, variances or waivers, dedications, subdivision
maps, licenses and approvals from any governmental or
quasi-governmental agency, department, board, commission, bureau
or other entity or instrumentality relating to the Property (the
"Permits").
2. Purchase Price.
Subject to the charges, prorations and other adjustments set forth in
this Agreement, total Purchase Price of the Property shall be
Thirty-Three Million One Hundred Sixty-Five Thousand Dollars
($33,165,000) ("Purchase Price") payable as follows:
2.1 Deposit/Further Payments/Down Payment.
2.1.1 On the Effective Date Buyer shall deliver to Escrow
Holder (as defined in Section 7.1.1 below) by wire
transfer immediately available funds in the amount of
Two Hundred Thousand Dollars ($200,000.00) (the "Initial
Deposit"). Unless Buyer terminates this Agreement on or
before the end of the "Inspection Period" (as defined
below) pursuant to Section 6, Buyer
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shall deliver to Escrow Holder, by wire transfer, within
two (2) business days after the later of (i) the end of
the Inspection Period or (ii) Buyer's receipt of Seller
10.2.2 Approval additional immediately available funds
in the amount of Two Hundred Thousand Dollars
($200,000.00) (the "Additional Deposit". The Initial
Deposit and the Additional Deposit are herein
collectively called the "Deposit"). The Initial Deposit
and the Additional Deposit, once received by Seller,
shall be deemed earned by Seller and non-refundable to
Buyer, notwithstanding Buyer's failure to or decision
not to close, except that the Deposit shall be applied
to the Purchase Price at Closing. The Initial Deposit,
the Additional Deposit and the Extension Fee (as defined
in Section 7.2.1 herein) shall be released to Seller
within one (1) business day after receipt by Escrow
Holder. Buyer's failure to timely deliver the Additional
Deposit to Seller as set forth above shall constitute
Buyer's termination of this Agreement.
2.2 At least one (1) business day prior to Closing, Buyer
shall deposit into Escrow by wire transfer of federal
funds, the balance of the Purchase Price, subject to
adjustment by reason of any applicable prorations and
the allocation of Closing costs described below.
3. Title to Property.
During the Inspection Period (hereafter defined) Buyer shall review and
approve the Title Documents (hereinafter defined) and the Survey
(hereinafter defined). If the Title Documents or Survey reflect or
disclose any defect, exception or other matter affecting the Property
("Title Defects") that is unacceptable to Buyer, then prior to the
expiration of the Inspection Period, Buyer shall provide Seller with
written notice of Buyer's objections. Seller may, at its sole option,
elect to cure or remove the objections made by Buyer. Should Seller
elect to attempt to cure or remove the objection, it shall be a
condition precedent to Buyer's obligation to acquire the Property that
Seller cures such title objection prior to the Closing. Unless Seller
provides written notice to Buyer before the expiration of the Inspection
Period that Seller intends to cure Buyer's title objections, Seller
shall be deemed to have elected not to cure or remove Buyer's title
objections, and Buyer shall be entitled, as Buyer's sole and exclusive
remedy, either to (i) terminate this Agreement by providing written
notice of termination to Seller before the end of the Inspection Period
and returning the Due Diligence Items (hereinafter defined) immediately
thereafter or (ii) waive the objections and close this transaction as
otherwise contemplated herein. If Buyer shall fail to terminate this
Agreement during the Inspection Period, all matters shown on the Survey
and all matters described in the Title Report, except for monetary liens
for indebtedness of the Seller and any matters the Seller has agreed to
cure in writing, shall be deemed "Permitted Exceptions." On or prior to
Closing, Seller shall cause any monetary liens created by Seller which
affect the Property, other than property taxes or assessments not yet
delinquent, to be deleted or omitted from the Title Policy (as defined
in Section 4.1.2). Seller will cause any recorded memorandum regarding
the management agreement for the Property to be removed from the Title
Policy at no cost to Buyer.
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4. Due Diligence Items.
4.1 Seller shall deliver to Buyer each of the following within five
business days of the Effective Date (together with the items
described in Section 4.2, collectively, the "Due Diligence
Items"):
4.1.1 Any existing survey of the Property, in Seller's
possession (the "Survey");
4.1.2 A current preliminary title report or title commitment
(the "Title Report"), dated not earlier than thirty (30)
days prior to the Effective Date, for the issuance of a
standard coverage owner's policy of title insurance,
with standard provisions and exceptions (the "Title
Policy") to Buyer from the Escrow Holder (defined
hereinafter in Section 7.1.1), together with copies of
all documents constituting exceptions to the title as
reflected in the Title Report (collectively referred to
hereinafter as the "Title Documents");
4.1.3 A list of all contracts, including service contracts,
warranties, management, maintenance, leasing commission
or other agreements affecting the Property, if any,
together with copies of the same;
4.1.4 True and correct copies of the real estate and personal
property tax statements covering the Property or any
part thereof for each of the two (2) years prior to the
current year and, if available, for the current year;
4.1.5 A schedule of all current or pending litigation with
respect to the Property or any part, thereof, if any,
together with a brief description of each such
proceeding;
4.1.6 Operating statements for the most recent two full
calendar years and monthly operating statements for the
calendar year to date, or if shorter, for any periods
during which Seller was owner of the Real Property;
4.1.7 An inventory of all personal property located on the
Property, used in the maintenance of the Property or
stored for future use at the Property and an inventory
of all furniture and appliances used in the units, if
any;
4.1.8 A current rent roll which may include, among other
things: (1) the name of the Tenant, (2) the number of
rentable square feet in Tenant's premises as set forth
in Tenant's Lease, (3) the current monthly base rental
payable by such Tenant, (4) the term of the Lease, (5)
any available options for the Tenant under the Lease;
and (6) the amount of any security deposit;
4.1.9 All environmental, physical or mechanical reports
prepared by third parties in Seller's possession
relating to the Property;
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4.1.10 Copies of all Leases presently in effect with respect to
the Real Property, together with any amendments or
modifications thereto. All Leases, amendments and
modifications with respect to Cisco, InfoEdge and
Rubbermaid are listed on the attached Exhibit I.
4.1.11 An aging report showing, with respect to each Tenant of
the Real Property, the date through which such Tenant
has paid rent and a Tenant by Tenant monthly aging
report for the preceding twelve (12) months;
4.1.12 All site plans, leasing plans, as-built plans, drawings,
environmental, mechanical, electrical, structural, soils
and similar reports and/or audits and plans and
specifications relative to the Real Property in the
possession of Seller, if any; and
4.1.13 Copies of utility bills for the Real Property for the
prior calendar year and the current year to date or if
shorter, for any periods during which the Seller was the
owner of the Property.
4.2 Seller shall make the following available for inspection by
Buyer during ordinary business hours at Seller's management
office:
4.2.1 All site plans, leasing plans, as-built plans, drawings,
environmental, mechanical, electrical, structural, soils
and similar reports and/or audits and plans and
specifications relative to the Property in the
possession of Seller, if any.
4.2.2 The tenant files, books and records relating to the
ownership and operation of the Property.
5. Inspections.
5.1 Buyer shall have a temporary non-exclusive license to enter and
conduct non-invasive feasibility, environmental, and physical
studies collectively of the Property that Buyer may deem
necessary or advisable (the "Inspections") at any time during
the Inspection Period, on the terms set forth in this Article 5.
Buyer shall not conduct invasive testing of any kind (including
without limitation, "Phase II" environmental testing) without
Seller's consent. Buyer's right to conduct the Inspections shall
be subject to rights of Tenants and shall be subject to such
conditions as may be reasonably imposed by the Seller in order
to avoid disruption at the Property. Notwithstanding the
foregoing, if, after the expiration of the Due Diligence Period,
Buyer elects to go forward with the transaction herein, Buyer
shall be allowed continued access to the Property until Close of
Escrow subject to the prior approval of Seller, which shall not
be unreasonably withheld and pursuant to the terms of Section
5.2.
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5.2 Buyer must arrange all Inspections of the Property with Seller
at least two (2) business days in advance of any Inspections.
Buyer and its agents shall maintain equipment and other
materials in an orderly manner while they are located on the
Property and to maintain them in locations specified by Seller.
Buyer agrees to remove all debris and trash resulting from the
Inspections on a daily basis and to remove all equipment and
other materials used by Buyer or its agents as soon as the
activity for which such equipment and other materials are used
is completed. Buyer and its agents shall take all appropriate
measures for the safety of persons and property on the Property
and shall comply with all applicable legal requirements. Buyer
shall restore any damage to the Property resulting from the
Inspections including but not limited to repair of surface
openings resulting from tests. Buyer shall promptly provide to
Seller a copy of all reports and test results prepared or
furnished in connection with the Inspections.
5.3 In the event that the Inspections show any fact, matter or
condition to exist with respect to the Property that is
unacceptable to Buyer, in Buyer's sole subjective discretion,
then Buyer shall be entitled, as its sole and exclusive remedy,
to (1) terminate this Agreement, or (2) waive the objection, and
close the transaction as otherwise contemplated herein. Buyer
agrees to promptly discharge any liens that may be imposed
against the Property as a result of the Inspections and to
defend, indemnify and hold Seller harmless from all, claims,
suits, losses, costs, expenses (including without limitation
court costs and attorneys' fees), liabilities, judgments and
damages incurred by Seller as a result of any Inspections.
5.4 Buyer shall indemnify, save and hold Seller and Seller's
officers, agents, employees, directors, trustees, invitees,
successors, and assigns (collectively "Indemnitees") harmless
against all losses, costs, expenses, liabilities, claims,
litigation, demands, proceedings and damages (including but not
limited to attorney's fees) suffered or incurred by Seller or
any such Indemnitees arising out of and limited to the
Inspections, provided that Buyer shall not incur any liability
due to its discovery, without exacerbation of the condition of
any Hazardous Materials or other circumstances at the Property.
Buyer waives any claims against Seller arising out of the
Inspections or this Agreement other than claims that are solely
caused by or solely arise from any negligent or willful
misconduct of Seller. Buyer hereby assume all responsibility for
claims against Seller by the contractors, subcontractors,
employees, and agents of Buyer other than claims that are solely
caused by or solely arise from Seller's negligence or willful
misconduct.
5.5 Buyer shall, during the term of this Agreement and at all times
during which access is available to it, require its
subcontractors and agents, to maintain insurance, in form and
substance reasonably satisfactory to Seller, with insurance
companies acceptable to Seller, the following insurance:
Comprehensive General Liability or Commercial General Liability
Insurance, with limits of not less than One Million Dollars
($1,000,000) combined single limit per occurrence and not less
than Two Million Dollars ($2,000,000) on a general aggregate
basis, for
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bodily injury, death and property damage, and Excess (umbrella)
liability insurance with liability insurance with limits of not
less than Five Million Dollars ($5,000,000) per occurrence. Each
policy of insurance shall name Seller as an additional insured.
Further, each policy of insurance shall state that such policy
is primary and noncontributing with any insurance carried by
Seller. Such policy shall contain a provision that the naming of
the additional insured shall not negate any right the additional
insured would have had as a claimant under the policy if not so
named and shall contain severability of interest and
cross-liability clauses. A certificate, together with any
endorsements to the policy required to evidence the coverage
which is to be obtained hereunder, shall be delivered to Seller
prior to entry on the Property. The certificate shall expressly
provide that no less than thirty (30) days prior written notice
shall be given Seller in the event of any material alteration to
or cancellation of the coverages evidenced by said certificate.
A renewal certificate for each of the policies required in this
Section shall be delivered to Seller not less than thirty (30)
days prior to the expiration date of the term of such policy.
Any policies required by the provisions of this Section may be
made a part of a blanket policy of insurance with a "per
project, per location endorsement" so long as such blanket
policy contains all of the provisions required herein and does
not reduce the coverage, impair the rights of the other party to
this Agreement or negate the requirements of this Agreement.
5.6 During the course of its performance of the Inspections, Buyer
will acquire knowledge concerning the Property or Seller, or
knowledge of other matters of a sensitive business nature
(collectively, "Privileged Information"). Except as described
below, neither Buyer nor its agents shall disclose to any third
party, publicize or suffer or permit any of their respective
employees to so disclose or publicize any such Privileged
Information, other than to consultants, attorneys and agents as
necessary for the Buyer's inspection and analysis of the
Property. In the event that Buyer believes in good faith that it
is required by any legal requirement to disclose any such
Privileged Information, then Buyer shall immediately notify
Seller of such belief and the reasons for such belief. If Seller
within 10 days after receipt of such notice, advises the party
that sent the notice that Seller shall itself disclose the
information, then Buyer shall not make such disclosure (unless
either such party reasonably believes that it must disclose such
information by law). If Buyer reasonably believes that such
disclosure is required to be made in less than the 10-day
period, then the notice to Seller shall so state and Seller's
time to respond will be reduced accordingly.
5.7 The obligations of Buyer described in this Article shall survive
the Closing or any termination of this Agreement.
6. Approval.
6.1 Buyer shall have fifteen (15) days from the Effective Date
("Inspection Period") to approve or disapprove the Inspections.
If Buyer shall fail to notify Seller and Escrow Holder of its
disapproval of the Inspections in writing within the
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Inspection Period, the condition of the Property shall be deemed
approved. If Buyer shall disapprove the Inspections within the
Inspection Period this Agreement and the Escrow shall thereupon
be terminated. Buyer shall thereafter not be entitled to
purchase the Property, Seller shall not be obligated to sell the
Property to Buyer and the parties shall be relieved of any
further obligation to each other with respect to the Property,
except as provided in Paragraph 5.
6.2 Notwithstanding anything to the contrary contained herein, Buyer
hereby agrees that, in the event this Agreement is terminated
for any reason, then Buyer shall promptly and at its sole
expense return to Seller all Due Diligence Items which have been
delivered by Seller to Buyer in connection with the Inspections,
along with copies of all reports, drawings, plans, studies,
summaries, surveys, maps and other data prepared by third
parties relating to the Property, subject to restrictions on
Buyer's ability to make any such materials available to Seller
that are imposed in any agreement with a third party consultant
preparing any such reports or materials ("Buyer's Reports");
provided, however, that delivery of such copies and information
by Buyer shall be without warranty or representation whatsoever,
express or implied, including without limitations, any warranty
or representation as to ownership, accuracy, adequacy or
completeness thereof or otherwise. Buyer shall cooperate with
Seller at no expense to Buyer in order to obtain a waiver of any
such restrictions.
6.3 Contracts. On or before the end of the Inspection Period, Buyer
will designate in a written notice to Seller which Contracts
Buyer will assume and which Contracts must be terminated by
Seller at Closing. Taking into account any credits or prorations
to be made pursuant to this Agreement for payments coming due
after Closing but accruing prior to Closing, Buyer will assume
the obligations arising from and after Closing under those
Contracts which Buyer has designated will not be terminated. At
Buyer's expense, Seller shall terminate at Closing all Contracts
that are not so assumed.
7. Escrow.
7.1 Opening.
7.1.1 The purchase and sale of the Property shall be
consummated through an escrow ("Escrow") to be opened
with LandAmerica Commercial Services, attention Xxxx
Xxxx, 0000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxx
00000 ("Escrow Holder" or the "Title Company") within
two (2) business days after the Effective Date. Escrow
shall be deemed to be opened as of the date fully
executed copies (or counterparts) of this Agreement are
delivered to Escrow Holder by Buyer and Seller ("Opening
of Escrow"). This Agreement shall be considered as the
Escrow instructions between the parties, with such
further instructions as Escrow Holder shall require in
order to clarify its duties and responsibilities. If
Escrow Holder shall require further Escrow instructions,
Escrow Holder may prepare such instructions on its usual
form. Such further instructions shall be promptly
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signed by Buyer and Seller and returned to Escrow Holder
within three (3) business days of receipt thereof. In
the event of any conflict between the terms and
conditions of this Agreement and such further
instructions, the terms and conditions of this Agreement
shall control.
7.2 Closing.
7.2.1 Escrow shall close ("Closing") on the fifteenth (15th)
day following the end of the Inspection Period or such
earlier date as shall be mutually agreed to by the
parties (the "Original Closing Date"). The Original
Closing Date may be extended for an additional fifteen
(15) days ("Extension Period") by Buyer upon delivery of
written notice to Seller of extension and payment to
Seller, by wire transfer on or before the Original
Closing Date, of a Five Hundred Thousand Dollar
($500,000) extension fee ("Extension Fee"). The
Extension Fee will become part of the Deposit and
applicable to the Purchase Price at Closing. The
Extension Fee shall be deemed earned by Seller and
non-refundable to Buyer upon payment to the Seller,
notwithstanding Buyer's failure to or decision not to
close. Closing must occur, if at all, no later than the
dates set forth herein or this Agreement shall terminate
without further action of the parties and neither party
shall have any further obligations to the other
hereunder except Buyer's indemnification under Section
5.
7.3 Buyer Required to Deliver.
Buyer shall deliver to Escrow the following:
7.3.1 On the Effective Date, the Initial Deposit;
7.3.2 Within two (2) business days after the later of the end
of the Inspection Period or Buyer's receipt of Seller
10.2.2 Approval, the Additional Deposit;
7.3.3 On or before the Original Closing Date, the Extension
Fee if Buyer desires an extension of the closing date;
7.3.4 On or before Closing, the Purchase Price, subject to the
closing adjustments, credits and prorations contemplated
hereby;
7.3.5 On or before Closing, such other documents as Title
Company may reasonably require from Buyer in order to
issue the Title Policy;
7.3.6 An original counterpart executed by Buyer of an
assignment and assumption agreement (the "Assignment and
Assumption Agreement") in substantially the form
attached hereto as Exhibit C, whereby Seller assigns and
conveys to Buyer all of Seller's right, title and
interest in and Buyer assumes all of Seller's
obligations under, the Leases and the Contracts and the
Permits;
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7.3.7 A counterpart closing statement (the "Closing
Statement") setting forth the Purchase Price and all
amounts charged against Buyer pursuant to Section 7.7 of
this Agreement.
7.4 Seller Required to Deliver.
On or before Closing, Seller shall deliver to Escrow the
following:
7.4.1 A duly executed and acknowledged special warranty deed,
conveying fee title to the Property in favor of Buyer
(the "Deed");
7.4.2 An executed certificate of non-foreign status;
7.4.3 A xxxx of sale of the Personal Property, if any, without
warranty, in favor of Buyer and duly executed by Seller,
in substantially the form attached hereto as Exhibit D;
7.4.4 An original counterpart executed by Seller of the
Assignment and Assumption Agreement;
7.4.5 A counterpart Closing Statement setting forth the
Purchase Price and all amounts charged against Seller
pursuant to Section 7.7 of this Agreement;
7.4.6 Such other documents as Title Company may reasonably
require from Seller in order to issue the Title Policy;
7.4.7 A letter from Seller addressed to each Tenant informing
such Tenant of the change in ownership and directing
that future rent payments be made to Buyer;
7.4.8 All keys to all buildings and other improvements located
on the Property, combinations to any safes thereon, and
security devices therein in Seller's possession; and
7.4.9 All records and files relating to the management or
operation of the Property, including, without
limitation, all insurance policies, all security
contracts, all tenant files (including correspondence),
property tax bills, and all calculations used to prepare
statements of rental increases under the Leases and
statements of common area charges, insurance, property
taxes and other charges which are paid by tenants of the
Project.
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7.5 Buyer's Costs.
Buyer shall pay the following:
7.5.1 One-half (1/2) of Escrow Holder's fees, costs and
expenses;
7.5.2 The cost of recording any documents relating to Buyer's
financing;
7.5.3 Title Company's premium for endorsements to the Title
Policy and any extended ALTA coverage; and
7.5.4 All other costs customarily borne by Buyers of real
property in the county in which the Property is
situated;
7.6 Seller's Costs.
Seller shall pay the following:
7.6.1 One-half (1/2) of Escrow Holder's fees, costs and
expenses;
7.6.2 All transfer taxes and costs of recording the Deed;
7.6.3 Title Company's premium for a basic Title Policy,
exclusive of the premium for any endorsements or
extended ALTA coverage; and
7.6.4 All other costs not itemized above which are customarily
borne by sellers of real property in the county in which
the Property is situated.
7.7 Prorations.
7.7.1 Items to be Prorated. The following shall be prorated
between Seller and Buyer as of the Closing with the
Buyer being deemed the owner of the Property as of the
Closing:
(a) Taxes and Assessments All non-delinquent real
property taxes, assessments and other
governmental impositions of any kind or nature,
including, without limitation, any special
assessments or similar charges (collectively,
"Taxes"), which relate to the tax year within
which the Closing occurs based upon the actual
number of days in the tax year. With respect to
any portion of the Taxes which are payable by
any Tenant directly to the authorities, no
proration or adjustment shall be made. The
proration for Taxes shall be based upon the most
recently issued tax xxxx for the Property, and
shall be calculated based upon the maximum early
payment discount available. The prorations for
taxes and assessments which are made at Closing
shall be final, and not
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subject to reproration after Closing. Upon the
Closing, Buyer shall be responsible for real
estate taxes and assessments on the Property
payable from and after the Closing. In no event
shall Seller be charged with or be responsible
for any increase in the taxes or assessments on
the Property resulting from the sale of the
Property or from any improvements made or leases
entered into after the Closing. With respect to
all periods for which Seller has paid Taxes,
Seller hereby reserves the right to institute or
continue any proceeding or proceedings for the
reduction of the assessed valuation of the
Property, and, in its sole discretion, to settle
the same. Seller shall have sole authority to
control the progress of, and to make all
decisions with respect to, such proceedings but
shall provide Buyer with copies of all
communications with the taxing authorities. All
net tax refunds and credits attributable to any
period prior to the Closing which Seller has
paid or for which Seller has given a credit to
Buyer shall belong to and be the property of
Seller, provided, however, that any such refunds
and credits that are the property of Tenants
under Leases shall be promptly remitted by
Seller directly to such Tenants or to Buyer for
the credit of such Tenants. All net tax refunds
and credits attributable to any period
subsequent to the Closing shall belong to and be
the property of Buyer. Buyer agrees to cooperate
with Seller in connection with the prosecution
of any such proceedings and to take all steps,
whether before or after the Closing, as may be
necessary to carry out the intention of this
subparagraph, including the delivery to Seller,
upon demand, of any relevant books and records,
including receipted tax bills and cancelled
checks used in payment of such taxes, the
execution of any and all consent or other
documents, and the undertaking of any acts
necessary for the collection of such refund by
Seller. Buyer agrees that, as a condition to the
transfer of the Property by Buyer, Buyer will
cause any transferee to assume the obligations
set forth herein.
(b) Rents Buyer will receive a credit at the Closing
for all rents collected by Seller prior to the
Closing and allocable to the period from and
after the Closing based upon the actual number
of days in the month. No credit shall be given
the Seller for accrued and unpaid rent or any
other non-current sums due from Tenants until
these sums are paid, and Seller shall retain the
right to collect any such rent provided Seller
does not xxx to evict any tenants or terminate
any Tenant Leases. Buyer shall cooperate with
Seller after the Closing to collect any rent
under the Tenant Leases which has accrued as of
the Closing; provided, however, Buyer shall not
be obligated to xxx any Tenants or exercise any
legal remedies under the Tenant Leases or to
incur any expense over and above its own regular
collection expenses. All payments collected from
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Tenants after the Closing shall first be applied
to the month in which the Closing occurs, then
to any rent due to Buyer for the period after
Closing and finally to any rent due to Seller
for the period prior to Closing; provided,
however, notwithstanding the foregoing, if
Seller collects any payments from Tenants after
Closing through its own collection efforts,
Seller may first apply such payments to rent due
the Seller for the period prior to Closing.
(c) CAM Expenses To the extent that Tenants are
reimbursing the landlord for common area
maintenance and other operating expenses
(collectively, "CAM Charges"), CAM Charges shall
be prorated at Closing and again subsequent to
Closing, as of the date of Closing on a
lease-by-lease basis with each party being
entitled to receive a portion of the CAM Charges
payable under each Lease for the CAM Lease Year
in which Closing occurs, which portion shall be
equal to the actual CAM Charges incurred during
the party's respective periods of ownership of
the Property during the CAM Lease Year. As used
herein, the term "CAM Lease Year" means the
twelve (12) month period as to which annual CAM
Charges are owed under each Lease. Five (5) days
prior to Closing the Seller shall submit to
Buyer an itemization of its actual CAM Charges
operating expenses through such date and the
amount of CAM Charges received by the Seller as
of such date, together with an estimate of CAM
Charges to be incurred to, but not including,
the Closing. In the event that the Seller has
received CAM Charges payments in excess of its
actual CAM Charges operating expenses, the Buyer
shall be entitled to receive a credit against
the Purchase Price for the excess. In the event
that the Seller has received CAM Charges
payments less than its actual CAM Charges
operating expenses, to the extent that the
Leases provide for a "true up" at the end of the
CAM Lease Year, the Seller shall be entitled to
receive any deficit but only after the Buyer has
received any true up payment from the Tenant.
Upon receipt by either party of any CAM Charge
true up payment from a Tenant, the party
receiving the same shall provide to the other
party its allocable share of the "true up"
payment within five (5) days of the receipt
thereof.
(d) Operating Expenses All operating expenses
(including all charges under the service
contracts and agreements assumed by Buyer) shall
be prorated, and as to each service provider,
operating expenses payable or paid to such
service provider in respect to the billing
period of such service provider in which the
Closing occurs (the "Current Billing Period"),
shall be prorated on a per diem basis based upon
the number of days in the Current Billing Period
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prior to the Closing and the number of days in
the Current Billing Period from and after the
Closing, and assuming that all charges are
incurred uniformly during the Current Billing
Period. If actual bills for the Current Billing
Period are unavailable as of the Closing, then
such proration shall be made on an estimated
basis based upon the most recently issued bills,
subject to readjustment upon receipt of actual
bills.
(e) Security Deposits; Prepaid Rents. Prepaid
rentals and other tenant charges and security
deposits (including any portion thereof which
may be designated as prepaid rent) under Tenant
Leases, if and to the extent that such deposits
are in Seller's actual possession or control and
have not been otherwise applied by Seller to any
obligations of any Tenants under the Tenant
Leases, shall be credited against the Purchase
Price, and upon the Closing, Buyer shall assume
full responsibility for all security deposits to
be refunded to the Tenants under the Tenant
Leases (to the extent the same are required to
be refunded by the terms of such Tenant Leases
or applicable). In the event that any security
deposits are in the form of letters of credit or
other financial instruments (the "Non-Cash
Security Deposits") Buyer shall have such
financial instruments transferred after Closing.
Seller will cooperate with Buyer after the
Closing to have Buyer named as beneficiary under
the Non-Cash Security Deposits; provided that
such cooperation shall be at no cost or expense
to Seller. Buyer will not receive a credit
against the Purchase Price for such security
deposits.
(f) Leasing Costs. Seller shall receive a credit at
the Closing for all leasing costs, including
tenant improvement costs and allowances, and its
pro-rata leasing commissions, previously paid by
Seller in connection with any Lease or
modification to an existing tenant Lease which
was entered into after the Effective Date and
which is approved or deemed approved by Buyer
pursuant to this Agreement, which approval
included approval of the tenant improvement
costs. The Seller's pro-rata share shall be
equal to a fraction which has as its numerator
the number of months left in the base term of
the Lease after the Closing and which has as its
denominator the number of months in the base
term of the Lease. Seller shall credit to Buyer
at Closing the cost of all tenant improvement
allowances, leasing commissions, free rent, and
other tenant inducements or benefits with
respect to the premises leased as of the
Effective Date by the Tenants pursuant to the
Tenant Leases in effect as of the Effective
Date, to the extent that such improvement
allowances and leasing commissions are unpaid or
that such fee rent period has not occurred as of
the Closing. In consideration of such credit,
Buyer shall assume all obligations,
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risks and liabilities for paying all leasing
commission, honoring all fee rent and other
tenant inducements and completing all tenant
improvements and related work on the premises
including, but not limited to, those matters
referenced on Exhibit E hereto.
7.7.2 Calculation; Reproration. Prior to Closing the parties
shall jointly prepare an estimated closing statement
which shall set forth the costs payable under sections
7.5 and 7.6 and the prorations and credits provided for
in section 7.7.1 and elsewhere in this Agreement. Any
item which cannot be finally prorated because of the
unavailability of information shall be tentatively
prorated on the basis of the best data then available
and adjusted when the information is available in
accordance with this subparagraph; provided, however,
that there shall be no reproration for taxes and
assessments. The estimated closing statement as adjusted
as aforesaid and approved in writing by the parties
shall be referred to herein as the "Closing Statement".
If the prorations and credits made under the Closing
Statement shall prove to be incorrect or incomplete for
any reason, then either party shall be entitled to an
adjustment to correct the same; provided, however, that
there shall be no reproration for taxes and assessments;
and further provided that any adjustment shall be made,
if at all, within sixty (60) days after the Closing
(except with respect to CAM Charges, in which case such
adjustment shall be made within thirty (30) days after
the information necessary to perform such adjustment is
available), and if a party fails to request an
adjustment to the Closing Statement by a written notice
delivered to the other party within the applicable
period set forth above (such notice to specify in
reasonable detail the items within the Closing Statement
that such party desires to adjust and the reasons for
such adjustment), then the prorations and credits set
forth in the Closing Statement shall be binding and
conclusive against such party.
7.7.3 Items Not Prorated. Seller and Buyer agree that (a) on
the Closing, the Property will not be subject to any
financing arranged by Seller; (b) none of the insurance
policies relating to the Property will be assigned to
Buyer and Buyer shall responsible for arranging for its
own insurance as of the Closing; and (c) utilities,
including telephone, electricity, water and gas, shall
be read on the Closing and Buyer shall be responsible
for all the necessary actions needed to arrange for
utilities to be transferred to the name of Buyer on the
Closing, including the posting of any required deposits
and Seller shall be entitled to recover and retain from
the providers of such utilities any refunds or
overpayments to the extent applicable to the period
prior to the Closing, and any utility deposits which it
or its predecessors may have posted. Accordingly, there
will be no prorations for debt service, insurance or
utilities. In the event a meter reading is unavailable
for any particular utility, such utility shall be
prorated in the manner provided in subparagraph (1)(e)
above.
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7.7.4 Indemnification. Buyer and Seller shall each indemnify,
protect, defend and hold the other harmless from and
against any claim in any way arising from the matters
for which the other receives a credit or otherwise
assumes responsibility pursuant to this Section.
7.7.5 Survival. This Section 7.7 shall survive the Closing.
7.8 Determination of Dates of Performance.
Promptly after delivery to Buyer of the Title Report, Escrow
Holder shall prepare and deliver to Buyer and Seller a schedule
which shall state each of the following dates:
7.8.1 The date of Opening of Escrow pursuant to Paragraph 7.1;
7.8.2 The date of receipt of the Title Report by Buyer;
7.8.3 The date by which title must be approved by Buyer
pursuant to Paragraph 3;
7.8.4 The date by which the Inspections must be approved by
Buyer pursuant to Paragraph 5.1;
7.8.5 The date by which the amounts described in Paragraph 2
must be deposited by Buyer, for which determination
Escrow Holder shall assume satisfaction of the condition
expressed in Paragraph 2 on the last date stated for its
satisfaction; and
7.8.6 The date of Closing pursuant to Paragraph 7.2.
If any events which determine any of the aforesaid dates occur
on a date other than the date specified or assumed for its
occurrence in this Agreement, Escrow Holder shall promptly
redetermine as appropriate each of the dates of performance in
the aforesaid schedule and notify Buyer and Seller of the dates
of performance, as redetermined.
8. Representations, Warranties, and Covenants.
8.1 Representations of Seller. Each entity referred to herein as a
Seller hereby represents and warrants as of the date hereof to
Buyer as follows:
8.1.1 XXXXX-AMBEROAKS, LP is a limited partnership duly formed
and validly existing under the laws of the State of
Texas. Each of NNN Amberoaks 1, NNN Amberoaks 2 and NNN
Amberoaks 3 is a limited liability company duly formed
and validly existing under the laws of the
16
State of Texas. Subject to receipt of the approval
described in Section 10.2.2, Seller has full power and
authority to enter into this Agreement, to perform this
Agreement and to consummate the transactions
contemplated hereby. This Agreement is a legal, valid
and binding obligation of Seller, enforceable against
Seller in accordance with its terms, subject to the
effect of applicable bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar
laws affecting the rights of creditors generally.
8.1.2 Seller is not a "foreign person" within the meaning of
Section 1445(f) of the Internal Revenue Code of 1986, as
amended (the "Code").
8.1.3 The list of leases attached hereto as Exhibit B
represents all of the leases that affect the Property as
of May 4, 2006.
8.1.4 Except as set forth on any schedule of litigation
delivered pursuant to Paragraph 4.1.5, to the best of
Seller's knowledge there are no actions, suits or
proceedings pending, or, threatened against Seller and
affecting any portion of the Real Property, at law or in
equity, or before or by any federal, state, municipal,
or other governmental court, department, commission,
board, bureau, agency, or instrumentality, domestic or
foreign.
8.1.5 Seller has not received any notice of any violations of
any ordinance, regulation, law, or statute of any
governmental agency pertaining to the Real Property or
any portion thereof.
8.1.6 To Seller's knowledge, there are no presently pending or
contemplated proceedings to condemn the Real Property or
any part of it.
8.1.7 Seller has no knowledge of nor received any written
notice of violation issued pursuant to any environmental
law with respect to the Real Property or any use or
condition thereof other than the notice listed on the
attached Exhibit F.
In making the foregoing representations and warranties,
we have not made or undertaken to make any investigation as to
factual matters or as to the accuracy or completeness of any
representation, warranty, data or any other information related
thereto and hereby disclaim liability for any unintentional
misstatement. Whenever the term "to the best of Seller's
knowledge" or similar language is used herein with respect to
the existence or absence of facts, it signifies that we have not
undertaken any independent investigation of facts, but instead
base our opinion in sole reliance upon the current actual
knowledge of Xxxx Xxxxxxx and Xxxxxx X. Xxxxx and we disclaim
any obligation to conduct any independent investigation with
respect to such matters.
17
8.2 Approval of Property; Limitations on Seller Representations and
Warranties.
8.2.1 Seller makes no representations or warranties as to the
truth, accuracy, completeness, methodology of
preparation or otherwise concerning any engineering or
environmental reports, audits, the materials prepared by
the Seller, or any other materials, data or other
information whatsoever supplied to Buyer in connection
with Buyer's inspection of the Property. It is the
parties' express understanding and agreement that such
materials are provided only for Buyer's convenience in
making its own examination and determination prior to
the expiration of the Inspection Period as to whether it
wishes to purchase the Property, and, in doing so, Buyer
shall rely exclusively on its own independent
investigation and evaluation of every aspect of the
Property and not on any materials supplied by Seller.
Except as may be specifically provided elsewhere in this
Agreement, Buyer expressly disclaims any intent to rely
on any such materials provided to it by Seller in
connection with its inspection and agrees that it shall
rely solely on its own independently developed or
verified information. Except with respect to all
obligations in this Agreement (including without
limitation Seller's express representations and
warranties) that are expressly stated to survive
Closing, the indemnity provisions contained in the
documents delivered in connection with the closing of
the transactions contemplated by this Agreement
(collectively, the "Surviving Obligations"), Buyer
hereby releases Seller and its agents, representatives,
and employees from any and all claims, demands, and
causes of action, past, present, and future that Buyer
may have relating to (a) the condition of the Property
at any time, before or after the Closing, including
without limitation, the presence of any hazardous
materials, or (b) any other matter pertaining to the
Property. This release shall survive the Closing or the
termination of this Agreement.
8.2.2 In the event of any breach by Seller of any of the
preceding representations or warranties or any other
breach by Seller of any other provision of this
Agreement which is discovered by Buyer prior to Closing
and which is not cured by Seller within ten (10)
business days of Seller's receipt of written notice,
Buyer's sole remedy shall be to elect in writing to
terminate this Agreement and receive a refund of the
Deposit or waive such breach and proceed with the
Closing. In the event of any material breach by Seller
of any of such representations or warranties or any
other material breach by Seller of any other provision
of this Agreement or any agreement delivered in
connection herewith discovered after Closing, Seller
shall be liable only for direct and actual damages
suffered by Buyer on account of Seller's breach, up to
the applicable limits described hereunder, and shall in
no event be liable for consequential or punitive
damages. Any liability of Seller hereunder for breach of
any such representations or warranties shall be limited
to (a) claims in excess of an aggregate of Fifty
Thousand Dollars ($50,000.00), and (b) a maximum
18
aggregate cap of Two Hundred Fifty Thousand Dollars
($250,000.00). Notice of such claim must be delivered to
Seller in writing within three (3) months of Closing. In
no event shall Seller be liable for any indirect or
consequential damages on account of Seller's breach of
any representation or warranty contained in this
Agreement. Additionally, notwithstanding the foregoing,
if Buyer becomes aware prior to the Closing that any
representation or warranty hereunder is untrue, or any
covenant or condition to Closing has not been fulfilled
or satisfied (if not otherwise waived by Buyer), and
Buyer nonetheless proceeds to close on the purchase of
the Property, then Buyer shall be deemed to have
irrevocably and absolutely waived, relinquished and
released all rights and claims against Seller for any
damage or other loss arising out of or resulting from
such untrue representation or warranty or such
unfulfilled or unsatisfied covenant or condition.
Seller's representations and warranties set forth in
Section 8.1 shall survive the Closing for a period of
three (3) months.
8.2.3 Approval of Property. The consummation of the purchase
and sale of the Property pursuant to this Agreement
shall be deemed Buyer's acknowledgement that it has had
an adequate opportunity to make such legal, factual and
other inspections, inquiries and investigations as it
deems necessary, desirable or appropriate with respect
to the Property. Such inspections, inquiries and
investigations of Buyer shall be deemed to include, but
shall not be limited to, any leases and contracts
pertaining to the Property, the physical components of
all portions of the Property, the physical condition of
the Property, such state of facts as an accurate survey,
environmental report and inspection would show, the
present and future zoning ordinance, ordinances,
resolutions. Buyer shall not be entitled to and shall
not rely upon, Seller or Seller's agents with regard to,
and Seller will not make any representation or warranty
with respect to: (i) the quality, nature, adequacy or
physical condition of the Property including, but not
limited to, the structural elements, foundation, roof,
appurtenances, access, landscaping, parking facilities,
or the electrical, mechanical, HVAC, plumbing, sewage or
utility systems, facilities, or appliances at the
Property, if any; (ii) the quality, nature, adequacy or
physical condition of soils or the existence of ground
water at the Property; (iii) the existence, quality,
nature, adequacy or physical condition of any utilities
serving the Property; (iv) the development potential of
the Property, its habitability, merchantability, or the
fitness, suitability, or adequacy of the Property for
any particular purpose; (v) the zoning or other legal
status of the Property; (vi) the Property or its
operations' compliance with any applicable codes, laws,
regulations, statutes, ordinances, covenants, conditions
or restrictions of any governmental or
quasi-governmental entity or of any other person or
entity; (vii) the quality of any labor or materials
relating in any way to the Property; or (viii) the
condition of title to the Property or the nature, status
and extent of any right-of-way, lease, right of
redemption, possession,
19
lien, encumbrance, license, reservation, covenant,
condition, restriction, or any other matter affecting
the Property except as expressly set forth in this
Agreement. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT AND/OR THE DEED, SELLER HAS NOT, DOES NOT, AND
WILL NOT MAKE ANY WARRANTIES OR REPRESENTATIONS WITH
RESPECT TO THE PROPERTY AND SELLER SPECIFICALLY
DISCLAIMS ANY OTHER IMPLIED WARRANTIES OR WARRANTIES
ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY
LIMITED TO, ANY WARRANTY OF CONDITION, MERCHANTABILITY,
HABITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR
USE. FURTHERMORE, SELLER HAS NOT, DOES NOT, AND WILL NOT
MAKE ANY REPRESENTATION OR WARRANTY WITH REGARD TO
COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION,
OR LAND USE LAWS, RULES, REGULATIONS, ORDERS, OR
REQUIREMENTS INCLUDING, BUT NOT LIMITED TO, THOSE
PERTAINING TO THE HANDLING, GENERATING, TREATING,
STORING OR DISPOSING OF ANY HAZARDOUS WASTE OR SUBSTANCE
INCLUDING, WITHOUT LIMITATION, ASBESTOS, PCB AND RADON.
BUYER ACKNOWLEDGES THAT BUYER IS A SOPHISTICATED BUYER
FAMILIAR WITH THIS TYPE OF PROPERTY AND THAT, SUBJECT
ONLY TO THE EXPRESS WARRANTIES SET FORTH IN THIS
AGREEMENT AND/OR CLOSING DOCUMENTS, BUYER WILL BE
ACQUIRING THE PROPERTY "AS IS AND WHERE IS, WITH ALL
FAULTS," IN ITS PRESENT STATE AND CONDITION, SUBJECT
ONLY TO NORMAL WEAR AND TEAR AND BUYER SHALL ASSUME THE
RISK THAT ADVERSE MATTERS AND CONDITIONS MAY NOT HAVE
BEEN REVEALED BY BUYER'S INSPECTIONS AND INVESTIGATIONS.
BUYER SHALL ALSO ACKNOWLEDGE AND AGREE THAT THERE ARE NO
ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS,
COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER, ANY
AGENT OF SELLER OR ANY THIRD PARTY. THE TERMS AND
CONDITIONS OF THIS PARAGRAPH SHALL SURVIVE THE CLOSING,
AND NOT MERGE WITH THE PROVISIONS OF ANY CLOSING
DOCUMENTS. SELLER SHALL NOT BE LIABLE OR BOUND IN ANY
MANNER BY ANY ORAL OR WRITTEN STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE
PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT,
EMPLOYEE, SERVANT OR OTHER PERSON, UNLESS THE SAME ARE
SPECIFICALLY SET FORTH OR REFERRED TO IN THIS AGREEMENT.
EXCEPT WITH REGARD TO THE OBLIGATIONS EXPRESSLY SET
FORTH IN THIS AGREEMENT AND THE REPRESENTATIONS AND
20
WARRANTIES IN SECTION 8.1, BUYER HEREBY RELEASES SELLER
AND ITS AGENTS, REPRESENTATIVES AND EMPLOYEES FROM ANY
AND ALL LIABILITY RELATING TO THE CONDITION OF THE
PROPERTY BEFORE OR AFTER THE CLOSING AND ANY OTHER
MATTER RELATING TO THE PROPERTY, WHETHER KNOWN OR
UNKNOWN AT THE TIME OF THE CLOSING.
8.2.4 Release. Except as expressly set forth in this Agreement
to the contrary and except for any claims arising under
the express representations, warranties or covenants of
Seller under this Agreement or under the indemnity
provisions of any document delivered in connection with
the closing of the transactions contemplated by this
Agreement, Buyer for itself and its agents, affiliates,
successors and assigns, hereby releases and forever
discharges Seller, and any party related to or
affiliated with Seller and their respective successors
and assigns (the "Seller Related Parties") from and
against any and all claims at law or equity which Buyer
or any party related to or affiliated with Buyer and
their respective successors and assigns (each a "Buyer
Related Party") whether known or unknown at the time of
this agreement, which Buyer or a Buyer Related Party has
or may have in the future, arising from or related to
any matter or thing relating to or in connection with
the Property, including but not limited to, the
documents and information referred to in this Agreement,
the leases and the tenants, the Loan, any construction
defects, errors or omissions in the design or
construction and arising out of the physical,
environmental, economic or legal condition of the
Property, including, without limitation, any claim for
indemnification or contribution arising under the
Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9601, et. sm.) or any
similar federal, state or local statute, rule or
ordinance relating to liability of property owners or
operators for environmental matters. For the foregoing
purposes, Buyer hereby specifically waives the
provisions of Section 1542 of the California Civil Code
and any similar law of any other state, territory or
jurisdiction. Section 1542 provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH
THE DEBTOR.
21
BUYER HEREBY SPECIFICALLY ACKNOWLEDGES THAT BUYER HAS
CAREFULLY REVIEWED THIS SUBSECTION AND DISCUSSED ITS
IMPORT WITH LEGAL COUNSEL AND THAT THE PROVISIONS OF
THIS SUBSECTION ARE A MATERIAL PART OF THIS AGREEMENT.
BUYER: _________________________
8.3 INTENTIONALLY DELETED
8.4 INTENTIONALLY DELETED
8.5 Covenants of Seller. Seller hereby covenants as follows:
8.5.1 At all times from the date hereof through the date of
Closing, Seller shall cause to be in force fire and
extended coverage insurance upon the Property, and
public liability insurance with respect to damage or
injury to persons or property occurring on the Property
in at least such amounts as are maintained by Seller on
the Effective Date;
8.5.2 From the end of the Effective Date through the date of
Closing, Seller will not enter into any new lease with
respect to the Property, without Buyer's prior written
consent, which shall not be unreasonably withheld.
Exercise of a renewal option shall not be considered a
new lease. Any brokerage commission payable with respect
to a new lease shall be paid by Buyer. Further, Seller
will not modify any existing Lease covering space in the
Property without first obtaining the written consent of
Buyer which shall not be unreasonably withheld. Buyer
shall have five (5) business days from its receipt of
Seller's notice of a new lease in which to approve or
disapprove of any new lease for which it has a right to
consent. Failure to respond in writing within said time
period shall be deemed to be consent;
8.5.3 From the Effective Date through the date of Closing,
Seller shall not sell, assign, or convey any right,
title or interest whatsoever in or to the Property, or
create or permit to attach any lien, security interest,
easement, encumbrance, charge, or condition affecting
the Property (other than the Permitted Exceptions)
without promptly discharging the same prior to Closing;
8.5.4 Seller shall not, without Buyer's written approval, (a)
amend or waive any right under any Service Contract, or
(b) enter into any agreement of any type affecting the
Property that is not terminable on 30 days notice.
22
9. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to Seller as follows:
9.1 Buyer is a limited partnership duly organized and validly
existing under the laws of the State of Delaware. Buyer has full
power and authority to enter into this Agreement, to perform
this Agreement and to consummate the transactions contemplated
hereby. This Agreement is a legal, valid and binding obligation
of Buyer, enforceable against Buyer in accordance with its
terms, subject to the effect of applicable bankruptcy,
insolvency, reorganization, arrangement, moratorium or other
similar laws affecting the rights of creditors generally.
10. Conditions Precedent to Closing.
10.1 The obligations of Buyer pursuant to this Agreement shall, at
the option of Buyer, be subject to the following conditions
precedent:
10.1.1 All of the representations, warranties and agreements of
Seller set forth in this Agreement shall be true and
correct in all material respects as of the Effective
Date, and Seller shall not have on or prior to closing,
failed to meet, comply with or perform in any material
respect any conditions or agreements on Seller's part as
required by the terms of this Agreement.
10.1.2 There shall be no material adverse change in the matters
reflected in the Title Report, and there shall not exist
any material adverse encumbrance or title defect
affecting the Property except for the Permitted
Exceptions or matters to be satisfied at Closing.
10.1.3 Seller shall, no less than three (3) days prior to the
Closing, deliver to Buyer estoppel certificates for
tenants representing seventy percent (70%) of the square
feet which are leased by tenants as of the Effective
Date ("Estoppel Threshold"), which shall include (i)
Tenant Estoppels (as defined herein) for Cisco and
Rubbermaid (or its successors or assigns) or (ii) Tenant
Estoppels for Cisco and InfoEdge and a Seller Estoppel
(as defined herein) for Rubbermaid (or its successors or
assigns). Buyer and Seller agree that Seller may provide
and Buyer shall accept a Seller Estoppel if Seller
cannot obtain an estoppel pre-closing from Rubbermaid.
Seller shall, pre-closing, cooperate with Buyer in
obtaining, but shall not be obligated to obtain, any
subordination, non-disturbance and attornment agreement
requested by Buyer's lender. All estoppel certificates
shall be substantially in the form which such tenants
are required to provide pursuant to the terms of each
tenant's respective lease, or, at Seller's option, in
the form of Exhibit G attached hereto and incorporated
herein by this reference ("Tenant Estoppel"). In the
event Seller cannot for any reason obtain a tenant
estoppel letter from a tenant from whom an estoppel
letter is required, Seller, at its option, may deliver
to Buyer a Seller's (landlord) estoppel letter in the
form of Exhibit H attached hereto and
23
incorporated herein by this reference ("Seller
Estoppel"). Seller, in its sole discretion, will add
commercially reasonable content to the Tenant Estoppel,
as requested, to satisfy Buyer's lender. For purposes of
the foregoing sentence, the determination of
"commercially reasonable content" shall be determined by
Seller in its sole discretion. Seller's liability under
Seller's estoppel letters shall expire and be of no
further force or effect on the ninetieth (90th) day
following the Closing Date; provided, however, that if
Seller shall obtain an estoppel certificate from any
such tenant after delivery of such Seller's estoppel
letter with respect to a tenant, Seller's (landlord)
estoppel letter shall, as of the date of a tenant's
estoppel letter, be without further force or effect.
Seller's liability, under the Seller's estoppel
certificates shall automatically terminate and be of no
further force and effect upon satisfaction of the
Estoppel Threshold, irrespective of whether such tenant
estoppels are received before or after Closing. Seller
shall have no liability or responsibility for the
information set forth in the estoppel certificates
delivered by the tenants. Estoppel certificates shall be
deemed to satisfy this condition precedent unless they
disclose materially adverse matters and/or are
inconsistent with the documents delivered pursuant to
Section 4.1.10. Buyer shall notify Seller within five
(5) business days of receipt of a copy of the executed
estoppel certificate of its approval or disapproval and
the basis of such disapproval, if disapproved. If Buyer
disapproves of an estoppel certificate because of a
material, adverse matter disclosed therein, and Seller
is unable to obtain a reasonably acceptable estoppel
certificate prior to the Closing, but in no event later
than fifteen (15) days after Buyer's disapproval of
same, this Agreement shall terminate, Buyer shall
receive a refund of the Deposit and neither party shall
have any further obligation to the other except Buyer's
indemnification obligations under Paragraph 5.
10.2 The obligations of Seller under this Agreement shall, at the
option of Seller, be subject to the following conditions
precedent:
10.2.1 All of the representations, warranties and agreements of
Buyer set forth in this Agreement shall be true and
correct in all material respects as of the Effective
Date, and Seller shall not have on or prior to closing,
failed to meet, comply with or perform in any material
respect any conditions or agreements on Buyer's part as
required by the terms of this Agreement.
10.2.2 Seller shall have received approval of the Sale from all
entities comprising Seller not later than seven (7)
business days following the end of the Inspection
Period. Upon receipt of such approval, Seller shall
immediately notify Buyer of such approval in writing
("Seller's 10.2.2 Approval"). In the event Seller shall
not receive such approval, Seller shall provide Buyer
with written notice of such non-approval ("Seller's
10.2.2 Notice"), terminate the Agreement, and,
notwithstanding Section
24
2.1.1 of this Agreement, return the Deposit to Buyer
within two (2) business days after Seller's 10.2.2
Notice, and neither party shall have any further
obligations to the other hereunder except Buyer's
indemnification under Section 5. Further, within three
(3) business days of Buyer's receipt of Seller's 10.2.2
Notice, either Buyer or the Xxxxx Xxxx V Seller may
terminate the Xxxxx Xxxx V Agreement in which event
Buyer shall received from Xxxxx Xxxx V Seller a refund
of the deposit under the Xxxxx Xxxx V Agreement and
neither party shall have any other obligations to the
other under the Xxxxx Xxxx V Agreement.
If any such condition is not fully satisfied by Closing, the party in
whose favor the condition runs shall notify the other party and may
terminate this Agreement by written notice whereupon this Agreement may
be canceled, upon return of the Due Diligence Items and, thereafter,
neither Seller nor Buyer shall have any continuing obligations
hereunder; provided, however, that if Buyer notifies Seller of a failure
to satisfy the conditions precedent set forth in Section 10.1, Seller
may, within ten (10) days of receipt of Buyer's notice agree to satisfy
the condition by written notice to Buyer, and Buyer shall thereupon be
obligated to close the transaction provided Seller so satisfies such
condition. Closing may be delayed by Seller for up to ten (10) days
after Seller's receipt of Buyer's notice to allow Seller time to satisfy
such conditions. If Seller fails to timely cure any condition set forth
in Section 10.1, this Agreement shall be canceled, Buyer shall receive a
refund of the Deposit and neither party shall have any further liability
hereunder.
11. Damage or Destruction Prior to Closing.
In the event that the Property should be damaged by any casualty prior
to the Closing, then if the cost of repairing such damage, as reasonably
estimated by Seller, is:
11.1 Less than One Million Dollars ($1,000,000), the Closing shall
proceed as scheduled and any insurance proceeds shall be
distributed to Buyer to the extent not expended by Seller for
restoration Buyer shall receive a credit at Closing equal to the
property insurance policy deductible reduced by any applicable
payments made by Seller for restoration;
or if said cost is:
11.2 Greater than One Million Dollars ($1,000,000), then either
Seller or Buyer may elect to terminate this Agreement, in which
case the Buyer shall return the Due Diligence Items to Seller
and only if Seller elects to terminate this Agreement, the
Deposit shall be returned to the Buyer and neither party shall
have any further obligation to the other except for Buyer's
indemnification obligations under Paragraph 5. Should Buyer
proceed to Closing, Buyer shall receive any insurance proceeds
and a credit at Closing equal to the property insurance policy
deductible reduced by any applicable payments made by Seller for
restoration.
25
12. Eminent Domain.
12.1 If, before the Closing, proceedings are commenced for the taking
by exercise of the power of eminent domain of all or a material
part of the Property which, as reasonably determined by Buyer,
would render the Property unacceptable to Buyer or unsuitable
for Buyer's intended use, Buyer shall have the right, by giving
notice to Seller within thirty (30) days after Seller gives
notice of the commencement of such proceedings to Buyer, to
terminate this Agreement, in which event this Agreement shall
terminate, and only if Seller elects to terminate this
Agreement, the Deposit shall be returned to the Buyer and
neither party shall have any further obligation to the other
except for Buyer's indemnification under Paragraph 5. If, before
the Closing, proceedings are commenced for the taking by
exercise of the power of eminent domain of less than such a
material part of the Property, or if Buyer has the right to
terminate this Agreement pursuant to the preceding sentence but
Buyer does not exercise such right, then this Agreement shall
remain in full force and effect and, at the Closing, the
condemnation award (or, if not therefore received, the right to
receive such portion of the award) payable on account of the
taking shall be transferred in the same manner as title to the
Property is conveyed. Seller shall give notice to Buyer within
three (3) business days after Seller's receiving notice of the
commencement of any proceedings for the taking by exercise of
the power of eminent domain of all or any part of the Property.
13. Notices.
13.1 All notices, demands, or other communications of any type given
by any party hereunder, whether required by this Agreement or in
any way related to the transaction contracted for herein, shall
be void and of no effect unless given in accordance with the
provisions of this Paragraph. All notices shall be in writing
and delivered to the person to whom the notice is directed,
either in person, by United States Mail, as a registered or
certified item, return receipt requested by telecopy or by
Federal Express. Notices delivered by mail shall be deemed given
when received. Notices by telecopy or Federal Express shall be
deemed received on the business day following transmission.
Notices shall be given to the following addresses:
Seller: Xxxxxxx Xxxxxx
Triple Net Properties, LLC
0000 X. Xxxxxx Xxx. #000
Xxxxx Xxx, XX 00000
(000) 000-0000
(000) 000-0000 fax
26
With Required Copy to: Xxxxxx X. Xxxxx
Triple Net Properties, LLC
0 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxx Xxxxx, XX 00000
(714) 667-8252 ext. 619
(000) 000-0000 fax
Xxxxxx X. XxXxxxx, Esq.
Xxxxxxxxx Xxxxxxxxx
The Federal Reserve Bank Building,
16th Floor
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 fax
Buyer: Xxxxxxx Xxxxxxxxxxxx
Vice-President
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
With Required Copy to: Tamarin X. Xxxxxxx
Director of Legal Affairs
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
14. Remedies.
14.1 Defaults by Seller. If there is any default by Seller under this
Agreement, which is not cured by Seller within ten (10) business
days of Seller's receipt of written notice, Buyer may, as its
sole options elect to either (a) declare this Agreement
terminated and receive a refund of the Deposit; or (b) treat
this Agreement as being in full force and effect and bring an
action against Seller for specific performance. In the event of
a Seller default, all time periods hereunder (including, but not
limited to those referenced in Section 7.8) shall be extended
for the lesser of seven (7) days, or the actual number of days
in which Seller cured its default.
14.2 Defaults by Buyer. If there is any default by Buyer under this
Agreement, following notice to Buyer and seven (7) days, during
which period Buyer may cure the default, then Seller may, as its
sole remedy, declare this Agreement terminated and each party
shall thereupon be relieved of all further obligations and
liabilities, except any which survive termination.
Notwithstanding the foregoing, the Buyer's right to cure shall
be applicable to a failure to close and the Closing shall in no
event be extended pursuant to this Section. In the event this
Agreement is terminated due to the default of Buyer hereunder,
Buyer shall deliver to Seller, at no cost to Seller, the Due
Diligence Items and all of Buyer's
27
Reports. In the event of a Buyer default, all time periods
hereunder (including, but not limited to those referenced in
Section 7.8) shall be extended for the lesser of seven (7) days,
or the actual number of days in which Buyer cured its default.
14.3 ARBITRATION OF DISPUTES. ANY CLAIM, CONTROVERSY OR DISPUTE,
WHETHER SOUNDING IN CONTRACT, STATUTE, TORT, FRAUD,
MISREPRESENTATION OR OTHER LEGAL THEORY, RELATED DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT, WHENEVER BROUGHT AND WHETHER
BETWEEN THE PARTIES TO THIS AGREEMENT OR BETWEEN ONE OF THE
PARTIES TO THIS AGREEMENT AND THE EMPLOYEES, AGENTS OR
AFFILIATED BUSINESSES OF THE OTHER PARTY, SHALL BE RESOLVED BY
ARBITRATION AS PRESCRIBED IN THIS SECTION. THE FEDERAL
ARBITRATION ACT, 9 U.S.C. Sections 1-15, NOT STATE LAW, SHALL
GOVERN THE ARBITRABILITY OF ALL CLAIMS, AND THE DECISION OF THE
ARBITRATOR AS TO ARBITRABILITY SHALL BE FINAL.
A SINGLE ARBITRATOR WHO IS A RETIRED FEDERAL OR CALIFORNIA JUDGE
SHALL CONDUCT THE ARBITRATION UNDER THE THEN CURRENT RULES OF
THE AMERICAN ARBITRATION ASSOCIATION (THE "AAA"). THE ARBITRATOR
SHALL BE SELECTED BY MUTUAL AGREEMENT ON THE ARBITRATOR WITHIN
THIRTY (30) DAYS OF WRITTEN NOTICE BY ONE PARTY TO THE OTHER
INVOKING THIS ARBITRATION PROVISION, IN ACCORDANCE WITH AAA
PROCEDURES FROM A LIST OF QUALIFIED PEOPLE MAINTAINED BY THE
AAA. THE ARBITRATION SHALL BE CONDUCTED IN SANTA ANA, CALIFORNIA
AND ALL EXPEDITED PROCEDURES PRESCRIBED BY THE AAA RULES SHALL
APPLY.
THERE SHALL BE NO DISCOVERY OTHER THAN THE EXCHANGE OF
INFORMATION WHICH IS PROVIDED TO THE ARBITRATOR BY THE PARTIES.
THE ARBITRATOR SHALL HAVE AUTHORITY ONLY TO GRANT SPECIFIC
PERFORMANCE AND TO ORDER OTHER EQUITABLE RELIEF AND TO AWARD
COMPENSATORY DAMAGES, BUT SHALL NOT HAVE THE AUTHORITY TO AWARD
PUNITIVE DAMAGES OR OTHER NONCOMPENSATORY DAMAGES OR ANY OTHER
FORM OF RELIEF. THE ARBITRATOR SHALL AWARD TO THE PREVAILING
PARTY ITS REASONABLE ATTORNEYS' FEES AND COSTS AND OTHER
EXPENSES INCURRED IN THE ARBITRATION, EXCEPT THE PARTIES SHALL
SHARE EQUALLY THE FEES AND EXPENSES OF THE ARBITRATOR. THE
ARBITRATOR'S DECISION AND AWARD SHALL BE FINAL AND BINDING, AND
JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED
IN ANY COURT HAVING JURISDICTION THEREOF.
28
15. Assignment.
Buyer may assign its rights under this Agreement to an entity in which
Buyer has a legally controlling interest, provided, however, that Buyer
shall have no such right unless a written assignment is delivered to
Seller no later than 7 business days before Closing; and further
provided that no such assignment shall relieve Buyer of its obligations
hereunder.
16. Interpretation and Applicable Law.
This Agreement shall be construed and interpreted in accordance with the
laws of the state in which the Property is located (the "State"). Where
required for proper interpretation, words in the singular shall include
the plural; the masculine gender shall include the neuter and the
feminine, and vice versa. The terms "successors and assigns" shall
include the heirs, administrators, executors, successors, and assigns,
as applicable, of any party hereto.
17. Amendment.
This Agreement may not be modified or amended, except by an agreement in
writing signed by the parties. The parties may waive any of the
conditions contained herein or any of the obligations of the other party
hereunder, but any such waiver shall be effective only if in writing and
signed by the party waiving such conditions and obligations.
18. Attorney's Fees.
In the event it becomes necessary for either party to file a suit or
arbitration to enforce this Agreement or any provisions contained
herein, the prevailing party shall be entitled to recover, in addition
to all other remedies or damages, reasonable attorneys' fees and costs
of court incurred in such suit or arbitration.
19. Entire Agreement; Survival.
This Agreement (and the items to be furnished in accordance herewith)
constitutes the entire agreement between the parties pertaining to the
subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings of the parties in connection therewith. No
representation, warranty, covenant, agreement, or condition not
expressed in this Agreement shall be binding upon the parties hereto nor
affect or be effective to interpret, change, or restrict the provisions
of this Agreement. All of the obligations of the parties hereunder and
all other provisions of this Agreement shall be deemed to have merged
into the Deed and shall be extinguished at Closing or the earlier
termination of this Agreement, except as expressly provided herein.
Notwithstanding anything to the contrary in this Agreement, the
29
20. Multiple Originals only; Counterparts.
Numerous agreements may be executed by the parties hereto. Each such
executed copy shall have the full force and effect of an original
executed instrument. This Agreement may be executed in any number of
counterparts, all of which when taken together shall constitute the
entire agreement of the parties.
21. Acceptance.
Time is of the essence as to all dates set forth in this Agreement. The
date of execution of this Agreement by Seller shall be the date of
execution of this Agreement. If the final date of any period falls upon
a Saturday, Sunday, or legal holiday under Federal law, the laws of the
State or the laws of the State of California, then in such event the
expiration date of such period shall be extended to the next day which
is not a Saturday, Sunday, or legal holiday under Federal law, the laws
of the State or the State of California.
22. Real Estate Commission.
Seller and Buyer each represent and warrant to the other that neither
Seller nor Buyer has contracted or entered into any agreement with any
real estate broker, agent, finder or any other party in connection with
this transaction, and that neither party has taken any action which
would result in any real estate broker's, finder's or other fees or
commissions being due and payable to any party with respect to the
transaction contemplated hereby, except that Seller has contracted with
Triple Net Properties Realty, Inc., and Xxxxxxxx Xxxx Central Texas,
Ltd. as its brokers and will pay any commission due to said brokers
under separate agreement. Seller shall pay at Closing a commission to
XXXX Commercial Brokerage of One Hundred Sixty-Four Thousand Dollars
($164,000). Each party hereby indemnifies and agrees to hold the other
party harmless from any loss, liability, damage, cost, or expense
(including reasonable attorneys' fees) resulting to the other party by
reason of a breach of the representation and warranty made by such party
in this paragraph.
23. Exchange.
Each of Buyer and Seller reserves the right to structure the sale of the
Property as a like kind exchange pursuant to Section 1031 of the
Internal Revenue Code of 1986, as amended. In such event the party
electing a like kind exchange shall have the right to assign its
interest in this Agreement to a qualified exchange intermediary of its
choosing to effect such exchange. The other party shall sign a customary
assignment and/or notice of assignment, however, such assignment shall
at no cost or expense to party from whom the notice is being requested
and shall not otherwise affect the term of this Agreement.
24. Confidentiality.
Buyer agrees that, prior to the closing, all Property information
received by Buyer shall be kept confidential as provided in this
paragraph. Without the prior written consent of
30
Seller, prior to the closing, the Property information shall not be
disclosed by Buyer or its representatives, in any manner whatsoever, in
whole or in part, except (1) to Buyer's representatives who need to know
the Property information for the purpose of evaluating the Property and
who are informed by the Buyer of the confidential nature of the Property
information; (2) as may be necessary for Buyer or Buyer's
representatives to comply with applicable laws, including, without
limitation, governmental, regulatory, disclosure, tax and reporting
requirements; to comply with other requirements and requests of
regulatory and supervisory authorities and self-regulatory organizations
having jurisdiction over Buyer or Buyer's representatives; to comply
with regulatory or judicial processes; or to satisfy reporting
procedures and inquiries of credit rating agencies in accordance with
customary practices of Buyer or its affiliates; and (3) to prospective
tenants of the Property.
THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK
31
SIGNATURE PAGE FOR
-----------------------------------------
-----------------------------------------
-----------------------------------------
EXECUTED on this the 8th day of May, 2006 by:
SELLER:
XXXXX - AMBEROAKS, LP,
a Texas limited liability company
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: XXXXX Chief Financial Officer
NNN AMBEROAKS 1, LLC,
a Texas limited liability company
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Chief Investment Officer
NNN AMBEROAKS 2, LLC,
a Texas limited liability company
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Chief Investment Officer
32
NNN AMBEROAKS 3, LLC,
a Texas limited liability company
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Chief Investment Officer
EXECUTED on this the 8 day of May, 2006 by:
BUYER:
XXXXX XXXXXXX, LP
a Delaware limited partnership
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
---------------------------------
Title: CEO
--------------------------------
33
EXHIBIT A
Legal Description of the Property
TRACT 1: Xxxx 0 xxx 0, Xxxxx "X", XXXXX XXXX SUBDIVISION SECTION TWO, a
subdivision in Xxxxxxxxxx County, Texas, according to the map or plat thereof,
recorded in Cabinet Q, Slide(s) 125-126 of the Plat Records of Xxxxxxxxxx
County, Texas.
TRACT 2: Xxx 0X, Xxxxx "X", XXXXXXX XXXX XX XXXXX FARM SECTION THREE, a
subdivision in Xxxxxxxxxx County, Texas, according to the map or plat thereof,
recorded in Cabinet Y, Slide(s) 164-166 of the Plat Records of Xxxxxxxxxx
County, Texas, SAVE AND EXCEPT that portion conveyed to Xxxxxxxxxx County in
Deed dated November 11, 2003, filed December 10, 2003 and recorded under
Document No. 2003118651 of the Official Public Records of Xxxxxxxxxx County,
Texas.
34
EXHIBIT B
Leases
XXXXX XXXX III
BUILDING A
EG&G
ACS State Healthcare
7-Eleven, Inc.
InfoEdge Technology
URS
BUILDING F
Netsolve/Cisco Systems
BUILDING J
Xxxxxx Rubbermaid, Inc.
35
EXHIBIT C
Form of Assignment and Assumption Agreement
This Assignment and Assumption Agreement (this "Assignment") is made as
of __________ ___, _____, by and between ___________________________, a
____________________ ("Assignor"), and ________________________, a
_________________________ ("Assignee").
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Assignor hereby grants, sells, transfers and
assigns unto Assignee all of the rights, title and interest of Assignor in, to
and under any and all of the following items, to the extent that they are
related to that certain real property located in the [County] [City] of
________________, State of __________, which is more particularly described in
Exhibit A attached hereto (the "Real Property"):
(a) all contracts or agreements, if any, to the extent that they
relate to the Real Property, or improvements thereon (including, but not
limited to, maintenance or utility contracts);
(b) all warranties, guarantees and indemnities (including,
without limitation, those for workmanship, materials and performance)
which exist or may hereafter exist, from, by or against any contractor,
subcontractor, manufacturer or supplier or laborer or other services
relating to the Real Property, or the improvements thereon;
(c) plans, drawings, and specifications for the improvements to
the Real Property; and
(d) all intangible property used or useful in connection with
the Real Property or the improvements thereon, including, without
limitation, all trademarks, trade names [(including, without limitation,
the exclusive right to use the name _____________________)], and all
contract rights, guarantees, licenses, permits (to the extent
transferable) and warranties.
(e) all of Assignor's rights, title and interest in, to and
under the leases (the "Leases") relating to the Real Property, together
with any and all rights, title, estates and interests of Assignor as
lessor under the Leases, whether now owned or hereafter acquired, in and
to any improvements and fixtures located thereon and any rights,
privileges, easements, rights of way or appurtenances appertaining
thereto (including, without limitation, any and all rents, issues,
profits, royalties, income and other benefits derived from the Real
Property hereafter accruing, and any and all claims, causes of action,
rights to proceeds or awards related to the Real Property hereafter
accruing), together with all rights, title, estates and interests of
Assignor in and to such security deposits and prepaid rents, if any, as
have been paid to Assignor pursuant to such Leases,
36
together with all rights, title, estates and interests of Assignor in
and to any subleases, if any, relating to the Real Property.
Assignee hereby accepts the foregoing assignment and agrees to assume
any executory obligations of Assignor arising after the date hereof in
connection with the agreements described in paragraph (a) above.
Assignee hereby accepts the foregoing assignment and agrees to assume,
pay, perform and discharge, as and when due, all of the agreements and
obligations of Assignor under the Leases arising after the date hereof and
agrees to be bound by all of the terms and conditions of the Leases.
Assignor hereby covenants that it will, at any time and from time to
time upon written request therefor, at Assignee's sole expense and without the
assumption of any additional liability therefor, execute and deliver to
Assignee, and its successors and assigns, any new or confirmatory instruments
and take such further acts as Assignee may reasonably request to fully evidence
the assignment contained herein and to enable Assignee, and its successors and
assigns, to fully realize and enjoy the rights and interests assigned hereby.
The provisions of this Assignment shall be binding upon, and shall inure
to the benefit of, the successors and assigns of Assignor and Assignee,
respectively. This Assignment may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which when taken together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have caused their duly
authorized representatives to execute this Assignment as of the date first above
written.
ASSIGNOR:
,
-------------------------------
a
------------------------------
By:
----------------------------------------
Its:
---------------------------------------
ASSIGNEE:
,
-------------------------------
a
------------------------------
By:
----------------------------------------
Its:
---------------------------------------
37
EXHIBIT D
Form of Xxxx of Sale
For good and valuable consideration, receipt and sufficiency of which is
hereby acknowledged, the undersigned, _______________________, a
____________________ ("Seller"), does hereby give, grant, bargain, sell,
transfer, assign, convey and deliver to __________________, a _____________
("Buyer"), all personal property of Seller located on, in, or used or useful in
connection with that certain real property (the "Real Property") located in the
[County] [City] of ________________, State of __________, commonly known as
_____________________, which Real Property is more particularly described on
Exhibit A attached hereto.
The assets transferred hereby are conveyed AS-IS WHERE-IS WITHOUT ANY
REPRESENTATION OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE WHATSOEVER.
Seller hereby covenants that it will, at any time and from time to time
upon written request therefor, at Buyer's sole expense and without the
assumption of any additional liability thereby, execute and deliver to Buyer,
its nominees, successors and/or assigns, any new or confirmatory instruments and
do and perform any other acts which Buyer, its nominees, successors and/or
assigns, may reasonably request in order to fully assign and transfer to and
vest in Buyer, its nominees, successors and/or assigns, and protect its or their
rights, title and interest in and enjoyment of, all of the assets of Seller
intended to be transferred and assigned hereby, or to enable Buyer, its
nominees, successors and/or assigns, to realize upon or otherwise enjoy any such
assets.
All references to "Seller" and "Buyer" herein shall be deemed to include
their respective nominees, successors and/or assigns, where the context permits.
Dated: , 2006 SELLER:
--------- ---
,
-------------------------------
a
------------------------------
By:
----------------------------------------
Its:
---------------------------------------
38
EXHIBIT E
Tenant Improvements
The parties specifically agree that with respect to the Lease with potential URS
expansion into Suite 150 containing approximately 5,770 square feet, Buyer at
Closing will receive a credit in the amount of $110,378 representing the
estimated costs of tenant improvement work to be performed, leasing commissions
to be paid and one months' free rent.
39
EXHIBIT F
Governmental Notices
Environmental Matters
Letter, dated June 30, 2005, to NNN Amberoaks, L.L.C. from Texas Commission on
Environmental Quality, regarding request for approval of an aboveground storage
tank facility plan for State Farm Amberoaks Corporate Center; Amberglen
Boulevard, Austin E.T.J., Texas.
40
EXHIBIT G
Form Tenant Estoppel Certificate
By lease, dated _________________ ("Lease"), the undersigned ("Tenant")
has leased from _____________________________., a ___________________or its
predecessors in interest ("Landlord") the lease premises located at
___________________________________ ___________________________________ which
are more particularly described in the Lease. Landlord, as owner of the property
("Property") of which the lease premises are a part, intends to sell the said
Property to __________________________________________________________ ("Buyer")
who, as a condition to the purchase of the Property, has required this tenant
estoppel certificate.
In consideration of Buyer's agreement to purchase the Property, Tenant
agrees and certifies to Landlord and to Buyer as follows:
1. The leased premises and possession thereof are accepted; the Lease is
in full force and effect; and the lease term begins on
____________________________________and ends on _____________________________.
2. Tenant claims no present charge, lien or claim of offset against
rent.
3. Rent is paid for the current month but is not paid and will not be
paid more than one month in advance. Basic or fixed rent is $___________ per
month and is due on the ______ of each month. A security deposit in the amount
of $___________ has been paid to Landlord.
4. There are no existing defaults by reason of any act or omission of
the Landlord except as follows:
5. The Lease has not been modified, except in accordance with the
amendments dated as follows:
6. Attached is a true and correct copy of the Lease together with all
amendments, modifications or renewals.
This certificate may be relied upon by Buyer, its lender from time to
time, and their respective successors and assigns.
TENANT: ,
-------------------------------
a
------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
41
EXHIBIT H
Form Seller/Landlord Estoppel Certificate
TO:
---------------------------------------------
RE:
---------------------------------------------
Lease dated:
----------------------------------------
Landlord:
-------------------------------------------
Tenant:
---------------------------------------------
Demised Premises:
-----------------------------------
Current Base Rental:
--------------------------------
The undersigned ("Seller") hereby certifies as of the date hereof, the
following:
1. Attached hereto is a true, correct and complete copy of the
above-described Lease along with all amendments and modifications thereto (the
"Lease").
2. The Lease is in full force and effect and has not been amended,
modified. supplemented or superseded except as follows:
3. The information describing the Lease as shown above is correct except
as follows:
This letter is given by Seller to ("Buyer") in connection with the sale
of that certain property described in that certain Purchase and Sale Agreement,
dated as of ________________, 2006, by and between Buyer and Seller (the "Sale
Agreement") and is intended solely for the benefit of Buyer and no other person
or entity may rely on any matter set forth herein. Seller shall only be liable
for the information set forth herein for ninety (90) days after the date hereof;
provided, however, that if Seller obtains an estoppel certificate from the
tenant identified hereinabove after the date hereof that complies with the terms
of Section 10.1.3 of the Agreement for Purchase and Sale, this certificate shall
be without further force or effect as of the date of such tenant's estoppe1
certificate.
Anything in this letter to the contrary notwithstanding, the maximum
aggregate liability of Seller for Seller's breaches of representations and
warranties contained herein shall be limited as set forth in the Agreement of
Purchase and Sale. Notwithstanding the foregoing, however, Buyer hereby
expressly waives, relinquishes and releases any right or remedy available to it
at law, in equity or under the Sale Agreement to make a claim against Seller for
damages that Buyer may incur as the result of any of Seller's representations or
warranties being untrue, inaccurate or incorrect if (a) Buyer knew or is deemed
to know that such representation or
42
warranty was untrue, inaccurate or incorrect on or before the date hereof, or
(b) Buyer's damages as a result of such representations or warranties being
untrue, inaccurate or incorrect are reasonably estimated to aggregate less than
$50,000.
Dated as of this ____ day of __________________, 2006.
,
-------------------------------
a
------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
43
EXHIBIT I
XXXXX XXXX
LEASE DOCUMENT INVENTORY
AS OF 5/4/06
XXXXX XXXX III
BUILDING-ADDRESS SUITE TENANT DOCUMENT INVENTORY
---------------- ----- ------ ------------------
A-13640 160/250 InfoEdge 1. Lease dated September 30, 2005
2. 1st Amendment dated February 16, 06
F-9500 100 & 200 Cisco Systems, Inc. 1. Lease dated June 7, 2000
2. LOC dated July 3, 2001
3. LOC dated 8/20/04 - expired 8/31/05 ($345,000)
J-9301 999 Xxxxxx Rubbermaid, 1. Lease dated May 23, 2002
Inc. 2. 1st Amendment dated December 5, 2003
3. Option Agreement dated December 5, 2003
4. Assignment of Lease dated April 13, 2004
44
