EXHIBIT 10.82
AGREEMENT FOR PURCHASE AND SALE OF PROPERTY FOR
COMDATA BUILDING
REAL ESTATE PURCHASE AND SALE AGREEMENT
BETWEEN
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY,
A WISCONSIN CORPORATION, SELLER
AND
XXXXX CAPITAL, INC.,
A GEORGIA CORPORATION, BUYER
REAL ESTATE PURCHASE AGREEMENT
Table of Contents
Article 1 Agreement and Recital
Article 2 Basic Terms
Article 3 Representations and Warranties
3.1 Representations and Warranties of Seller
3.2 No Other Representations and Warranties by Seller
3.3 Representations, Warranties and Covenants of Buyer
3.4 Buyer's Reliance on Own Investigation; "AS-IS" Sale
Article 4 The Transaction
4.1 Escrow
4.2 Purchase Price
4.2.1 Xxxxxxx Money
4.2.2 Retention and Disbursement of Xxxxxxx Money
4.2.3 Cash at Closing
4.3 Conveyance of Deed
Article 5 Title and Survey
5.1 Title Insurance Commitment
5.2 Subsequent Matters Affecting Title
5.3 Survey
5.4 Effect of Approval Notice
Article 6 Condition of the Property
6.1 Inspections
6.1.1 Inspection of Property
6.1.2 Inspection of Due Diligence Documents
6.2 Entry onto Property
6.3 Environmental Matters
6.3.1 Buyer's Environmental Investigation
6.3.2 Seller's Environmental Reports
6.4 Approval and Termination
6.4.1 Buyer's Approval Notice
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6.4.2 Buyer's Right to Terminate
6.4.3 Seller's Right to Termination
6.5 Service Contracts
6.6 Estoppel Certificates
6.7 Management of the Property
6.8 Leasing
6.9 Association Estoppel
Article 7 Closing
7.1 Buyer's Conditions Precedent to Closing
7.2 Seller's Conditions Precedent to Closing
7.3 Deposits in Escrow
7.3.1 Seller's Deposits
7.3.2 Buyer's Deposits
7.3.3 Joint Deposits
7.3.4 Other Documents.
7.4 Costs
7.5 Prorations
7.5.1 Generally
7.5.2 Like-Kind Exchange (Proration)
7.6 Insurance
7.7 Close of Escrow
7.8 Possession
7.9 Recorded Instruments
7.10 Tenant Notice(s)
Article 8 Condemnation and Casualty
Article 9 Notices
Article 10 Successors and Assigns
Article 11 Brokers
Article 12 Covenant Not to Record
Article 13 Default
13.1 Default By Buyer
13.2 Default By Seller
Article 14 Non-Default Termination
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Article 15 Indemnities
15.1 Seller Indemnity
15.2 Buyer Indemnity
15.3 Unknown Environmental Liabilities
15.4 Release
15.5 Survival
Article 16 Miscellaneous
16.1 Survival of Representations, Covenants, and Obligations
16.2 Attorneys' Fees
16.3 Publicity
16.4 Captions
16.5 Waiver
16.6 Time
16.7 Controlling Law
16.8 Severability
16.9 Construction
16.10 Like-Kind Exchange
16.10.1 Assignment of Rights to Agreement to Qualified
Intermediary
16.10.2 Reassignment
16.11 Execution
16.12 Amendments
16.13 Entire Agreement
Receipt by Escrowholder
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Exhibits
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Exhibit A - Special Warranty Deed
Exhibit B - Assignment and Assumption of Lease
Exhibit C - Existing Environmental Reports
Exhibit D - Exceptions to Representations and Warranties
Exhibit E - "FIRPTA" Affidavit
Exhibit F - Certificate of Corporate Authorization
Exhibit G - Quit Claim Xxxx of Sale
Exhibit H - Seller's Certificate of Reaffirmation of Representations
Exhibit I - Buyer's Certificate of Reaffirmation of Representations
Exhibit J - Tenant Estoppel Certificate
Exhibit K - Assignment and Assumption of Service Contracts and Other
Obligations
Exhibit L - Approval Notice
Exhibit M - Affidavit as to Debts, Liens, Parties in Possession and Gap
Coverage
Exhibit N - Association Estoppel
Exhibit O - Blanket Transfer and Assignment
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03/15/01
REAL ESTATE PURCHASE AND SALE AGREEMENT
ARTICLE 1
AGREEMENT AND RECITAL
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THIS REAL ESTATE PURCHASE AND SALE AGREEMENT ("Agreement") is made and
entered into as of the Effective Date (as defined in Article 2 hereof entitled
"Basic Terms") between THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a
Wisconsin corporation (hereinafter referred to as "Seller"), and XXXXX CAPITAL,
INC., a Georgia corporation (hereinafter referred to as "Buyer").
Buyer desires to purchase from Seller and Seller desires to sell to Buyer
all of Seller's right, title and interest in and to the property commonly known
as the Comdata ("Ceridian") building, located at 0000 Xxxxxxxx Xxx, xx xxx Xxxx
xx Xxxxxxxxx, Xxxxxx of Xxxxxxxxxx, State of Tennessee, subject to the terms and
conditions contained herein.
ARTICLE 2
BASIC TERMS
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As used herein, the following Basic Terms are hereby defined to mean:
Approval Date May 4, 2001
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Broker Xxxxxxx & Xxxxxxxxx of Georgia, Inc.
------
Broker's Commission $499,000.00
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Buyer's Address For Notice Xxxxx Capital, Inc.
-------------------------- 0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Closing Date No earlier than May 15, 2001, and no later
------------
than May 24, 2001, the precise date to be
selected by Buyer by notice given at least
five business days in advance and absent such
notice on May 24, 2001.
Xxxxxxx Money $500,000.00
-------------
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Effective Date The later date of execution of this Agreement
-------------- by Buyer or Seller as shown on the last page
hereof.
Escrowholder Chicago Title Insurance Company
------------
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
Lease Lease Agreement between THE NORTHWESTERN
----- MUTUAL LIFE INSURANCE Company, as Lessor, and
COMDATA NETWORK, INC, as Lessee, dated as of
June 20, 1996, as amended by First Amendment
to Lease, dated as of October 19, 2000
Tenant COMDATA NETWORK, INC., a Maryland corporation
------
Guarantor CERIDIAN CORPORATION, a Delaware corporation
---------
Involved Seller Representative(s) Xxxx X. Xxxxxxx
---------------------------------
(re: Representations and Xxxxx X. Xxxx, Xx.
Warranties of Seller)
Materiality Limit $200,000.00
-----------------
(re: Casualty and Condemnation)
-------------------------------
Property The Seller's interest in the land described
-------- in Schedule 1 to Exhibit "A" attached hereto
and incorporated herein, together with all
rights, privileges, and easements appurtenant
to the land (hereinafter referred to as the
"Land"), together with the following: (a) all
buildings, improvements, and structures
located on the Land (hereinafter referred to
as the "Improvements"); (b) all personal
property owned by the Seller which is used in
the
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operation of the Land and Improvements and
located thereon to the extent any exist,
including all fixtures and appliances,
furniture and furnishings, equipment and
supplies and signage and lighting systems
(hereinafter referred to as the "Personal
Property"); (c) all of Seller's interest in
the Lease, including those agreements entered
into after the Effective Date pursuant to the
Section herein entitled "Leasing" and in and
to all Service Contracts, as defined in this
Article 2, affecting the Land and
Improvements to which Seller is a party and
which (i) Seller chooses to assign and (ii)
Buyer chooses to have assigned to it and to
assume pursuant to the provisions of the
Subsection hereof entitled "Buyer's Approval
Notice," and (d) all of Seller's interest in
any licenses, guarantees, warranties and such
other rights, interests, and properties as
may be specified in this Agreement to be
sold, transferred, assigned, or conveyed by
Seller to Buyer. (The Seller's interest in
the Land, Improvements, and Personal
Property, together with the other rights and
interests described above, are hereinafter
collectively referred to herein as the
"Property.")
Purchase Price $24,950,000.00
--------------
Seller's Address for Notice The Northwestern Mutual Life
--------------------------- Insurance Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
with copies to: Northwestern Investment Management
Company
0 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
The Northwestern Mutual Life
Insurance Company
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000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Service Contracts Any and all contracts and service agreements
----------------- affecting the Land and Improvements to which
Seller is a party and which Seller chooses to
assign to Buyer.
Title Insurer Same as Escrow Agent.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
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3.1 Representations and Warranties of Seller Subject to the
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limitations set forth in the Sections hereof entitled "No Other Representations
and Warranties by Seller" and "Seller Indemnity," Seller hereby represents and
warrants that, except as set forth in Exhibit "D" attached hereto and
incorporated herein, to the best of Seller's actual knowledge as of the
Effective Date:
(a) Seller has received no written notice, not subsequently cured,
from any governmental entity citing Seller for any material violation
of any law, ordinance, order, or regulation which is applicable to the
present use and occupancy of the Property;
(b) there are no modifications or supplements to the Lease except as
stated in Article 2 hereof;
(c) in connection with the Lease: (i) Seller has received no written
claim from Tenant or Guarantor alleging that Seller has defaulted in
performing any of its obligations under the Lease that has not been
cured or otherwise resolved, (ii) no material defaults exist under the
Lease on the part of Tenant, (iii) Tenant is not the subject of any
bankruptcy, reorganization, insolvency or similar proceeding, (iv)
Seller is not holding any security or other deposit under the Lease,
and (v) Tenant is not entitle to any special work not yet performed or
consideration not yet given in connection with its tenancy;
(d) Seller has not been served in any litigation, arbitration or
other judicial, administrative, or other similar proceedings
involving, related to, or arising out of the Property which is
currently pending, and which would have a material impact on Buyer's
ownership or operation of the Property;
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(e) Seller, and the individuals signing this Agreement on behalf of
Seller, have the full legal power, authority, and right to execute and
deliver, and to perform their legal obligations under this Agreement, and
Seller's performance hereunder and the transactions contemplated hereby,
have been duly authorized by all requisite action on the part of Seller
and, no remaining corporate action is required to make this Agreement
binding on Seller;
(f) there are no Service Contracts which survive the Closing;
(g) Seller has received no official governmental notice of any actual
condemnation of the Property or any part thereof;
(h) Seller has received no written notice from Tenant or any governmental
agency with respect to any Hazardous Material contamination on the
Property, or with respect to any investigation, administrative order,
consent order or agreement, litigation, or settlement with respect to
Hazardous Material or Hazardous Material contamination that is in existence
with respect to the Property. As used herein, "Hazardous Material" means
any hazardous, toxic or dangerous waste, substance, or material, as
currently defined for purposes of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, or any other federal,
state, or local law, ordinance, rule, or regulation, applicable to the
Property, and establishing liability standards or required action as to
reporting, discharge, spillage, storage, uncontrolled loss, seepage,
filtration, disposal, removal, use, or existence of a hazardous, toxic, or
dangerous waste, substance or material;
(i) there are no employees of the Seller working at the Property;
(j) Seller quitclaims to Buyer any rights it may have to use the name
Comdata as it relates to the operation of the Property; and
(k) Seller has received no notice of any structural or other defects in
the improvements located on the Property.
Buyer hereby acknowledges that Seller makes no representations or
warranties concerning any patents, trademarks, copyrights, or other intellectual
property rights, and that "Seller's actual knowledge," upon which all of the
representations and warranties set forth in this Section are based, means only
the current actual knowledge of the Involved Seller Representative(s), without
conducting any investigations whatsoever, or inquiry or review of files in
Seller's possession or control in connection with this transaction or the making
of the representations contained in this Section. To the best of Seller's actual
knowledge, there are no employees of Seller or Northwestern Investment
Management Company, who are likely to have information regarding the
representations and
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warranties set forth in this Section which would be superior to that of the
Involved Seller Representative(s). The sole and exclusive obligations of Seller
with respect to the representations set forth in this Section shall be as set
forth in the Section hereof entitled "Seller Indemnity."
3.2 No Other Representations And Warranties By Seller Except as set
-------------------------------------------------
forth in this Agreement and the representations expressly set forth in any
documents executed by Seller and to be delivered to Buyer at the Closing, Seller
makes no other, and specifically negates and disclaims any other,
representations, warranties, promises, covenants, agreements, or guarantees of
any kind or character whatsoever, whether express or implied, oral, or written,
past, present, or future, concerning, with respect to or regarding the Property,
including, without limitation: (i) the ownership, management, and operation of
the Property; (ii) title to the Property; (iii) the physical condition, nature,
or quality of the Property and any personal property, including, without
limitation, the quality of the soils on and under the Property and the quality
of the labor and materials included in any buildings or other improvements,
fixtures, equipment, or personal property comprising a portion of the Property;
(iv) the fitness of the Property for any particular purpose; (v) the presence or
suspected presence of Hazardous Material on, in, under, or about the Property
(including, without limitation, the soils and groundwater on and under the
Property); (vi) the compliance of the Property with applicable governmental laws
or regulations, including, without limitation, the Americans with Disabilities
Act of 1990, environmental laws and laws or regulations dealing with zoning or
land use; or (vii) the past or future operating results and value of the
Property (items i-vii hereinafter collectively referred to as "Condition and
Quality").
3.3 Representations, Warranties and Covenants of Buyer Buyer hereby
--------------------------------------------------
represents and warrants to Seller that:
(a) Buyer, and the individuals signing this Agreement on behalf of Buyer,
have the full legal power, authority, and right to execute and deliver,
and to perform their legal obligations under this Agreement, and Buyer's
performance hereunder and the transactions contemplated hereby have been
duly authorized by all requisite action on the part of Buyer and no
remaining action is required to make this Agreement binding on Buyer;
(b) Buyer shall deliver to Seller, pursuant to the provisions of the
Subsection hereof entitled "Buyer's Environmental Investigation," any and
all environmental reports on or concerning the Property that will be
prepared by Buyer or on Buyer's behalf;
(c) Prior to closing, Buyer shall hold in strict confidence any and all
documents and information relating to the Property which are disclosed to
or obtained by Buyer during the term of this Agreement, and shall not
disclose any such
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information to any third party except to the extent necessary to enable
Buyer to evaluate the condition of the Property or obtain financing to
consummate the Closing and except to representatives of the broker dealer
community with whom Buyer or its affiliates have a relationship. Buyer
shall inform its representatives, permitted assigns, sources of debt or
equity financing and third party consultants of the confidential nature
of such information and shall require that they agree to treat such
information confidentially. Failure to hold such information in strict
confidence shall constitute a material default hereunder on the part of
Buyer; and
(d) Buyer or its affiliates have the financial capacity to perform its
obligations under this Agreement.
The provisions of this Section shall survive Closing or other termination
of this Agreement.
3.4 Buyer's Reliance on Own Investigation; "AS-IS" Sale
---------------------------------------------------
(a) Buyer agrees and acknowledges that, as of the Closing Date, Buyer
shall have made such feasibility studies, investigations, title searches,
environmental studies, engineering studies, inquires of governmental officials,
and all other inquiries and investigations as Buyer shall deem necessary to
satisfy itself as to the Condition and Quality of the Property. By proceeding
with Closing, Buyer acknowledges that it has been given ample opportunity to
inspect the Property.
(b) Except as otherwise expressly provided in this Agreement, Buyer
further acknowledges and agrees that, at Closing, (I) Buyer will buy and is
buying the Property in its then condition, "AS IS, WHERE IS" and with all
faults, and solely in reliance on Buyer's own investigation, examination,
inspection, analysis and evaluation, and (II) Buyer is not relying on any
statement or information made or given, directly or indirectly, orally or in
writing, express or implied, by Seller its agents or broker as to any aspect of
the Property, including without limitation, the Condition and Quality (as
defined in the Section hereof entitled "No Other Representation And Warranties
of Seller") but, rather, is and will be relying on independent evaluations by
its own personnel or consultants to make a determination as to the physical and
economic nature, condition and prospects of the Property.
(c) The agreements and acknowledgments contained in this Section
constitute a conclusive admission that Buyer, as a sophisticated, knowledgeable
investor in real property, shall acquire the Property solely upon its own
judgment as to any matter germane to the Property or to Buyer's contemplated use
of the Property, and not upon any statement, representation, or warranty by
Seller, or any agent representative of Seller (including Broker), which is not
expressly set forth in this Agreement.
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The provisions of this Section shall survive Closing.
ARTICLE 4
THE TRANSACTION
---------------
4.1 Escrow In order to effect the conveyance contemplated by this
------
Agreement, the parties hereto agree to open an escrow account with Escrowholder.
A copy of this Agreement shall be furnished to, and acknowledged by,
Escrowholder upon full execution hereof by Seller.
4.2 Purchase Price Subject to the provisions hereof, Buyer agrees to pay
--------------
the Purchase Price for the Property to Seller as follows:
4.2.1 Xxxxxxx Money Within two (2) business after the Effective Date,
-------------
Buyer shall deposit with Escrowholder the Xxxxxxx Money and Buyer shall cause
Escrowholder to notify Seller, no later than two (2) business days after
Escrowholder's receipt thereof, that Escrowholder has received the Xxxxxxx Money
in cash or other immediately payable funds, and is holding same in accordance
with the terms hereof. Failure of Buyer to timely deposit the Initial Xxxxxxx
Money with Escrowholder shall constitute a material default by Buyer hereunder.
4.2.2 Retention and Disbursement of Xxxxxxx Money In accordance with
-------------------------------------------
the terms of this Agreement, the Xxxxxxx Money shall be either (i) applied
against the Purchase Price, (ii) refunded to Buyer, or (iii) disbursed to
Seller. The Xxxxxxx Money shall be held in an interest-bearing account at a
federally-insured bank in the name of Escrowholder. The Escrowholder shall not
disburse any of the Xxxxxxx Money except (a) in accordance with this Agreement,
(b) in accordance with written instructions executed by both Buyer and Seller,
or (c) in accordance with the following procedure:
If Buyer or Seller, by notice to the Escrowholder, makes demand upon the
Escrowholder for the Xxxxxxx Money (the "Demanding Party"), the Escrowholder
shall, at the expense of the Demanding Party, give notice of such demand (the
"Notice of Demand") to the other party (the "Other Party"). If the Escrowholder
does not receive notice from the Other Party contesting such disbursement of the
Xxxxxxx Money within five (5) business days from the date on which the Notice of
Demand was given, the Escrowholder shall disburse the Xxxxxxx Money to the
Demanding Party. In the event that the Escrowholder does receive notice from
the Other Party contesting such disbursement of the Xxxxxxx Money within five
(5) business days from the date on which the Notice of Demand was given, the
Escrowholder shall thereafter disburse the Xxxxxxx Money only in accordance with
written instructions executed by both Buyer and Seller, or in accordance with a
final, non-appealable court order.
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4.2.3 Cash At Closing Buyer shall pay to Seller the Purchase Price in
---------------
cash or other immediately payable funds, less the Xxxxxxx Money held by
Escrowholder and, plus costs to be paid by Buyer pursuant to the terms of this
Agreement, and plus or minus prorations and adjustments shown on the closing
statement executed by Buyer and Seller. If Seller desires to transfer the
Property in a transaction qualifying as a like-kind exchange under the Internal
Revenue Code Section 1031 and the regulations thereunder, the Xxxxxxx Money
shall be refunded to Buyer at Closing and, the Purchase Price shall not be
adjusted for the Xxxxxxx Money.
4.3 Conveyance of Deed Subject to the provisions hereof, Seller shall, on or
------------------
before the Closing Date, convey the Property to Buyer by a Special Warranty
Deed (the "Deed") in substantially the form as Exhibit "A" attached hereto and
incorporated herein, subject to those matters permitted therein.
ARTICLE 5
TITLE AND SURVEY
----------------
5.1 Title Insurance Commitment Seller shall, as soon as reasonably
--------------------------
possible after the Effective Date, obtain and deliver to Buyer a title insurance
commitment (the "Commitment") and copies of the recorded instruments referred to
therein from Title Insurer with respect to the Property, with the cost thereof
to be paid in accordance with the Section hereof entitled "COSTS." Buyer shall
have ten (10) days after its receipt of the Commitment and instruments to
examine same and to notify Seller in writing of its objections to title (all
items so objected to being hereinafter referred to as the "Objectionable
Items"). All matters affecting title to the Property as of the date of the
Commitment, except those specifically and timely objected to by Buyer in
accordance with this Section shall be deemed approved by Buyer and shall be
deemed to be "Permitted Exceptions." If Buyer timely notifies Seller of any
Objectionable Items, Seller may, but shall not be obligated to, cure or remove
same; however, Seller agrees to consult with the Title Insurer in order to
determine which Objectionable Items, if any, the Title Insurer is willing to
remove, all with no action required on the part of Seller. Notwithstanding the
foregoing, on or before Closing, Seller shall discharge any and all mortgages,
deeds of trust, mechanics' liens, judgment liens and other monetary encumbrances
on the Property, other than taxes, assessments and any other governmental
impositions which are not then due and payable.
If Seller and/or Title Insurer does cure or remove all such Objectionable
Items, Buyer shall have no further right to terminate this Agreement pursuant to
this Section. Such Objectionable Items shall be deemed cured or removed if Title
Insurer issues a revised Commitment to issue, at Closing, an ALTA Owner's Policy
of Title Insurance in the amount of the Purchase Price in favor of Buyer as the
grantee of Seller's interest in the Property with such Objectionable Items
having been removed as exceptions or insured over by Title Insurer. Seller shall
notify Buyer, within ten (10) business days
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after Seller's receipt of Buyer's notice of Objectionable Items, as to which
Objectionable Items Seller and/or Title Insurer are willing or able to cure or
remove ("Seller's Election"); and if no such notice is given within such time
period, Seller shall be deemed to have elected not to cure any of the
Objectionable Items. If Seller is unwilling or unable to cure some or all of the
Objectionable Items, Buyer shall, as its sole and exclusive remedy in such
event, make an election in writing ("Buyer's Election"), within five (5) days
after receipt by Buyer of Seller's Election (or the expiration of the time
period for Seller to make Seller's Election if Seller fails to send notice of
Seller's Election) either:
(a) to accept title to the Property subject to the Objectionable Items
which Seller is unwilling or unable to cure (all such items being
thereafter included in "Permitted Exceptions"), in which event the
obligations of the parties hereunder shall not be affected by reason of
such matters, the sale contemplated hereunder shall be consummated without
reduction of the Purchase Price, and Buyer shall have no further right to
terminate this Agreement pursuant to this Section; or
(b) to terminate this Agreement in accordance with Article 14 hereof
entitled "Non-default Termination."
If Seller has not received Buyer's Election within such five (5) day
period, Buyer shall be deemed conclusively to have elected to accept title to
the Property in accordance with Subsection (a) above.
At Closing, Seller shall provide Title Insurer with an Affidavit as to
Debts, Liens, Parties in Possession and GAP Coverage in the from of Exhibit "M"
attached hereto and incorporated herein. Under no circumstances shall Seller be
obligated to give the Title Insurer any certificate, affidavit, or other
undertaking of any sort which would have the effect of increasing the potential
liability of Seller over that which it would have by giving Buyer the Special
Warranty Deed required hereunder.
5.2 Subsequent Matters Affecting Title If, for any reason whatsoever,
----------------------------------
including without limitation "Objectionable Items" first appearing of record
subsequent to the effective date of the Title Commitment, the title insurance
policy which would otherwise be delivered to Buyer at Closing reflects, as
exceptions, any items other than Permitted Exceptions, which would materially,
adversely affect the Property, such items shall, if and only if Buyer shall give
written notice thereof to Seller no later than the Closing Date, be deemed
"Objectionable Items," and, if Buyer shall so give notice to Seller, then:
(a) the Closing shall be postponed to the first business day which is
thirty (30) days after the date previously set for Closing, or such earlier
date as may be mutually agreed to between Buyer and Seller; and
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(b) the rights and obligations of Buyer and Seller with regard to such
Objectionable Items shall be as set forth in the Section hereof entitled
"Title Insurance Commitment."
5.3 Survey As soon as possible after the Effective Date, Seller shall
------
provide Buyer with Seller's most recent available survey of the Property. Buyer
has the option, provided that Buyer does so promptly after the Effective Date
and at Buyer's sole cost and expense, to obtain its own survey of the Property,
and upon completion of such survey shall provide a certified original survey to
Seller and Title Insurer. If as a result of reviewing the survey, Buyer or
Title Insurer determines there are additional exceptions to title other than
Permitted Exceptions which, in Buyer's sole judgment, would materially adversely
affect Buyer's intended use of the Property, such items shall, if and only if
Buyer shall give written notice thereof to Seller no later than ten (10) days
after Buyer's receipt of the survey, be deemed "Objectionable Items," and, if
Buyer shall so give notice to Seller, then the rights and obligations of Buyer
and Seller with regard to such Objectionable Items shall be as set forth in the
Section hereof entitled "Title Insurance Commitment."
5.4 Effect Of Approval Notice Notwithstanding anything contained herein
-------------------------
to the contrary, any Approval Notice sent by Buyer to Seller pursuant to the
provisions of the Subsection hereof entitled "Buyer's Approval Notice" shall be
deemed to be Buyer's approval of the survey and of the condition of title to the
Property pursuant to the provisions of the Sections herein entitled "Title
Insurance Commitment" and "Survey."
ARTICLE 6
CONDITION OF THE PROPERTY
-------------------------
6.1 Inspections
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6.1.1 Inspection of Property BUYER HAS BEEN EXPRESSLY ADVISED BY
---------------------
SELLER TO CONDUCT AN INDEPENDENT INVESTIGATION AND INSPECTION OF THE PROPERTY
(subject to the provisions hereof), UTILIZING EXPERTS AS BUYER DEEMS NECESSARY.
Subject to the provisions of the Section and Subsection hereof entitled "Buyer
Indemnity" and "Buyer's Environmental Investigation," respectively, from the
Effective Date until the Approval Date (the "Inspection Period"), Buyer shall
have the right to conduct, at its own expense, an inspection of the Property to
determine, among other things, the Condition and Quality of the Property as
defined in the Section hereof entitled "No Other Representations And Warranties
By Seller."
Subject to the provisions of the Section hereof entitled "ENTRY ONTO
PROPERTY," Buyer, its contractors and/or agents, may enter upon the Property for
purposes of
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examining its terrain, access thereto and physical condition, conduct
engineering and/or feasibility studies, conduct site analyses and make any test
or inspection Buyer may deem necessary related to the Property. During the
Inspection Period Seller will provide Buyer and its representatives with
reasonable access to the Property subject to the provisions of the Section
hereof entitled "Entry onto Property."
6.1.2 Inspection of Due Diligence Documents Upon written request,
-------------------------------------
Buyer may have access to, and may copy at Buyer's sole expense, the following
items relating to the Property which are in the possession or control of the
management agent: (i) copies of the income and expense operating statements for
the Property for the most recent two (2) calendar years and the partial current
year; (ii) the Lease; (iii) the real property tax assessment and tax bills with
respect to the Property for the past year; (iv) utility bills which have been
the obligation of Seller for the preceding twelve (12) months; (v) all available
warranties and guarantees, if any; (vi) available licenses and permits, if any;
(vii) all assignable Service Contracts, including any and all amendments
thereto; (viii) available soils reports, if any; (ix) maintenance reports; (x)
invoices; and (xi) any tenant files.
6.2 Entry onto Property Notwithstanding anything contained herein to the
-------------------
contrary, Buyer, its contractors and/or agents, may only enter onto the Property
during the Inspection Period, provided Buyer has obtained the prior
authorization of Seller, and then only in the company of Seller or its agents.
Seller shall respond to Buyer's requests for authorization to enter onto the
Property within a reasonable period of time, and shall cooperate with Buyer in
good faith to make arrangements for Seller or its agents to so accompany Buyer,
its contractors and/or agents. Buyer's inspection rights shall be subject to the
rights of the tenant(s), including without limitation, rights of quiet
enjoyment, and Buyer agrees that it will not unreasonably interfere with any
tenant(s), contractors on the Property, or Seller's operation of the Property.
Upon Buyer's execution of this Agreement, Buyer or its agents or
contractors, shall obtain and keep in full force and effect, insurance as set
forth below, naming Seller and its wholly owned subsidiaries and agents, as
additional insureds on the Commercial General Liability and Business Automobile
insurance policies, and shall provide Seller with certificates of insurance
satisfactory to Seller evidencing such insurance
Type Limits
---- ------
Worker's Compensation/Employer's Liability Statutory/$500,000
Commercial General Liability $1,000,000/occurrence
$1,000,000/aggregate
Business Automobile Liability $1,000,000 Combined
Single Limit
12
In addition, in the event Buyer chooses to conduct any invasive
environmental investigation of the Property, Buyer must first receive Seller's
prior written consent, and prior to any invasive testing occurring, Buyer must
furnish to Seller, at Buyer's expense, a certificate of insurance satisfactory
to Seller, naming Seller and its wholly owned subsidiaries and agents as
additional insureds, evidencing that Buyer, and/or its agents or contractors,
have the following insurance in full force and effect meeting the requirements
set forth below :
Type Limits
---- ------
Professional Liability $1,000,000/occurrence
(including Pollution Coverage) $1,000,000/aggregate
Contractor's Pollution Liability $5,000,000/occurrence
$5,000,000/aggregate
The aforesaid coverages shall be maintained throughout the term of this
Agreement. Furthermore, any coverage written on a "Claims-Made" basis shall be
kept in force, either by renewal or the purchase of an extended reporting
period, for a minimum period of one (1) year following the termination of this
Agreement. Nothing herein contained shall in any way limit Buyer's liability
under this Agreement or otherwise.
Buyer shall observe, and cause its agents and/or contractors to observe,
all appropriate safety precautions in conducting Buyer's inspection of the
Property and perform all work and cause its agents and/or contractors to perform
all work, in such a manner so as not to cause any damage to the Property, injury
to any person or to the environment, or interference with any ongoing operations
at the Property. Buyer shall indemnify, defend, and hold Seller and its wholly
owned subsidiaries, agents, employees, officers, directors, trustees, or other
representatives of Seller (collectively, the "Indemnified Parties") harmless
from and against any losses, damages, expenses, liabilities, claims, demands,
and causes of action (together with any legal fees and other expense incurred by
any of the Indemnified Parties in connection therewith), resulting directly or
indirectly from, or in connection with, any inspection of or other entry upon
the Property (including any investigation of the Property necessary for
completion of Buyer's Environmental Report and any entry onto the Property with
the authorization of Seller) by Buyer, or its agents, employees, contractors, or
other representatives, including, without limitation, any losses, damages,
expenses, liabilities, claims, demands, and causes of action resulting, or
alleged to be resulting, from injury or death of persons, or damage to the
Property or any other property, or mechanic's or materialmen's liens placed
against the Property in connection with Buyer's inspection thereof. Buyer agrees
to promptly repair any damage to the Property directly or indirectly caused by
any acts of Buyer, or its agents, and/or contractors, and to restore the
Property to the condition that
13
existed prior to Buyer's entry. This Section shall survive Closing or other
termination of this Agreement.
6.3 Environmental Matters
---------------------
6.3.1 Buyer's Environmental Investigation Subject to the provisions
-----------------------------------
of the Section hereof entitled "Entry Onto Property," during the Inspection
Period, Buyer, at its option, may conduct, at Buyer's sole cost and expense,
such independent investigation and inspection of the Property as Buyer shall
deem reasonably necessary to ascertain the environmental condition of the
Property. Buyer shall, within five (5) business days of Buyer's receipt, deliver
to Seller any reports or other results of Buyer's environmental investigation of
the Property (collectively "Buyer's Environmental Report(s)"). Failure of Buyer
to timely deposit Buyer's Environmental Reports with Seller shall constitute a
material default by Buyer hereunder. Buyer agrees that it will not undertake,
without Seller's prior written consent, any invasive environmental study, or any
test, sampling, or other action detrimental to the physical condition or
appearance of any portion of the Property, and Buyer agrees not to disturb any
asbestos which may be on the Property.
6.3.2 Seller's Environmental Reports Buyer may examine the
------------------------------
environmental reports in Seller's possession in connection with the Property
that were commissioned by Seller or a third party; provided, however, that in
connection with any environmental report commissioned by a third party only,
Seller shall release such environmental report to Buyer, only in the event
Seller is under no obligation to keep such information confidential (hereinafter
collectively referred to as the "Existing Environmental Report(s)"). The
Existing Environmental Report(s) are listed on Exhibit "C" attached hereto and
incorporated herein, copies of which will be furnished to Buyer
contemporaneously with the full execution of this Agreement. In addition,
Seller may, but shall not be required to commission further environmental
testing of the Property by a firm selected by Seller, the cost of which shall be
paid by Seller ("Future Environmental Report"). The Existing Environmental
Report(s) and any Future Environmental Report(s) are hereinafter collectively
referred to as "Seller's Environmental Reports." Seller shall provide Buyer
with a copy of any final Future Environmental Report as soon as possible after
Seller's receipt of same. Anything to the contrary herein notwithstanding,
Seller shall have no responsibility or liability with respect to the results or
any inaccuracies in any Seller's Environmental Report(s), and makes no
representations or warranties whatsoever regarding (i) the completeness of
Seller's Environmental Report(s), (ii) the truth or accuracy of Seller's
Environmental Report(s), or (iii) except as otherwise expressly provided in this
Agreement, the existence or nonexistence of any hazardous or toxic wastes or
materials in, on, or about the Property. Further, Seller is not assigning
Seller's Environmental Report(s) to Buyer, nor granting Buyer any rights with
respect to any environmental firm(s) producing Seller's Environmental Report(s).
14
6.4 Approval And Termination
------------------------
6.4.1 Buyer's Approval Notice On or before the Approval Date,
-----------------------
Buyer shall deliver to Seller and Escrowholder a written notice ("Approval
Notice") in the form of Exhibit "L" attached hereto and incorporated herein, to
the effect that Buyer has approved all aspects of the Property and chooses to
proceed under the terms of the Agreement. Buyer shall also specify in the
Approval Notice those Service Contracts which Buyer elects to have assigned to
it, and the failure of Buyer to so specify shall all be deemed to be an election
by Buyer to have all Service Contracts assigned to it and assume all Service
Contracts (except Seller's contract with the management company for the
Property). If Buyer does not timely send the Approval Notice, Buyer will be
conclusively deemed to have terminated the Agreement, in which event this
Agreement shall terminate in accordance with Article 14 hereof entitled "Non-
Default Termination."
6.4.2 Buyer's Right To Terminate In addition to Buyer's rights
--------------------------
under the Subsection hereof entitled "Buyer's Approval Notice," in the event
Seller shall deliver to Buyer any Future Environmental Report(s) at any time
after the date which is ten (10) days prior to the Approval Date, and if Buyer
is not satisfied with the results of the Future Environmental Report(s) based
solely on matters not previously disclosed or known to Buyer, Buyer shall have
the right to terminate this Agreement in accordance with Article 14 hereof
entitled "Non-Default Termination," by giving Seller written notice of such
termination on or before the date which is ten (10) days after Buyer's receipt
of any Future Environmental Report ("Buyer's Review Date"). If Buyer receives
any Future Environmental Reports less than ten (10) days before the Closing
Date, then the Closing shall occur one (1) business day after Buyer's Review
Date, or such earlier date to which Buyer and Seller may mutually agree upon. If
Seller shall not timely receive a notice of termination from Buyer, Buyer shall
be conclusively deemed to have approved the results of any Future Environmental
Report, and Buyer shall have no further right to terminate this Agreement with
respect to matters set forth in this Subsection.
6.4.3 Seller's Right To Termination If Buyer's Environmental
-----------------------------
Report or any Future Environmental Report discloses any existing environmental
condition affecting the Property which was not disclosed in Seller's
Environmental Report, then if Seller in its sole discretion, is not satisfied
with Buyer's Environmental Report or any Future Environmental Report, Seller
shall have the right to terminate this Agreement, in accordance with Article 14
hereof entitled "Non-Default Termination," by giving Buyer notice of termination
on or before the date which is ten (10) days after the later of Seller's receipt
of Buyer's Environmental Report or of any Future Environmental Report (the
"Seller's Review Date"). If Seller receives Buyer's Environmental Report, or any
Future Environmental Report less than ten (10) days before the Closing Date,
then the Closing shall occur one (1) business day after Seller's Review Date, or
such earlier date
15
to which Buyer and Seller may mutually agree upon. If Buyer shall not timely
receive notice of termination from Seller, Seller shall be conclusively deemed
to have accepted the results of Buyer's Environmental Report and/or any Future
Environmental Report, and Seller shall have no further right to terminate this
Agreement with respect to matters set forth in this Subsection.
6.5 Service Contracts With respect to the Service Contracts which Buyer
-----------------
has elected not to have assigned to it, as indicated in the Approval Notice,
Seller shall terminate such Service Contracts effective as of the Closing Date.
If and to the extent that any such Service Contract is not terminable until a
date after the Closing, notwithstanding Seller's delivery of the appropriate
termination notice, then Buyer shall be responsible therefor for any such
Service Contract from the Closing Date until the effective date of termination.
Seller shall deliver the applicable notices of termination as soon as
practicable following the Approval Date, but shall have no obligation to deliver
such notices prior to Seller 's receipt of the Approval Notice.
6.6 Estoppel Certificates On or before the date which is at least five
---------------------
(5) days prior to the Approval Date, Seller shall use commercially reasonable
efforts to furnish to Buyer an estoppel certificate completed by Tenant and
Guarantor, on the form attached hereto and incorporated herein as Exhibit "J".
If Seller is not reasonably able to obtain an estoppel certificate from Tenant
or Guarantor on or before the Approval Date, the same shall not be a default by
Seller and, subject to Buyer's right to terminate this Agreement pursuant to
Section 6.4 of this Agreement, Buyer shall nonetheless be obligated to close the
purchase of the Property.
6.7 Management of The Property Until the Closing occurs, Seller shall
--------------------------
have the right to manage the Property in a manner deemed reasonable in Seller's
sole discretion, and Seller shall use good faith efforts to maintain the
Property, ordinary wear and tear excepted, following the Effective Date until
the Closing Date, in substantially the same manner that Seller has maintained
the Property prior to the Effective Date.
6.8 Leasing Seller shall have the right to amend the Lease in its sole
-------
discretion; provided, however, that Seller shall, prior to execution, send a
copy of any proposed amendment ("Proposal") to Buyer for its approval, which
approval Buyer shall not unreasonably withhold or delay. If Seller shall not
receive written notice of objection from Buyer on or before 5 p.m. five (5)
business days following Buyer's receipt of a Proposal, Buyer shall be
conclusively deemed to have approved the Proposal (the Lease and all amendments
subsequently approved or deemed approved by Buyer are referred to herein as
"Approved Lease").
6.9 Association Estoppel On or before the Approval Date, Seller agrees to
--------------------
use commercially reasonable efforts to obtain and deliver to Buyer an estoppel
certificate completed by an authorized representative of any entity
administering or governing the
16
recorded covenants against the Property in substantially the form of Exhibit O
attached hereto.
ARTICLE 7
CLOSING
-------
7.1 Buyer's Conditions Precedent To Closing The obligations of Buyer with
---------------------------------------
regard to Closing under this Agreement are, at its option, subject to the
fulfillment of each and all of the following conditions prior to or at the
Closing:
(a) Seller shall have performed and complied with all the agreements and
conditions required in this Agreement to be performed and complied with by
Seller prior to Closing; and Escrowholder may deem all such items to have
been performed and complied with when Seller has deposited all items in
Escrow as required hereunder;
(b) Title Insurer will issue its ALTA Owner's Policy of Title Insurance in
the amount of the Purchase Price showing title vested in Buyer subject only
to the Permitted Exceptions and the usual exceptions found in said policy;
and
(c) the representations of Seller contained herein shall be true and
correct in all material respects as of the Closing Date.
7.2 Seller's Conditions Precedent To Closing The obligations of Seller
----------------------------------------
with regard to Closing under this Agreement are, at Seller's option, subject to
the fulfillment of each and all of the following conditions prior to or at the
Closing:
(a) Buyer performing and complying with all the agreements and conditions
required by this Agreement to be performed and complied with by Buyer prior
to Closing; and Escrowholder may deem all such items to have been performed
and complied with when Buyer has deposited with Escrowholder all items
required hereunder;
(b) the results of Buyer's Environmental Report and Future Environmental
Report, if any, shall be satisfactory to Seller in its sole discretion; and
(c) the representations of Buyer contained herein shall be true and
correct in all material respects of the Closing Date.
17
7.3 Deposits in Escrow On or before the day preceding the Closing Date:
------------------
7.3.1 Seller's Deposits Seller shall deliver to Escrowholder the
-----------------
following to be held in escrow:
(a) The Deed in proper form for recording;
--------
(b) "Firpta" Affidavit in the form attached hereto and incorporated herein
------------------
as Exhibit "E";
(c) Certificate of Corporate Authorization in the form attached hereto and
--------------------------------------
incorporated herein as Exhibit "F";
(d) Xxxx of Sale in the form attached hereto and incorporated herein as
------------
Exhibit "G" conveying to Buyer all of Seller's interest in the Personal
Property owned by Seller;
(e) Affidavit as to Debts, Liens, Parties in Possession and GAP Coverage
--------------------------------------------------------------------
in the form attached hereto and incorporated herein as Exhibit "M";
(f) Seller's Certificate of Reaffirmation of Representations in the form
--------------------------------------------------------
attached hereto and incorporated herein as Exhibit "H";
(g) Seller's closing instructions to the Escrowholder, and
-----------------------------
(h) Assignment of Intangibles in the form of Exhibit N attached hereto.
-------------------------
7.3.2 Buyer's Deposits Buyer shall deliver to Escrowholder the
----------------
following to be held in escrow:
(a) the Purchase Price, less the Xxxxxxx Money (if the Xxxxxxx Money is not
refunded to Buyer at Closing pursuant to the Subsection hereof entitled
"Cash At Closing") plus costs to be paid by Buyer pursuant to the terms of
this Agreement, and plus or minus prorations and adjustments shown on the
closing statement executed by Buyer and Seller;
(b) Buyer's closing instructions to the Escrowholder; and
----------------------------
(c) Buyer's Certificate of Reaffirmation of Representations in the form
-------------------------------------------------------
attached hereto and incorporated herein as Exhibit "I".
18
7.3.3 Joint Deposits Buyer and Seller shall jointly deposit with
--------------
Escrowholder the following documents, each executed by persons or entities duly
authorized to execute same on behalf of Buyer and Seller:
(a) Closing Statement prepared by Escrowholder for approval by Buyer and
-----------------
Seller two (2) business days prior to the Closing Date and such closing
statements shall be deposited with Escrowholder after the same has been
executed by Buyer and Seller. The parties acknowledge that in the event of
an assignment by Seller of its rights to this Agreement to a Qualified
Intermediary as defined in the Subsection hereof entitled "Assignment of
Rights to Agreement to Qualified Intermediary" then, consistent with said
assignment, said closing statement shall be executed by Qualified
Intermediary in lieu of The Northwestern Mutual Life Insurance Company;
(b) Assignment and Assumption of Lease in the form attached hereto and
----------------------------------
incorporated herein as Exhibit "B" assigning to Buyer all of Seller's
right, title, and interest in the Tenant Leases; and
(c) Assignment and Assumption of Service Contracts And Other Obligations
--------------------------------------------------------------------
in the form attached hereto and incorporated herein as Exhibit "K"
assigning to Buyer all of Seller's right, title, and interest in the
Service Contracts and other obligations.
7.3.4 Other Documents Buyer and Seller shall deposit with
---------------
Escrowholder all other documents which are required to be deposited in escrow by
the terms of this Agreement.
7.4 Costs Buyer shall pay the cost of (i) a standard ALTA Owner's Title
-----
Insurance Policy, and the cost of all endorsements to such owner's policy, (ii)
the survey, and (iii) all other costs and expenses incurred by it in connection
with the sale and Closing. Seller shall pay the (i) Broker's Commission
referred to in Article 2 hereof entitled "Basic Terms," (ii) the realty transfer
or stamp taxes, (iii) recording fees, and (iv) all other costs and expenses
incurred by it in connection with the sale and Closing. Buyer and Seller shall
equally share the cost of the Escrowholder's charge for the escrow, if any.
Buyer and Seller shall each pay its own legal fees incurred in connection with
the drafting and negotiating of this Agreement and the Closing of the
transaction contemplated herein.
7.5 Prorations
----------
7.5.1. Generally The following items shall be prorated between
---------
Buyer and Seller as of the Closing Date:
19
(a) Taxes and Assessments General real estate taxes and assessments and
---------------------
other similar charges which are a lien on the Property, but not yet due and
payable as of the Closing Date, shall be prorated based upon the most
recent tax xxxx and will be final. Any assessments levied against the
Property which are payable on an installment basis and which installments
are due, payable and outstanding on the Closing Date shall be paid by
Seller on the Closing Date.
(b) Rentals, Other Income and Security Deposits Rentals and other amounts
-------------------------------------------
and items of income relating to the Property, including prepaid rents and
percentage rentals shall be prorated as of the Closing Date, and will be
final. Buyer shall receive a credit at the Closing for the aggregate
amount of tenant security deposits held by or on behalf of Seller.
(c) Expenses All expenses of operating the Property which have been
--------
prepaid by Seller (except insurance pursuant to the Section hereof entitled
"INSURANCE") shall be prorated. Expenses incurred in operating the
Property that Seller customarily pays and any other costs incurred in the
ordinary course of business or the management and operation of the Property
shall be prorated on an accrual basis.
(d) Utilities Seller shall receive credit for assignable utility
---------
deposits, if any, which are assigned to Buyer at Buyer's request or with
Buyer's consent. To the extent possible, Seller shall cause all utility
meters which are not payable by tenants, to be read as of the Closing Date,
and Seller shall pay all charges for those utilities payable by Seller with
respect to the Property which have accrued to and including the Closing
Date and Buyer shall pay all such expenses accruing after the Closing Date.
Notwithstanding the foregoing, the following items shall be paid by Buyer
or Seller to the other party at Closing, in cash or other immediately payable
funds (and shall not be credited against the Purchase Price): (i) the prorated
amount due either party, if any, of the rentals and other amounts of income
relating to the Property referred to in Subsection 7.5.1(b); (ii) the aggregate
amount of tenant security deposits referred to in Subsection 7.5.1(b); (iii) the
prorated amount due either party, if any, of the expenses and costs referred to
in the second sentence of Subsection 7.5.1(c); (iv) and the prorated amount due
either party, if any, of the charges for utilities referred to in the second
sentence of Subsection 7.5.1(d).
Buyer and Seller agree to estimate any amounts which cannot be determined
accurately as of the Closing Date. All of the foregoing prorations shall be
final as of the Closing Date. Prorations and adjustments shall be made by
credits to or against the Purchase Price. For purposes of calculating
prorations, Seller shall be deemed to be entitled to the income and responsible
for the expenses for the entire day upon which the Closing occurs. All
prorations shall be made in accordance with customary practice in
20
the county in which the Property is located, except as expressly provided
herein; in the event of dispute between Buyer and Seller, the advice of the
Title Insurer shall be determinative as to what is customary.
7.5.2 Like-Kind Exchange (Proration) In the event of an assignment
------------------------------
by Seller of its rights to this Agreement to a Qualified Intermediary under the
Subsection hereof entitled "Assignment of Rights to Agreement to Qualified
Intermediary" then, notwithstanding the provisions of the Subsection hereof
entitled "Generally," the following items shall be paid by Seller to Buyer at
Closing, in cash or other immediately payable funds (and shall not be credited
against the Purchase Price): (i) the prorated amount due Buyer, if any, of the
rentals and other amounts of income relating to the Property referred to in
Subsection 7.5.1(b); (ii) the aggregate amount of tenant security deposits
referred to in Subsection 7.5.1(b); (iii) the prorated amount due Buyer, if any,
of the expenses and costs referred to in the second sentence of Subsection
7.5.1(c); (iv) and the prorated amount due Buyer, if any, of the charges for
utilities referred to in the second sentence of Subsection 7.5.1(d).
7.6 Insurance The fire, hazard, and other insurance policies relating to
---------
the Property shall be canceled by Seller as of the Closing Date and shall not,
under any circumstances, be assigned to Buyer. All unearned premiums for fire
and any additional hazard insurance premium or other insurance policy premiums
with respect to the Property shall be retained by Seller.
7.7 Close of Escrow As soon as Buyer and Seller have deposited all items
---------------
required with Escrowholder, and upon satisfaction of the Sections hereof
entitled "Buyer's Conditions Precedent to Closing" and "Seller's Conditions
Precedent to Closing," Escrowholder shall cause the sale and purchase of the
Property to be consummated (the "Closing") in accordance with the terms hereof
by immediately and in the order specified:
(a) Wire Transfer Wire transferring the Purchase Price, less the Broker's
-------------
Commission, and the amount of costs paid by Seller at Closing, and plus or minus
the amount of any prorations pursuant to the terms hereof, all as set forth on
the closing statement signed by Seller, directly to Seller pursuant to Seller's
written closing instructions, provided, however, in the event Escrowholder
receives written notice that the Seller's rights to the Agreement have been
assigned to a Qualified Intermediary under an Exchange Agreement to which Seller
is a party, then wire transfer the Purchase Price, less the Broker's Commission,
and the amount of costs paid by Seller at Closing, and plus or minus the amount
of any prorations pursuant to the terms hereof, all as set forth on the closing
statement signed by Seller, directly to the Qualified Intermediary pursuant to
Seller's written closing instructions provided, further however, that if, in the
opinion of Escrowholder, such wire transfer cannot be initiated by Escrowholder
on or before 12:00 p.m. Central Time on the Closing Date, said Closing shall be
consummated on the next
21
business day (without re-proration), but the net sales proceeds shall be
reinvested in an overnight, interest-bearing account, with the highest possible
yield and such net sales proceeds plus the overnight interest earned thereon
shall be disbursed the next business day along with the recording of the Deed,
but Buyer and Seller shall not be released from their obligations hereunder.
(b) Recordation Recording the Deed;
-----------
(c) Delivery of Other Escrowed Documents
------------------------------------
(i) Joint Delivery Delivering to each of Buyer and Seller at least
one executed counterpart of each of the (a) Assignment and
Assumption of Lease, (b) Assignment and Assumption of Service
Contracts and Other Obligations and (c) closing statement.
(ii) Buyer's Delivery Delivering to Buyer the (a) Xxxx of Sale, (b)
FIRPTA Affidavit, (c) Certificate of Corporate Authorization, (d)
Seller's Certificate of Reaffirmation of Representations, (e)
Affidavit as to Debts, Liens, Parties in Possession and GAP
Coverage, and (f) Assignment of Intangibles.
(iii) Seller's Delivery Delivering to Seller Buyer's Certificate of
Reaffirmation of Representations.
(d) Broker's Commission Delivering to Broker the Broker's Commission for
-------------------
services rendered to Seller, as reflected on the closing statement executed
by Seller and Buyer. In the event there is a co-broker, Broker shall be
responsible for delivering to any co-broker the commission agreed to
between Broker and co-broker and neither Buyer nor Seller shall have any
responsibility for payment of any commission or fee to any co-broker.
7.8 Possession As of the Closing Date, possession of the Property,
----------
subject to the rights and interests of Tenants pursuant to the Lease, along with
the following items shall be delivered to Buyer:
(a) Lease The original of the Lease and any amendments thereto (if
-----
available), or a copy of each Lease and any amendments thereto in the
possession of Seller, if not previously delivered to Buyer.
(b) Service Contracts The originals of all Service Contracts in the
-----------------
possession of Seller that have been assigned to and assumed by Buyer, if
not previously delivered to Buyer.
22
(c) Keys Any keys to any door or lock on the Property in the possession
----
of Seller.
(d) Licenses and Permits All original licenses or permits or certified
--------------------
copies thereof issued by governmental authorities having jurisdiction over
the Property which Seller has in its possession and which are transferable.
7.9 Recorded Instruments As soon after the Closing as possible,
--------------------
Escrowholder shall deliver to Buyer the original recorded Deed, and shall
deliver to Seller a copy of the recorded Deed, with recordation information
noted thereon.
7.10 Tenant Notice On or before the Closing Date, Seller agrees to sign or
-------------
cause its management agent to sign, and Buyer agrees to sign, notice to the
Tenant informing Tenant that the Property has been sold by Seller to Buyer.
Immediately following the Closing, Buyer shall deliver such notices to all of
the tenants of the Property.
ARTICLE 8
CONDEMNATION AND CASUALTY
-------------------------
In the event of any condemnation or taking of the Property, or loss or
damage by fire or other casualty to the Property, prior to the Closing, which
does not exceed the Materiality Limit, the Closing shall occur just as if such
condemnation, loss or damage had not occurred, and Seller shall assign to Buyer
all of Seller's interest in any condemnation actions and proceeds, or deliver to
Buyer any and all proceeds paid to Seller by Seller's insurer with respect to
such fire or other casualty; provided, however, that Seller shall be entitled to
retain an amount of such insurance proceeds equal to Seller's reasonable
expenses, if any, incurred in repairing the damage caused by fire or other
casualty. At Closing, in the case of a casualty, Seller shall give Buyer a
credit on the Purchase Price equal to the lesser of the estimated cost of
restoration or the amount of any deductible. Seller shall maintain "all risk"
replacement value insurance coverage in place on the Property at all times prior
to the Closing
In the event of any condemnation of all or a part of the Property, or loss
or damage by fire or other casualty to the Property, prior to the Closing, which
exceeds the Materiality Limit, at Buyer's sole option, either:
(a) this Agreement shall terminate in accordance with Article 2 hereof
entitled "Non-Default Termination" if Buyer shall so notify Seller in
writing within ten (10) days of Buyer having actual knowledge of the
casualty or condemnation; or
(b) if Buyer shall not have timely notified Seller of its election to
terminate this Agreement in accordance with Subsection (a) above, the
Closing shall occur just
23
as if such condemnation, loss, or damage had not occurred, without
reduction in the Purchase Price, and Seller shall assign to Buyer all of
Seller's interest in any condemnation actions and proceeds or deliver to
Buyer any and all proceeds paid to Seller by Seller's insurer with respect
to such fire or other casualty; provided, however, that Seller shall be
entitled to retain an amount of such insurance proceeds equal to Seller's
reasonable expenses, if any, incurred in repairing the damage caused by
such fire or other casualty. At Closing, in the case of a fire or other
casualty, Seller shall give Buyer a credit on the Purchase Price equal to
the lesser of the estimated cost of restoration or the amount of the
deductible.
Notwithstanding anything contained herein to the contrary, the insurance
proceeds to be credited or delivered to Buyer pursuant to this Article 8 will
exclude business interruption or rental loss insurance proceeds, if any,
allocable to the period through the Closing Date, which proceeds will be
retained by Seller. Any business interruption or rental loss insurance proceeds
received by Seller and allocable to the period after the Closing Date shall be
delivered to Buyer.
ARTICLE 9
NOTICES
-------
All notices, requests, demands, and other communications required or
permitted to be given under this instrument shall be in writing and shall be
conclusively deemed to have been duly given or delivered, as the case may be,
(i) when hand delivered to the addressee, or (ii) one (1) business day after
having been deposited, properly addressed and prepaid for guaranteed next-
business-day delivery, with a nationally-recognized overnight courier service
(e.g., UPS, FedEx, or U.S. Express Mail). All such notices, requests, or
demands shall be addressed to the party whom notice is intended to be given at
the addresses set forth in Article 2 hereof entitled "Basic Terms," or to such
other address as a party may from time to time designate by notice given to the
other party(ies); provided, however that no party may require notice be given or
delivered to more than three (3) addresses.
ARTICLE 10
SUCCESSORS AND ASSIGNS
----------------------
This Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties hereto; provided, however, that
Buyer shall not transfer, sell, or assign all or any portion of Buyer's rights
hereunder except to an affiliate of Buyer; provided, further, that the
assignment by Seller of its rights to this Agreement to a Qualified Intermediary
under the Subsection hereof entitled "Assignment of Rights to Agreement to
Qualified Intermediary," shall not constitute an assumption by Qualified
Intermediary of Seller's obligations hereunder.
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ARTICLE 11
BROKERS
-------
Buyer and Seller represent to each other that they have dealt with no
broker or other person except the Broker in connection with the sale of the
Property in any manner which might give rise to any claim for commission.
Seller agrees to be responsible for payment of Broker's fees only and does not,
nor will, assume any liability with respect to any fee or commission payable to
any co-broker or any other party. No broker or person other than Broker is
entitled to receive any broker's commissions, finder's fees, or similar
compensation from Seller in connection with any aspect of the transaction
contemplated herein. It is agreed that if any claims for brokerage commissions
or fees are ever made against Seller or Buyer in connection with this
transaction, all such claims shall be handled and paid by the party whose
actions or alleged commitments form the basis of such claim, and said party who
is responsible shall indemnify and hold the other party harmless against any
claim for brokerage or finder's fees, or other like payment based in any way
upon agreements, arrangements, or understandings made or claimed to have been
made by Buyer or Seller with any third person. This provision shall survive the
Closing or other termination of this Agreement.
ARTICLE 12
COVENANT NOT TO RECORD
----------------------
Buyer will not record this Agreement or any memorandum or other evidence
thereof. Any such recording shall constitute a material default hereunder on
the part of Buyer.
ARTICLE 13
DEFAULT
-------
In the event the Closing does not occur as a result of a default by either
party, it is agreed by both Seller and buyer that the remedies for default are
provided for in the following Sections and shall constitute the sole and
exclusive remedies of the aggrieved party in the event of default by the other
party.
13.1 Default by Buyer In the event of default by Buyer, Seller's sole and
----------------
exclusive remedy, except as set forth further in this Section, is to retain all
Xxxxxxx Money (including all interest thereon) as liquidated damages, in which
event, this Agreement shall become null and void and both parties shall
thereupon be released of all further liability hereunder, except for the
obligations hereunder which expressly survive the termination of this Agreement.
Such amount is agreed upon by and between Seller and Buyer as liquidated damages
acknowledging the difficulty and inconvenience of ascertaining and measuring
actual damages, and the uncertainty thereof; provided, however, that nothing
herein contained shall limit the
25
right of Seller to seek damages from Buyer due to any slander of title by Buyer
after the termination of this Agreement, or due to any other action taken by
Buyer with respect to the property after the termination of this Agreement.
13.2 Default by Seller In the event of default by Seller, Buyer may
-----------------
elect either: (i) to terminate this Agreement and receive reimbursement of the
Xxxxxxx Money (including all interest thereon), in which event, this Agreement
shall become null and void and both parties shall thereupon be released of all
further liability hereunder, except for the obligations hereunder which
expressly survive the termination of this Agreement; or (ii) to file, within
thirty (30) days of the Closing Date, an action for specific performance of
Seller's express obligations hereunder, without abatement of, credit against, or
reduction in the Purchase Price. Escrowholder and/or seller shall not be
obligated to return the Xxxxxxx Money (including all interest thereon) to Buyer
unless buyer gives seller and/or Escrowholder written notice terminating all of
Buyer's interest in the Property and this Agreement; provided, however, that
failure of Buyer to give Seller such notice shall not be construed to expand
Buyer's rights or remedies in any manner.
ARTICLE 14
NON-DEFAULT TERMINATION
-----------------------
In the event of any termination of this Agreement (except only a
termination of this Agreement to which the provisions of Article 13 hereof
entitled "Default" are applicable), the following provisions shall apply:
(a) except for those obligations which expressly survive termination of
this Agreement, neither Buyer nor Seller shall have any further obligations
hereunder; and
(b) upon satisfaction of all of Buyer's monetary obligations under this
Agreement, the Xxxxxxx Money (including interest earned thereon) shall be
returned to Buyer upon Seller's receipt of (i) written notice from Buyer
expressly acknowledging the termination of all of Buyer's interest in the
Property and this Agreement; and (ii) all materials provided to Buyer by
Seller or Seller's agents, and any copies made by Buyer or Buyer's agents
pursuant to this Agreement; provided, however, that failure of Buyer to
give Seller such notice shall not be construed to expand Buyer's rights or
remedies in any manner.
ARTICLE 15
INDEMNITIES
-----------
15.1 Seller Indemnity. Seller shall, effective from and after the Closing
-----------------
Date, as the sole and exclusive obligation of Seller with respect to this
Agreement or the Property,
26
except as provided further in this Section, indemnify, defend and hold Buyer
harmless from and against any actual, direct damages (and reasonable attorneys'
fees and other legal costs) incurred by Buyer within one (1) year of the Closing
Date which Buyer can prove Buyer would not have incurred but for any inaccuracy
as of the Closing Date in the representations and warranties of Seller set forth
in the Section hereof entitled "Representations and Warranties of Seller," and
Article 11 Entitled Brokers but specifically excluding any statement of facts,
whenever occurring, that Buyer had notice of on or before the Closing Date. Such
agreement by Seller to so indemnify, defend and hold Buyer harmless shall be
null and void except to the extent that, within one (1) year of the Closing
Date, Buyer has actually incurred such damage and Seller has received notice
from Buyer pursuant to Article 9 hereof entitled "NOTICES" referring to this
Section and specifying the amount nature and facts underlying any claim being
made by Buyer hereunder.
In addition, Seller shall indemnify defend and hold Buyer harmless from and
against any actual, direct damages (and reasonable attorneys' fees and other
legal costs) incurred by Buyer for a claim which: (a) is made by a third party
alleging a tort committed by Seller, or (b) alleges bodily injury or property
damage related to the Property and occurring before the Closing Date; provided
that such claim does not arise out of or in any way relate to Hazardous Material
or pollutants. Additionally, this provision does not limit the Buyer's remedies
under Section 15.3 of this Agreement.
15.2 Buyer Indemnity Buyer shall, effective from and after the Closing
---------------
Date, as the sole and exclusive obligation of Buyer with respect to this
Agreement or the Property, except as provided further in this Section,
indemnify, defend and hold the Indemnified Parties, harmless from and against
any actual, direct damages (and reasonable attorneys' fees and other legal
costs) incurred by the Indemnified Parties within one (1) year of the Closing
Date which the Indemnified Parties can prove would not have incurred but for any
inaccuracy as of the Closing Date in the representations and warranties of Buyer
set forth in Section hereof entitled "Representations and Warranties and
Covenants of Buyer," and Article 11 Entitled Brokers but specifically excluding
any statement of facts, whenever occurring, that Seller had notice of on or
before the Closing Date. Such agreement by Buyer to so indemnify, defend and
hold the Indemnified Parties harmless, shall be null and void except to the
extent that, within one (1) year of the Closing Date, the Indemnified Parties
have actually incurred such damage and Buyer has received notice from the
Indemnified Parties pursuant to Article 9 hereof entitled "NOTICES" referring to
this Section and specifying the amount, nature and facts underlying any claim
being made by any of the Indemnified Parties hereunder.
In addition, Buyer shall indemnify, defend and hold the Indemnified
Parties, harmless from and against any actual, direct damages (and reasonable
attorneys' fees and other legal costs) incurred by any of the Indemnified
Parties for a claim which: (a) is made by a third party alleging a tort
committed by Buyer, or (b) alleges bodily injury or property damage related to
the Property and occurring on or after the Closing Date;
27
provided that such claim does not arise out of or in any way relate to Hazardous
Material or pollutants. Additionally, this provision does not limit the Seller's
remedies under Section 15.3 of this Agreement.
15.3 Unknown Environmental Liabilities "Unknown Environmental
---------------------------------
Liabilities" (as defined below) relating to the Property which exist on or
before the Closing Date shall be allocated in accordance with applicable law.
As used herein, "Unknown Environmental Liabilities" means future obligations to
remediate Hazardous Material located on the Property on or before the Closing
Date, but only to the extent such Hazardous Material is not disclosed in
Seller's Environmental Report(s), Buyer's Environmental Report(s), or which
Buyer otherwise has notice of as of the Closing Date, and only to the extent the
presence of such Hazardous Material violates applicable state and federal
environmental laws and regulations as they exist as of the Closing Date.
15.4 Release Except with respect to Seller's indemnification obligations
-------
set forth in Section hereof entitled "Seller Indemnity" and Seller's
obligations, if any, under Section hereof entitle "unknown Environmental
Liabilities," Buyer hereby waives, releases and forever discharges the
Indemnified Parties from all other claims, damages, losses, causes of action and
all other expenses and liabilities relating to this Agreement or the Property
(including, without limitation, claims, damages, losses, causes of action and
all other expenses and liabilities relating to environmental law and/or the
presence of Hazardous Material), whether direct or indirect, known or unknown,
foreseeable or unforeseeable, and whether relating to any period of time either
before or after the Closing Date.
15.5 Survival All of the provisions of this Article 15 shall survive the
--------
Closing, subject to the limitations set forth herein.
ARTICLE 16
MISCELLANEOUS
-------------
16.1 Survival of Representations, Covenants, and Obligations Except as
-------------------------------------------------------
otherwise expressly provided herein, no representations, covenants, or
obligations contained herein made by Seller or Buyer shall survive Closing or
termination of this Agreement.
16.2 Attorneys' Fees In the event of any litigation between the parties
---------------
hereto concerning the terms hereof, the losing party shall pay the reasonable
attorneys' fees and costs incurred by the prevailing party in connection with
such litigation, including appeals.
16.3 Publicity Except as otherwise provided in Section 3.3(c) of this
---------
Agreement, Buyer agrees that it shall treat this transaction as strictly
confidential prior to Closing.
28
Without limiting the foregoing, Buyer will make no public announcement of the
transactions contemplated herein, and, except with the consent of Seller, will
not directly or indirectly contact the Property's vendors or contractors until
after Closing occurs. Neither party will publicly advertise or announce the
occurrence of the sale of the Property, except by mutual written consent, until
after the Closing Date.
16.4 Captions The headings or captions appearing in this Agreement are
--------
for convenience only, are not a part of this Agreement, and are not to be
considered in interpreting this Agreement.
16.5 Waiver No waiver by any party of any breach hereunder shall be
------
deemed a waiver of any other or subsequent breach.
16.6 Time Time is of the essence with regard to each provision of this
----
Agreement. If the final date of any period provided for herein for the
performance of an obligation or for the taking of any action falls on a
Saturday, Sunday or national/banking holiday, then the time of that period shall
be deemed extended to the next day which is not a Saturday, Sunday or
national/banking holiday. If the Closing Date provided for herein should fall
on a Friday, Saturday, Sunday or national/banking holiday, then the Closing Date
shall be deemed extended to the next day which is not a Friday, Saturday, Sunday
or national/banking holiday. Each and every day described herein shall be
deemed to end at 5:00 p.m. Central Time.
16.7 Controlling Law This Agreement shall be construed in accordance with
---------------
the laws of the state in which the Property is located.
16.8 Severability In the event that any one or more of the provisions of
------------
this Agreement shall be determined to be void or unenforceable by a court of
competent jurisdiction or by law, such determination will not render this
Agreement invalid or unenforceable, and the remaining provisions hereof shall
remain in full force and effect.
16.9 Construction Buyer and Seller agree that each party and its counsel
------------
have reviewed, and if necessary, revised this Agreement, and that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement or any amendments, exhibits, or schedules hereto.
16.10 Like-Kind Exchange
------------------
16.10.1 Assignment of Rights to agreement to Qualified Intermediary
-----------------------------------------------------------
Buyer understands that Seller may desire to transfer the Property in a
transaction qualifying as a like-kind exchange under Internal Revenue Code
Section 1031, and the regulations thereunder. Accordingly, Seller may assign
its rights to this Agreement to a
29
third party (referred to herein as a "Qualified Intermediary"), and Buyer hereby
consents to such assignment. Buyer shall execute such documents and take such
other action as may reasonably be requested by Seller for the purpose of so
qualifying the transaction as a like-kind-exchange under Section 1031, and the
regulations thereunder. Notwithstanding the foregoing, no such assignment shall
operate to relieve Seller of its obligations under this Agreement nor cause
Buyer to incur any costs with respect thereto.
16.10.2 Reassignment Buyer and Seller each understand that the
------------
Qualified Intermediary may desire (at some time after the Closing) to reassign
the rights to this Agreement to Seller. Buyer hereby consents to any such
reassignment and agrees that in the event of any such reassignment, Seller shall
enjoy all of the rights and privileges of the "Seller" under this Agreement and
under any documents executed in connection herewith (including, but not limited
to the right to: (i) enforce the breach of any and all representations,
warranties, covenants and agreements contained, in this Agreement or any other
document executed in connection herewith; (ii) enforce, and to enjoy, the
benefit of any indemnification obligation of the "Buyer" contained in this
Agreement or any other document executed in connection herewith; (iii) enforce,
and to enjoy, and rely upon any and all waivers, agreements, acknowledgments,
guarantees, releases, discharges, certifications, affirmations, reaffirmations,
undertakings, approvals, admissions and assumptions executed or undertaken by
the Buyer under or in connection with this Agreement, any document executed in
connection herewith, or the transaction described herein; and (iv) enjoy any and
all limitations upon the representations, warranties, agreements, obligations,
responsibilities, and liabilities of the "Seller" under this Agreement). Buyer
further agrees that in the event of any such reassignment, then Seller shall
have any and all of the rights, privileges and remedies against or with respect
to Buyer as would exist if the assignment (by Seller to the Qualified
Intermediary) referred to in herein had never been made.
16.11 Execution This Agreement may be executed in any number of
---------
counterparts, each of which, when so executed and delivered, shall be deemed an
original, but such counterparts together shall constitute but one agreement.
16.12 Amendments This Agreement may be modified, supplemented, or amended
----------
only by a written instrument executed by Buyer and Seller.
16.13 Entire Agreement This written Agreement constitutes the entire and
----------------
complete agreement between the parties relating to the transactions contemplated
hereby and all prior or contemporaneous agreements, understandings,
representations, warranties, and statements, oral or written, are merged herein.
No representation, warranty, covenant, agreement, or condition not expressed in
this Agreement shall be binding upon the parties hereto or shall affect or be
effective to interpret, change, or restrict the provisions of this Agreement.
30
IN WITNESS WHEREOF, this Agreement has been executed as of the Effective
Date, as herein defined in Article 2 hereof entitled "BASIC TERMS."
SELLER: THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY, a Wisconsin corporation
By: Northwestern Investment Management Company,
LLC, a Delaware limited liability company, its wholly-
owned affiliate and authorized representative
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------------
Its: Managing Director
-------------------------------------
Date: March 19, 2001
------------------------------------
BUYER: XXXXX CAPITAL, INC., A GEORGIA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------------------
Its: Senior Vice President
-------------------------------------
Date: ____________________________________
31
RECEIPT BY ESCROWHOLDER
-----------------------
The Escrowholder hereby acknowledges receipt of the foregoing Agreement and
of the Xxxxxxx Money referred to therein and agrees to accept, hold, and return
such Xxxxxxx Money and disburse any funds received thereunder in accordance with
the provisions of said Agreement.
CHICAGO TITLE INSURANCE COMPANY
By: _________________________
Name:________________________
Its:_________________________
Date of receipt: ____________
32
