Exhibit 10.168
REAL ESTATE PURCHASE AND SALE AGREEMENT
BETWEEN
JAD PROPERTIES, LLC
"SELLER"
AND
XXXX-XXXX REALTY L.P.
"PURCHASER"
FOR
000 XXXXX XXXXXXXX XXXXXXXXX
XXXXXXXX, XXXXXXXX
TABLE OF CONTENTS
1. Purchase and Sale. . . . . . . . . . . . . . . . . . . . . . . 1
2. Purchase Price; Xxxxxxx Money. . . . . . . . . . . . . . . . . 1
3. Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. Conditions to Closing. . . . . . . . . . . . . . . . . . . . . 5
5. Permitted Title Exceptions . . . . . . . . . . . . . . . . . . 8
6. Representations and Warranties of Seller . . . . . . . . . . . 8
7. Representations and Warranties of Purchaser. . . . . . . . . . 11
8. Seller's Covenants . . . . . . . . . . . . . . . . . . . . . . 11
9. Delivery of Due Diligence Investigation Reports. . . . . . . . 12
10. Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11. Transfer Taxes; Title Charges. . . . . . . . . . . . . . . . . 14
12. Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . 14
13. Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . 14
14. Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
15. Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
16. Time of Essence. . . . . . . . . . . . . . . . . . . . . . . . 16
17. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 16
18. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 16
19. Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
20. Assignability. . . . . . . . . . . . . . . . . . . . . . . . . 16
21. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . 16
22. Modifications; Waiver. . . . . . . . . . . . . . . . . . . . . 16
23. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . 16
24. Partial Invalidity . . . . . . . . . . . . . . . . . . . . . . 17
25. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
26. No Personal Liability of Members or Managers of Parties. . . . 17
27. No Third Party Rights. . . . . . . . . . . . . . . . . . . . . 17
28. Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
29. Effective Date . . . . . . . . . . . . . . . . . . . . . . . . 17
30. Non-business Days. . . . . . . . . . . . . . . . . . . . . . . 17
31. Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . 17
32. Recordation. . . . . . . . . . . . . . . . . . . . . . . . . . 17
33. Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . . 17
34. Disclosure - Special Taxing Districts - General Obligation
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 17
35. Disclosure of Environmental Report . . . . . . . . . . . . . . 18
36. Termination of Service Contracts . . . . . . . . . . . . . . . 18
37. Environmental Provision. . . . . . . . . . . . . . . . . . . . 18
38. 1031 Exchange. . . . . . . . . . . . . . . . . . . . . . . . . 19
39. Purchaser's Obligations After Termination. . . . . . . . . . . 19
40. Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . 19
41. Information and Audit Cooperation. . . . . . . . . . . . . . . 19
42. Further Assurances . . . . . . . . . . . . . . . . . . . . . . 19
43. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
44. Indemnifications . . . . . . . . . . . . . . . . . . . . . . . 20
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EXHIBIT INDEX
EXHIBIT REFERENCE
Exhibit A - Legal Description
Exhibit B - Permitted Exceptions
Exhibit C - Building Service Agreements
Exhibit D - Personal Property
Exhibit E - Escrow Instructions
Exhibit F - Special Warranty Deed
Exhibit G - Xxxx of Sale
Exhibit H - Assignment and Assumption of Contracts
Exhibit I - Tenant Estoppel Certificate Form
Exhibit J - Standard Lien Affidavit
Exhibit K - Special Warranty Assignment and Assumption of Ground Lease
Exhibit L - Xxxxxxx Estoppel Certificate
Exhibit M - Rent Roll
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REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT ("AGREEMENT") is entered
into as of this day of April, 1998, between JAD PROPERTIES, LLC, A
COLORADO LIMITED LIABILITY COMPANY ("SELLER") and XXXX-XXXX REALTY L.P., A
DELAWARE LIMITED PARTNERSHIP. ("PURCHASER").
1. PURCHASE AND SALE. In consideration of their mutual covenants
set forth in this Agreement, Seller agrees to sell to Purchaser and Purchaser
agrees to buy for the Purchase Price $11,975,000 and on the terms and conditions
set forth herein, the following:
(a) That certain parcel of land situated in the County of
Arapahoe, State of Colorado, described on EXHIBIT A attached hereto and made a
part hereof, and commonly known as the 000 XXXXX XXXXXXXX XXXXXXXXX, XXXXXXXX,
XXXXXXXX 80 (the "OWNED LAND").
(b) The Seller's leasehold interest as lessee (the "XXXXXXX
LEASEHOLD") granted by a certain lease dated September 21, 1977, by and between
Xxxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx, as the original lessors, and Xxxxxx
Xxxxx Chevrolet Co., a Colorado corporation, as the original lessee, as amended
(the "XXXXXXX LEASE").
(c) All existing improvements and fixtures (collectively, the
"IMPROVEMENTS") located on the Owned Land and on the real property which is the
subject of the Xxxxxxx Lease (the "XXXXXXX PARCEL"), and including, but only to
the extent of any right thereto upon lease termination, the improvements and
fixtures located on the Real Property which is demised by a certain Ground Lease
Agreement dated January 24, 1992 by and between the Seller as lessor and RCI
West, Inc., a Colorado corporation, as tenant, as amended (the "RCI LEASE").
(d) All personal property owned by Seller located on or in
the Owned Parcel, the Xxxxxxx Parcel or Improvements and used in connection with
the ownership, operation of the Owned Parcel or Improvements as is described on
EXHIBIT D attached hereto and made a part hereof including without limitation
furniture, art work, furnishings, office equipment and supplies, and all
supplies, and construction and finish materials not incorporated in the
Improvements and stored on site for repairs and replacements ("PERSONAL
PROPERTY").
(e) Seller's interest in all leases, licenses and other
agreements to occupy or use the Owned Parcel, the Xxxxxxx Parcel and/or the
Improvements, or any contiguous land, or any portion thereof, as amended from
time to time, in effect on the date of Closing, as hereinafter defined, together
with all security deposits (cash or non-cash) made with respect thereto (all
such leases and agreements being collectively referred to herein as "LEASES").
(f) All Intangible Property owned by Seller and used in
connection with the Owned Land, Improvements and Personal Property, including,
without limitation, any and all trademarks and trade names, logos and trade
colors used in connection with any part of the Owned Land, the Xxxxxxx Parcel
and Improvements, and all plans, specifications, and studies, if any, in the
possession of Seller in connection with the Improvements, all rights, interests,
claims, minerals and mineral rights, water and water rights, if any,
hereditaments, privileges, tenements and appurtenances belonging to the Owned
Land and the Xxxxxxx Parcel, all right, title and interest of Seller in and to
all open or proposed xxxxxxxx, xxxxxxx, xxxxx, xxxxxxx, alleys, curb cuts,
sidewalks, sewers, utilities, easements, strips, gores and rights-of-way in, on,
across, in front of, contiguous to, abutting or adjoining the Owned Land and the
Xxxxxxx Parcel, licenses, certificates of occupancy, permits and warranties now
in effect with respect to the Owned Land, the Xxxxxxx Parcel, Improvements and
Personal Property, all Service Contracts in effect at Closing, in any way
relating to the Premises (as hereinafter defined), and all equipment leases and
all rights of Seller thereunder relating to equipment or property located upon
the Premises, which will survive the Closing ("INTANGIBLE PROPERTY").
The Owned Land and the Xxxxxxx Leasehold, along with their appurtenant
Improvements, Personal Property, Leases and Intangible Property (but not
including the improvements and fixtures located on the real property which is
demised by the RCI Lease (the "RCI PARCEL"), except to the extent of any right
thereto upon termination of the RCI Lease), are referred to herein as the
"PREMISES".
2. PURCHASE PRICE: XXXXXXX MONEY. The purchase price for the
Premises shall be Eleven Million Nine Hundred Seventy Five Thousand and 00/100
Dollars ($11,975,000.00) ("PURCHASE PRICE") which is to be paid as follows:
(a) No later than April 20, 1998, $500,000.00 shall be
deposited as xxxxxxx money by Purchaser in the form of cash or by federal funds
wire transfer, cashier's or certified check made payable to Xxxxxxx Title of
Denver, Inc. at its offices located at 00 Xx. Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000 (the "TITLE AGENT") as agent for Xxxxxxx Title Guaranty Company
(the "TITLE COMPANY"). The $500,000.00 and any interest thereon shall be
referred to herein as the "XXXXXXX MONEY". The Xxxxxxx Money shall be applied
to the Purchase Price at Closing (as hereinafter defined). The Xxxxxxx Money
shall be deposited with and held by the Title Agent in accordance with Escrow
Instructions and this Agreement in the form attached hereto as EXHIBIT E, to be
executed by Seller and Purchaser (the "ESCROW INSTRUCTIONS").
(b) Not later than 12:00 p.m. (Noon), Mountain Time, on the
Closing Date (as herein defined), Purchaser shall deposit with the Title Agent,
in immediately available funds, the sum necessary, along with the Xxxxxxx Money,
to make the total consideration paid to Seller at Closing equal to the Purchase
Price, plus or minus prorations as hereinafter provided.
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3. CLOSING.
(a) Subject to the terms and conditions of this Agreement,
the consummation of the purchase and sale of the Premises (the "CLOSING") shall
take place commencing at 10:00 a.m. Mountain Time at the office of the Title
Agent, and shall be conducted by the Title Agent on May 29, 1998 (the "CLOSING
DATE"), or on such other earlier date as may be mutually agreed by the parties.
(b) In order to facilitate the Closing, both parties shall
use diligent efforts to have all unsigned documents necessary for the
consummation of this transaction delivered to the Title Agent and the other
party, on the day before the Closing Date, and Seller shall deliver possession
of the Premises to Purchaser on the Closing Date. Closing shall occur through
an escrow with the Title Agent. Upon satisfaction or completion of all closing
conditions and deliveries, the parties shall direct the Title Agent to
immediately record and deliver the Closing Documents to the appropriate parties
and make disbursements according to the closing statements executed by Seller
and Purchaser. The Title Agent shall agree in writing with Seller and Purchaser
that (1) recordation of the Deed constitutes its representation that it is
holding the Closing Documents, closing funds and closing statement and is
prepared and irrevocably committed to disburse the closing funds in accordance
with the closing statements and (2) release of funds to the Seller shall
irrevocably commit it, as agent for the Title Company to issue the Title Policy
in accordance with this Agreement. Provided such supplemental Escrow
Instructions are not in conflict with this Agreement as it may be amended in
writing from time to time, Seller and Purchaser agree to execute such
supplemental Escrow Instructions as may be appropriate to enable Title Agent to
comply with the terms of this Agreement. All prorations shall be calculated as
of the Closing Date and the Closing Date shall be a date of income and expense
to the Seller.
(c) SELLER'S CLOSING DOCUMENTS. At Closing, Seller shall
execute, (and if required, acknowledge) and shall deliver the following
documents ("CLOSING DOCUMENTS") at its expense:
(1) A Special Warranty Deed for the Owned Land ("DEED") in
recordable form executed on behalf of Seller, conveying to Purchaser the Real
Estate and Improvements, subject only to the Permitted Exceptions, as
hereinafter defined, in the form of EXHIBIT F attached hereto and incorporated
herein by this reference;
(2) A Special Warranty Assignment and Assumption of the
Xxxxxxx Lease in the form attached hereto as EXHIBIT K.
(3) A Special Warranty Xxxx of Sale making no warranty of
condition or fitness, conveying to Purchaser the Personal Property, in the form
of EXHIBIT G attached hereto and incorporated herein by this reference;
(4) An Assignment and Assumption of Contracts assigning and
conveying to Purchaser, without warranty or representation except as set forth
in this Agreement and EXHIBIT H, the Seller's interest in, to and under the
Leases and containing an assumption by Purchaser of the Seller's obligations
under the Leases for the Owned Land, from and after the Closing Date (including
any obligations relating to security deposits), and Seller's interest in all
Service Contracts (which Purchaser elects to assume under this Agreement)
pursuant to Paragraph 36 hereof and all Intangible Property in the form of
EXHIBIT H attached hereto and incorporated herein by this reference;
(5) An affidavit sworn by an officer of Seller to the effect
that Seller is not a "foreign person" as that term is defined in Section
1445(f)(3) of the Internal Revenue Code of 1954, as amended, which affidavit
shall be in such form as may be prescribed by federal regulations;
(6) The Title Policy, as hereinafter defined in Paragraph
4(c)(v), for the Owned Land or an unconditional commitment of the Title Company
to issue the Title Policy, subject only to the Permitted Exceptions and with the
endorsements described in Paragraph 4(c)(v), the base cost of which shall be
paid by Seller, provided, however, that, if Purchaser desires any endorsements
described in Paragraph 4(c)(v) to such Title Policy, the Purchaser shall pay the
cost thereof; the Seller shall cooperate with the Purchaser to obtain deletion
of the standard printed title exceptions from Schedule B-2 of the Title Policy,
at no cost to either party, provided that Seller shall not be required to incur
any obligation other than as set forth in Paragraph 3(c)(7) and Paragraph
4(a)(2)(i) and (ii);
(7) A Certificate of Authority of Seller evidencing the
status and capacity of Seller and the authority of the person or persons who are
executing the various documents on behalf of Seller in connection with this
Agreement;
(8) The Title Company's Standard Lien Affidavit in the form
attached hereto as EXHIBIT J;
(9) An original (or, if Seller does not have an original, a
copy and with the exception of originals required to be kept by Seller under
Internal Revenue Service regulations, such as purchase invoices, checks, deposit
slips, etc.) of all of the Leases, Service Contracts and Intangible Property
which are in the possession of Seller or Seller's agents, together with such
leasing and property files and records, if any, which are in the possession of
Seller or Seller's agents but excepting those documents which are to be
delivered to Purchaser pursuant to the provisions of Paragraph 3(c)(12) below.
Purchaser shall cooperate with Seller for a period equal to the shorter of (i)
five (5) years after Closing, or (ii) for as long as the Purchaser owns the
Premises, in case of Seller's need in response to any legal requirement, a tax
audit, tax return preparation or litigation threatened or brought against
Seller, by allowing Seller and its agents or representative access, upon
reasonable advance notice (which notice shall identify the nature of the
information sought
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by Seller), at all reasonable times to examine and make copies of any and all
instruments, files and records pertaining to a period prior to the Closing,
which right shall survive the Closing;
(10) Letters of termination, effective no later than Closing,
of those Service Contracts which Purchaser has timely elected not to assume
under the provisions of Paragraph 36, including any management agreements
affecting the Premises;
(11) If applicable under local law, or required by the Title
Company, a waiver of any lien rights by the company managing the Premises and,
if different, the company leasing the Premises for Seller at the time of
Closing;
(12) Any other closing deliveries required of Seller under
this Agreement to be made by or on behalf of Seller;
(13) A letter by which Seller directs its property manager to
deliver to Purchaser all books and records of account, contracts, leases and
leasing correspondence, receipts for deposits, unpaid bills and other papers or
documents which pertain to the Premises together with all advertising materials,
booklets, keys and other items, if any, used in the operation of the Premises.
The foregoing shall not include (i) any copies (not originals) of any documents
of which Purchaser has already received either a copy or the original thereof;
(ii) any originals or copies of documents which have been generated by or for
Seller as part of any record keeping or filing obligations imposed on Seller by
any governmental agencies, except that Seller shall deliver to Purchaser a copy
of all federal tax returns filed by the Seller during its ownership of the
Premises, along with a computer disk of this Agreement in WordPerfect format;
(iii) any of the organizational books and records of the Seller as a legal
entity; and (iv) any documents in Seller's possession which do not relate
directly to the operation of the Premises (including, without limitation,
materials prepared for the advertising and marketing of the Premises for sale,
listing agreements of the Premises for sale and accounting records prepared for
purposes of evaluating the Premises in relation to other assets held by Seller
or its affiliated entities). Seller makes no representations regarding such
documents or items delivered by the property manager at or after Closing;
(14) A counterpart of a closing and proration statement;
(15) A counterpart of any required real estate transfer
declarations, disclosures or forms;
(16) Evidence of compliance with Colorado withholding tax
requirements (including, without limitation, the filing of Forms D1079 and
DR1083);
(17) A letter from Seller advising the tenants and the other
parties to the Leases and Service Contracts (which are being assumed by
Purchaser) of the assignment of their respective Leases and Service Contracts to
Purchaser and, with respect to the Leases, to whom rent is to be paid subsequent
to Closing;
(18) An updated Rent Roll dated as of the Closing Date,
certified by Seller as true, correct and complete; and
(19) A certificate executed by Seller recertifying the
representations and warranties set forth in Paragraph 6 below (subject to any
modifications allowed under said Paragraph 6) as of the Closing Date.
(20) A statement of termination, effective no later than the
Closing Date, of the Exclusive Leasing Agreement with Integrated Property
Management, Inc. dated November 18, 1997, executed by the parties thereto.
(d) PURCHASER'S CLOSING DOCUMENTS. At Closing, Purchaser, at
Purchaser's expense, shall deliver such documentary and other evidence as may be
reasonably required by Seller, the Title Agent, or the Title Company evidencing
the status and capacity of Purchaser, and the authority of the person or persons
who are executing the various documents on behalf of Purchaser in connection
with this Agreement, and shall deliver any other closing deliveries required of
Purchaser under this Agreement to be made by or on behalf of Purchaser.
(e) TENANTS' ESTOPPEL CERTIFICATES. No later than three (3)
business days prior to Closing, Seller shall deliver to Purchaser Clean Tenant
Estoppel Certificates (as defined below) from tenants occupying at least eighty
percent (80%) of the rentable area of the improvements located on the Owned Land
and the RCI Parcel, and such eighty percent (80%) must include a Clean Tenant
Estoppel Certificate from every tenant that occupies 5,000 or more square feet
of the rentable floor area in the Building on the Owned Land as of the date of
the Rent Roll delivered on the Closing Date. A "CLEAN TENANT ESTOPPEL
CERTIFICATE" shall mean either (i) a statement in the form of EXHIBIT I attached
hereto (but from which the applicable tenant may strike Paragraph L thereof, as
more fully set forth below), which does not contain any assertion or disclosure
by a tenant that there are any defaults by the Seller or that there are any
monetary or material nonmonetary defaults by the tenant under any provisions of
the applicable lease, or that there are any events which have occurred which,
with the passage of time or giving of notice or both, would result in Seller or
tenant being in default under such lease; or (ii), if after diligent efforts by
the Seller, any tenant refuses to execute an estoppel statement in the form of
EXHIBIT I, an estoppel statement in the form to which the landlord is entitled
under the applicable tenant's lease certifying that (a) the lease is in full
force and effect, subject only to such modifications (if any) as may be set out
therein; (b) the tenant is in possession of the leased premises and paying rent
as provided in its lease; (c) the dates (if any) to which rent is paid in
advance; and (d) that there are not, to such tenant's knowledge, any uncured
defaults on the part of the landlord under such lease.
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Seller shall use diligent efforts to obtain, in each Tenant
Estoppel Certificate, Paragraph L of EXHIBIT I; provided that, the fact that a
tenant has refused to agree to said provision (and said provision has been
stricken by the tenant from the tenant's Estoppel Certificate by striking out or
similar deletion) shall not, in itself, mean that the Estoppel Certificate is
not a Clean Tenant Estoppel Certificate. The parties understand that, during
the process of obtaining the Tenant Estoppel Certificates, if Seller becomes
aware of any defaults claimed by any tenants or of any other matters which would
prevent any tenant from delivering a Clean Tenant Estoppel Certificate, Seller
may attempt to resolve any such claimed defaults or other items, at Seller's
cost, in order to obtain a Clean Tenant Estoppel Certificate from such tenant.
Upon Seller's receipt of a Tenant Estoppel Certificate that is
not a Clean Tenant Estoppel Certificate, Seller shall have the right, but not
the obligation, to cure any default asserted in the Tenant Estoppel Certificate,
and for this purpose Seller, at its option, shall be entitled to a reasonable
adjournment of the Closing if additional time is required, but in no event shall
said adjournment exceed two (2) weeks after the date for Closing set forth in
Paragraph 3(a) hereof and in no event shall Seller be entitled to such
adjournment unless Seller gives written notice to Purchaser of its election to
so extend the Closing not less than two (2) business days prior to Closing.
If Seller is unable to deliver Clean Tenant Estoppel Certificates
for at least eighty percent (80%) of the rentable area under lease in Building
on the Owned Land as of the date of the Rent Roll delivered on the Closing Date
(including all tenants who have at least 5,000 square feet of rentable floor
area) no later than three (3) business days prior to Closing (whether as
originally scheduled or as postponed by Seller as required above, taking into
account any adjournment allowed by this paragraph), Purchaser may, by written
notice given to Seller no later than one (1) business day prior to Closing,
extend the Closing Date for two (2) additional weeks in order for Purchaser to
determine whether to proceed with this transaction. If on the originally
scheduled Closing Date or any postponed Closing Date permitted under this
Paragraph 3(e), the Seller is unable to deliver the Clean Estoppel Certificates
required under this Paragraph 3(e), Purchaser may then, in its sole discretion,
and as its sole remedy, either (i) terminate this Agreement by written notice to
Seller on or before such applicable Closing Date in which case the Xxxxxxx Money
shall be promptly returned to Purchaser and all parties shall be relieved from
any further liability hereunder except as provided in Paragraph 39 below; or
(ii), if Purchaser fails to give such notice of termination, Purchaser shall be
deemed to have waived its objection to the lack of sufficient Clean Tenant
Estoppel Certificates and the parties shall proceed to Closing without reduction
in the Purchase Price by reason thereof.
Seller shall, within five business days after the end of the Due
Diligence Period (the "ESTOPPEL REVIEW PERIOD"), prepare and deliver to
Purchaser for its review and comment the Estoppel Certificates in the form of
EXHIBIT I, and any such Estoppel Certificates shall be deemed approved by
Purchaser (for sending out by Seller to obtain the applicable tenant's signature
thereon) unless Purchaser gives Seller written notice of Purchaser's objections
thereto within three (3) days after receipt thereof. If this Agreement has not
been terminated by Purchaser at the end of the Due Diligence Period, Seller
shall deliver the Estoppel Certificates to the tenants promptly after the end of
the Estoppel Review Period.
A Clean Tenant Estoppel Certificate which is not signed by the
tenant shall be deemed to be an acceptable Clean Tenant Estoppel Certificate
from the tenant if (i) the applicable lease provides that the tenant shall be
deemed to have approved an estoppel certificate if such tenant fails to return
such certificate within a stated period of time, the tenant does so in fact fail
to return or object to such Clean Tenant Estoppel Certificate within the stated
period of time, and the Seller provides to the Purchaser evidence of the proper
delivery of the Clean Tenant Estoppel Certificate to such tenant showing the
start of the applicable time period, or (ii) the applicable lease provides that,
in certain circumstances, the landlord under such lease may execute an estoppel
certificate on behalf of such tenant, Seller does in fact execute such Clean
Tenant Estoppel Certificate and the Seller provides to Purchaser evidence that
such certain circumstances have occurred.
(f) XXXXXXX ESTOPPEL CERTIFICATE. No later than May 4, 1998
(the "XXXXXXX ESTOPPEL DEADLINE"), Seller shall deliver to Purchaser a Clean
Xxxxxxx Estoppel Certificate (as defined below) from the landlords under the
Xxxxxxx Lease. A "CLEAN XXXXXXX ESTOPPEL CERTIFICATE" shall mean either (i) a
statement in the form of EXHIBIT L attached hereto which does not contain any
assertion or disclosure by such landlords that there are any defaults by the
Seller under any provisions of the Xxxxxxx Lease, or that there are any events
which have occurred which, with the passage of time or giving of notice or both,
would result in Seller being in default under such lease; or (ii), if after
diligent efforts by the Seller, such landlords refuse to execute an estoppel
statement in the form of EXHIBIT L, an estoppel statement in the form to which
the Seller (as tenant) is entitled under the Xxxxxxx Lease certifying that (a)
the Xxxxxxx Lease is unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that the Xxxxxxx Lease,
as so modified, is in full force and effect), (b) the date to which rent,
security deposit, and other charges are paid in advance, if any, and (c)
acknowledging that there are not, to the landlords' knowledge, any uncured
defaults on the part of Tenant under the Xxxxxxx Lease.
Seller shall use diligent efforts to obtain a Clean Xxxxxxx
Estoppel Certificate. Upon Seller's receipt of a Xxxxxxx Estoppel Certificate
that is not a Clean Xxxxxxx Estoppel Certificate, Seller shall have the right,
but not the obligation, to cure the default asserted in the Xxxxxxx Estoppel
Certificate. If Seller is unable to deliver a Clean Xxxxxxx Estoppel
Certificate no later than the Xxxxxxx Estoppel Deadline, Purchaser may then, in
its sole discretion, and as its sole remedy, either (i) terminate this Agreement
by written notice to Seller on or before one day after the Xxxxxxx Estoppel
Deadline in which case the Xxxxxxx Money shall be promptly returned to Purchaser
and all parties shall be
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relieved from any further liability hereunder except as provided in Paragraph 39
below; or (ii), if Purchaser fails to give such notice of termination by such
date, Purchaser shall be deemed to have waived its objection to the lack of the
Clean Xxxxxxx Estoppel Certificate and the parties shall proceed to Closing
without reduction in the Purchase Price by reason thereof. If Seller is able to
obtain a Clean Xxxxxxx Estoppel Certificate, Seller shall deliver the Xxxxxxx
Estoppel Certificate to the Purchaser promptly after the end of the Xxxxxxx
Estoppel Deadline.
4. CONDITIONS TO CLOSING.
(a) In addition to all other conditions to the completion of the
transaction described in this Agreement, Seller and Purchaser agree that the
closing of this sale and purchase is subject to satisfaction, approval or waiver
by Purchaser in its sole discretion of the following conditions on or before
April 20, 1998. (the end of the "DUE DILIGENCE PERIOD"):
(1) Inspection and approval of the physical condition and
use of the Premises. For the purpose of conducting non-destructive physical
inspections, Seller agrees to provide Purchaser and its authorized agents a
continuing right of reasonable access to the Premises at all reasonable times
during the Due Diligence Period upon at least twenty-four (24) hours' prior
written notice to Seller, and provided that a representative of Seller may
accompany Purchaser during all such inspections. Purchaser hereby agrees to
indemnify Seller and hold Seller, Seller's agents and employees and the Premises
harmless from and against any and all losses, costs, damages, claims or
liabilities including, but not limited to, mechanic's and materialmen's liens
and reasonable attorney's fees, arising out of or in connection with Purchaser's
access to or entry upon the Premises under this Paragraph 4(a)(1). Purchaser's
indemnity and hold harmless agreements pursuant to this Paragraph 4(a)(1) shall
survive the termination or expiration of this Agreement by Closing or otherwise.
During the pendency of this Agreement, Purchaser and its agents, employees,
and representatives shall have a continuing right of reasonable access to the
Premises and any office where the records of the Premises are kept for the
purpose of examining and making copies of all books and records and other
materials relating to the Premises in Seller's or its property manager's
possession. Purchaser shall have the right to conduct "walk-throughs" of the
Premises before the Closing upon appropriate notice to tenants as permitted
under the Leases. Purchaser may make inquiries to the Asset Managers, parties
to Service Contracts and municipal, local and other government officials and
representatives, and Seller consents to such inquiries.
During any access to the Premises, or by telephone conference call, the
Purchaser shall have the right to interview tenants, but only if Purchaser is
accompanied by or on the telephone call with one of the Asset Managers of Seller
(as defined in Paragraph 6 below) and Purchaser shall not take any actions which
disrupt the peaceable possession by any tenant of its leased space or the
peaceful continuation of such tenant's Lease.
(2) Inspection and approval of the following documents
("DISCLOSURE DOCUMENTATION"):
(i) a title commitment issued by Title Company for the Owned
Land and Xxxxxxx Leasehold dated as of or after March 1, 1998 (the "TITLE
COMMITMENT"), with such Title Commitment evidencing all matters affecting record
title to the Owned Land and Improvements and binding the Title Company to issue
promptly after Closing to Purchaser the Title Policy (as more fully defined in
Paragraph 4(c)(v) below), in an amount equal to the Purchase Price for the Owned
Land and its Improvements, together with copies of all instruments referenced in
Schedule B of the Title Commitment;
(ii) any existing survey of the Premises and Improvements in
Seller's possession as of the execution hereof, including that certain survey
issued by R & R Engineer-Surveyors, Inc, dated March 30, 1998, Job No. IP818
(collectively the "SURVEY");
(iii) copies of all evidence of any Intangible Property in
Seller's possession;
(iv) plans and specifications for the Premises in Seller's
possession, if any, including, without limitation, as-built drawings, if any;
(v) the operating statements for the Premises for the last
three (3) calendar years as well as the calendar quarters immediately preceding
the date of this Agreement, which shall not contain any intentional
misrepresentation of facts or omission of facts;
(vi) copies of all service agreements and management
agreements ("SERVICE CONTRACTS") relating to the Premises;
(vii) copies of all certificates of occupancy relating to the
Premises in Seller's possession, if any;
(viii) copies of all of the following documents, if any, to
the extent they exist and are in Seller's possession, but excluding any
documents which are privileged: engineering reports; soils reports and
maintenance reports and environmental reports relating to the Premises (provided
that, if Seller withholds any of such documents on the basis of privilege,
Seller shall, along with delivery of the other Disclosure Documentation, deliver
5
notice to Purchaser of the existence of the document and the claim of privilege;
provided that, if no such notice is delivered, Seller shall be deemed to
represent that it has delivered or made available to Purchaser all documents
relating to the ownership, use or operation of the Premises in Seller's
possession or control except for any direct correspondence between Seller and
its legal counsel, and such counsel's work product);
(ix) a list of all vendors for the Premises including their
telephone numbers;
(x) a list of all warranties known to Seller and currently
in effect with respect to the Premises, if any;
(xi) all books and records maintained by Seller with respect
to the Premises ("BOOKS");
(xii) Seller's existing so-called "Phase I Environmental
Review" for the Premises and any other environmental reports of the Premises in
Seller's possession (hereinafter collectively defined as the "REPORT");
(xiii) a copy of all the Leases and whatever is denoted as an
addendum, modification, amendment or rider thereto, and a current statement
showing all of the existing Leases, the applicable suite numbers, their current
rental status, the square footage, the current monthly Base Rent and Operating
Expense Escalations, security deposits held, name of tenant and expiration date
(along with any other informational notes which Seller may elect to add to the
Rent Roll, as defined in Paragraph 6 below); and
(xiv) copies of Seller's certificates of insurance for the
Premises, and any notices requiring correction of defects received from Seller's
insurance carriers relating to the Premises.
On or before March 19th, 1998, the Seller provided a copy for Purchaser's
use of the Disclosure Documentation mentioned above (excluding subparagraphs iv,
v, viii, and ix, copies of which were made available to Purchaser at Seller's
office). On or before March 15th, 1998, the Seller shall caused the Title
Company to deliver the Title Commitment (together with copies of all instruments
referenced in Schedule B of the Title Commitment) to Purchaser. Seller makes no
representations or warranties with respect to such documents or information,
including the accuracy thereof, except as is specifically set forth in this
Agreement and the exhibits forming a part hereof.
In the event the Purchaser determines in its sole and absolute discretion
that it does not wish to purchase the Premises, then Purchaser may terminate
this Agreement by giving written notice (the "TERMINATION NOTICE") to Seller no
later than 5:00 p.m. Mountain Time on the last day of the Due Diligence Period.
If Purchaser fails to give the Termination Notice to Seller prior to 5:00 p.m.
Mountain Time on the last day of the Due Diligence Period, Purchaser shall be
deemed to have waived its right to terminate this Agreement based on this
Paragraph 4(a) contingency and the parties shall proceed to Closing. In the
event Purchaser's Termination Notice is timely received by Seller, the Xxxxxxx
Money shall be released to the Purchaser by the Title Agent (except as noted
below), both Seller and Purchaser shall be released and discharged from all
further obligations under this Agreement, and neither Seller nor Purchaser shall
be subject to any claim by the other for damages of any kind except as provided
in Paragraph 39 below.
(b) CONFIDENTIALITY. Without the prior written consent of Seller, unless
and until the Closing has occurred for this transaction, Purchaser shall hold in
strictest confidence all data and information delivered to Purchaser by Seller
pursuant to this Agreement whether obtained before or after the execution and
delivery of this Agreement, and shall not disclose the same to others unless
required by applicable law or the terms of the organizational documents for
Purchaser in which case such information may be made known to investors in
Purchaser; provided, however, that it is understood and agreed that Purchaser
may disclose, for the sole purpose of evaluating and consummating this
transaction, such data and information to its employees, consultants, lenders,
accountants and attorneys, and any other person or entity which Purchaser
anticipates will invest in the Premises and as necessary to conduct its
investigation; provided further that Purchaser shall instruct each person to
whom Purchaser discloses such information that such information is to be held in
strictest confidence and Purchaser shall act as guarantor of the confidentiality
of all information contained in the Rent Roll, the Leases and the Lease files
and shall be responsible for all loss and/or damages incurred by Seller as a
result of any unauthorized disclosure or use of such information by Purchaser's
employees, consultants, vendors, agents, and subcontractors or other entities to
whom Purchaser provided said information. Such information does not include
information which (i) is or becomes generally available to the public other than
as a result of a disclosure by Purchaser or its representatives, (ii) was or
becomes available to Purchaser on a non-confidential basis from a source other
than the Seller, provided that, to Purchaser's knowledge, such source is not
prohibited from disclosing such information to Purchaser by a contractual, legal
or fiduciary obligation to the Seller, or (iii) was within Purchaser's
possession prior to its being furnished to Purchaser by or on behalf of the
Seller or is independently developed by Purchaser.
(c) CONDITIONS TO THE PURCHASER'S OBLIGATION TO CLOSE. In addition to all
other conditions set forth herein, the obligation of Purchaser to consummate the
transaction contemplated hereunder shall be contingent upon the following:
(i) The Seller's representations and warranties contained herein
shall be true and correct as of the date of this Agreement and the Closing
Date;
(ii) As of the Closing Date, the Seller shall have performed its
obligations hereunder and all deliveries to be made by the Seller at
Closing have been tendered;
6
(iii) As of the Closing Date, no action or proceeding by or
before any governmental authority shall have been instituted or threatened
(unless dismissed, settled or otherwise terminated prior to Closing) which
is reasonably expected to restrain, prohibit or invalidate the transactions
contemplated by this Agreement;
(iv) As of the Closing Date, Seller shall not be in material
default under any Service Contract to be assigned to, or obligation to be
assumed by, Purchaser under this Agreement;
(v) At Closing, the Title Company shall deliver to Purchaser an
ALTA Owner's Policy of title insurance in the amount of the Purchase Price,
insuring Purchaser as owner of good, marketable and indefeasible fee simple
title to the Owned Land and as owner of the Xxxxxxx Leasehold in the real
property which is subject to Xxxxxxx Lease, subject only to the Permitted
Exceptions (the "TITLE POLICY") or an unconditional written commitment to
issue same promptly after Closing, on, if the Title Company agrees, ALTA
Form Revised 10-17-70 and 10-17-84 or current form with the creditors'
rights exclusion deleted, and with ALTA General Exceptions 1 through 5 on
Schedule B-2 deleted, and with the following amendments or endorsements, if
available: (1) the exception for parties in possession shall be limited to
tenants in possession as tenants only under the Leases without any option
to purchase or acquire an interest in the Premises; (2) owner's
comprehensive; (3) access; (4) survey (accuracy of survey); (5) location
(survey legal matches title legal); (6) separate tax lot; (7) legal lot;
(8) zoning 3.1, with parking and loading docks; and (9) such other
endorsements as Purchaser may require during the Due Diligence Period based
on its review of the Title Commitment and Survey; provided that Purchaser
shall be obligated to pay for all costs for and associated with all such
modifications, deletions and endorsements to the Title Policy, and provided
further that Seller agrees (as provided above) to execute the Title
Company's Standard Lien/Owner's Affidavit and otherwise to cooperate with
Purchaser to obtain the deletion of the creditors' rights exclusion, the
deletion of Exceptions 1 through 5 on Schedule B-2 and the other
endorsements set forth in this paragraph, but shall have no obligation to
incur any expense in order to obtain same. Prior to the end of the Due
Diligence Period, Purchaser shall determine from the Title Company the form
of the Title Policy, and all modifications, deletions and endorsements
thereof, which the Title Company is willing to issue (based on the Standard
Lien/Owner's Affidavit to be signed by Seller, and based on such other
documents and fees and costs to be provided by Purchaser) and, unless
Purchaser terminates this Agreement under the provisions of Xxxxxxxxx 0,
Xxxxxxxxx shall, after the Due Diligence Period, not be entitled to
terminate this Agreement as a result of an inability to obtain any deletion
of any provision of, modification of or endorsement to the base Title
Policy;
(vi) The Clean Tenant and Xxxxxxx Estoppels are delivered
pursuant to Paragraphs 3(e) and (f); and
(vii) As of the Closing Date, the aggregate rentable area of
Leases under which a Prohibited Default exists shall not exceed five
percent (5%) of the rentable area covered by Leases in the Rent Roll
delivered on the Closing Date. A "PROHIBITED DEFAULT" (i) shall mean any
monetary breach by any tenant in excess of Five Hundred Dollars ($500.00),
regardless of whether the Seller has given such tenant any notice required
under the applicable lease; (ii) shall mean any nonmonetary breach of any
lease by a tenant which remains uncured for a period of a thirty (30) days
after its due date, regardless of whether notice thereof has been given by
Seller to such tenant; but (iii) shall not include any breach, monetary or
non-monetary, by any tenant whose lease is of less than one thousand
(1,000) rentable square feet. A monetary breach (i) shall not be deemed to
exist under any lease if the amount due is less than Five Hundred Dollars
($500.00), unless there are more than five (5) tenants who are each in
default in an amount less than Five Hundred Dollars ($500.00), in which
case every other tenant who is in default by an amount of under Five
Hundred Dollars ($500.00) shall be counted as a tenant with a monetary
breach, and (ii) shall not include a failure of any tenant to pay any
claims by the Seller for reimbursement of costs incurred by Seller in
excess of a tenant-finish allowance or similar one-time charges claimed by
the Seller under the applicable lease.
If any condition to Purchaser's obligation to proceed with the Closing
hereunder has not been satisfied as of the Closing Date or other applicable
date, Purchaser may, in its sole discretion and as its sole remedy, terminate
this Agreement by delivering written notice to the Seller on or before the
Closing Date or other applicable date, or Purchaser may elect to close,
notwithstanding the non-satisfaction of such condition, in which event the
Purchaser shall be deemed to have waived any such condition. If Purchaser
elects to terminate, without any Purchaser default, under any of the
contingencies provided to Purchaser under this Agreement, Purchaser shall be
entitled to the prompt return of the Xxxxxxx Money from the Title Agent, and all
parties hereto shall be relieved of all further obligations hereunder except for
those provided under Paragraph 39 below.
5. PERMITTED TITLE EXCEPTIONS. If Purchaser does not timely deliver a
Termination Notice, the Premises shall be conveyed to Purchaser by Seller
subject to the following title matters (collectively the "PERMITTED
EXCEPTIONS"):
(a) All matters identified on the Title Commitment, except (i) those items
to which Purchaser has objected during the Due Diligence Period and which Seller
has agreed, in a writing signed by Seller and Purchaser before the end of the
Due Diligence Period, to cure, and (ii) mechanic's liens, deeds of trust,
mortgages and recorded U.C.C. security interests;
7
(b) Those matters set forth on EXHIBIT B attached hereto;
(c) All matters set forth on the Survey and all matters which are
otherwise apparent upon an inspection of the Owned Land and Improvements, except
those items to which Purchaser has objected during the Due Diligence Period and
which Seller has agreed, in a writing signed by Seller and Purchaser before the
end of the Due Diligence Period, to cure;
(d) Building restrictions, zoning regulations and all other applicable
laws heretofore or hereafter adopted by any municipal or other public authority
relating to the Premises;
(e) Taxes and assessments not yet due and payable;
(f) Any matters arising by, through or under Purchaser; and
(g) The Leases.
Judgment liens, tax liens and other monetary encumbrances which encumber
the Premises to be conveyed by Seller to Purchaser hereunder shall in no
instance constitute Permitted Exceptions and Seller shall cause same to be
released at or prior to Closing.
6. REPRESENTATIONS AND WARRANTIES OF SELLER.
(a) The Seller represents and warrants to Purchaser that as of the date
hereof and as of the Closing Date, with regard to Seller and the Premises:
(i) The Seller is a limited liability company duly organized and
validly existing under the laws of the State of Colorado and authorized to
transact business in the State of Colorado, and the execution and delivery by
Seller of and Seller's performance under this Agreement are within Seller's
powers and have been duly authorized by all requisite action.
(ii) This Agreement constitutes the valid and binding obligation
of Seller, enforceable in accordance with its terms. There is no agreement to
which Seller is a party or, to Seller's knowledge, binding on Seller which is in
conflict with this Agreement, or which challenges or impairs Seller's ability to
execute or perform its obligations under this Agreement. To the best knowledge
of the Seller, there is not now pending (unless such action has been filed in
court but never served on the Seller) or, to the best of Seller's knowledge,
threatened, any action, suit or proceeding before any court or governmental
agency or body against the Seller, or affecting the Premises that would prevent
Seller from performing its obligations hereunder or against or with respect to
the Premises including without limitation, condemnation or similar actions or
relating to Environmental Claims (as defined in Paragraph 37).
(iii) To the best of Seller's knowledge, Seller has not
received notice from any governmental authority regarding property tax increases
or special assessments involving the Premises not reflected in the most recent
tax notice for the Premises.
(iv) Except as set forth on the Rent Roll attached hereto as
EXHIBIT M (the "RENT ROLL") or as allowed under Paragraph 8.2 below; (a) there
are no Leases or other agreements for occupancy in effect with respect to the
Premises, (b) there are no persons in possession or occupancy of the Premises,
or any part thereof, nor are there any persons who have possessory rights with
respect to the Premises or any part thereof; (c) no rent under such Leases has
been overpaid or prepaid in excess of one (1) month; (d) there are no rent
arrearages or delinquencies or uncured material defaults on the part of any
party to any of such Leases except as allowed under Paragraph 4(c)(vii); (e)
there are no security deposits, tax deposits or operating expense deposits under
such Leases; (f) there are no current tenant improvement performance obligations
or tenant credits due with respect to any such Leases except as set forth in the
Leases and other due diligence documentation to be delivered hereunder; (g) to
the best of Seller's knowledge, no uncured default by Seller exists on its
obligations as the landlord under the Leases; and (h) the Rent Roll is true,
correct and complete.
(v) The Leases have not been modified, except as is disclosed in
the Rent Roll or in the Lease files which have been made available to Purchaser
under Paragraph 4(a)(2), or as allowed under Paragraph 8.2.
(vi) Except as otherwise disclosed on the Rent Roll, the Seller
does not have any actual knowledge of a default by any tenant or the existence
of an act or omission by any tenant which, with the passage of time or the
giving of notice or both, would constitute a default by such tenant; provided
that this representation shall be enforceable only by the parties to this
Agreement and shall not be deemed to be enforceable by any tenant of the
Premises.
(vii) Seller has not assigned its interest in any of the Leases to
any third parties, and the copies of the Leases provided to the Purchaser as
part of the Disclosure Documentation are complete and accurate in all material
respects.
(viii) There are no currently effective service contracts,
maintenance agreements, or other agreements
8
with respect to the Premises except as set forth in EXHIBIT C or as allowed
under paragraph 8 below.
(ix) All notices and documents in Seller's possession with
respect to the physical and environmental condition of the Premises, and all
documents in Seller's possession with respect to violation by the Premises of
zoning and building laws will be made available to Purchaser as part of Seller's
Disclosure Documentation.
(x) Except as set forth in EXHIBIT L, or as provided in
Paragraph 8.2, or as shown in the Lease files made available to the Purchaser,
there are no leasing commissions due, nor will any become due, as a result of
any agreement entered into by Seller in connection with any Lease or any renewal
or extension or expansion of any Lease, and no written agreement with any party
exists with Seller as to the payment of any leasing commissions or fees
regarding future leases or as to the procuring of tenants.
(xi) Seller has not received any notice of and has no actual
knowledge (with no duty to investigate) of violations or alleged violations of
any laws, rules, regulations or codes, including without limitation zoning and
building codes, with respect to the Premises which have not been corrected to
the satisfaction of the issuer of the notice. Seller has no actual knowledge,
without a duty to investigate, of any violation of Environmental Laws related to
the Premises or the presence or release of Hazardous Materials on or from the
Premises of any federal or state liens as referenced under CERCLA and any other
applicable environmental laws that have attached to the Premises, except as
disclosed in the Seller's Disclosure Documentation. (a) Seller has not
conducted or authorized the generation, transportation, storage, treatment or
disposal at or from the Premises of any Hazardous Materials in violation of any
applicable Environmental Laws (as such terms are defined in Paragraph 37); (b)
to the best of Seller's knowledge, no portion of the Premises lies within an
area which constitutes a "wetland" or protected area subject to the jurisdiction
of the United States Army Corps of Engineers or any federal, state or local
administrative agency; and (c) to the best of Seller's knowledge, no underground
storage tanks are located on the Premises; provided that Seller affirmatively
states that there is an underground wastewater sump.
(xii) The Premises is an independent unit which does not now rely
on any facilities (other than facilities covered by easements appurtenant to the
Premises or facilities of municipalities or public utilities) located on any
property that is not part of the Premises to fulfill any municipal or other
governmental requirement, or for the furnishing to the Premises of any essential
building systems or utilities. No other building or other property that is not
part of the Premises relies upon any part of the Premises to fulfill any
municipal or other governmental requirement, or to provide any essential
building systems or utilities.
(xiii) Other than this Agreement, the documents delivered at
Closing pursuant hereto, the Permitted Exceptions, and the Leases, Service
Contracts, commission agreements and Lease agreements made available to
Purchaser, there are no contracts or agreements to which Seller or its agent is
a party, which would be binding on the Premises or the Purchaser after Closing
regarding the Premises.
(xiv) Seller has fee simple title to the Owned Land, and good and
marketable title to the Xxxxxxx Leasehold. Seller has no knowledge of any
person or entity with any right of first refusal, option or similar rights to
acquire any interest in the Owned Land, the Xxxxxxx Leasehold or any part
thereof, and Seller has not granted such a right to any party.
(xv) To the best of Seller's knowledge (with no duty to investigate)
(a) the obligations of Seller or the Premises with regard to all applicable
covenants, easements, and restrictions against the Premises have been and are
being performed in a proper and timely manner; (b) Seller is not currently in
default under judicial order, judgment or decree relating to the Premises; and
(c) no conditions or circumstances exist which, with the giving of notice or
passage of time, or both, would constitute a default or breach with respect to
any of the foregoing in (a) or (b) above.
(xvi) The Owned Land is taxed under its own separate tax
identification number(s) and no other land is taxed under such number(s).
(xvii) Seller states that there is a confusion or dispute between
the Seller and the tenant under the RCI Lease involving a strip of land along
the north side of the real property covered by the Xxxxxxx Lease and such
confusion or dispute relates to whether the RCI Lease covers the land on which
some of the covered drive-up windows for the bank building are located.
In the event that, prior to the Closing of this transaction, Seller
obtains actual knowledge of any fact or circumstance which would make any of the
foregoing representations or warranties untrue, Seller shall disclose such
information to Purchaser, and Purchaser's sole remedy for such breach shall be,
by notice to Seller before the Closing, to terminate this Agreement, subject to
the provisions of Paragraph 39 below, and obtain a refund of the Xxxxxxx Money,
together with all interest thereon. In the event that, prior to Closing,
Purchaser obtains actual knowledge of any fact or circumstance which would make
any of the foregoing representations or warranties untrue, Seller's
representation and warranty regarding such fact shall be deemed to be modified
by such fact or circumstance and Purchaser may terminate this Agreement by
notice to Seller before the Closing and obtain a refund of the Xxxxxxx Money or,
if Purchaser elects not to terminate this Agreement pursuant to this paragraph,
Purchaser shall be deemed to have accepted such representation and warranty as
modified by such facts and circumstances.
(b) The representations and warranties of Seller set forth in this
Paragraph 6 hereof shall survive Closing only
9
for a period of twelve (12) months. No claim for a breach of any representation
or warranty of Seller shall be actionable or payable (i) if the breach in
question results from or is based on a condition, state of facts or other matter
which was set forth in the Disclosure Documentation or was otherwise known to
Purchaser prior to the end of the Due Diligence Period, and (ii) unless the
valid claim for any single claimed breach equals Ten Thousand and 00/100 Dollars
($10,000.00) or more, or the valid claims of all such breaches collectively and
in the aggregate equal more than Twenty-Five Thousand and 00/100 Dollars
($25,000.00) (in which event the full amount of such claims shall be
actionable). No claim for a breach of any representation or warranty, except
for those set forth in subparagraphs 6(a)(ii) and (iii), shall be actionable or
payable unless written notice thereof containing a description of the specific
nature of such breach shall have been given to Seller within twelve (12) months
after the Closing Date and the lawsuit for such breach shall have been filed
prior to the expiration of sixteen (16) months after Closing. No claim for a
breach of a representation or warranty set forth in subparagraphs 6(a)(ii) and
(iii) shall be actionable or payable unless written notice thereof containing a
description of the specific nature of such breach shall have been given to
Seller and the lawsuit for such breach shall have been filed prior to the
expiration of twelve (12) months after Closing.
(c) For purposes of this Agreement, the term "ASSET MANAGERS" of Seller
shall mean only Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx and Xxxxxx Xxxxxx, and the
knowledge of Seller shall be limited to the actual knowledge (with no duty to
investigate) of such Asset Managers.
(d) DISCLAIMER. EXCEPT FOR ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY
PROVIDED (i) IN THIS AGREEMENT, (ii) IN THE EXHIBITS ATTACHED HERETO, (iii) IN
ANY DOCUMENT WHICH WAS (a) GENERATED BY SELLER OR BY INTEGRATED PROPERTY
MANAGEMENT, INC., IN ITS ROLE AS PROPERTY MANAGER OF THE PREMISES FOR THE
SELLER, DURING SELLER'S PERIOD OF OWNERSHIP (BUT NOT ANY INCLUDING DRAFT
DOCUMENT AND NOT INCLUDING ANY DOCUMENT GENERATED BY ANY AGENT OF SELLER OR
INTEGRATED PROPERTY MANAGEMENT, INC.), AND (b) PART OF THE DISCLOSURE
DOCUMENTATION MADE AVAILABLE BY SELLER TO PURCHASER, (iv) IN ANY DOCUMENT EITHER
GENERATED AND DELIVERED OR EXECUTED BY SELLER AT CLOSING, PURCHASER DOES HEREBY
WAIVE AND SELLER DOES HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY
KIND OR TYPE WHATSOEVER WITH RESPECT TO THE PREMISES, WHETHER EXPRESSED OR
IMPLIED, INCLUDING BY WAY OF DESCRIPTION BUT NOT LIMITATION, THOSE OF
MARKETABILITY, MERCHANTABILITY OF TITLE, FITNESS FOR A PARTICULAR PURPOSE,
TENANTABILITY, HABITABILITY, AND USE INCLUDING, WITHOUT LIMITATION, ANY AND ALL
REPRESENTATIONS AND WARRANTIES RELATING TO THE PREMISES, THE QUALITY, VALUE,
PHYSICAL ASPECTS OR CONDITION THEREOF, ANY DIMENSIONS OR SPECIFICATIONS OF THE
PREMISES, THE FEASIBILITY, DESIRABILITY, CONVERTIBILITY OF THE PREMISES FOR OR
INTO ANY PARTICULAR USE, THE CURRENT OR PROJECTED INCOME OR EXPENSES OF THE
PREMISES, COMPLIANCE BY THE PREMISES WITH ANY APPLICABLE GOVERNMENTAL LAWS AND
REGULATIONS INCLUDING, WITHOUT LIMITATION, BUILDING AND ZONING CODES, THE SOIL
CONDITIONS OF THE PREMISES, WHETHER THE PREMISES IS SERVED BY SUFFICIENT
UTILITIES INCLUDING, WITHOUT LIMITATION, WATER, SEWER, GAS, ELECTRIC AND
TELEPHONE SERVICE, AND THE COMPLIANCE, IF ANY, BY THE PREMISES WITH ANY
ENVIRONMENTAL REQUIREMENTS, AND ANY OTHER MATTER WITH RESPECT TO THE PREMISES.
For purposes of this paragraph, the term "draft document" shall mean either (i),
if there is a document of which there are several dated versions, only the
document with the latest date shall be considered the final document and all
earlier versions shall be deemed to be "draft documents", and (ii) if a document
is one which provides for initials or signature, all such documents which do not
bear all required initials and signature(s) shall be deemed draft documents.
Seller agrees to cooperate reasonably with Purchaser during the Due Diligence
Period in order to identify final documents.
7. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
(a) Purchaser represents and warrants to Seller that, as of the Effective
Date and as of Closing:
(i) Purchaser is a Delaware Limited Partnership in good standing, and
the execution and delivery by Purchaser of and Purchaser's performance under
this Agreement are within Purchaser's powers and have been duly authorized by
all requisite action. On or before the Closing, Purchaser shall qualify to do
business in Colorado.
(ii) Purchaser has the full right, power and authority to purchase
the Premises as provided in this Agreement and to carry out Purchaser's
obligations hereunder, and all requisite action necessary to authorize Purchaser
to enter into this Agreement and to carry out its obligations hereunder has
been, or by the Closing, will have been, taken. The person(s) signing this
Agreement on behalf of Purchaser is authorized to do so.
(iii) There is no action, suit, arbitration, unsatisfied order or
judgment, government investigation or proceeding pending or threatened against
Purchaser which, if adversely determined, could individually or in the aggregate
materially interfere with the consummation of the transaction contemplated by
this Agreement.
The representations and warranties of Purchaser set forth in Paragraph 7
shall survive Closing for a period of one (1) year.
8. SELLER'S COVENANTS.
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8.1 Between the Effective Date of this Agreement and the earlier of the
Closing or any other termination of this Agreement, the Seller shall:
(a) Maintain the Premises in its present condition, ordinary
wear and tear excepted;
(b) Maintain all casualty, liability and hazard insurance
currently in force with respect to the Premises;
(c) Enter into Service Contracts with respect to the Premises,
in the same manner done by Seller prior to the date hereof, maintaining present
services and sufficient supplies and equipment for the operation and maintenance
of the Premises in the same manner as prior to the date hereof; provided,
however, that, after the Effective Date, Seller shall not enter into any new
Service Contract that cannot be terminated without penalty on the earlier of
thirty (30) days after notice, or the Closing Date;
(d) Use reasonable efforts (but without obligation to incur any
cost or expense paid to tenants) to obtain and deliver to Purchaser the Clean
Tenant Estoppel Certificates required prior to Closing required under Paragraph
3(e).
(e) Not remove any Personal or Intangible Property the title to
which, under the terms of this Agreement, is to be conveyed to Purchaser by
Seller at Closing, unless it is replaced with a comparable item of equal quality
and quantity as existed at the time of such removal;
(f) Not enter into any contracts or letters of intent to sell
the Premises;
(g) Use reasonable efforts to operate the Premises in a manner
consistent with current practices and in compliance with all applicable laws,
and perform its obligations under the Leases; and
(h) Not perform or permit any act which would prevent Seller's
full performance of its obligations hereunder.
8.2 Between the Effective Date and the earlier of (i) the end of the
Due Diligence Period or (ii) any other termination of this Agreement, Seller
shall not enter into any new leases or lease renewals without Purchaser's
written approval unless they are for a term of three (3) to five (5) years, with
a minimum effective rental rate of $19.00 per rentable square foot per year
(after taking into account any rent abatements or concessions granted under such
Lease), a 1998 Base Year for Operating Expenses, a Tenant Improvement Allowance
not to exceed $1.00 per rentable square foot per year, and being on the 000
Xxxxx Xxxxxxxx Xxxxxxxxx Standard Form Agreement (collectively referred to as
the "PRE-APPROVED LEASE STANDARDS"). Seller shall have no obligation to obtain
Purchaser's consent for any new Lease which meets the Pre-Approved Lease
Standards. Any changes to the 000 Xxxxx Xxxxxxxx Xxxxxxxxx Standard Form
Agreement must be approved in writing by Purchaser, which approval shall not be
unreasonably withheld or delayed. Purchaser's consent shall be deemed to have
been given if Purchaser fails to object to any proposed lease, lease amendment
or standard lease form modifications within five (5) days after receiving
written notice thereof from Seller. Once the Xxxxxxx Money has become
non-refundable to Purchaser (except in the event of either a default by Seller
or the failure of a condition precedent to Purchaser's obligations to close),
Seller shall not enter into any new leases without Purchaser's written approval,
which shall be in Purchaser's sole discretion. Within three (3) business days
after Seller enters into any Lease which complies with the Pre-Approved Lease
Standards, Seller shall provide a copy of same to Purchaser.
At Closing, Purchaser shall reimburse Seller for all New TI Obligations (as
hereafter defined), other tenant inducement costs, leasing commissions
(including the leasing fees and commissions of the Premises managing agent) and
other expenses incurred by Seller pursuant to a new or renewal Lease properly
entered into by Seller pursuant to this paragraph after March 6, 1998.
9. DELIVERY OF DUE DILIGENCE INVESTIGATION REPORTS. Purchaser hereby
covenants with Seller that, on or before Closing, Purchaser shall furnish to
Seller copies of all third party physical reports which have been prepared for
Purchaser by third parties and which have been received by Purchaser or its
agents in connection with any inspections of the Premises conducted by Purchaser
prior to the Closing Date under this Agreement (including, specifically, without
limitation, any reports analyzing compliance of the Premises with the provisions
of the Americans with Disabilities Act ("ADA"), 42 U.S.C. Section 12101, ET
SEQ., if applicable). Purchaser hereby irrevocably waives any claim against
Seller for any cleanup, recovery or similar costs arising from the presence of
Hazardous Materials (as defined in Paragraph 37) on the Premises (i) which were
discovered by or made known to Purchaser prior to or during the Due Diligence
Period, or (ii) which were not caused by an event which took place during
Seller's period of ownership of the Premises.
10. PRORATIONS. Before Closing, Seller shall provide to Purchaser such
information and verification reasonably necessary to support the prorations and
adjustments shown under Paragraph 10(b) and (c) below. The following
adjustments to the Purchase Price paid hereunder shall be made between Seller
and Purchaser and shall be prorated (as applicable) on a per diem basis as of
the Closing Date, and the Closing Date shall be a date of income and expense to
the Seller:
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(a) TAXES. All real estate taxes for 1998 (due and payable in 1999), and
the current installment of special assessments not yet due and payable shall be
prorated as of the Closing Date on the basis of the most recent ascertainable
taxes and assessments. Prior to or at Closing, Seller shall pay or have paid
all real estate tax bills and special assessments which are due and payable
prior to the Closing Date and shall furnish evidence of such payment to
Purchaser and Title Company. Personal property taxes not yet due and payable
relating to the Personal Property shall be prorated as of the Closing on the
basis of the most recent ascertainable taxes and assessments. The taxes
prorated under this paragraph shall be reprorated within thirty (30) days after
Purchaser's receipt or Seller's submission of the final tax xxxx(s) for calendar
year 1998.
(b) RENT. Tenant Base Rent and other income under the Leases (including
any additional rent attributable to insurance, taxes, common area maintenance
and other operating and building expenses which are passed through to tenants
under the Leases - i.e. - (collectively, the "PASS-THROUGH EXPENSES") shall be
apportioned as of the Closing Date to the extent such amounts have been
collected by such date, and shall be set forth in the Closing Statements.
Purchaser shall receive a credit for any Base Rent and other income (and any
applicable state or local tax on rent) under Leases collected by Seller before
Closing that applies to any period after Closing. If Seller collected estimated
prepayments of Pass-Through Expenses in excess of any tenant's share of such
expenses, then if the excess can be determined by the Closing, Purchaser shall
receive a credit for the excess or, if the excess cannot be determined at
Closing, Purchaser shall receive a credit based upon the parties' reasonable
estimate, and such Closing adjustment shall be deemed to be final. In either
event, Purchaser shall be responsible for crediting or repaying those amounts to
the appropriate tenants at the time of final reconciliation of such amount. If
Seller collected estimated prepayments of Pass-Through-Expenses that can be
reasonably determined, as of the Closing, to be less than any tenant's share of
such expenses, Seller shall receive a credit for the underbilled amounts or, if
the underbillings cannot be determined at closing, Seller shall receive a credit
based on the parties' reasonable estimate, and such Closing adjustment shall be
deemed to be final. In such event, Purchaser shall be responsible for
collecting any amounts due from the appropriate tenants at the time of final
reconciliation of such amounts.
(c) UNCOLLECTED RENTS. Except as set forth in the preceding paragraph,
Uncollected rent and other uncollected income shall not be prorated at Closing,
but all rent that is due but unpaid for the period prior to and including the
Closing Date shall be accounts receivable retained by Seller. After Closing,
Purchaser shall apply all rent and income collected by Purchaser from a tenant,
unless the tenant properly identifies the payment as being for a specific item
other than rent, first to such tenant's rental obligations for the period after
Closing and then to arrearages for periods prior to the Closing. Purchaser
shall promptly remit such amounts, holding same in trust and promptly remitting
to Seller, after deducting a prorated share of any reasonable collection costs
actually paid by Purchaser to third parties, any rent properly allocable to
Seller's period of ownership. Purchaser shall xxxx and attempt to collect such
rent arrearages of tenants in possession in the ordinary course of business, but
shall not be obligated to engage a collection agency or take legal action to
collect any rent arrearages. After Closing, Seller shall not have the right to
seek collection directly from any tenant in possession of any rents or other
income allocable to any period before or including the Closing by judicial
action nor shall it have any right to evict any such tenants, terminate their
leases or disturb their possession. Any rent or other income received by Seller
after Closing which is owed to Purchaser shall be held in trust, and remitted to
Purchaser promptly after receipt.
(d) SERVICE CONTRACTS. If, prior to Closing, Seller has prepaid any
amounts under any Service Contracts which are assumed by Purchaser which apply
to the period after Closing, Seller shall receive a credit therefor at Closing
but not for more than thirty (30) days' prepayment. Seller shall be responsible
to pay all amounts due directly to the vendors under all Service Contracts for
the period prior to and including the date of Closing, and shall provide
evidence thereof at Closing, and shall indemnify, save, hold harmless and defend
Purchaser from any liability thereon, and this indemnification obligation shall
survive Closing. Purchaser shall indemnify, save, hold harmless and defend
Seller from any liability on any Service Contracts for any amounts or
liabilities which first arise after Closing, and this indemnification obligation
shall survive Closing.
(e) UTILITIES. The Seller shall cause the meters, if any, for utilities
to be read on the day on which the Closing Date occurs, and to pay the bills
rendered on the basis of such readings; provided that the Seller may make
arrangements for payment thereof through the Title Agent at Closing. Purchaser
shall cause the utilities to be placed in its name for the period starting on
the day after Closing. Seller shall pay directly (or through the Title Agent)
all final bills for utilities through the date of Closing and shall indemnify
Purchaser therefrom. Purchaser shall indemnify Seller for any utility bills
arising out of the period after Closing. If the Seller is unable to terminate
utility service as of the date of Closing, then adjustment at Closing therefor
shall be made on the basis of the most recently issued bills therefor which are
based on meter readings no earlier than thirty (30) days before the Closing
Date; and such adjustments shall be prorated when the next utility bills are
received.
The purpose and intent of the provisions with respect to prorations set
forth herein is that the Seller shall bear all expenses of ownership and
operation of the Premises (including risks and losses due to Tenant payment
delinquencies) and shall receive all income therefrom accruing through midnight
of the day of Closing and Purchaser shall bear all such expenses and receive all
such income accruing thereafter. Except for the provisions regarding taxes (and
utility bills if service cannot be transferred to Purchaser's name on the day
after Closing), all of the prorations described in this Paragraph 10 shall be
deemed to be final and the provision of this paragraph shall survive the Closing
or termination of this Agreement.
(f) LEASING COMMISSIONS. Seller shall pay the leasing commissions for any
Leases that commence prior
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to March 6, 1998 (excluding, however, contingent commissions for such Leases
that will become due and payable after the Closing Date as a result of the
exercise of an extension or expansion right subsequent to the Closing Date, for
which Purchaser shall be responsible). Seller and Purchaser shall prorate any
leasing commissions for Leases entered into (or renewed, expanded, or extended)
after March 6, 1998 and prior to the Closing Date based on the portion of the
term of such Lease prior to the Closing Date.
(g) TENANT IMPROVEMENTS AND ALLOWANCES. Tenant improvement expenses
(including all hard and soft construction costs, whether payable to the
contractor or the tenant), legal fees (not to exceed $2,500 per lease or lease
renewal), tenant allowances, moving expenses and other out-of-pocket costs which
are the obligation of the landlord under Leases shall be allocated between the
parties according to whether such obligations arise in connection with (1)
Leases in place as of (i.e. - entered into before) March 6, 1998 (collectively
referred to as the "EXISTING TI OBLIGATIONS"), or (2) Leases or amendments
entered into after March 6, 1998, pursuant to Paragraph 8, or renewals or
expansion rights properly exercised after March 6, 1998 ("NEW TI OBLIGATIONS").
(i) EXISTING TI OBLIGATIONS. If, by Closing, Seller has not
completed and paid in full Existing TI Obligations, then such unpaid costs
shall be credited to Purchaser at Closing in the maximum amount of such
costs, subject to refund by Purchaser if such amounts are not fully paid to
or utilized by the applicable tenant. After Closing, Purchaser shall be
responsible for completing and paying for such Existing TI Obligations.
(ii) NEW TI OBLIGATIONS. At Closing, Purchaser shall reimburse Seller
for the Pre-Closing Share (as defined below) of all New TI Obligations paid
for by Seller prior to Closing, and Purchaser shall receive a credit from
Seller equal to the Pre-Closing Share of any New TI Obligations which, as
of Closing, have not been paid for by Seller. The "PRE-CLOSING SHARE" of
any New TI Obligations with respect to any Lease shall mean the total
amount of the New TI Obligations for a Lease divided by the total number of
months in the applicable Lease, and then multiplied by the number of months
from the beginning of rent payments under such Lease until the date of
Closing. At Closing, Purchaser shall assume the obligation to perform and
pay for all unpaid and/or unperformed New TI Obligations.
(iii) CHANGE ORDERS. Seller shall not agree to any change orders
or additions to tenant improvements or changes in the scope of work or
specifications which increases the landlord's cost with respect to New TI
Obligations without Purchaser's prior written approval, which approval
shall not be unreasonably withheld or delayed.
(iv) EVIDENCE OF PAYMENT. At Closing, Seller shall provide evidence
of payment of Existing TI Obligations or evidence reasonably satisfactory
to establish the escrow necessary for the payment of Existing TI
Obligations after Closing, and shall provide evidence of any payments made
or debts incurred by Seller prior to Closing for New TI Obligations. To
the extent such coverage is available at no cost to Seller for providing
such affidavit (beyond any actual indemnity claims under such affidavit),
Seller shall provide the Title Company with a standard ALTA affidavit to
enable the Title Company to insure against any claims against the Premises
arising from work which has been performed prior to Closing on any Existing
TI Obligations or New TI Obligations.
(h) TENANT DEPOSITS. All tenant security deposits, as set forth in the
Leases (and interest thereon if required by law or contract to be earned
thereon) shall be transferred or credited to Purchaser at Closing. As of the
Closing, Purchaser shall assume Seller's obligations related to tenant security
deposits, but only to the extent they are properly credited and transferred to
Purchaser.
11. TRANSFER TAXES: TITLE CHARGES. Seller and Purchaser agree to execute
any real estate transfer declarations required by the state, county, or
municipal law in which the Owned Land is located. Purchaser shall pay the
state documentary fee. Any other transfer tax, and any sales or use tax shall
be paid equally by the parties. Purchaser shall pay the cost of recording the
Deed; and Purchaser shall pay for all deletions, endorsements and modifications
to the base Title Policy. If this transaction is terminated by Purchaser under
a contract contingency (but not as a result of a Purchaser default) prior to the
expiration of the Due Diligence Period, Seller shall pay all escrow costs billed
by the Title Company. If the transaction is terminated by either party on
account of default by the other, the defaulting party shall pay all escrow costs
billed by the Title Agent. In the event this transaction shall close as
provided in this Agreement, the Title Agent closing charges shall be divided
equally between Seller and Purchaser, and Seller shall pay the premium for the
owner's Title Policy (except for any endorsements in excess of the base Title
Policy which shall be at Purchaser's expense), and the cost of the updates to
the Existing Survey. Each party shall pay its own attorneys' fees except as
otherwise provided in this Agreement.
12. RISK OF LOSS. Except as provided in any indemnity applicable to
Purchaser's Due Diligence Period activities, Seller shall bear all risk of loss
with respect to the Premises up to and including the Closing Date.
Notwithstanding the foregoing, in the event of damage to the Premises by fire or
other casualty on or prior to the Closing Date, repair of which would cost less
than One Hundred Thousand and 00/100s Dollars ($100,000.00) (as determined by
Seller in good faith based on at least two (2) independent contractor bids) and
which will not result in the termination of any Lease, or the abatement of rent
pursuant to any of the Leases, or the impairment of any building system that
renders a substantial portion of the Premises unfit for occupancy or use for
more than three (3) business days, Purchaser shall not have the right to
terminate its obligations under this Agreement by reason thereof, and Seller
13
shall have the right to elect to either repair and restore the Premises before
the Closing or, if its policies cover the loss and will pay for the repairs and
restoration (with the Seller's deductible), to assign and transfer to Purchaser,
with appropriate confirmation by Seller's insurer, on the Closing Date all of
the Seller's right, title and interest in and to all insurance proceeds paid or
payable to Seller on account of such fire or casualty, including, without
limitation, the amount of the deductible with respect thereto. In either case
as provided in the preceding sentence, this transaction shall proceed to Closing
and there shall be no reduction in the Purchase Price by reason of such damage
(except for the credit to the Purchaser for the amount of the Seller's
deductible). Seller shall promptly notify Purchaser in writing of any such fire
or other casualty, and Seller's determination of the cost to repair the damage
caused thereby. In the event of damage to the Premises by fire or other
casualty prior to the Closing Date, repair of which would cost in excess of One
Hundred Thousand and 00/100 Dollars ($100,000.00) (as determined by Seller in
good faith based on at least two (2) independent contractor bids) or will result
in the termination of any Leases, or the abatement of rent pursuant to any of
the Leases which is not fully covered by rent loss insurance then in place, or
the impairment of any building system that renders a substantial portion of the
Premises unfit for occupancy for more than three (3) business days, then this
Agreement may be terminated at the option of Purchaser, which option shall be
exercised, if at all, by Purchaser's written notice thereof to Seller within ten
(10) business days after Purchaser receives written notice of such fire or other
casualty and Seller's determination of the amount of such damages. Upon the
exercise of such option by Purchaser, this Agreement shall become null and void,
the Xxxxxxx Money shall be promptly returned to Purchaser and both parties shall
be relieved from all further obligations hereunder, except as provided in
Paragraph 39 below. If Purchaser does not timely elect to terminate this
Agreement, then Seller shall assign and transfer to Purchaser on the Closing
Date all of Seller's right, title and interest in and to all insurance proceeds
paid or payable to Seller on account of such fire or casualty together with the
amount of the deductible relating thereto, in which case this transaction shall
proceed to Closing and there shall be no reduction in the Purchase Price by
reason of such damage (except for the credit to Purchaser for the amount of the
deductible).
13. CONDEMNATION. In the event that, between March 6, 1998 and the
Closing Date, any condemnation or eminent domain proceedings are threatened or
initiated which might result in the taking of any part of the Premises or the
taking, material impairment or closing of any right of access to the Premises,
Seller shall immediately notify Purchaser in writing of any notice of an intent
to take or the commencement or occurrence of any condemnation or eminent domain
proceedings. If such proceedings would result in the taking of any of the
Premises or the taking or closing of any right of access to any part of the
Premises, Purchaser shall then notify Seller, within ten (10) business days of
Purchaser's receipt of Seller's notice, whether Purchaser elects as its sole
remedies:
(a) to terminate this Agreement by written notice to Seller in which case
the Xxxxxxx Money shall be promptly returned to Purchaser and both parties shall
be relieved from any further liability hereunder except as provided in Paragraph
39 below; or
(b) to proceed with the Closing, in which event Seller shall assign to
Purchaser all of Seller's right, title and interest in and to any compensation
or award made or to be made in connection with such condemnation or eminent
domain proceedings, and this transaction shall proceed to Closing without any
reduction in the Purchase Price.
Closing shall be delayed, if necessary, for up to ten (10) business days to
allow Purchaser the full time allowed above to make such election. If Purchaser
fails to timely notify Seller of its election of subparagraph (a) above,
Purchaser shall be deemed to have elected to proceed under subparagraph (b)
above.
14. DEFAULT.
14.1 DEFAULT BY PURCHASER. This is a liquidated damages contract.
If this transaction is not consummated by reason of a default by Purchaser
hereunder, then as Seller's sole and exclusive remedy in such event, Seller
shall terminate this Agreement and retain the Xxxxxxx Money, all interest
thereon, and all materials prepared by or on behalf of Purchaser with respect to
the Premises, as liquidated damages and shall not be entitled to seek specific
performance or other additional damages, and all further rights and obligations
of the parties hereunder shall cease, except as provided in Paragraph 39 below.
The parties agree that the amount of actual damages which Seller would suffer as
a result of Purchaser's default would be extremely difficult to determine and
have agreed, after specific negotiation, that the amount of the Xxxxxxx Money is
a reasonable estimate of Seller's damages and is intended to constitute a fixed
amount of liquidated damages in lieu of other remedies available to Seller and
is not intended to constitute a penalty.
14.2 DEFAULT BY SELLER. If this transaction is not consummated by
reason of a default by Seller hereunder, Purchaser may, in its sole discretion,
elect any one of the following which shall be its sole remedies:
(a) If specific performance is possible, Purchaser may either (i)
proceed with an action for specific performance, in which case the Xxxxxxx Money
shall be retained by the Title Agent until the final determination by a court of
competent jurisdiction that Purchaser is entitled to specific performance, in
which case the Xxxxxxx Money shall be applied as provided in this Agreement, or,
if the court determines that the Purchaser is not entitled to specific
performance, this Agreement shall then terminate and the Xxxxxxx Money shall be
returned to Purchaser less any court costs and attorneys' fees to which the
court has determined the Seller is entitled, in which case all further rights
and obligations of the parties hereunder shall cease, except as provided in
Paragraph 39 below; or (ii) Purchaser shall be entitled to declare this
Agreement terminated, in which event the Purchaser shall be entitled to a refund
of the Xxxxxxx Money and all interest thereon, and all further rights and
obligations of the parties hereunder shall cease, except as provided in
Paragraph 39 below; or
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(b) If specific performance is impossible (for any reason other than
Seller having voluntarily transferred title to a third party who does not agree
to be bound as a seller under this Agreement, Purchaser shall be entitled to (i)
an action for damages for all third party costs and expenses incurred by
Purchaser in connection with its investigation and potential purchase of the
Owned Land, but in no event shall such amount exceed the lesser of (a)
Purchaser's actual costs, and (b) a total of Twenty-Five Thousand and no/100
Dollars ($25,000.00), and (ii) a refund of the Xxxxxxx Money and all interest
thereon, and all further rights and obligations of the parties hereunder shall
cease, except as provided in Paragraph 39 below; or
(c) If specific performance is impossible because Seller has
voluntarily transferred title to a third party who does not agree to be bound as
the seller under this Agreement, then Purchaser shall be entitled to an action
for damages without limit as to amount except as provided by law.
15. NOTICE. All notices required or permitted hereunder shall be in
writing and shall be served on the parties at the following addresses:
IF TO SELLER:
JAD Properties, LLC
c/o Integrated Property Management, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Fax #: (000) 000-0000
Phone #: (000) 000-0000
With a copy to:
Huntington X. Xxxxx, Esq.
Huntington X. Xxxxx & Associates
000 Xxxx Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Fax #: (000) 000-0000
Phone #: (000) 000-0000
IF TO PURCHASER
Xxxx-Xxxx Realty L.P.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Fax #: (000) 000-0000
Phone #: (000) 000-0000
With a copy to:
Xxxx-Xxxx Realty L.P.
00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Esq.
Fax #: (000) 000-0000
Phone #: (000) 000-0000
Any such notices shall be either (a) sent by certified U.S. mail, return
receipt requested, postage prepaid, in which case notice shall be deemed
delivered on the first day that delivery was attempted as shown on the return
receipt; (b) sent (in time for next business day delivery) by a nationally
recognized overnight courier, in which case it shall be deemed delivered one
business day after deposit with such courier; (c) personally delivered in which
case notice shall be deemed delivered on the same day such notice is so
delivered; or (d) sent by telefax in which case such notice shall be deemed
delivered at the time and on the date of the sending party's confirmation of
transmission of such telefax; provided that, under any of the foregoing methods
of delivery, if the time of delivery is after 6:00 p.m. local time at the
location of the addressee of the notice, delivery shall be deemed given on the
next business day. The above addresses and telefax numbers may be changed by
written notice to the other party; provided, however, that no notice of a change
of address or telefax numbers shall be effective until delivery of such notice.
Courtesy copies of notices are for informational purposes only, and a failure to
give such copies of any notice shall not be deemed a failure to give notice.
16. TIME OF ESSENCE. Time is of the essence in this Agreement.
17. GOVERNING LAW. The validity, meaning and effect of this Agreement
shall be determined in accordance
15
with the laws of the State of Colorado.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. A facsimile or
photocopied signature shall have the same legal effect as an original signature.
19. CAPTIONS. The captions in this Agreement are inserted for convenience
of reference and in no way define, describe or limit the scope or intent of this
Agreement or any of the provisions hereof. Any use of the term "including"
shall be construed to mean "including, without limitation".
20. ASSIGNABILITY. Neither party may assign its rights under this
Agreement without the prior written consent of the other, which consent may be
given or withheld in the non-assigning party's discretion, except that either
party shall have the right without the other's consent to assign this Agreement
to a "Permitted Assignee." For purposes of this Paragraph 20, the term
"PERMITTED ASSIGNEE" shall mean any corporation, partnership, limited
partnership, limited liability company, venture or similar entity controlled by,
or under common control with, the assigning party; provided that (i) no
assignment shall be effective unless the assigning party gives the other party
immediate written notice thereof, (ii) no assignment shall relieve the assigning
party from any liabilities arising from the acts or omissions of such party
prior to such assignment during the Due Diligence Period, provided however an
assignment by Purchaser cannot occur until the Xxxxxxx Money has become
non-refundable pursuant to the provisions of this Agreement, (iii) all
representations and obligations of the non-assigning party shall thereafter be
owed only to the applicable assignee, and (iv) any assignment by Seller before
the Closing to a Permitted Assignee must be in connection with the conveyance of
the Premises by the Seller to the Permitted Assignee.
21. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives,
successors and Permitted Assignees.
22. MODIFICATIONS; WAIVER. No waiver, modification, amendment, discharge
or change of this Agreement shall be valid unless the same is in writing and
signed by the party against which the enforcement of such modification, waiver,
amendment, discharge or change is sought.
23. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties relating to the transactions contemplated hereby, and all
prior or contemporaneous agreements, understandings, representations or
statements, oral or written, are superseded hereby.
24. PARTIAL INVALIDITY. Any provision of this Agreement which is
unenforceable or invalid or the inclusion of which would impair the validity,
legality or enforcement of this Agreement shall be of no effect, but all the
remaining provisions of this Agreement shall remain in full force and effect.
25. SURVIVAL. In addition to the obligations of the parties under the
limited survival provisions of Paragraphs 6 and 7 of this Agreement, the
obligations of the parties in Paragraphs 3(c), 4(a)(1), 10, and Paragraphs 15
through 44 shall survive the Closing.
26. NO PERSONAL LIABILITY OF MEMBERS OR MANAGERS OF PARTIES. Each party
acknowledges that this Agreement is entered into by limited liability companies,
and each party agrees that no individual member or manager or representative of
the other party shall have any personal liability under this Agreement or any
document executed in connection with the transactions contemplated by this
Agreement.
27. NO THIRD PARTY RIGHTS. Nothing in this Agreement, express or implied,
is intended to confer upon any person, other than the parties hereto and their
respective successors and assigns, any rights or remedies under or by reason of
this Agreement.
28. BROKER. Seller and Purchaser represent each to the other that each
has had no dealings with any broker, finder or other party concerning
Purchaser's purchase of the Premises, except for Xxxxxxx Realty Corporation
(Xxxx Xxxxxxxxxx) ("BROKER"). At Closing, and only in the event of Closing,
the Seller shall pay to Broker a commission pursuant to a separate agreement.
Seller and Purchaser each hereby agree to indemnify and hold the other harmless
from all loss, cost, damage or expense (including reasonable attorneys' fees)
incurred by the other as a result of any claim arising out of the acts of the
indemnifying party (or others on its behalf) for a commission, finder's fee or
similar compensation made by any broker, finder or any party who claims to have
dealt with such party, except as otherwise provided in this Paragraph 28. The
representations and warranties contained in this Paragraph 28 shall survive the
Closing.
29. EFFECTIVE DATE. For purposes of calculation of all time periods
within which Seller or Purchaser must act or respond as herein described, all
phrases such as "the date of this Agreement," "the date of execution of this
Agreement" or any other like phrase referring to the date of the Agreement,
shall mean and refer to the Effective Date of this Agreement, which shall be the
date on which Seller delivers a fully executed copy of this Agreement to the
Title Agent.
30. NON-BUSINESS DAYS. If the Closing Date or any other date set forth in
this Agreement is to occur on a holiday or other non-business day or if any
period of time set forth in this Agreement expires on a holiday or non-
16
business day, then such closing or expiration date shall be the next business
day thereafter. As used in this paragraph, the term "HOLIDAY" shall mean any
day which is a recognized holiday by a statute or order of the United States or
the State of Colorado. As used in this paragraph, the term "NON-BUSINESS DAY"
shall mean Saturday and Sunday.
31. JURISDICTION. The parties hereto consent to exclusive venue and
jurisdiction in the district court in and for the City and County of Denver or
the United States District Court for the District of Colorado in any action
commenced relating to this Agreement or the transactions contemplated hereby.
The parties agree that all issues regarding this Agreement, including, without
limitation, issues of formation and performance, shall be governed by Colorado
law.
32. RECORDATION. The parties acknowledge and agree that, except for such
notice as may be permitted by applicable law in connection with an action for
specific performance, neither this Agreement nor any memorandum hereof shall be
recorded in the office of any Clerk and Recorder of any county in Colorado and
in the event of any recordation of this Agreement by Purchaser, this Agreement
shall, at Seller's sole option, be rendered null and void and of no further
force and effect whatsoever, except as provided in Paragraph 39 below.
33. ATTORNEYS' FEES. In the event of any controversy, claim or dispute
between the parties affecting or relating to the subject matter or performance
of this Agreement, the prevailing party shall be entitled to recover from the
non-prevailing party all of its reasonable attorneys' fees and costs incurred in
such action.
34. DISCLOSURE - SPECIAL TAXING DISTRICTS - GENERAL OBLIGATION
INDEBTEDNESS.
SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS THAT
IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY
WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK
FOR INCREASED MILL LEVIES AND EXCESSIVE TAX BURDENS TO SUPPORT THE SERVICING OF
SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A
DISTRICT TO DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES.
PURCHASER SHOULD INVESTIGATE THE DEBT FINANCING REQUIREMENTS OF THE AUTHORIZED
GENERAL OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS, EXISTING MILL LEVIES OF SUCH
DISTRICT SERVICING SUCH INDEBTEDNESS AND THE POTENTIAL FOR AN INCREASE IN SUCH
MILL LEVIES.
35. DISCLOSURE OF ENVIRONMENTAL REPORT. Seller received an Environmental
Due-Diligence Assessment of the Premises (as it existed at the time of such
report) at the time of its purchase thereof. A copy of such report will be
provided to Purchaser as part of the Disclosure Documentation. Purchaser
acknowledges that Seller makes no warranties or representations regarding the
adequacy, accuracy or completeness of the Report, and Purchaser shall have no
claim against Seller based upon the Report or any omissions thereon. Purchaser
further acknowledges that, pursuant to Paragraph 4 of this Agreement, it has
full opportunity to perform such environmental investigations as Purchaser deems
appropriate within the period of time set forth in said Paragraph 4 and
Purchaser agrees that if it undertakes any such investigations, it shall provide
Seller with copies of all reports and other information obtained by Purchaser
regarding the results thereof.
36. TERMINATION OF SERVICE CONTRACTS. During the Due Diligence Period,
Purchaser shall advise Seller, in writing, which of the Service Contracts it
intends to assume and which Purchaser requests that Seller terminate on or
before the Closing Date, and Seller shall advise whether any of the Service
Contracts (which Purchaser has requested Seller to terminate) cannot be
terminated or can be terminated only with the payment of a fee or penalty which
Seller is unwilling to pay. If Purchaser elects not to terminate this Agreement
pursuant to Xxxxxxxxx 0, Xxxxxxxxx shall be deemed to have agreed to pay any
such fee or penalty if Purchaser thereafter elects to terminate such Service
Contract(s), and, at Closing, Purchaser shall assume all Service Contracts which
are not to be terminated pursuant to this paragraph. Seller shall terminate any
Service Contracts on or before the Closing Date (i) which can be terminated on
or prior to Closing or with the payment of a fee or penalty which Seller is
willing to pay, and (ii) which Purchaser has requested Seller to terminate;
provided that Seller shall terminate at Closing at its expense the existing
property management and leasing agreements for the Premises.
Seller shall defend, indemnify and hold Purchaser harmless from any
claims or damages arising from terminated Service Contracts unless, pursuant to
the terms of the Service Contract in question, such Service Contract may not be
terminated or unless, and to the extent, Purchaser is obligated to pay a
termination fee or penalty in connection with the termination of a Service
Contract as set forth above. Each party shall indemnify, defend and hold the
other harmless from any liabilities arising out of or in connection with any act
or omission by such party or its agents related to the Service Contracts during
its period of ownership of the Premises.
37. ENVIRONMENTAL PROVISION.
A. For purposes of this Agreement, the following terms shall have the
following meanings:
"ENVIRONMENTAL CLAIMS" means any third party (including private parties,
governmental agencies, or employees) action, lawsuit, notice of violation, claim
or proceeding relating to the Premises which seeks to impose liability,
penalties, damages or losses, as well as any direct costs incurred by the
current owner of the Premises not resulting from any third party action,
including but not limited to remedial, removal, response, abatement, clean-up,
and monitoring costs, for (i) any contamination of the air, surface water,
ground water or land; (ii) any solid, gaseous or
17
liquid solid or hazardous waste generation, handling, treatment, storage,
transportation or disposal; (iii) any exposure to any air emissions, discharges,
releases or threatened releases of pollutants, contaminants, "Hazardous
Materials" (as hereinafter defined) or toxic substances; or (iv) non-compliance
with any requirements of "Environmental Laws" (as hereinafter defined). For
purposes of this Agreement, the above terms within the meaning of "Environmental
Claims" shall have the meanings ascribed to them in any applicable federal,
state or local Environmental Laws.
"ENVIRONMENTAL LAWS" mean each and every requirement of applicable federal,
state and local environmental laws, including but not limited to, the Resource
Conservation and Recovery Act, 42 U.S.C. 6901 et seq.; the federal Clean Air
Act, 42 U.S.C. 7401 et seq.; the federal Clean Water Act, 33 U.S.C. 1251 et
seq.; the Toxic Substances Control Act, 15 U.S.C. 2601 et seq.; the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
9601 et seq.; and all regulations promulgated thereunder as well as any
applicable federal, state and local laws, ordinances, regulations, and common
laws relating to the industrial hygiene, environmental protection or the use,
analysis, generation, manufacture, storage, presence, disposal or transportation
of any oil, petroleum products, petroleum-based derivatives, flammable
explosives, asbestos, urea formaldehyde, polychlorinated biphenyls, radioactive
materials or waste, or other hazardous, toxic, contaminated or polluting
materials, substances or wastes, including without limitation any "regulated
substances," "hazardous substances," "hazardous waste," "hazardous materials" or
"toxic substances" as defined under any such laws, ordinances or regulations
(collectively, "HAZARDOUS MATERIALS").
B. Seller agrees and covenants that it shall retain liability for,
and Seller shall indemnify and hold Purchaser, its partners, managers, members,
stockholders, officers, and directors of Purchaser and its direct and indirect
investor partners harmless from any claims, causes of action, suits,
proceedings, fines, penalties, losses, damages, and costs (collectively, a
"LOSS") resulting from any Environmental Claims arising (i) as a result of
violations of any applicable Environmental Laws which result from any acts which
occurred during the period of the Seller's ownership of the Owned Land or
Xxxxxxx Leasehold; or (ii) from any Environmental Claims which result from any
acts which occurred during the period of the Seller's ownership of the Owned
Land or Xxxxxxx Xxxxxxx Leasehold; provided that the term "acts" as used in this
sentence shall not be deemed to include (i) any failure by Seller to clean,
remove, contain or otherwise remediate any condition which existed as a result
of actions which occurred prior to the Seller's period of ownership of the
Premises, and (ii) any occurrences or any environmental conditions of which
Purchaser had notice prior to the end of the Due Diligence Period. Any
provisions of this Agreement to the contrary notwithstanding, Seller shall have
no liability for any loss, damage, or abatement arising out of or in connection
with any asbestos located on the Premises except to the extent that (i) any such
loss or claim arises out of the Seller's acts or omissions during Seller's
period of ownership of the Owned Land or Xxxxxxx Leasehold, and (ii) the claim
by a third party therefor has accrued prior to or is pending as of Closing.
C. Except to the extent of Seller's retained liability under
subparagraph B of this Xxxxxxxxx 00, Xxxxxxxxx agrees and covenants that
Purchaser shall have liability for any Loss resulting from any Environmental
Claims if the event giving rise to such Environmental Claim occurred after the
Closing Date during Purchaser's period of ownership or is otherwise caused by
Purchaser. Purchaser agrees and covenants to indemnify Seller and its
respective officers, directors, principals, managers, members, agents, employees
and stockholders for any and all Environmental Claims for which Purchaser has
liability under the preceding sentence. Notwithstanding any contrary provision
set forth herein, Purchaser shall have no obligation to indemnify or hold
harmless Seller or its agents or employees with respect to any existing
environmental condition which is discovered by Purchaser during its performance
of its inspection during the Due Diligence Period.
38. 1031 EXCHANGE. Seller hereby notifies Purchaser that Seller may
consummate this transaction under the tax-deferred exchange provisions of the
Internal Revenue Code and applicable regulations. Purchaser hereby consents to
such a Closing and hereby agrees, at no out-of-pocket cost to Purchaser, to
cooperate with Seller and hereby consents that Seller shall have the right,
without any further written consent or signature by Purchaser, to (i) assign all
of Seller's right, title and interest under this Agreement to a qualified
intermediary (as defined in such regulations), and (ii) to enter into any other
Closing Documents in order to effect such a tax-deferred exchange provision;
provided that no such assignment by Seller shall relieve Seller of any of its
liabilities for any of the representations or warranties hereunder and no such
assignment shall impose on any qualified intermediary any liabilities for any of
the Seller's obligations which survive Closing hereunder. The Closing shall not
be delayed by reason of the exchange, nor shall the consummation or
accomplishment of the exchange be a condition precedent or condition subsequent
to Seller's obligations under this Agreement. Seller shall effect the exchange
through an assignment of this Agreement, or its rights under this Agreement, to
a qualified intermediary. Purchaser shall not by this agreement or acquiescence
to the exchange have its rights under this Agreement affected or diminished in
any manner, or be responsible for compliance with or be deemed to have warranted
to Seller that the exchange in fact complies with Section 1031 of the Code.
Purchaser may also effect an exchange subject to the same conditions.
39. PURCHASER'S OBLIGATIONS AFTER TERMINATION. If the Closing of this
transaction does not take place as a result of any termination by Purchaser
pursuant to any of its contingency rights set forth in this Agreement, or as a
result of any default by Purchaser or as a result of any default by Seller for
which Purchaser does not obtain specific performance: (i) such termination
shall not relieve Purchaser from any of the indemnity and non-disclosure
provisions of Paragraphs 4(a)(1),4(b) and 28 of this Agreement; (ii) Purchaser
shall deliver to Seller all originals and all copies of all of the Disclosure
Documentation which are in Purchaser's possession and which were made available
or delivered by Seller; (iii), unless the cause for the termination is a Seller
default, Purchaser shall promptly deliver to Seller a copy of all engineering
and similar reports prepared by third parties for Purchaser in connection with
its physical inspection
18
of the Parcels; and (iv), if the cause for the termination is a Purchaser
default, Purchaser shall repay Seller for the cost of the R & R
Engineers-Surveyors, Inc. Survey described in Paragraph 4(a)(2)(ii) above. In
the event of any conflict between the provisions of this paragraph and any other
parts of this Agreement, the provisions of this paragraph shall control.
40. CONFIDENTIALITY. Before Closing, Seller shall make no public
announcement or disclosure of any information related to this Agreement to
outside brokers or third parties except to real estate appraisers and as
required to complete any of Seller's obligations hereunder without the prior
written specific consent of Purchaser, which consent Purchaser shall not
unreasonably withhold or delay, except for such disclosures to Seller's lenders,
creditors, officers, employees and agents as necessary to perform Seller's
obligations hereunder. After Closing, neither party hereto shall issue (at such
party's initiation) any written press announcement in any publication disclosing
this sale without the prior written specific consent of the other party, which
consent the other party shall not unreasonably withhold or delay.
41. INFORMATION AND AUDIT COOPERATION. At Purchaser's request, at any
time before or after the Closing, so long as there is no cost or increased
liability to the Seller therefor, Seller shall provide to Purchaser's designated
agents reasonable access to any books and records of the Premises in Seller's
possession of which copies or originals have not previously been delivered or
produced to Purchaser, and shall make reasonably available to such designated
agents any related information, not already in Purchaser's possession, regarding
the period for which Purchaser is required to have the Premises audited under
tax or other applicable laws, and Seller shall provide to such agents a
representation letter regarding such books and records of the Premises in
connection with the normal course of auditing the Premises in accordance with
generally accepted auditing standards.
42. FURTHER ASSURANCES. So long as there is no further cost or increased
liability to the performing party, in addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered by either
party at Closing, each party agrees to perform, execute and deliver, on or after
the Closing any further actions, documents, and will obtain such consents, as
may be reasonably necessary or as may be reasonably requested to fully
effectuate the purposes, terms and conditions of this Agreement or to further
perfect the conveyance, transfer and assignment of the Premises to Purchaser.
43. HEADINGS. The article and paragraph headings of this Agreement are
for convenience only and in no way limit or enlarge the scope or meaning of the
language hereof.
44. INDEMNIFICATIONS. Except as to obligations assumed by Purchaser under
this Agreement or the closing documents executed pursuant hereto, Seller shall
indemnify and hold Purchaser, its successors, assigns and agents, harmless from
and against all losses, claims, damages, liabilities, expenses (including
without limitation attorneys' fees and costs), fees, actions or rights of action
incurred by Purchaser as a result of or arising, directly or indirectly, from
(i) any claim by an employee, if any, employed by Seller in the operation of the
Premises whose employment was not continued after Closing by Purchaser or whose
claim arose prior to the Closing Date; (ii) any claim by any tenant of the
Premises in connection with any Lease attributed to periods prior to Closing;
and (iii) any claim by any person arising from or attributable to any action
which occurred prior to the Closing.
Except as to obligations assumed by Seller under this Agreement or the
Closing Documents executed pursuant hereto, Purchaser shall indemnify and hold
Seller, its successors, assigns and agents, harmless from and against all
losses, claims, damages, liabilities, expenses (including without limitation
attorneys' fees and costs), fees, actions or rights of action incurred by Seller
as a result of or arising, directly or indirectly, from (i) any claim by an
employee, if any, employed by Purchaser in the operation of the Premises or
whose claim arose after the Closing Date; (ii) any claim by any tenant of the
Premises in connection with any Lease attributed to periods after Closing; and
(iii) any claim by any person arising from or attributable to any action which
occurred after the Closing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SELLER:
JAD PROPERTIES, LLC,
A COLORADO LIMITED LIABILITY COMPANY
Name:
-------------------------------
By:
---------------------------------
Title: Manager
------------------------------
Date:
------------------------------
PURCHASER:
XXXX-XXXX REALTY L.P.,
19
A DELAWARE LIMITED PARTNERSHIP
Name:
-------------------------------
By:
---------------------------------
Title:
------------------------------
Date:
------------------------------
20
EXHIBIT A
LEGAL DESCRIPTION FOR
000 XXXXX XXXXXXXX XXXXXXXXX
XXXXXXX X
PERMITTED EXCEPTIONS
1) Taxes and assessments for the year 1998 and subsequent years, not yet due
and payable.
2) All matters of record deemed approved by Purchaser pursuant to the Purchase
Agreement.
3) All Leases and tenancies shown on the Rent Roll and deemed approved by
Purchaser in accordance with the Purchase Agreement.
EXHIBIT C
BUILDING SERVICE AGREEMENTS
Delivered with Disclosure Documents
EXHIBIT D
PERSONAL PROPERTY
Inventory was delivered as part of Disclosure Documentation.
EXHIBIT E
ESCROW INSTRUCTIONS
To be finalized between Seller, Purchaser and the Title Agent during the
Due Diligence Period.
E-1
EXHIBIT F
SPECIAL WARRANTY DEED
JAD PROPERTIES, LLC, A COLORADO LIMITED LIABILITY COMPANY ("GRANTOR") whose
address is 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxx and County of Xxxxxx, Xxxxx xx
Xxxxxxxx 00000, for the consideration of Ten and no/100 Dollars ($10.00) in hand
paid hereby sells and conveys to XXXX-XXXX REALTY L.P., A DELAWARE LIMITED
PARTNERSHIP, whose address is
, County of , State of Colorado , the following
real property in the City of Glendale, County of Arapahoe, to wit:
(a) the real property described on EXHIBIT A attached hereto, with all its
appurtenances;
(b) all existing improvements and fixtures located on the Real Property
described in Exhibit A and on the real property which is the subject of a
certain lease dated September 21, 1977 by and between Xxxxxxx X. Xxxxxxx and
Xxxxxxx X. Xxxxxxx as lessors and Xxxxxx Xxxxx Chevrolet Co., a Colorado
corporation, as lessee, as amended, but not including the improvements and
fixtures located on the Real Property which is demised by the Ground Lease
Agreement dated January 24, 1992 by and between the Abacus Group Realty Holding
Co. II, a Delaware corporation, and RCI West, Inc., a Colorado corporation, as
amended;
and Grantor warrants the title to same against all persons claiming under
Grantor, subject to those items set forth on EXHIBIT B attached hereto.
IN WITNESS WHEREOF, the Grantor has hereunder set its hand as of the
day of , 1998.
JAD PROPERTIES, LLC,
A COLORADO LIMITED LIABILITY COMPANY
Name:
-------------------------------
By:
---------------------------------
Title: Manager
------------------------------
Date:
------------------------------
STATE OF COLORADO )
) SS.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this . . . . . . . day
of , 1998, by as a Manager of
JAD Properties, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires: .
-------------------------------
-----------------------------------------------------------------
Notary Public in and for the State of Colorado, County of Denver
(SEAL)
EXHIBIT G
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS:
That JAD PROPERTIES, LLC, A COLORADO LIMITED LIABILITY COMPANY ("GRANTOR"),
for and in consideration of the sum of Ten Dollars ($10.00) lawful money of the
United States of America, and other good and valuable consideration to it in
hand paid by XXXX-XXXX REALTY L.P., A DELAWARE LIMITED PARTNERSHIP ("GRANTEE"),
the receipt thereof is hereby acknowledged, does by these presents, remise,
release, sell, assign, transfer, convey and quitclaim unto the Grantee, its
successors and assigns, all right, title and interest which the Grantor has in
and to all electrical fixtures, systems and equipment, plumbing fixtures,
systems and equipment, heating fixtures, systems and equipment, air conditioning
fixtures, systems and equipment, and other improvements, machinery, equipment,
fixtures, appliances, furniture, furnishings, supplies and items of personal
property owned by the Grantor and used in connection with the operation and
maintenance of and located on that certain parcel of real property more
particularly described on EXHIBIT A attached hereto and incorporated herein by
this reference, commonly known as 000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx,
Xxxxxxxx (the "REAL PROPERTY"), including, without limitation, those items
listed on EXHIBIT B attached hereto (the "PERSONAL PROPERTY"), but excepting
therefrom any furniture, furnishings, fixtures, business equipment or articles
of personal property belonging to tenants occupying any portion of the Premises
or belonging to the landlords under the Xxxxxxx Lease, and ALL SUBJECT TO the
matters set forth on EXHIBIT C attached hereto (the "PERMITTED EXCEPTIONS").
TO HAVE AND TO HOLD the same to said Grantee, its successors and assigns
forever. The Personal Property is conveyed to Grantee "as is", "where is"
without warranty of quality, condition, merchantability, or fitness, or any
other warranty, or representation of any kind whatsoever, express or implied;
provided that the Grantor, for itself, its successors and assigns, does covenant
and agree that it shall and will WARRANT AND FOREVER DEFEND the Personal
Property in the quiet and peaceable possession of Grantee, its successors and
assigns, against all and every person or persons claiming the whole or any part
thereof, by, through or under the Grantor, except for the Permitted Exceptions.
IN WITNESS WHEREOF, the Grantor has hereunder set its hand as of the
day of , 1998.
JAD PROPERTIES, LLC,
A COLORADO LIMITED LIABILITY COMPANY
Name:
-------------------------------
By:
---------------------------------
Title: Manager
------------------------------
Date:
------------------------------
EXHIBIT H
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this "ASSIGNMENT") is made by
and between ________________________________("ASSIGNOR"), and _________________
("ASSIGNEE").
RECITALS
A. Pursuant to a certain Real Estate Purchase and Sale Agreement dated
March , 1998 (the "REAL ESTATE PURCHASE AND SALE AGREEMENT"),
concurrently with the execution and delivery of this Assignment, Assignor is
conveying to Assignee by Special Warranty Deed (the "DEED") that certain tract
of land (the "OWNED LAND") more specifically described in EXHIBIT A attached
hereto and made a part hereof for all purposes, together with the improvements
located thereon (the "IMPROVEMENTS") and certain personal property owned by
Assignor upon the Owned Land within the Improvements (the "PERSONAL PROPERTY").
B. Assignor desires to assign, transfer and convey to Assignee, and
Assignee desires to obtain, all of Assignor's right, title and interest in and
to the Contracts (as hereinafter defined), subject to the terms and conditions
set forth herein.
NOW THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration to Assignor in hand
paid by Assignee, the receipt and sufficiency of which are hereby acknowledged,
Assignor does hereby SELL, ASSIGN, CONVEY, TRANSFER, SET-OVER and DELIVER unto
Assignee all of Assignor's right, title and interest in and to the following
(collectively the "CONTRACTS"):
(a) all leases, licenses and other written agreements pursuant to which
any portion of the Owned Land or Improvements is used or occupied by anyone
other than Assignor including all security deposits and non-cash security
provided with respect to such Leases (collectively, the "LEASES"), such Leases
being more particularly described in EXHIBIT B attached hereto and made a part
hereof; provided, however, that Assignor reserves and retains for itself all
accounts receivable accruing to Assignor with respect to the Leases prior to the
effective date hereof; and
(b) all contracts and agreements relating to the upkeep, repair,
maintenance or operation of the Owned Land, Improvements or Personal Property
(collectively, the "SERVICE AGREEMENTS"), such Service Agreements being more
particularly described on EXHIBIT C; and
(c) all Intangible Property owned by Assignor and used in connection with
the Owned Land, Improvements and Personal Property, including, without
limitation, the name "400 SOUTH COLORADO BOULEVARD" and any and all other
trademarks and trade names, logos and trade colors used in connection with any
part of the Owned Land and Improvements, and all plans, specifications, and
studies, if any, in the possession of Assignor in connection with the
Improvements, all rights, interests, claims, minerals and mineral rights, water
and water rights, if any, hereditaments, privileges, tenements and appurtenances
belonging to the Owned Land, all right, title and interest of Assignor in and to
all open or proposed xxxxxxxx, xxxxxxx, xxxxx, xxxxxxx, alleys, curb cuts,
sidewalks, sewers, utilities, easements, strips, gores and rights-of-way in, on,
across, in front of, contiguous to, abutting or adjoining the Owned Land, all
licenses, certificates of occupancy, permits and warranties now in effect with
respect to the Owned Land, Improvements and Personal Property, and all rights of
Assignor under all equipment leases relating to equipment or property located
upon the Premises (the "INTANGIBLE PROPERTY"); and
(d) all water and water rights, if any, appurtenant or belonging to the
Owned Land (the "WATER RIGHTS").
This Assignment is made by Assignor and accepted by Assignee subject to the
"PERMITTED EXCEPTIONS" described in the Deed, to the extent, if any, that same
are validly existing and affect the Contracts and Intangible Property.
By execution of this Assignment, Assignee assumes and agrees to perform all
of the covenants, agreements and obligations under the Contracts binding on
Assignor or the Owned Land, Improvements, or Personal Property (such covenants,
agreements and obligations being herein collectively referred to as the
"CONTRACTUAL OBLIGATIONS"), as such Contractual Obligations shall arise from and
after the date of this Assignment. Assignee hereby agrees to indemnify, hold
harmless and defend Assignor from and against any and all third party
obligations, liabilities, costs and claims (including reasonable attorneys'
fees) arising as a result of or with respect to any of the Contractual
Obligations that are attributable to the period of time from and after the date
of this Assignment.
Assignor agrees to indemnify, hold harmless and defend Assignee from and
against any and all third party obligations, liabilities, costs and claims
(including reasonable attorneys' fees), arising as a result of or with respect
to any of the Contractual Obligations that are attributable to the period of
time prior to the date of this Assignment.
ASSIGNEE ACKNOWLEDGES THAT IT HAS INSPECTED THE CONTRACTS AND THAT THIS
ASSIGNMENT IS MADE BY ASSIGNOR AND ACCEPTED BY ASSIGNEE WITHOUT REPRESENTATION
OR
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, AND WITHOUT RECOURSE
AGAINST ASSIGNOR, EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN THE REAL ESTATE
PURCHASE AND SALE AGREEMENT. THE PARTIES INTEND THAT THIS ASSIGNMENT AND
ASSUMPTION OF CONTRACTS BE CONSTRUED CONSISTENTLY WITH THE REAL ESTATE PURCHASE
AND SALE AGREEMENT, AND NOT SO AS TO MODIFY THE PARTIES' RIGHTS THEREUNDER.
TO HAVE AND TO HOLD all and singular the Contracts unto Assignee, its
successors and assigns, and Assignor does hereby bind itself and its successors
to WARRANT AND FOREVER defend all and singular the Contracts (except the Water
Rights) unto Assignee, its successors and assigns, against every person
whomsoever lawfully claiming or attempting to claim the same, or any part
thereof, by, through, or under Assignor, but not otherwise, subject to the
Permitted Exceptions described in the Deed.
In the event of a default under this Assignment and Assumption of
Contracts, the defaulting party agrees to pay all attorneys' fees and costs
incurred by the non-defaulting party.
This Assignment and Assumption of Contracts shall be governed according to
the laws of the State of Colorado.
EXECUTED to be effective as of the day of , 1998.
ASSIGNOR:
JAD PROPERTIES, LLC,
A COLORADO LIMITED PARTNERSHIP
Name:
-------------------------------
By:
---------------------------------
Title: Manager
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Date:
------------------------------
ASSIGNEE:
XXXX-XXXX REALTY L.P.,
A DELAWARE LIMITED PARTNERSHIP
Name:
-------------------------------
By:
---------------------------------
Title:
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Date:
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EXHIBIT I
TENANT ESTOPPEL CERTIFICATE
(PLEASE COMPLETE ALL BLANKS)
_____________, 1998
Xxxx-Xxxx Realty L.P.
Denver, Colorado,
RE: Lease dated __________, 199__ (the "LEASE") between
________________________ ("LANDLORD") and ___________________________
("TENANT"), for premises located at 000 Xxxxx Xxxxxxxx Xxxxxxxxx,
Xxxxx _________, Xxxxxxxx, Xxxxxxxx 00000.
Gentlemen:
The undersigned Tenant understands that you or your assigns intend to
acquire that office property located at 000 Xxxxx Xxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx (the "PROPERTY") from JAD Properties, LLC. The undersigned Tenant
understands that you or your assigns will rely upon the certifications contained
herein in connection with the purchase of the Property. The undersigned Tenant
does hereby certify to you as follows:
A. Tenant currently leases in the Property certain premises containing
approximately _________ square feet ("PREMISES") commonly known as "Suite
______," pursuant to the terms and conditions of the Lease, dated
____________, between Landlord and Tenant, [as amended by ________________]
(collectively, the "LEASE"). A true, correct and complete copy of the
Lease is attached hereto as EXHIBIT A. Except for the Lease, there are no
agreements (written or oral) or documents which are binding on Landlord in
connection with the lease of the Premises. The Lease is in full force and
effect, has not been modified, supplemented, or amended except as set forth
above, and contains the entire understanding and agreement between Tenant
and Landlord concerning the premises demised under the Lease.
B. Tenant has not given Landlord written notice (i) of any dispute
between Landlord and Tenant or (ii) that Tenant considers Landlord in
default under the Lease. Tenant is not, and to the best of Tenant's
knowledge, Landlord is not, in default under the Lease nor has any
event occurred which with the passage of time or giving of notice
would constitute a default, both parties having performed their
obligations under the Lease.
C. Tenant does not claim any offsets or credits or defenses against the
payment of rents or any other charges payable, or the performance of
any other obligations by Tenant, under the Lease.
D. Tenant has not paid a security or other deposit with respect to the
Lease, except as follows:
E. Tenant has fully paid rent through the month of . The
current monthly Base Rent payment payable under the Lease is
$___________. The monthly payment for estimated escalations on
account of taxes, operating and other pass-through expenses over the
Base Year payable under the Lease is currently $__________. Tenant's
percentage share of taxes, operating expenses and other pass-through
taxes is _______%. Tenant's operating expense base year is
__________. No free rent, partial rent, rent rebate, tenant
improvement allowance or credit for improvements or other tenant
concessions remain outstanding or unrealized except:
F. Tenant has not paid any monthly Base Rent or other amounts payable
under the Lease in advance except for the current month of
, 1998.
G. The Lease shall remain in full force and effect through
, and the Tenant has no options to renew or extend or terminate
the term of the Lease or increase or decrease the size of the Premises
except as expressly provided in the Lease.
H. Tenant has no options, rights of first offer or rights of first
refusal to purchase the Property.
I. Tenant has not assigned its rights under the Lease or sublet any
portion of the leased premises, except as follows:
___________________________________________________________________________
J. Landlord has delivered possession of the Premises to Tenant, and Tenant has
accepted possession of, and currently occupies, the Premises. The Premises
were at the time of delivery of possession and are currently in good order
and repair, and Tenant has no claims against Landlord with respect to the
condition of the Premises
or the Property. All work to be performed by Landlord for Tenant under the
Lease has been performed and accepted as satisfactory by Tenant, and all
allowances payable to Tenant by Landlord or credits or abatements claimed
by Tenant have been paid, except for:
K. Tenant is not the subject of any bankruptcy, insolvency or similar
proceeding in any federal, state or other court or jurisdiction.
L. Tenant (i) is not presently engaged in nor does it presently permit; (ii)
has not at any time in the past engaged in or permitted, and (iii) has no
knowledge that any third person or entity has engaged in or permitted any
operations or activities upon, or any use or occupancy of the Premises, or
any portion thereof, for the purpose of or in any way involving the
handling, manufacturing, treatment, storage, use, transportation, spillage,
leakage, dumping, discharge or disposal (whether legal or illegal,
accidental or intentional) of any radioactive, toxic or hazardous
substances, materials or wastes, or any wastes regulated under any local,
state or federal law.
M. Tenant will attorn to and recognize __________ or its nominee or assignee
as the Landlord under the Lease and will pay all rents and other amounts
due thereunder to such party upon notice to Tenant that such party has
become the owner of Landlord's interest in the Premises under the Lease.
N. The individual executing this Tenant Estoppel Certificate has the authority
to do so on behalf of Tenant and to bind Tenant to the terms hereof.
TENANT:
------------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
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Date:
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EXHIBIT J
STANDARD LIEN AFFIDAVIT
To be finalized between Seller, Purchaser and the Title Company during the
Due Diligence Period.
EXHIBIT K
SPECIAL WARRANTY
ASSIGNMENT AND ASSUMPTION OF GROUND LEASE
THIS ASSIGNMENT dated as of _______________, 1998, is entered into by and
between JAD PROPERTIES, LLC, A COLORADO LIMITED LIABILITY COMPANY ("SELLER") and
XXXX-XXXX REALTY L.P., A DELAWARE LIMITED PARTNERSHIP ("PURCHASER").
RECITALS
A. Seller is the landlord under a Lease dated September 21, 1977, which
was originally executed by and between Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx
and Xxxxxx Xxxxx Chevrolet Co., a Colorado corporation, as amended (the
"LEASE"); and
B. The Lease demises the real property more particularly described on
EXHIBIT A attached hereto and made a part hereof (the "PROPERTY"); and
C. Seller has agreed to assign all of its right, title and interest in
and to the Lease to Purchaser and Purchaser has agreed to assume Seller's
obligations under the Lease, pursuant to that certain Real Estate Purchase and
Sale Agreement dated Xxxxx 00, 0000 ("xxx SALES AGREEMENT").
COVENANTS
NOW, THEREFORE, in consideration of the promises and conditions contained
herein, the parties hereby agree as follows:
1. Seller hereby assigns to Purchaser all of Seller's right, title and
interest as landlord in and to the Lease and warrants title to the same against
all persons claiming under Seller, subject to those exceptions shown on EXHIBIT
B attached hereto and made a part hereof.
2. Purchaser hereby assumes all of the landlord's obligations under the
Lease and shall defend, protect, indemnify and hold harmless Seller from any
claims and/or damages arising from or relating to the Lease on or after the date
hereof.
3. Seller agrees to indemnify and hold harmless Purchaser from any claims
and/or damages arising from or relating under the Lease that accrue prior to the
date hereof.
4. This Assignment is made without any warranties or representations,
express or implied, except otherwise expressly as set forth in this Assignment
and/or the Sales Agreement.
5. This Assignment shall be binding on and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors in interest
and assigns.
IN WITNESS WHEREOF, the parties have caused these presents to be executed
on the day and year first above written.
JAD PROPERTIES, LLC
A COLORADO LIMITED LIABILITY COMPANY
Name:
-------------------------------
By:
---------------------------------
Title: Manager
------------------------------
Date:
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XXXX-XXXX REALTY, L.P.,
A DELAWARE LIMITED PARTNERSHIP
Name:
-------------------------------
By:
---------------------------------
Title: Manager
------------------------------
Date:
------------------------------
STATE OF COLORADO )
) SS.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this ______ day of
________________, 1998, by _____________________ as a Manager of JAD Properties,
LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires: .
------------------
----------------------------------------------------------------
Notary Public in and for the State of Colorado, County of Denver
(SEAL)
STATE OF )
) SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of
_________________________, 1998, by ______________________ as _________________
of Xxxx-Xxxx Realty L.P., a Delaware limited partnership.
Witness my hand and official seal.
My commission expires:
-----------------------
---------------------------------------------------------------------
Notary Public in and for the State of __________, County of _________
(SEAL)
Page 2 of 2-page Special Warranty Assignment and Assumption of Ground
Lease dated as of _______________,
1998, entered into by and between JAD Properties, LLC, as Seller, and
Xxxx-Xxxx Realty L.P., as Purchaser.
EXHIBIT L
XXXXXXX ESTOPPEL CERTIFICATE
Dated:
--------------------
JAD Properties, LLC
c/o Integrated Property Management, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Re: Ground Lease dated September 21, 1977, originally by and between Xxxxxxx X.
Xxxxxxx and Xxxxxxx X. Xxxxxxx (collectively the "LANDLORDS") and Xxxxxx
Xxxxx Chevrolet Co., a Colorado corporation as the original tenant, as
modified by the Addendum thereto dated April 25, 1983 (collectively
referred to herein as the "GROUND LEASE"), and under which JAD Properties,
LLC is the current "Tenant".
Gentlemen:
We hereby warrant and represent with respect to the above-captioned Ground
Lease:
1. There is presently in existence a valid Ground Lease pertaining to the
vacant land situate, lying and being in the County of Arapahoe, State
of Colorado, and described more particularly as the "XXXXXXX LEASE
PARCEL" attached to the Ground Lease, consisting of approximately 1.74
acres of land (the "PROPERTY").
2. The current term of the Ground Lease commenced on April 1, 1983, and
is scheduled to expire on March 31, 2018, subject to renewal for up to
four (4) additional terms of ten (10) years each.
3. The Ground Lease, a true and correct copy of which is attached hereto
as EXHIBIT A, constitutes the entire agreement between Tenant and
Landlords, and no other agreement exists with respect to the Property.
4. The Ground Lease is in full force and effect and there have been no
defaults by either the Landlords or Tenant thereunder. The Landlords
and Tenant have no obligations or duties with respect to the Property
other than as set forth in the Lease.
5. The current minimum monthly rent in the amount of ____________________
($ ) is due on the 1st day of each month from _________________
through _________________ and has been paid to and including
__________________. As of ____________________, the base rent shall
be _________________ ($ ) per annum. Such rental is
subject to increase as set forth more fully in paragraph 3 of the
Addendum to the Ground Lease.
6. Tenant has been granted under the Ground Lease an option to purchase
the Property by giving written notice of intent to purchase within
sixty (60) days after the end of the primary lease term or within
sixty (60) days after the end of any option term, upon the terms and
conditions set forth in paragraph 5 of the Addendum to Ground Lease.
7. We have been informed that JAD Properties, LLC ("JAD"), is intending
to sell the Property to Xxxx-Xxxx Realty L.P. ("XXXX-XXXX"). Such a
sale will not constitute a default under the Ground Lease.
This Certificate is being executed and delivered to you incident to the
Sale Agreement between JAD and Xxxx-Xxxx. It is intended that you and Xxxx-Xxxx
may rely upon the information contained herein in consummating said transaction.
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Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
EXHIBIT M
RENT ROLL
RENT ROLL WAS PROVIDED BY SELLER AS PART OF DISCLOSURE DOCUMENTATION
