PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
Exhibit 10.1
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
THIS PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS (“Agreement”) is made and effective as of the
date Seller executes this Agreement (“Effective Date”), by and between NNN 3500 Maple VF 2003,
LLC, a Delaware limited liability company (“Seller”), and NNN 3500 Maple, LLC, a Delaware limited
liability company (“Buyer”), with reference to the facts set forth below. All terms with initial
capital letters not otherwise defined herein shall have the meanings set forth in the Defined Terms
attached hereto as Exhibit “B” and incorporated herein.
RECITALS
A. Seller purchased an undivided tenant in common interest in that certain real property,
commonly known as 3500 Maple located in Dallas, Texas, as more particularly described in Exhibit
“A” attached hereto and incorporated herein and all the improvements situated thereon (“Property”).
B. Seller desires to sell an undivided interest in the Property to Buyer, and Buyer desires to
buy an undivided interest in the Property from Seller, on the terms and conditions set forth in
this Agreement.
C. The Property is subject to the Deed of Trust and the other Loan Documents. Buyer shall
assume or acquire the Property subject to the Deed of Trust and the other Loan Documents.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein and for other
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
agree as set forth below.
1. Agreement of Purchase and Sale.
1.1 Purchase, Sale and Purchase Price. In consideration of the covenants herein
contained, Seller hereby agrees to sell, and Buyer hereby agrees to purchase, a 53.748% undivided
tenancy in common interest in the Property (the “Interest”) at a purchase price (“Purchase Price”)
equal to $36,011,160, of which $10,749,600 shall be Cash paid into Escrow and $25,261,560 shall be
assumption of the Loan on a joint and several basis (based on a total Purchase Price of $670,000,
being $200,000 of equity and $470,000 of assumed debt for each one percent (1%) undivided interest
in the Property to be acquired).
| /s/RH | /s/LR | |||||
| Seller’s Initials | Buyer’s Initials |
1.2 Payment. Buyer shall pay the Purchase Price as follows:
1.2.1 Buyer’s Deposit. Buyer will be required, within five (5) days of executing and
returning the Purchase Agreement and Escrow Instructions, to submit $1.00 of Buyer’s equity
investment (“Buyers Deposit”). Upon Opening of Escrow, Buyer’s Deposit shall be placed by Escrow
Agent in a non-interest bearing account. However, Buyer’s Deposit may be retained by the Manager
(together with interest accrued thereon) as liquidated damages in accordance with Section 6.1.
Buyer shall not receive any interest on Buyer’s Deposit unless and until Seller accepts Buyer’s
offer and the Opening of Escrow occurs.
1.2.2 Cash Portion of the Purchase Price. Buyer shall deposit into Escrow the cash
portion of the Purchase Price (“Cash Portion”), plus the amount, if any, required of Buyer under
Section 4 or any other provision of this Agreement, at least five (5) Business Days before the
Close of Escrow.
1.2.3 Note and Deed of Trust. With respect to the remaining balance of the Purchase
Price (“Loan Portion”), Buyer shall assume or take the Interest subject to the Deed of Trust and
the other Loan Documents pursuant to the Loan Assumption Documents. In the event Buyer takes title
subject to the loan, Buyer and Seller are aware that terms and conditions contained in said
existing loan of record may provide for payment in
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full and/or modification of terms and conditions therein in the event of sale or transfer of
subject property to another entity, and therefore the parties do jointly and individually, hold
escrow holder free of any and all liability whatsoever with respect to these instructions if any
controversy regarding same should arise at any future date. Within five (5) days after Seller’s
request, Buyer shall submit applications, financial information and other items required by the
Lender in connection with Buyer’s assumption of the Loan Documents.
1.3 Buyer’s Deliveries. Concurrently with delivery of Buyer’s Deposit or as soon
thereafter as requested by Seller, Buyer shall execute, acknowledge (where appropriate) and deposit
into Escrow such other documents as may be required by the Transaction Documents or requested by
the Lender or Escrow Agent.
2. Opening and Close of Escrow.
2.1 Opening of Escrow. Upon execution of this Agreement by Seller, Buyer and Seller
shall open Escrow by depositing with Escrow Agent a fully executed original of this Agreement for
use as escrow instructions. Escrow Agent shall execute the Consent of Escrow Agent at the end of
this Agreement and deliver a fully executed consent to Buyer and Seller. If there is any
inconsistency between the provisions of the General Conditions and this Agreement, the provisions
of this Agreement shall control. Buyer and Seller agree to execute additional escrow instructions
not inconsistent with the terms of this Agreement if reasonably required by Escrow Agent.
2.2 Seller’s Deliveries. Prior to the Close of Escrow, Seller shall execute,
acknowledge (where appropriate) and deposit into Escrow applicable certificates regarding federal
and state withholding taxes, a grant deed (“Grant Deed”) in the appropriate form conveying the
Interest to Buyer and a general assignment (the “General Assignment”) of all leases, contracts,
and, if applicable, any personal property and intangibles.
2.3 Close of Escrow. Escrow shall close on or before October 16, 2006 by: (i) filing
for record the Grant Deed, the Loan Assumption Documents and such other documents as may be
necessary to procure Buyer’s Title Policy (as defined below) and (ii) delivering funds, the General
Assignment and other documents as set forth in Section 5 IF AND ONLY IF (a) all funds and
instruments required pursuant to Sections 1 and 2 have been delivered to Escrow Agent; and (b) each
of the conditions precedent set forth in Section 3 has been, or upon such closing shall be,
satisfied or waived as provided in Section 3. Escrow Agent is instructed to insert the Closing
Date as the date of the Grant Deed and the other Transaction Documents.
2.4 Latest Closing. If Escrow has not closed by 5:00 p.m. on the Business Day after
the Closing Date, for any reason other than the default of either Buyer or Seller under this
Agreement, either party who is not then in default may terminate Escrow and this Agreement by
written notice to the other party and to Escrow Agent. If this Agreement is so terminated for any
reason other than the default of Buyer or Seller hereunder, (i) Buyer and Seller shall promptly
execute and deliver any cancellation instructions reasonably requested by Escrow Agent; (ii) Escrow
Agent shall return Buyer’s Deposit (and all interest accrued thereon) to Buyer; and (iii) Buyer and
Seller shall be released from their obligations under this Agreement, other than any obligations of
Buyer that survive termination of this Agreement. If all conditions to the Close of Escrow have
been satisfied or waived by the Closing Date and Buyer fails to close Escrow, Seller shall, in
addition to any other rights or remedies which Seller may have, be entitled to retain Buyer’s
Deposit pursuant to Section 6 and to terminate this Agreement and, upon such termination, Seller
shall be released from all obligations under this Agreement.
3. Conditions to Closing.
3.1 Closing Conditions. This Agreement and the obligations of the parties hereunder
are subject to satisfaction or waiver (by the party in whose favor the condition precedent has been
established) of all the conditions precedent set forth below.
3.1.1 Review of Preliminary Report. Prior to the date hereof, Seller has reviewed on
behalf of the Buyer and approved the Preliminary Report, the Permitted Exceptions and copies of all
recorded documents described in the Preliminary Report. If any new exceptions to title appear of
record prior to the Closing Date, Escrow Agent shall deliver to Seller and Buyer a supplemental
preliminary report (“Supplemental Report”)
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issued by Title Company, together with legible copies of all recorded documents. Buyer shall
have three (3) Business Days to review and deliver to Seller and Escrow Agent notice of approval or
disapproval of any Supplemental Report; provided, however, that Buyer shall not unreasonably
withhold its approval of any items, including, without limitation, easements, rights-of-way and
other matters which do not have a material and adverse impact on the value of the Interest.
Buyer’s failure to deliver notice of disapproval shall be deemed to be Buyer’s approval of any
Supplemental Report. If Buyer delivers notice of disapproval and Seller elects in its sole
discretion to do so, within five (5) Business Days of the delivery of Buyer’s notice, Seller may
elect by written notice to Buyer to remove (or otherwise cure in a manner reasonably satisfactory
to Buyer) any disapproved items at or prior to the Closing Date. If Seller does not deliver such
written notice to Buyer, Seller shall be deemed to have elected not to remove (or otherwise cure)
the disapproved items. If Seller elects not to remove any such item(s), Buyer may either waive its
prior disapproval or terminate this Agreement by delivering a written notice of termination to
Seller within three (3) Business Days after Seller’s election. If Buyer does not elect to
terminate this Agreement as provided above, Buyer shall be deemed to have waived its disapproval.
If Buyer so delivers notice of its election to terminate this Agreement, then this Agreement shall
terminate as provided in Section 2.4 above.
3.1.2 Title Insurance. The Title Company shall be unconditionally committed to issue,
immediately following recording of the Grant Deed, a customary policy of title insurance (“Title
Policy”), with liability in the amount of the Purchase Price and insuring fee title to the Interest
vested in Buyer. Buyer shall take title to the Interest subject to the Permitted Exceptions.
3.1.3 Intentionally deleted.
3.2 Failure of Conditions Precedent. Sections 3.1.1 and 3.1.2 are for Buyer’s benefit
and may only be waived by Buyer. Section 3.1.3 is for the mutual benefit of the parties and may
only be waived by both Seller and Buyer. If any of the foregoing conditions precedent are neither
satisfied nor waived by the Closing Date, then either party, if not then in default hereunder, may
terminate the Escrow and this Agreement in accordance with Section 2.4.
3.3 Rescission Rights. Buyer may terminate this Agreement and obtain a return of
Buyer’s Deposit if he receives from the Manager, subsequent to the date hereof, an environmental
assessment, an engineering report, or Loan Documents for the Property or modifications or
amendments of any of the Transaction Documents that, in Buyer’s sole reasonable discretion,
contains information that shows that the purchase of Interests is not appropriate for Buyer. Any
such termination notice shall be given within three (3) days after receipt of the applicable
document or will be deemed waived.
4. Prorations, Fees and Costs.
4.1 Prorations. There shall be no prorations of taxes, rental payments or other
expenses between Seller and Buyer.
4.2 Buyer’s Fees and Costs. Buyer will pay: (a) Escrow Agent’s Escrow fee for the
sale of the Interest, (b) all document-drafting and recording charges, (c) a loan fee in the amount
of one percent (1%) of the Loan Portion of the Purchase Price (the “Loan Fee”) and other lender
related charges, including processing and legal fees, if any, (d) the cost of the Title Policy and
any title endorsements Buyer requests from the Title Company, and (e) City/County Documentary
Transfer Tax or similar charges in the amount Escrow Agent determines to be required by law. In
addition, Buyer will credit Seller for other costs incurred by Seller. The total fees, costs and
credit from Buyer will be approximately $868,000 and are to be determined on the Closing Date. Any
final True Up between Buyer and Seller will take place after the Closing Date and outside of
escrow.
4.3 Escrow Cancellation and Title Charges. If Escrow fails to close due to Buyer’s
default under this Agreement, Buyer shall pay all escrow cancellation and title charges. If Escrow
fails to close for any other reason other than the foregoing, Seller shall pay any escrow
cancellation and title charges.
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5. Distribution of Funds and Documents.
5.1 Deposit of Funds. After the Opening of Escrow, all cash, if any, received
hereunder by Escrow Agent shall, until the Close of Escrow, be kept on deposit with other escrow
funds in Escrow Agent’s general escrow account(s), in any state or national bank, and may be
transferred to any other such general escrow account(s).
5.2 Disbursements. Escrow Agent at the Close of Escrow will hold for personal pickup,
or if requested, wire transfer to an account designated by the party receiving such funds, the
following: (i) to Seller, or order, the Cash Portion of the Purchase Price, plus any proration or
other credits to which Seller will be entitled less any appropriate proration or other charges due
Buyer, (ii) to Seller or Lender, the Loan Fee and (iii) to Buyer, or order, Buyer’s Deposit and any
excess funds previously delivered to Escrow Agent by Buyer. All other disbursements by Escrow
Agent shall be made by checks of Escrow Agent.
5.3 Recorded Documents. Escrow Agent will cause the County or City Recorder to mail
the Grant Deed (and each other document which is herein expressed to be, or by general usage is,
recorded) after recordation, to the grantee, beneficiary or person (i) acquiring rights under said
document or (ii) for whose benefit the document was acquired. At the Close of Escrow, Escrow Agent
will deliver to Seller a copy (conformed to show recording date) of the Grant Deed and each
document recorded to place title in the condition required by this Agreement.
5.4 Unrecorded Documents. At the Close of Escrow, Escrow Agent will deliver by United
States mail (or will hold for personal pickup, if requested) each nonrecorded document received
hereunder by Escrow Agent to the payee or person acquiring rights under said document or for whose
benefit said document was acquired.
6. Default.
6.1 LIQUIDATED DAMAGES. IF ESCROW FAILS TO CLOSE DUE TO BUYER’S DEFAULT, IT IS AGREED
THAT THE AMOUNT OF BUYER’S DEPOSIT (TOGETHER WITH INTEREST THEREON) SHALL BE RETAINED AND ACCEPTED
BY MANAGER AS LIQUIDATED DAMAGES AND NOT AS A PENALTY AND SELLER SHALL BE RELEASED FROM ITS
OBLIGATION OF SELLING THE INTEREST TO BUYER. IT IS AGREED THAT SAID AMOUNT CONSTITUTES A
REASONABLE ESTIMATE OF THE DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTION 1671 ET SEQ.
THE PARTIES FURTHER ACKNOWLEDGE AND AGREE THAT THE AMOUNT OF LIQUIDATED DAMAGES IS FAIR AND
REASONABLE CONSIDERING ALL OF THE FACTS AND CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT,
INCLUDING THE RELATIONSHIP OF SUCH AMOUNT TO THE RANGE OF HARM TO SELLER THAT COULD BE ANTICIPATED,
AND THE ANTICIPATION THAT PROOF OF CAUSATION, FORESEEABILITY AND ACTUAL DAMAGES WOULD BE COSTLY
AND/OR IMPRACTICAL. BUYER AND SELLER AGREE THAT IT IS IMPOSSIBLE OR IMPRACTICAL TO PRESENTLY
PREDICT WHAT MONETARY DAMAGES WOULD BE SUFFERED IN SUCH EVENT. BUYER DESIRES TO LIMIT THE MONETARY
DAMAGES FOR WHICH BUYER MIGHT BE LIABLE HEREUNDER AND BUYER AND SELLER AND MANAGER DESIRE TO AVOID
THE COSTS AND DELAYS THEY WOULD INCUR IF A LAWSUIT WERE COMMENCED TO COLLECT DAMAGES AND THEREFORE
AGREE THAT SUCH LIQUIDATED DAMAGES SHALL CONSTITUTE THEIR SOLE AND EXCLUSIVE REMEDY IF ESCROW FAILS
TO CLOSE DUE TO BUYER’S DEFAULT. BY INITIALING THIS PROVISION BELOW, THE PARTIES SPECIFICALLY
CONFIRM THE ACCURACY OF SUCH FACTS, THE FACT THAT THEY POSSESS APPROXIMATELY EQUAL BARGAINING
STRENGTH AND SOPHISTICATION AND THE FACT THAT EACH OF THEM WAS REPRESENTED BY COUNSEL WHEN ENTERING
INTO THIS AGREEMENT, WHICH COUNSEL EXPLAINED THE CONSEQUENCES OF THIS SECTION TO THEM AT THE TIME
THIS AGREEMENT WAS MADE. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT ANY OBLIGATIONS OF
BUYER OTHER THAN A DEFAULT CAUSING ESCROW TO FAIL TO CLOSE THAT SURVIVE THE CLOSE OF ESCROW OR
EARLY TERMINATION OF THIS AGREEMENT AND SELLER SHALL HAVE THE RIGHT TO PURSUE ANY CAUSE OF ACTION
IT MAY HAVE AGAINST BUYER FOR BUYER’S FAILURE TO PERFORM ANY OTHER COVENANT UNDER THE TRANSACTION
DOCUMENTS OR UNDER THIS AGREEMENT AFTER THE CLOSE OF ESCROW
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OR EARLIER TERMINATION OF THIS AGREEMENT. BY THE ACT OF AN AUTHORIZED REPRESENTATIVE OF EACH
PARTY AFFIXING HIS OR HER INITIALS HEREIN, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE
ABOVE STATEMENTS AND ITS AGREEMENT WITH THEM.
| /s/RH | /s/LR | |||||
| Seller’s Initials | Buyer’s Initials |
7. Buyer Representations and Warranties.
7.1 No Concern of Escrow Agent. Escrow Agent shall have no concern with, or liability
or responsibility for, this Section.
7.2 PURCHASE AS-IS. AS FURTHER PROVIDED IN THE MEMORANDUM, BUYER REPRESENTS AND
WARRANTS THAT IT IS RELYING SOLELY UPON ITS OWN INSPECTIONS, INVESTIGATIONS AND ANALYSES OF THE
PROPERTY IN ENTERING INTO THIS AGREEMENT AND BUYER IS NOT RELYING IN ANY WAY UPON ANY
REPRESENTATIONS, STATEMENTS, AGREEMENTS, WARRANTIES, STUDIES, REPORTS, DESCRIPTIONS, GUIDELINES OR
OTHER INFORMATION OR MATERIAL FURNISHED BY SELLER OR ITS REPRESENTATIVES, WHETHER ORAL OR WRITTEN,
EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER REGARDING ANY SUCH MATTERS AND IS PURCHASING THE
INTEREST IN AN “AS-IS” CONDITION. BUYER IS A SOPHISTICATED AND EXPERIENCED REAL ESTATE INVESTOR
AND WILL RELY ENTIRELY UPON ITS OWN INDEPENDENT INVESTIGATION AND REVIEW OF THE PROPERTY. BUYER
ACKNOWLEDGES THAT, PRIOR TO THE DATE OF THIS AGREEMENT, BUYER HAS HAD THE OPPORTUNITY TO CONDUCT
ANY AND ALL PHYSICAL INSPECTIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY, TO REVIEW AND APPROVE
EACH OF THE TRANSACTION DOCUMENTS, TO REVIEW AND APPROVE (I) THE OPERATING STATEMENTS FOR THE
PROPERTY FOR THE MOST RECENT 12 MONTHS, (II) A CURRENT TENANT RENT ROLL, AND (III) THE MOST RECENT
PROPERTY TAX BILLS, AND TO CONDUCT SUCH OTHER TESTS, INVESTIGATIONS AND REVIEW AS BUYER DEEMS
NECESSARY. BUYER ACKNOWLEDGES THAT SELLER ONLY RECENTLY ACQUIRED THE PROPERTY AND HAS LIMITED
KNOWLEDGE REGARDING THE CONDITION OF THE PROPERTY.
7.3 NO TAX REPRESENTATIONS. AS FURTHER PROVIDED IN THE ADDENDUM, BUYER REPRESENTS AND
WARRANTS THAT IT IS NOT RELYING UPON ANY ADVICE OR ANY INFORMATION OR MATERIAL FURNISHED BY SELLER
OR ITS REPRESENTATIVES, WHETHER ORAL OR WRITTEN, EXPRESSED OR IMPLIED, OF ANY NATURE WHATSOEVER
REGARDING ANY TAX MATTERS, INCLUDING WITHOUT LIMITATION, A DECISION BY BUYER TO EFFECT A
TAX-DEFERRED EXCHANGE UNDER INTERNAL REVENUE CODE SECTION 1031, AS AMENDED. BUYER FURTHER
REPRESENTS AND WARRANTS THAT IT HAS INDEPENDENTLY OBTAINED ADVICE FROM ITS OWN INDEPENDENT LEGAL
COUNSEL AND/OR TAX ACCOUNTANT REGARDING ANY SUCH TAX-DEFERRED EXCHANGE, INCLUDING, WITHOUT
LIMITATION, WHETHER THE ACQUISITION OF THE INTEREST PURSUANT TO THIS AGREEMENT MAY QUALIFY AS PART
OF A TAX-DEFERRED EXCHANGE, AND BUYER IS RELYING SOLELY ON SUCH ADVICE.
7.4 Commissions. The parties mutually warrant and covenant that no brokerage
commissions, finder’s fees or similar commissions or fees shall be due or payable on account of
this transaction. Each party shall indemnify, protect, defend (with legal counsel acceptable to
the other) and hold the other harmless from the claims for such commission or finder’s fees or
similar commissions or fees arising out of the actions of the indemnifying party, including,
without limitation, attorneys’ fees and costs, incurred in connection therewith or to enforce this
indemnity, which indemnities shall survive the Close of Escrow.
7.5 Intentionally deleted.
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8. General Provisions.
8.1 Interpretation. The use herein of (i) one gender includes the masculine and the
feminine, (ii) the singular number includes the plural, whenever the context so requires and (iii)
the words I and me include we and us if Buyer is more than one person. Captions in this Agreement
are inserted for convenience of reference only and do not define, describe or limit the scope or
the intent of this Agreement or any of the terms hereof. All exhibits referred to herein and
attached hereto are incorporated by reference. This Agreement together with the other Transaction
Documents contain the entire agreement between the parties relating to the transactions
contemplated hereby, and all prior or contemporaneous agreements, understandings, representations
and statements, oral or written, are merged herein.
8.2 Modification. No modification, waiver, 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 thereof is or may be sought.
8.3 Cooperation. Buyer and Seller acknowledge that it may be necessary to execute
documents other than those specifically referred to herein to complete the acquisition of the
Interest as provided herein. Buyer and Seller agree to cooperate with each other in good faith by
executing such other documents or taking such other action as may be reasonably necessary to
complete this transaction in accordance with the parties’ intent evidenced in this Agreement.
8.4 Assignment. Buyer shall not assign its rights under this Agreement except for
Accommodator without first obtaining Seller’s written consent, which consent may be withheld in
Seller’s sole and absolute discretion. No such assignment shall operate to release the assignor
from the obligation to perform all obligations of Buyer hereunder. Seller shall have the absolute
right to assign its rights and obligations under this Agreement.
8.5 Notices. Unless otherwise specifically provided herein, all notices, demands or
other communications given hereunder shall be in writing and shall be addressed as follows:
If to Seller, to:
Triple Net Properties, LLC, Manager
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Chairman and Chief Executive Officer
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Chairman and Chief Executive Officer
If to Buyer, to Buyer’s Address. Either party may change such address by written notice to Escrow
Agent and the other party. Unless otherwise specifically provided for herein, all notices,
payments, demands or other communications given hereunder shall be deemed to have been duly given
and received: (i) upon personal delivery, or (ii) as of the third business day after mailing by
United States registered or certified mail, return receipt requested, postage prepaid, addressed as
set forth above, or (iii) the immediately succeeding Business Day after deposit with Federal
Express or other similar overnight delivery system.
8.6 Eminent Domain. If, prior to the Close of Escrow, all of the Property is taken or
appropriated by any public or quasi-public authority under the power of eminent domain or Seller
receives actual notice of any pending or threatened condemnation proceedings affecting all of the
Property, then Buyer may terminate this Agreement without further liability hereunder and the
parties shall proceed in accordance with Section 2.4. In the event of a partial taking of the
Property or the threatened partial taking of the Property with respect to which Seller has received
actual notice that materially and adversely affects the ability to operate the Property for the
purposes it is currently operated, then Buyer can elect to either (a) terminate this Agreement in
accordance with Section 2.4, or (b) purchase the Interest with a reduction in the Purchase Price in
an amount equal to condemnation award received from the condemning authority with respect to the
Interest. In the event of a threatened taking or a lack of finality of any proceedings to
determine the award in an actual taking, Escrow shall close and Seller shall assign to Buyer its
interest in any condemnation award with respect to the Interest made by the governmental entity.
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8.7 Loss or Damage. Buyer shall have no right to terminate this Agreement in the
event of any loss or damage to the Property, provided that Buyer shall have the right to receive an
assignment of any insurance proceeds received by Seller with respect to such loss upon the Close of
Escrow. The parties acknowledge and agree in no event shall the Close of Escrow be extended due to
any such loss or damage. Notwithstanding the foregoing, the assignment of any insurance proceeds
as provided herein shall not include any proceeds received for items not related to the physical
condition of the Property, such as proceeds from Seller’s business interruption insurance, if any.
8.8 Periods of Time. All time periods referred to in this Agreement include all
Saturdays, Sundays and state or United States holidays, unless Business Days are specified,
provided that if the date or last date to perform any act or give any notice with respect to this
Agreement falls on a Saturday, Sunday or state or national holiday, such act or notice may be
timely performed or given on the next succeeding Business Day.
8.9 Counterparts. This Agreement may be executed in counterparts, all of which when
taken together shall be deemed fully executed originals.
8.10 Attorneys’ Fees. If either party commences litigation for the judicial
interpretation, enforcement, termination, cancellation or rescission hereof, or for damages
(including liquidated damages) for the breach hereof against the other party, then, in addition to
any or all other relief awarded in such litigation, the substantially prevailing party therein
shall be entitled to a judgment against the other for an amount equal to reasonable attorneys’ fees
and court and other costs incurred.
8.11 Joint and Several Liability. If any party consists of more than one person or
entity, the liability of each such person or entity signing this Agreement shall be joint and
several.
8.12 Choice of Law. This Agreement shall be construed and enforced in accordance with
the laws of the State where the Property is located, without regard to its conflicts of laws
principles.
8.13 Time. Time is of the essence with respect to all dates set forth in this
Agreement.
8.14 Third Party Beneficiaries. Buyer and Seller do not intend to benefit any party
(including any other Tenants in Common) that is not a party to this Agreement and no such party
shall be deemed to be a third party beneficiary of this Agreement or any provision hereof.
8.15 Severability. If any term, covenant, condition, provision or agreement herein
contained is held to be invalid, void or otherwise unenforceable by any court of competent
jurisdiction, such fact shall in no way affect the validity or enforceability of the other portions
of this Agreement.
8.16 Election to Effect an Internal Revenue Code Section 1031 Exchange. In the event
Buyer so elects, Seller agrees to accommodate Buyer in effecting a tax-deferred exchange under
Internal Revenue Code Section 1031, as amended. Buyer shall have the right to elect a tax-deferred
exchange at any time prior to the Closing Date. If Buyer elects to effect a tax-deferred exchange,
Seller agrees to execute revised or additional escrow instructions, documents, agreements, or
instruments to effect the exchange, provided that Seller shall incur no additional costs, expenses,
fees or liabilities, nor shall the closing be delayed, as a result of the exchange. Buyer may
assign this Agreement to an accommodator in order to effect such exchange and, thereafter, such
assignee will perform Buyer’s obligations under this Agreement.
8.17 Binding Agreement. Subject to any limitation on assignment set forth herein, all
terms of this Agreement shall be binding upon, inure to the benefit of and be enforceable by the
parties hereto and their respective legal representatives, successors and assigns.
8.18 ARBITRATION OF DISPUTES.
8.18.1 ALL CLAIMS SUBJECT TO ARBITRATION. ANY DISPUTE, CONTROVERSY OR OTHER CLAIM
ARISING UNDER, OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY,
OR ANY AMENDMENT THEREOF, OR
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THE BREACH OR INTERPRETATION HEREOF OR THEREOF, SHALL BE DETERMINED AND SETTLED BY BINDING
ARBITRATION IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, IN ACCORDANCE WITH TITLE 9 OF THE
CALIFORNIA CIVIL CODE AND THE CODE OF CIVIL PROCEDURE, INCLUDING SPECIFICALLY CALIFORNIA CODE OF
CIVIL PROCEDURE SECTIONS 1283.05 AND 1283.1, AND THE RULES AND PROCEDURES OF THE AMERICAN
ARBITRATION ASSOCIATION. THE SUBSTANTIALLY PREVAILING PARTY SHALL BE ENTITLED TO AN AWARD OF ITS
REASONABLE COSTS AND EXPENSES INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES AND COSTS. ANY AWARD
RENDERED THEREIN SHALL BE FINAL AND BINDING ON EACH AND ALL OF THE PARTIES THERETO AND THEIR
PERSONAL REPRESENTATIVES, AND JUDGMENT MAY BE ENTERED THEREON IN ANY COURT OF COMPETENT
JURISDICTION.
8.18.2 WAIVER OF LEGAL RIGHTS. BY INITIALING IN THE SPACE BELOW, THE PARTIES
ACKNOWLEDGE AND AGREE TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THIS ARTICLE
DECIDED BY NEUTRAL ARBITRATION AS PROVIDED UNDER CALIFORNIA LAW AND THAT THEY ARE WAIVING ANY
RIGHTS THEY MAY POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR BY JURY TRIAL. THE PARTIES
FURTHER ACKNOWLEDGE AND AGREE THAT THEY ARE WAIVING THEIR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL
EXCEPT TO THE EXTENT SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN THIS ARTICLE. IF EITHER PARTY
REFUSES TO SUBMIT TO ARBITRATION AFTER EXECUTION OF THIS AGREEMENT AND INITIALING BELOW, SUCH PARTY
MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. EACH
PARTY’S AGREEMENT TO THIS ARTICLE IS VOLUNTARY. THE PARTIES HAVE READ AND UNDERSTAND THE FOREGOING
AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THIS ARTICLE TO NEUTRAL
ARBITRATION.
| /s/RH | /s/LR | |||||
| Seller’s Initials | Buyer’s Initials |
8.19 ACCEPTANCE OR REJECTION OF BUYER’S OFFER. THIS AGREEMENT DOES NOT CONSTITUTE AN
OFFER OF ANY KIND BY SELLER AND SHALL NOT BIND SELLER UNLESS DULY EXECUTED AND DELIVERED BY SELLER.
TO SUBMIT AN OFFER, BUYER SHALL DELIVER TO ESCROW AGENT (1) THREE COMPLETED AND EXECUTED ORIGINALS
OF THIS AGREEMENT (2) CASH IN THE AMOUNT OF BUYER’S DEPOSIT AND (3) THE PURCHASER QUESTIONNAIRE.
SELLER SHALL HAVE 15 DAYS TO EITHER ACCEPT OR REJECT BUYER’S OFFER. IF SELLER DOES NOT ACCEPT
BUYER’S OFFER WITHIN SUCH 15-DAY PERIOD, THE OFFER SHALL BE DEEMED REJECTED. IN THE EVENT THE
OFFER IS REJECTED, BUYER’S DEPOSIT SHALL BE RETURNED TO BUYER WITHOUT INTEREST AND THIS AGREEMENT
SHALL NOT BECOME EFFECTIVE.
[BALANCE OF PAGE INTENTIONALLY BLANK]
B-8
IN WITNESS WHEREOF, this Agreement has been executed as of the Effective Date.
| SELLER: | ||||||
| NNN 3500 Maple VF 2003, LLC, | ||||||
| a Delaware limited liability company, | ||||||
| By: | Triple Net Properties, LLC, | |||||
| a Virginia limited liability company, | ||||||
| Manager | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxxx Xxxxxx | |||||
| Title: | Executive Vice President | |||||
| Dated: | 10/16, 2006 | |||||
| BUYER: | ||||||
| NNN 3500 Maple, LLC, | ||||||
| a Delaware limited liability company, | ||||||
| By: | Triple Net Properties, LLC, | |||||
| a Virginia limited liability company, | ||||||
| Manager | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: | Xxxxx Xxxxxx | |||||
| Title: | President | |||||
| Dated: | 10/16, 2006 | |||||
PARTIES MUST ALSO INITIAL SECTIONS 6.1 AND 8.18.2
BUYER MUST ALSO INITIAL FRONT PAGE
BUYER MUST ALSO INITIAL FRONT PAGE
B-9
