Exhibit 10.6
AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY AND ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW
INSTRUCTIONS ("Agreement") is made and entered into as of this ______ day of
August, 2005, by and between NNN XX XXXXXXXXX TOWER, LP ("Seller"), and RANCHO
PACIFIC DEVELOPMENT and/or its LLC ("Buyer"), 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 Southwood Tower located at 00000 Xxxxxxxxxx
00, Xxxxxxxxxx, Xxxxx and such other assets, as the same are herein
described.
B. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller the Land and the associated assets.
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.
1.1. The purchase and sale includes, and at Close of Escrow (hereinafter
defined) Seller shall sell, assign, grant and transfer to Buyer,
Seller's entire right and interest in and to all of the following
(hereinafter sometimes collectively, the "Property"):
1.1.1. The Land, together with all structures, buildings,
improvements, machinery, fixtures, and equipment affixed or
attached to the Land and all easements and rights appurtenant to
the Land (all of the foregoing being collectively referred to
herein as the "Real Property");
1.1.2. All leases (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 Close of Escrow, together with all security
deposits, other deposits held in connection with the Leases,
Lease guarantees and other similar credit enhancements providing
additional security for such Leases;
1.1.3. All tangible and intangible personal property owned by Seller
located on or used in connection with the Real Property,
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including, specifically, without limitation, equipment,
furniture, tools and supplies, and all related intangibles
including Seller's interest, if any, in the name "Southwood
Tower" (the "Personal Property");
1.1.4. All service contracts, agreements, warranties and guaranties
relating to the operation of the Property (the "Contracts"); and
1.1.5. To the extent transferable, all building permits, certificates
of occupancy and other certificates, permits, licenses and
approvals relating to the Property (the "Permits").
2. Purchase Price.
The total Purchase Price of the Property shall be NINE MILLION SIX HUNDRED
FIFTY THOUSAND Dollars ($9,650,000.00) ("Purchase Price") payable as follows:
2.1. Deposit/Further Payments/Down Payment.
2.1.1. Concurrent with Opening of Escrow (as hereinafter defined),
Buyer shall deposit into Escrow the amount of $100,000.00 (the
"Initial Deposit"), in the form of a wire transfer payable to
Commonwealth Land Title Company, at 0000 Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, XX 00000, Attn: Xxxxxxx Mesh ("Escrow Holder"). Escrow
Holder shall place the Deposit into an interest bearing money
market account at a bank or other financial institution
reasonably satisfactory to Buyer, and interest thereon shall be
credited to Buyer's account. Within one (1) business day
following Buyer's removal of physical contingencies, Buyer shall
deposit into Escrow an additional $100,000 (the "Additional
Deposit"). The Initial Deposit and the Additional Deposit shall
be collectively referred to herein in the singular as the
"Deposit" or in the plural as the "Deposits". Any and all accrued
interest shall be applied toward the total Purchase Price at
Closing.
2.1.2. Buyer to secure financing equal to 75% of the total purchase
price at the best available market rate. Buyer shall have a
forty-five (45) day loan contingency period from the date of
Opening of Escrow. Upon Buyer's removal of the loan contingency,
Buyer's Initial Deposit and the Additional Deposit shall be
deemed non-refundable, released to Seller, and applied against
the Purchase Price at Close of Escrow.
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2.1.1. On or before Close of Escrow, Buyer shall deposit into Escrow
the balance of the Purchase Price, by wire transfer payable to
Escrow Holder.
3. Title to Property.
3.1 Title Insurance.
Escrow Holder will obtain a Standard Coverage CLTA owner's policy of
title insurance from Commonwealth Land Title Company with their
standard provisions and exceptions (the "Title Policy") in the amount
of the Purchase Price. The Title Policy is to be free and clear of
encumbrances except as follows:
3.1.1. Real property taxes and assessments, which are a lien not yet
due;
3.1.2. Covenants, conditions, reservations (including exceptions of
oil, gas, minerals, hydrocarbons and/or lease without right of
surface entry), restrictions, rights of way, and easements for
public utilities, districts, water companies, alleys and streets;
and
3.1.3. The permitted exceptions included in such policy and approved
by Buyer.
3.2. Procedure for Approval of Title.
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 matters affecting the Property
that are unacceptable to Buyer (the "Title Defects"), 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. 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 and obtain a refund of the Deposit by providing written
notice of termination to Seller before the end of the Inspection
Period and returning the Due Diligence Items (hereinafter defined), or
(ii) waive the objections and close this transaction as otherwise
contemplated herein, without a reduction in
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the Purchase Price. If Buyer shall fail to terminate this Agreement
during the Inspection Period, all matters shown on the Survey or
described in the Title Report, except for monetary liens for
indebtedness of Seller and any matters Seller has agreed to cure in
writing, shall be deemed "Permitted Exceptions."
4. Due Diligence Items.
4.1. Seller shall deliver to Buyer each of the following within two (2)
days of the Opening of Escrow (collectively, the "Due Diligence
Items"):
4.1.1. The existing survey of the Property, if any (the "Survey");
4.1.2. A current preliminary title report or title commitment (the
"Title Report") for the issuance of a policy of title insurance
to Buyer from the Escrow Holder, together with good and legible
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 shall be available for inspection. Seller agrees not
to enter into any additional contracts or agreements prior to
Close of Escrow which cannot be canceled upon thirty (30) days
written notice without cost, penalty, or obligation unless such
contracts or other agreements are approved by Buyer, which
approval shall not be unreasonably withheld or delayed;
4.1.4. 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,
shall be made available for inspection at Seller's offices;
4.1.5. 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;
4.1.6. A schedule of all current or pending litigation with respect to
the Property or any part, thereof, if any;
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4.1.7. Operating statements for the most recent two (2) calendar years
shall be available for inspection;
4.1.8. The tenant files, books and records relating to the ownership
and operation of the Property shall be available for inspection
by Buyer during ordinary business hours at Seller's management
office; and
4.1.9. 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.
4.2. Estoppel Certificates.
As a condition precedent to Buyer's obligation to acquire the
Property, Seller shall obtain and deliver to Buyer estoppel
certificates, in accordance with their respective Leases, from tenants
representing seventy percent (70%) of the square feet which are leased
and occupied by tenants as of the date this Agreement is fully
executed. Estoppel certificates shall be deemed to satisfy this
condition precedent unless they disclose material adverse matters.
Buyer shall notify Seller within three (3) 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 Close of
Escrow, this Agreement shall terminate, Buyer shall be entitled to a
refund of the Deposit, and neither party shall have any further
obligation to the other except Buyer's indemnification obligations
under Paragraph 5, and any other obligations expressly set forth
herein.
5. Inspections.
Buyer, at its sole cost and expense, shall have the right to conduct
feasibility, environmental, engineering and physical studies or other tests (the
"Inspections") of the Property at any time during the Inspection Period
(hereinafter defined). Buyer, and its duly authorized agents or representatives,
shall be permitted to enter upon the Property at all reasonable times during the
Inspection Period in order to conduct engineering studies, soil tests and any
other Inspections and/or tests that Buyer may deem necessary or advisable. Buyer
must arrange all Inspections of the Property with Seller at least two (2)
business days in advance of any Inspections. In the event that the review and/or
Inspection conducted pursuant to this paragraph shows any fact, matter or
condition to exist with respect to the Property
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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 and obtain a refund of the Deposit, or (2) waive the objection, and
close the transaction as otherwise contemplated herein without any reduction in
the Purchase Price. 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.
5.1. Approval.
5.1.1. Buyer shall have thirty (30) business days following mutual
execution of the Purchase and Sale Agreement ("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 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 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 expressly provided in
Paragraph 5.
5.1.2. 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").
Buyer shall cooperate with Seller at no expense to Buyer in order
to obtain a waiver of any such limitations.
5.1.3. Notwithstanding any contrary provision of this Agreement, Buyer
acknowledges that Seller is not representing or warranting that
any of the Due Diligence Items prepared by third parties are
accurate or complete, such as the Survey, engineering reports and
the like. Seller advises Buyer to
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independently verify the facts and conclusions set forth therein,
provided however, Seller warrants that it has no knowledge of any
material errors or misstatements in such information regarding
the Property.
6. Escrow.
6.1. Opening.
Purchase and sale of the Property shall be consummated through an
escrow ("Escrow") to be opened with Escrow Holder within two (2)
business days after the execution of this Agreement by Seller and
Buyer. 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 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.
6.2. Close of Escrow.
6.2.1. Escrow shall close ("Close of Escrow" or "Closing") within
seventy five (75) days or sooner following mutual execution of
the Purchase and Sale Agreement.
6.3. Buyer Required to Deliver.
Buyer shall deliver to Escrow the following:
6.3.1. Concurrently with the Opening of Escrow, the Deposit;
6.3.1. On or before Close of Escrow, the payment required by Paragraph
2.1.2; provided, however that Buyer shall not be required to
deposit the amount specified in Paragraph 2.1.2 until Buyer has
been notified by Escrow Holder that (i) Seller has delivered to
Escrow each of the documents and instruments to be delivered by
Seller in connection with Buyer's purchase of the Property, (ii)
Title Company has committed to issue and
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deliver the Title Policy to Buyer and Seller and (iii) the only
impediment to Close of Escrow is delivery of such amount by or on
behalf of Buyer;
6.3.2. On or before Close of Escrow, such other documents as Title
Company may require from Buyer in order to issue the Title
Policy;
6.3.3. An original assignment and assumption agreement (the
"Assignment and Assumption Agreement") duly executed by Seller
assigning and conveying to Buyer all of Seller's right, title and
interest in and to the Leases and the Contracts.
6.4. Seller Required to Deliver.
On or before Close of Escrow, Seller shall deliver to Escrow the
following:
6.4.1. A duly executed and acknowledged grant deed, conveying fee
title to the Property in favor of Buyer (the "Grant Deed");
6.4.2. An executed Certificate of Non-Foreign Status;
6.4.3. A xxxx of sale of the Personal Property, if any, without
warranty, in favor of Buyer and duly executed by Seller;
6.4.4. Such other documents as Title Company may require from Seller
in order to issue the Title Policy;
6.4.5. Tenant estoppel certificates;
6.4.6. Seller shall deliver to Buyer 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, provided, however, Seller shall be permitted to
retain keys and security cards/devices to the buildings and the
Vacant Space (hereinafter defined) for the purpose of leasing the
Vacant Space, as provided in Paragraph 24 of this Agreement.
6.4.7. Seller shall deliver 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,
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insurance, property taxes and other charges which are paid by
tenants of the Project; and
6.4.8. A counterpart original of the Assignment and Assumption
Agreement.
6.5. Buyer's Costs.
Buyer shall pay the following:
6.5.1. One-half (1/2) of Escrow Holder's fees, costs and expenses;
6.5.2. The cost of recording the Deed of Trust;
6.5.3. All other costs customarily borne by purchasers of real
property in Xxxxxxxxxx County, Texas;
6.5.4. Title Company's premium for the Title Policy; and 6.5.5. If
Buyer elects to obtain extended coverage title insurance, the
amount by which the premium for an extended coverage policy of
title insurance in the amount of the Purchase Price exceeds the
premium for the Title Policy.
6.6. Seller's Costs.
Seller shall pay the following:
6.6.1. One-half (1/2) of Escrow Holder's fees, costs and expenses;
6.6.2. The cost of recording the Grant Deed, including documentary
transfer taxes; and
6.6.3. All other costs customarily borne by sellers of real property
in Xxxxxxxxxx County, Texas.
6.7. Prorations.
6.7.1. Real property taxes, assessments, rents, security deposits, and
cam expenses shall be prorated through Escrow between Buyer and
Seller as of Close of Escrow. Rents, security deposits and cam
expenses shall be approved by Buyer prior to Close of Escrow. Any
delinquent rents collected by Buyer shall be paid to Seller.
Seller shall have the right to pursue any Tenant for delinquent
rent, but shall not cause a Tenant to be delinquent
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for their current rent or become financially unstable. Tax and
assessment prorations shall be based on the latest available tax
xxxx. If, after Close of Escrow, Buyer receives any further or
supplemental tax xxxx relating to any period prior to Close of
Escrow, or Seller receives any further or supplemental tax xxxx
relating to any period after Close of Escrow, the recipient shall
promptly deliver a copy of such tax xxxx to the other party, and
not later than ten (10) days prior to the delinquency date shown
on such tax xxxx Buyer and Seller shall deliver to the taxing
authority their respective shares of such tax xxxx, prorated as
of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with
respect to the Property transactions entered into prior to
execution of this Agreement shall be paid by Seller, and Seller
shall indemnify and hold Buyer harmless for Lease commission
claims brought against the Property arising therefrom. All
leasing commissions for new Leases and for Lease renewals and
expansion options executed after the date of this Agreement shall
be prorated between Buyer and Seller as their respective periods
of ownership bear to the primary term of the new Lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from
any and all liabilities, claims, demands, suits, and judgments,
of any kind or nature, including court costs and reasonable
attorneys' fees (except those items which under the terms of this
Agreement specifically become the obligation of Buyer), brought
by third parties and based on events occurring on or before the
date of closing and which are in any way related to the Property,
and all expenses related thereto, including but not limited to
court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from
any and all liabilities, claims, demands, suits and judgments, of
any kind or nature, including court costs and reasonable
attorneys' fees, brought by third parties and based on events
occurring subsequent to the date of closing and which are in any
way related to the Property, and all expenses related thereto,
including, but not limited to, court costs and attorneys' fees.
6.8. 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:
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6.8.1. The date of Opening of Escrow pursuant to Paragraph 6.1;
6.8.2. The date of receipt of the Title Report by Buyer;
6.8.3. The date by which title must be approved by Buyer pursuant to
Paragraph 3.2;
6.8.4. The date by which the Inspections must be approved by Buyer
pursuant to Paragraph 5.1.1;
6.8.5. 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
6.8.6. The date of Close of Escrow pursuant to Paragraph 6.2.
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.
7. Representations, Warranties, and Covenants.
Seller hereby represents and warrants as of the date hereof to Buyer as
follows:
7.1. Seller is a limited partnership duly formed and validly existing under
the laws of the State of Texas. Seller has full power and authority to
enter into this Agreement, to perform this Agreement and to consummate
the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and all documents contemplated hereby by
Seller have been duly and validly authorized by all necessary action
on the part of Seller and all required consents and approvals have
been duly obtained and will not result in a breach of any of the terms
or provisions of, or constitute a default under any indenture,
agreement or instrument to which Seller is a party. 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.
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7.2. Seller has good and marketable title to the Property, subject to the
conditions of title. There are no outstanding rights of first refusal,
rights of reverter or option relating to the Property or any interest
therein. To Seller's knowledge, there are no unrecorded or undisclosed
documents or other matters which affect title to the Property. Subject
to the Leases, Seller has enjoyed the continuous and uninterrupted
quiet possession, use and operation of the Property, without material
complaint or objection by any person.
7.3. Seller is not a "foreign person" within the meaning of Section 1445(f)
of the Internal Revenue Code of 1986, as amended (the "Code").
7.4. Covenants of Seller. Seller hereby covenants as follows:
7.4.1. 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 date hereof;
7.4.2. From the date of execution of this Agreement 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 prorated between
Buyer and Seller in accordance with their respective periods of
ownership as it bears to the primary term of the new lease.
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, conditioned or
delayed. Buyer shall have five (5) business days 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;
7.4.3. From the date of execution of this Agreement 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;
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7.4.4. 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 would
survive the Closing Date;
7.4.5. Seller shall fully and timely comply with all obligations to be
performed by it under the Leases, the Contracts, and all permits,
licenses, approvals and laws, regulations and orders applicable
to the Property.
7.5 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, 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 THE
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GRANT 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
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.
8. Representations and Warranties of Buyer.
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Buyer hereby represents and warrants to Seller as follows:
8.1. Buyer is a CORP. duly organized and validly existing under the laws of
the State of CA. Buyer has full power and authority to enter into
this Agreement, to perform this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and
performance of this Agreement and all documents contemplated hereby by
Buyer have been duly and validly authorized by all necessary action on
the part of Buyer and all required consents and approvals have been
duly obtained and will not result in a breach of any of the terms or
provisions of, or constitute a default under any indenture, agreement
or instrument to which Buyer is a party. 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.
9. Conditions Precedent to Closing.
The obligations of Buyer pursuant to this Agreement shall, at the option of
Buyer, be subject to the following conditions precedent:
9.1. 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 date hereof, 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.
9.2. There shall be no material change in the matters reflected in the
Title Report, and there shall not exist any encumbrance or title
defect affecting the Property not described in the Title Report except
for the Permitted Exceptions or matters to be satisfied at closing.
9.3. Unless Seller receives notice from Buyer at least thirty (30) days
prior to closing, effective as of closing, the management agreement
affecting the Property shall be terminated by Seller and any and all
termination fees incurred as a result thereof shall be the sole
obligation of Seller.
9.4. Seller shall have operated the Property from and after the date hereof
in substantially the same manner as prior thereto.
9.5. If any such condition is not fully satisfied by closing, Buyer shall
so notify Seller and may terminate this Agreement by written notice to
15
Seller whereupon this Agreement may be canceled, and upon return of
the Due Diligence Items the Deposit shall be paid to Buyer and,
thereafter, neither Seller nor Buyer shall have any continuing
obligations hereunder.
9.6. If Buyer notifies Seller of a failure to satisfy the conditions
precedent set forth in this paragraph, Seller may, within five (5)
days of receipt of Buyer's Notices 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. If
Seller fails to agree to cure or fails to cure such condition by the
Closing Date, this Agreement shall be canceled and the Deposit shall
be returned to Buyer and neither party shall have any further
liability hereunder.
9.7. If Buyer's acquisition of the Property is part of a tax-deferred
exchange pursuant to Section 1031 of the Code, it is a condition
precedent to the closing of this Escrow that Buyer is able to complete
an exchange for all or a portion of its relinquished property pursuant
to an Exchange Agreement between Buyer and Accommodator. Seller agrees
to execute such documents or instruments as may be necessary or
appropriate to evidence such exchange, provided that Seller's
cooperation in such regard shall be at no additional cost, expense, or
liability whatsoever to Seller, and that no additional delays in the
scheduled Close of Escrow are incurred unless mutually agreed upon by
all parties to this Agreement.
10. Damage or Destruction Prior to Close of Escrow.
In the event that the Property should be damaged by any casualty prior to
the Close of Escrow, then if the cost of repairing such damage, as estimated by
an architect or contractor retained pursuant to the mutual agreement of the
parties, is:
10.1. Less than Two Hundred Fifty Thousand Dollars ($250,000), the Close of
Escrow shall proceed as scheduled and any insurance proceeds shall be
distributed to Buyer to the extent not expended by Seller for
restoration;
or if said cost is:
10.2. Greater than Two Hundred Fifty Thousand Dollars ($250,000), then
either Seller or Buyer may elect to terminate this Agreement, in which
case upon return of the Due Diligence Items the Deposit shall be
returned to Buyer and neither party shall have any further obligation
to the other except for Buyer's indemnification obligations under
Paragraph 5.
16
11. Eminent Domain.
11.1. If, before the Close of Escrow, 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 upon the return of the Due
Diligence Items, the Deposit shall be returned to Buyer and neither
party shall have any further obligation to the other except for
Buyer's indemnification under Paragraph 5, or as otherwise expressly
set forth herein. If, before the Close of Escrow, 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 Close of Escrow, 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.
12. Notices.
12.1. 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
00
Xxxxx Xxx, XX 00000
(000) 000-0000
(000) 000-0000 fax
With Required Copy to: 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: Xxxx Xxxxx
Rancho Pacific Development
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000
13. Remedies.
13.1. Defaults by Seller. If there is any default by Seller under this
Agreement, following notice to Seller and seven (7) days, during which
period Seller may cure the default, Buyer may, at its option, (a)
declare this Agreement terminated in which case upon return of the Due
Diligence Items the Deposit shall be returned to Buyer, or (b) treat
this Agreement as being in full force and effect and bring an action
against Seller for specific performance.
13.2. 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, in which case the Deposit
shall be paid to Seller as liquidated damages and each party shall
thereupon be relieved of all further obligations and liabilities,
except any which survive termination as expressly set forth in this
Agreement. 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 Reports.
13.3. 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
18
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.
14. Assignment.
Buyer may assign its rights under this Agreement to an entity in which
Buyer has a majority interest.
19
15. 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.
16. 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.
17. 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.
18. 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. The obligations
of the parties hereunder and all other provisions of this Agreement shall
survive the closing or earlier termination of this Agreement, except as
expressly limited herein.
19. 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.
20. Acceptance.
20
Time is of the essence of 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 if it
is not the State, 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 if it is not the
State.
21. 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 (a) Marcus & Millichap and (b) Triple Net
Properties Realty, Inc. ("TNP") (collectively, the "Brokers"), and Seller will
pay the Brokers a four percent (4%) brokerage commission (to be split equally by
the Brokers). 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.
22. Exchange.
Seller reserves the right to structure the sale of the Property as a like
kind exchange pursuant to Section 1031 of the Code. In such event Seller shall
have the right to assign its interest in this Agreement to a qualified exchange
intermediary of its choosing to effect such exchange. Buyer shall sign a
customary assignment and/or notice of assignment, however, such assignment shall
at no cost or expense to Buyer and shall not otherwise affect the term of this
Agreement.
23. 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 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
21
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.
24. Vacancy.
Seller shall provide a rent escrow pursuant to the Escrow Agreement
attached hereto and incorporated herein as Exhibit B, upon the terms and
conditions more particularly set forth in the Escrow Agreement.
25. Approval.
Seller's obligation to sell the Property is subject to the condition
precedent that approval of the sale is obtained from all entities comprising
Seller no later than fifteen (15) business days after full execution of this
Agreement.
(THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
SIGNATURES APPEAR ON THE FOLLOWING PAGE.)
22
SIGNATURE PAGE FOR
Southwood Tower
00000 Xxxxxxxxxx 00
Xxxxxxxxxx, Xxxxx
EXECUTED on this the _______ day of ________, 2005.
SELLER: NNN XX Xxxxxxxxx Tower, LP, a Texas
Limited Partnership
By: Triple Net Properties, LLC, a
Virginia limited liability company
Its:
-----------------------------------
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
EXECUTED on this the 8 day of AUG., 2005.
BUYER: Rancho Pacific Development Corp.,
a Ca. CORP.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: XXXXXXX X. XXXXX
Title: Pres
23
EXHIBIT A
Legal Description of the Property
TRACT I:
Being at 3.6632 acre (159,569 square feet) of land being all of Restricted
Reserve "D", Block 1, of Research Plaza, according to the map or plat there of
recorded in Cabinet R Sheet 89 of the Map Records of Xxxxxxxxxx County, Texas,
(M.R.M.C.T.) also being situated in the Xxxxxxxxxx County School Land Survey,
Abstract 350, Xxxxxxxxxx County, Texas, said parcel being more particularly
described by metes and bounds as follows: (Bearings based on the westerly line
of said Restricted Reserved "D" - North 06 deg. 42' 50" West);
BEGINNING at a found 5/8 inch iron rod with cap ("TEAM"), in the east right of
way line of Interstate Highway 45 (width varies), at the northwest corner of a
called 1.6286 acre tract conveyed to National Petcare Centers, Inc., by
instrument recorded in Clerk's File No. (C.C.F. No.) 9778580 of the Real
Property Records of Xxxxxxxxxx County, Texas (R.P.R.M.C.T.) at the southwest
corner of said Restricted Reserve "D", and the herein described parcel;
THENCE North 06 deg. 42' 50" West, along the easterly right of way line of
Interstate Highway 45, and the west line of said Restricted Reserve "D", a
distance of 363.46 feet to a found 5/8" iron rod with cap ("TEAM") at the
southwest corner of Restricted Reserve "C" of the said Research Plaza, at the
northwest corner of said Restricted Reserve "D", and the herein described
parcel;
THENCE North 83 deg. 26' 20" East, along the south line of said Restricted
Reserve "C", the south line of Restricted Reserve "A", and the north line of
said Restricted Reserve "D", a distance of 449.05 feet to a found "X" in
concrete at an interior corner of said Restricted Reserve "A", at the northeast
corner of said Restricted Reserve "D", and herein described parcel;
THENCE South 05 deg. 48' 44" East, along the Westerly line of said Restricted
Reserve "A", and the east line of said Restricted Reserve "D", a distance of
330.13 Feet to a found 5/8 inch iron rod in the northerly line of the remainder
of a called 7.5932 acres conveyed to Xxx Xxx Xxxx by instrument recorded in
C.C.F. No. 2000-008649 R.P.R.M.C.T., at a southerly corner of said Restricted
Reserve "A", at the southeast corner of said Restricted Reserve "D", and the
herein described parcel, and lying in a curve to the right;
THENCE along the said curve to the right with a radius of 823.44 feet, an arc
length 17.42 feet, through a delta of 01 deg. 12' 43", and a chord bearing South
65 deg. 03' 33" West, 17.42 feet to a found 5/8 inch iron rod at a southeasterly
corner of said Restricted Reserve "D", an the herein described parcel;
24
THENCE South 02 deg. 00' 13" East, along the easterly line of said Restricted
Reserve "D", a distance of 17.95 feet to a found 1/2 inch iron rod at the
northeast corner of a called 0.325 acre tract conveyed to Xxxxx Xxx Xxxxx and
Xxxxx Xxxxx by Instrument recorded in C.C.F. No. 8254572, R.P.R.M.C.T., at a
southeasterly corner of said Restricted Reserve "D", and the herein described
parcel;
THENCE South 81 deg. 59' 42" West, along the north line of said 0.325 acre
tract; and the south line of said Restricted Reserve "D", a distance of 114.93
feet to a set 5/8 inch iron rod at the northeast corner of said 1.6286 acre
tract, the northwest corner of said 0.325 acre tract, at an angle point in the
south line of said Restricted Reserve "D", and the herein described parcel;
THENCE South 82 deg. 08' 10" West, along the north line of said 1.6286 acre
tract, and the south line of said Restricted Reserve "D", a distance of 311.00
feet to the POINT OF BEGINNING, and the containing a computed 3.6632 acres
(159,569 square feet) of land more or less.
25
EXHIBIT B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of the
_____ day of August, 2005, between NNN XX XXXXXXXXX TOWER, L.P., a Texas limited
partnership ("Seller"), RANCHO PACIFIC DEVELOPMENT ("Purchaser"), and
__________________ ("Escrow Agent").
RECITALS
A. Seller and Purchaser entered into a Purchase and Sale Agreement dated as
of August_______, 2005 (the "PSA") for the purchase and sale of certain real
property located at 00000 Xxxxxxxxxx 00, Xxxxxxxxxx (Xxxxxxxxxx Xxxxxx), Xxxxx,
as more particularly described in the PSA (the "Property"). Any capitalized
terms not defined herein shall have the meanings set forth in the PSA.
B. Section 24 of the PSA provides that Seller will guaranty the current
vacancy of the Property at the rate of Twenty Dollars ($20) per square foot,
gross. The guaranty shall continue for a period of five (5) years from the date
of closing or until such time as the Vacant Space (hereinafter defined) is
leased pursuant to the terms and conditions of this Agreement, whichever is
sooner.
NOW THEREFORE, in consideration of the mutual covenants and premises herein
contained, and other good and valuable consideration, and intending to be
legally bound hereby, the parties hereby agree as follows:
1. VACANT SPACE ESCROW.
(a) At closing Seller shall deposit with Escrow Agent in an
interest-bearing account, the estimated amount of $1,329,100 (calculated by
multiplying (i) $20.00 of potential lost annual rent per square foot, gross,
multiplied by (ii) the lesser of 13,291 square feet (the estimated amount of
vacant space as of the execution of the PSA), or the amount of vacant space
remaining as of the closing date (the "Vacant Space"), multiplied by (iii) five
(5) years) (the "Escrow"). The Escrow shall remain in effect for five (5) years
from the date of closing or until such time as the Vacant Space is fully leased
in accordance with this Agreement, whichever is sooner. The Vacant Space is more
particularly described on Exhibit B attached hereto and incorporated herein. The
Escrow may be contributed from the Purchase Price proceeds.
(b) Seller and Purchaser shall cooperate in leasing the Vacant Space,
and each party shall use commercially reasonable efforts to lease the Vacant
Space to acceptable tenants. Seller shall have the right to use any leasing
brokers Seller desires, in Seller's sole and absolute discretion. Purchaser
grants Seller complete and unrestricted access to the Vacant Space twenty-four
(24) hours a day, seven (7) days a week for the purpose of showing the Vacant
Space to potential tenants and improving the Vacant Space prior to occupancy by
new tenants. Purchaser
26
shall give Seller keys and security cards to the building and the Vacant Space,
which Seller may use at any time until the Vacant Space is completely leased and
the Escrow is returned to Seller. Purchaser shall maintain the Vacant Space in a
clean and showable condition, and Purchaser shall replace the light bulbs and
perform any maintenance necessary to keep the Vacant Space in a good condition.
All potential tenants for the Vacant Space shall have financials reasonably
acceptable to Seller and Purchaser and shall be reasonably approved by both
parties prior to lease execution. If Purchaser does not approve of a tenant for
financial reasons, Purchaser nevertheless agrees to execute a lease with such
tenant. In such case, the rent from the lease shall be paid directly to Seller,
the Rent Payment (hereinafter defined) shall be paid to Purchaser in accordance
with Section (d) below, and the Escrow funds shall not be released to Seller
with respect to such lease until the expiration of the five (5) year period, or
until such time as the space is re-let to a tenant acceptable to Purchaser,
whichever is sooner. Purchaser shall cooperate with Seller in any and all
collection actions or other related proceedings with respect to leasing the
Vacant Space.
(c) Each party agrees to indemnify and hold the other party harmless
from any and all claims, actions, damages, liabilities and expenses (including
reasonable attorneys' fees) in connection with damage to the Vacant Space
arising from or out of the showing of the Vacant Space, or any part thereof, by
the other party.
(d) Upon the execution of a lease, the amount of Vacant Space shall be
reduced pro rata based on the rent being paid, the term of the lease and/or the
amount of space being leased by the new tenant, and the Escrow shall be reduced
accordingly. At such time, Seller shall deliver a certification to the Escrow
Agent, detailing the amount of the Escrow to be released to Seller (the "Escrow
Refund"), and the Escrow Agent shall disburse the Escrow Refund to Seller into
that certain account described on Exhibit A attached hereto and incorporated
herein. For example, if 2,000 square feet of the Vacant Space is leased for five
(5) years at $20.00 per square foot, the Vacant Space shall be reduced to 11,291
square feet, and the Escrow shall be reduced by $200,000, for a new total Escrow
of $1,129,100. Alternately, if 2,000 square feet of the Vacant Space is leased
for three (3) years at $18.00 per square foot, the Vacant Space shall be reduced
to 11,291 square feet, and the Escrow shall be reduced by $108,000, for a new
total of $1,221,100.
(e) Beginning on the fifteenth (15th) day of each calendar month
following __________________, 2005, and until such time as the amount of Vacant
Space is completely leased, unless the Escrow Agent has received a certification
from Seller that the Escrow shall be reduced in accordance with section (c)
above, the Escrow Agent shall, without instruction from either party, disburse
approximately $22,151.67 to be adjusted at closing (the "Rent Payment") to
Purchaser into that certain account described on Exhibit A attached hereto and
incorporated herein.
(f) Any balance remaining in the Escrow on _________________, 2010,
shall be disbursed to Seller immediately.
2. DISPUTES. In the event of a dispute between any of the parties hereto as
to their respective rights and interests hereunder, the Escrow Agent shall be
entitled to hold any and all
27
cash then in its possession hereunder until such dispute shall have been
resolved by the parties in dispute and the Escrow Agent shall have been notified
by instrument jointly signed by all of the parties in dispute, or until such
dispute shall have been finally adjudicated by a court of competent
jurisdiction.
3. LIABILITY OF ESCROW AGENT. The Escrow Agent hereby consents and agrees
to all of the provisions hereof, and agrees to accept, as Escrow Agent
hereunder, all cash and documents deposited hereunder, and agrees to hold and
dispose of said cash and documents deposited hereunder in accordance with the
terms and provisions hereof. It is agreed that the Escrow Agent shall have no
obligation or liability hereunder except as a depositary to retain the cash
which may be deposited with it hereunder and to dispose of the same in
accordance with the terms hereof. The Escrow Agent shall be entitled to rely and
act upon any written instrument received by it, and if a corporation, purporting
to be executed by an officer thereof, and if a partnership, purporting to be
executed by a general partner thereof and shall not be required to inquire into
the authority of such officer or partner or the correctness of the facts stated
in said instrument. By acceptance of this agreement, Escrow Agent agrees to use
its best judgment and good faith in the performance of any of its obligations
and duties under this Agreement and shall incur no liability to any person for
its acts or omissions hereunder, except for those acts or omissions which may
result from its gross negligence or willful misconduct. Upon disposition by the
Escrow Agent, in accordance with the terms hereof, of the cash deposited with
the Escrow Agent hereunder, the Escrow Agent shall be fully and finally released
and discharged from any and all duties, obligations, and liabilities hereunder.
4. NOTICES. Any notice which any party may be required or may desire to
give hereunder shall be deemed to have been duly given when personally
delivered, against receipt therefore signed by the party to whom the notice is
given, or with respect to any party other than the Escrow Agent, on the next
business day if sent by overnight courier, or on the fourth business day after
mailing by certified or registered mail, postage prepaid, addressed as set forth
below, or to such other address as a party hereto may designate by a notice to
the other parties. Any notice mailed, sent by facsimile transmission, or given
to the Escrow Agent shall be deemed given only when received. Any notice given
by any party hereto shall be given to both of the other parties hereto
simultaneously.
If to Seller: c/o Triple Net Properties, LLC
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
(000) 000-0000
(000) 000-0000 Fax
Attn: Xxxxxxx Xxxxxx
If to Purchaser: _________________________________
_________________________________
_________________________________
28
If to Escrow Agent: ______________________________
______________________________
______________________________
5. MISCELLANEOUS. This Escrow Agreement and all of the provisions hereof
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective legal representatives, successors and assigns. This Agreement
may only be modified or supplemented by an instrument in writing executed by
duly authorized representatives of all parties hereto. This Amendment may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. This Amendment may be executed and delivered by facsimile signature.
In the event of any conflict or inconsistency between the terms of this Escrow
Agreement and the terms of the PSA, the terms of this Escrow Agreement shall
govern and control.
6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF TEXAS, AND VENUE SHALL LIE EXCLUSIVELY IN XXXXXXXXXX COUNTY, TEXAS.
(THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
SIGNATURES APPEAR ON THE FOLLOWING PAGE.)
29
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed the day and year first above written.
SELLER: NNN XX XXXXXXXXX TOWER, L.P.,
a Texas limited partnership
By: Triple Net Properties, LLC, a
Virginia limited liability Company
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: XXXXXXX X. XXXXXXXX
Title: CEO
PURCHASER: RANCHO PACIFIC DEVELOPMENT
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: XXXXXXX X. XXXXX
Title: Pres.
ESCROW AGENT:
-----------------------
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
30
EXHIBIT A TO ESCROW AGREEMENT
WIRING INSTRUCTIONS
31
EXHIBIT B TO ESCROW AGREEMENT
PLAT/DESCRIPTION OF VACANT SPACE
32
