EXHIBIT NO. 10.141
AGREEMENT OF PURCHASE AND SALE
CIELO CENTER, AUSTIN, TEXAS
THIS AGREEMENT OF PURCHASE AND SALE is made and entered into this 27th
day of January, 1998 by and between JMB Group Trust III, an Illinois common law
group trust ("Seller"), having an address of c/x Xxxxxxx Capital Management
Corporation, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000,
Attention: Xxxxxx X. Xxxxxxx; facsimile number (000) 000-0000, and Xxxx-Xxxx
Realty Acquisition Corp., a Delaware corporation ("Purchaser"), having an
address of 0000 XXX Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention: Xxxxxx
Xxxxxxx; facsimile number (000) 000-0000.
RECITALS
Seller is the owner of a parcel of real estate in Austin, Texas,
legally described on Exhibit A attached hereto and all buildings thereon (the
"Real Property", which together with any and all appurtenances thereto and
Seller's right, title and interest in and to (a) all streets, roads, alleys,
easements, rights of way, rights of ingress and egress, and vehicle parking
rights abutting, adjacent, used in connection with or pertaining to the Real
Property or improvements thereon, (b) strips or gores between the Real Property
and abutting or adjacent properties, (c) all water and water rights, and mineral
interests pertaining to the Real Property, (d) any personal property to be
conveyed pursuant hereto and (e) the following to the extent the following
pertain to the Real Property and are assignable: (i) all plans, specifications
and drawings, (ii) existing environmental and engineering reports, (iii) all
permits, licenses and certificates, (iv) all Service Contracts and Leases to be
assigned to Purchaser, and (v) all trade names and trademarks, including the
right to use the name Cielo Center, are collectively referred to as the
"Property"), commonly known as the Cielo Center. The Property includes three six
story office buildings.
Subject to and on the terms and provisions of and for the
considerations set forth in this Agreement, Seller has agreed to sell, and
Purchaser has agreed to buy, the Property.
NOW, THEREFORE, the parties hereto hereby agree as follows:
H. Definitions. As used in this Agreement, the following terms have the
following meanings:
Closing Date. As agreed in writing between Seller and
Purchaser but no later than ten days after the expiration of
the Due Diligence Period.
Due Diligence Period. The period commencing on December 16,
1997 and ending at 5:00 p.m. (C.S.T.) on February 26, 1998.
Escrow Company. Near North National Title Corporation.
Title Company. Near North National Title Corporation, as
agent for First American Title Insurance Company or Ticor
Title Insurance Company.
I. Sale; Purchase Price.
1. Subject to the terms and provisions hereof, Seller agrees to sell
and convey to Purchaser, and Purchaser agrees to purchase from Seller the
Property.
2. The total purchase price (hereinafter called the "Purchase Price")
to be paid by Purchaser to Seller for the Property shall be Thirty-Nine Million
Five Hundred Thousand and no/100 Dollars ($39,500,000.00). The Purchase Price
shall be
payable in the following manner:
(a) Xxxxxxx Money. Purchaser shall, within two
(2) business days after the execution and delivery of this Agreement by
Purchaser and Seller, deposit with the Escrow Company, as escrow agent, the
amount of One Million and 00/100 Dollars ($1,000,000.00) (hereinafter called the
"Xxxxxxx Money") which Xxxxxxx Money shall be in the form of a wire transfer (in
accordance with Wiring Instructions attached to Exhibit B) of immediately
available United States of America funds. The Xxxxxxx Money shall become
nonrefundable at 5:00 p.m. (C.S.T.) on the last day of the Due Diligence Period
unless this Agreement is terminated prior to the expiration of the Due Diligence
Period. The Xxxxxxx Money shall be held and disbursed by the Escrow Company
acting as escrow agent pursuant to the Xxxxxxx Money Escrow Agreement in the
form of Exhibit B attached hereto which the parties have executed simultaneously
with this Agreement. The Xxxxxxx Money shall be invested in a federally issued
or insured interest bearing instrument with any interest accruing thereon being
deemed part of the Xxxxxxx Money and shall be paid to the party to which the
Xxxxxxx Money is paid pursuant to the provisions hereof. If the sale hereunder
is consummated in
accordance with the terms hereof, the Xxxxxxx Money and any interest thereon
shall be applied to the Purchase Price to be paid by Purchaser at the Closing.
In the event of a default hereunder by Purchaser or Seller, the Xxxxxxx Money
shall be applied as provided herein.
(b) Cash Balance. Purchaser shall pay the balance
of the Purchase Price, subject to the prorations described in Section 5 below,
in cash (the "Cash Balance") by wire transfer of immediately available United
States of America funds to the Title Company for payment to Seller, in
accordance with the terms and conditions of this Agreement no later than 11:00
am C.S.T. on the Closing Date.
J. Conditions Precedent. In the event any of the conditions set forth in
Sections 3.2(b), 3.3, 3.4 or 4.2 below shall not have been fulfilled, accepted
or deemed accepted or waived as provided herein on or before the applicable
dates specified herein, Purchaser shall have the right to terminate this
Agreement by giving written notice thereof to Seller on or before the respective
dates specified herein, and thereupon all Xxxxxxx Money less One Hundred Dollars
($100.00) to be retained by Seller as consideration for this Agreement ("Seller
Retention") shall be refunded to Purchaser and neither party shall have any
further rights or obligations hereunder, except for the Surviving Obligations
(as hereinafter defined).
1. Seller's Deliveries. Seller has delivered or made
available to Purchaser true and complete copies of the following
items relating to the Property which are in Seller's possession:
(a) all leases, occupancy agreements and
amendments thereto which are listed on Schedule 1, and referenced
in Section 6.6 (the "Leases");
(b) all service contracts, equipment leases and
other agreements which are listed on Schedule 2 ("Service
Contracts");
(c) copies of the real estate tax bills for the
current year and two prior years, if available;
(d) all existing environmental reports and other
environmental documentation, including any Phase I or Phase II environmental
report, any sampling plans, cleanup plans, preliminary assessment plans and
reports, site investigation plans and reports, remedial investigation plans and
reports and any correspondence to or from any governmental authority, and any
existing structural, soils, engineering or other reports.
(e) the existing owner's title policy;
(f) the existing survey dated September, 1985 (the
"Existing Survey");
(g) annual operating statements for the Property
for the last three calendar years and monthly operating
statements for the months in the current year;
(h) existing plans and specifications;
(i) copies of all Lease Proposals (as defined in
Section 15(b)) presently outstanding;
(j) all operating permits, licenses, certificates
of occupancy and other approvals;
(k) copies of Seller's certificates of insurance
insuring the Property;
(l) the most recent rent roll prepared by Seller
in the ordinary course of its business;
(m) all files pertaining to leasing at the
Property;
(n) copies of any warranties and guaranties still
in effect relating to construction of the Property or pertaining
to building systems, building components and/or personal
property; and
(o) all current files pertaining to maintenance
and operation of the Property since January 1, 1995.
Seller shall provide to Purchaser any documents described in this
Section 3.1 and first coming into Seller's possession or produced by Seller
after the initial delivery and continue to provide the same during the pendency
of this Agreement.
In the event this Agreement terminates for any reason, Purchaser shall
immediately return to Seller all written information delivered by Seller or
Seller's agent(s) to Purchaser or Purchaser's agent(s). The foregoing provision
shall survive termination of this Agreement.
2. Due Diligence. Purchaser and its representatives
shall be permitted to enter upon the Property at any reasonable time and from
time to time before the Closing Date to examine, inspect and investigate the
Property as well as all records and other documentation provided by Seller or
located at the Property (collectively, "Due Diligence"). The Due Diligence shall
be subject to the terms, conditions and limitations set forth in this Section
3.2.
(a) Purchaser shall have a right to enter upon the
Property for the purpose of conducting its Due Diligence provided that in each
such instance (i) Purchaser notifies Seller of its intent to enter the Property
to conduct its Due Diligence not less than 48 hours prior to such entry; (ii)
the date and approximate time period are scheduled with Seller; and (iii)
Purchaser is in full compliance with the insurance requirements set forth in
Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be
present during any entry by Purchaser or its representatives upon the Property
for conducting its Due Diligence. Purchaser shall take all necessary actions to
insure that neither it nor any of its representatives interfere with the tenants
or ongoing operations occurring at the Property. Purchaser shall not cause or
permit any mechanic liens, materialmen's liens or other liens to be filed
against the Property as a result of its Due Diligence. Subject to the provisions
of Section 6.18, such right of inspection and the exercise of such right shall
not constitute a waiver by Purchaser of any representation, warranty, covenant
or agreement of Seller which might, or should have been disclosed by such
inspection. In addition, Seller shall cooperate with Purchaser in facilitating
its Due Diligence inquiry.
(b) Purchaser shall have through the last day of
the Due Diligence Period in which to conduct its Due Diligence and, in
Purchaser's sole discretion, to determine whether the Property is acceptable to
Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any
problem or defect in the Property or any other aspect of the Property which
Purchaser determines makes the Property unsuitable to Purchaser or if Purchaser
otherwise determines for any reason not to acquire the Property, Purchaser may
terminate this Agreement by giving written notice of termination to Seller on or
before 5:00 p.m. (C.S.T.) on the last day of the Due Diligence Period. If
Purchaser does not timely give notice of termination as aforesaid, Purchaser
shall be deemed to have accepted the Property and this Agreement shall continue
in full force and effect. In the event of such termination, the Xxxxxxx Money
less Seller Retention shall be returned to Purchaser and neither party shall
have any further obligations to the other party hereunder,
except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days
prior to the Closing Date, notify Seller in writing requesting termination of
any or all of the Service Contracts, which are noted on Schedule 2 as being
terminable upon thirty (30) days notice, that Purchaser does not elect to
assume. If Purchaser does not timely give notice requesting termination of a
Service Contract, Purchaser shall be deemed to have accepted the assumption of
such Service Contract. Purchaser shall assume all other Service Contracts.
Seller shall terminate effective as of the Closing Date at its sole cost all
Service Contracts which Purchaser elects not to assume in accordance with the
terms hereof.
(d) Purchaser shall have the right to conduct, at
its sole cost and expense, any inspections, studies or tests including, without
limitation, environmental inspections, studies and tests, that Purchaser deems
appropriate in determining the condition of the Property, provided, however,
Purchaser is not permitted to perform any intrusive testing, including, without
limitation, a Phase II environmental assessment or boring, without (i)
submitting to Seller the scope and inspections for such testing; and (ii)
obtaining the prior written consent of Seller which consent shall not be
unreasonably withheld except that Seller may withhold consent to borings into
the ground water in its sole and absolute discretion.
(e) Purchaser agrees and covenants with Seller not
to disclose to any third party (other than lenders, accountants, attorneys and
other professionals and consultants in connection with the transaction
contemplated herein) without Seller's prior written consent, unless Purchaser is
obligated by law, or rule of any stock exchange to make such disclosure, any of
the reports or any other documentation or information obtained by Purchaser
which relates to the Property or Seller in any way, all of which shall be used
by Purchaser and its agents solely in connection with the transaction
contemplated hereby. In the event that this Agreement is terminated, Purchaser
agrees that all such information will be held in strict confidence.
(f) Purchaser agrees to indemnify, defend and hold
Seller and its partners, trustees, beneficiaries, shareholders, members,
managers, advisors and other agents and their respective partners, trustees,
beneficiaries, employees, officers, directors and shareholders (the "Indemnified
Parties") harmless from and against any and all claims, losses, damages, costs
and expenses (including, without limitation, reasonable attorneys' fees and
court costs) suffered or incurred by any of the Indemnified Parties as a result
of or in connection with any activities of Purchaser (including activities of
any of Purchaser's employees, consultants, contractors or other agents) relating
to the Property, including, without limitation, mechanics' liens, damage to the
Property, injury to persons or property resulting from such activities in
connection therewith, and in the event that the Property is disturbed or altered
in any way as a result of such activities. Purchaser shall promptly restore the
Property to substantially its condition existing prior to the commencement of
such activities which disturb or alter the Property. Notwithstanding any
contrary provision in this Section 3.2(f), in no event shall Purchaser have any
obligation under this Section 3.2(f) if it discovers any environmental
contamination at the Property in connection with its Due Diligence Activities.
Furthermore, Purchaser agrees to maintain and cause any of its representatives
or agents conducting any Due Diligence to maintain and have in effect commercial
general liability insurance with (i) all occurrence coverage, (ii) waiver of
subrogation, and (iii) limits of not less than One Million and 00/100 Dollars
($1,000,000.00) for personal injury, including bodily injury and death, and
property damage. Such insurance shall name the Seller, Heitman Capital
Management Corporation ("HCMC") and Xxxxxxx Properties of Texas Ltd. and their
respective partners, trustees, beneficiaries, shareholders, members, employees,
officers and directors as additional insured parties. Purchaser shall deliver to
Seller a copy of the certificate of insurance effectuating the insurance
required hereunder prior to the commencement of such activities which
certificate shall provide that such insurance shall not be terminated or
modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it
shall have no right to review or inspect any of the following: (i) internal
memoranda, correspondence, analyses, documents or reports prepared by or for
Seller or an affiliate of Seller in connection with (A) this Agreement, (B) the
transaction contemplated by this Agreement, (C) the acquisition of the Property
by Seller (other than environmental, engineering, soils and similar reports) or
(D) any prior or current contemplated reorganization of Seller and certain
affiliated funds, (ii) communications between Seller and HCMC or any of its
affiliates, and (iii) appraisals, assessments or other valuations of the
Property in the possession of Seller or HCMC.
(h) Section 3.2(e) shall survive termination of
this Agreement, but not Closing, and Section 3.2(f) and such
other designated provisions in this Agreement shall survive Closing or any
termination of this Agreement as specified herein (collectively, the "Surviving
Obligations").
3. Title and Survey. Seller shall, at Seller's sole cost and expense,
obtain and deliver to Purchaser for Purchaser's review a commitment for a
standard Texas owner's policy of title insurance along with a copy of each
instrument listed as an exception thereon (the "Title Commitment") on the Real
Property issued by the Title Company and the Existing Survey. During the Due
Diligence Period, Purchaser shall have the right to request, at its sole cost
and expense, any desired endorsements to the final title policy which are
available, if any, as well as deletion of the survey exception. Purchaser may
elect to receive an update to the Existing Survey (the "Updated Survey") by
notifying Seller of such election in writing within five (5) days after
Purchaser's receipt of the Existing Survey. If Purchaser so elects, Seller
shall, at Purchaser's sole cost and expense, obtain and deliver to Purchaser for
Purchaser's review the Updated Survey. The Updated Survey shall: (i) be made in
accordance with the specifications listed on Exhibit C attached hereto, and (ii)
contain a certification in the form set forth on Exhibit D attached hereto.
Purchaser shall have until the date which is fifteen (15) days after receipt of
the Title Commitment and Existing Survey (such date being referred to as the
"Title Review Date") for examination of Title Commitment and Existing Survey and
the making of any objections thereto, said objections to be made in writing and
delivered to Seller on or before 5:00 p.m. (C.S.T.) on the Title Review Date. If
Purchaser shall fail to make any objections on or before the Title Review Date,
Purchaser shall be deemed to have accepted all exceptions to the Title
Commitment and the form and substance of the Existing Survey and all matters
shown thereon; all such exceptions and matters and any exceptions or matters
caused by or through Purchaser shall be included in the term "Permitted
Exceptions" as used herein. In the event Purchaser elects to receive the Updated
Survey, then Purchaser shall have until the expiration of the Due Diligence
Period for examination of the Updated Survey and the making of objections only
to matters shown thereon that were not shown on the Existing Survey, such
objections to be made in writing and delivered to Seller on or before the
expiration of the Due Diligence Period. If Purchaser shall fail to make any such
objections to the Updated Survey on or before the expiration of the Due
Diligence Period, Purchaser shall be deemed to have accepted the form and
substance of the Updated Survey and all matters shown thereon; all such
exceptions and matters and any exceptions or matters caused by or through the
Purchaser shall be included as Permitted Exceptions. If any objections to (i)
the
Title Commitment or Existing Survey are made within the Title Review Period, or
(ii) the Updated Survey with respect to matters not shown on the Existing Survey
are made before the expiration of the Due Diligence Period, then Seller shall
have the right, but not the obligation, to cure (by removal, endorsement or
otherwise) such objections on or before the Closing Date; provided, however,
Seller shall be obligated (a) to cause to be released on or before the Closing
Date any monetary liens or security interests created by, through or under
Seller and any ad valorem taxes due and payable on the Property, and (b) to
cause to be released, on or before Closing Date, liens created by, through or
under third parties but in no event will Seller be obligated to expend or incur
any expense or liability for such cure for liens or security interests created
by, through or under third parties in excess of an aggregate of Two Hundred
Thousand Dollars ($200,000), and failure to do so shall be a default for which
the provisions of Section 17(a) shall apply. If the objections which the Seller
has the right but not the obligation to cure are not cured by Seller by the
scheduled Closing Date, then Purchaser may as its only option, elect to either:
(i) waive such objection and consummate the transaction contemplated by this
Agreement; or (ii) terminate this Agreement, in which event the Xxxxxxx Money
less Seller Retention shall be returned to Purchaser and neither party shall
have any further obligations to the other party except for the Surviving
Obligations.
4. Tenant Estoppels. Seller shall deliver to Purchaser, no later than
five (5) days prior to the Closing Date, estoppel certificates, in the form of
Exhibit E attached hereto or in the form of estoppel required under such
tenant's lease, from tenants leasing at least ninety percent (90%) of the square
footage of the Property currently leased, which shall include all tenants
leasing 4,000 square feet or more of the Property, and such estoppels shall not
disclose any facts objectionable to Purchaser in its reasonable opinion.
K. Closing; Conditions; Deliveries.
1. Time, Place and Manner of Closing. The Closing shall be held on the
Closing Date in the offices of the Title Company or at any location mutually
acceptable to the parties.
2. Condition to Parties' Obligation to Close. In addition to all other
conditions set forth herein, the obligation of Seller, on the one hand, and
Purchaser, on the other hand, to consummate the transaction contemplated
hereunder shall be contingent upon the following:
(a) The other party's representations and
warranties contained herein shall be true and correct in all
material respects as of the date of this Agreement and the
Closing Date;
(b) As of the Closing Date, the other party shall
have performed its obligations hereunder in all material respects
and all deliveries to be made at Closing have been tendered;
(c) As of the Closing Date, no material litigation
(other than litigation listed on the original Schedule 3 hereto) shall be
pending affecting the Property, and there shall exist no pending action, suit or
proceeding with respect to the other party before or by any court or
administrative agency which seeks to restrain or prohibit, or to obtain damages
or a discovery order with respect to, this Agreement or the consummation of the
transactions contemplated hereby;
(d) Simultaneously with execution of this
Agreement, Purchaser shall have delivered to Seller a fully executed original
ERISA certificate in the form of Exhibit F attached hereto; and
(e) Seller shall promptly notify Purchaser of, and
promptly deliver to Purchaser, a certified true and complete copy of any written
notice Seller may receive, on or before the Closing Date, from any governmental
authority, concerning a violation of Environmental Laws or a release, discharge,
spill, emission or leak of Hazardous Materials on, under, at, emanating from or
affecting the Property.
3. Deliveries. At Closing each party shall execute and
deliver to the other and/or the Title Company the following
documents:
(a) Seller shall deliver to Purchaser and/or the
Title Company:
(i) a special warranty deed (the "Deed") to the
Property in recordable form, duly executed by Seller and acknowledged and in
substantially the same form as set forth in Exhibit G attached hereto, conveying
to Purchaser title to the Real Property, subject to the Permitted Exceptions;
(ii) a xxxx of sale duly executed by Seller and
in substantially the same form as set forth in Exhibit H attached hereto,
conveying to Purchaser title to all personal property owned by Seller and
located at or used in connection with the
operation of the Real Property, if any;
(iii) an assignment to Purchaser of the
Leases duly executed by Seller and in substantially the same form as set forth
in Exhibit I attached hereto;
(iv) an assignment to Purchaser of the Service
Contracts being assumed hereunder, and all licenses, permits, plans,
specifications, trademarks and trade names affecting the Property (to the extent
the foregoing are freely assignable) duly executed by Seller and in
substantially the same form as set forth in Exhibit J attached hereto;
(v) a non-foreign transferor certification
pursuant to Section 1445 of the Internal Revenue Code and any similar provisions
of applicable state law, in substantially the same form as set forth on Exhibit
K attached hereto (the "Affidavit");
(vi) a certified resolution of Seller certifying
that Seller has the legal power, right and authority to
consummate the sale of the Property;
(vii) a Uniform Commercial Code search dated
within seven (7) business days of Closing showing no liens; and
(viii) originals of Leases and Service
Contracts being assumed hereunder.
(b) Purchaser shall deliver to Seller or the Title
Company:
(i) the Cash Balance, by wire transfer, as
provided in Section 2.2 hereof;
(ii) an assumption duly executed by the Purchaser
of the assignments described in Sections 4.3(a)(iii) and (iv);
and
(iii) a certified resolution of Purchaser
certifying that Purchaser has the legal power, right and authority to consummate
the purchase of the Property.
(c) Seller and Purchaser shall jointly deliver to the Title
Company:
(i) A closing statement;
(ii) All transfer declarations or similar
documentation required by law;
(iii) Letters to the tenants of the Property
in the form of Exhibit L attached hereto; and
(iv) Notices in substantially the form attached
hereto as Exhibit M attached hereto to the other party to each Service Contract
assumed by Purchaser pursuant to Section 3.2(c) of this Agreement.
(d) The Title Company shall deliver to Purchaser an initialed
xxxx-up of the Title Commitment, extending the effective date to the Closing
Date, insuring Purchaser as owner of the Real Property, and removing all
exceptions other than Permitted Exceptions.
4. Permitted Termination. So long as a party is not in default
hereunder, if any condition to such party's obligation to proceed with the
Closing hereunder has not been satisfied or waived as of the Closing Date or
such earlier date as provided herein, such party may, in its sole discretion,
terminate this Agreement by delivering written notice to the other party before
the Closing Date (in which event the Xxxxxxx Money, less Seller Retention, shall
be returned to Purchaser), or elect to close, notwithstanding the
non-satisfaction of such condition, in which event such party shall be deemed to
have waived any such condition.
L. Prorations. All items of income and expense shall be paid,
prorated or adjusted as of the close of business on the day prior
to the Closing Date (the "Proration Date") in the manner
hereinafter set forth:
1. Purchaser shall be credited with (i) the amount of (A) all rents and
(B) all expense contributions, real estate tax contributions, and other
reimbursements from tenants ("Tenant Contributions") received by Seller and
attributable to any month commencing after the Closing Date and (ii) all
unapplied cash security deposits held by Seller and which were made by tenants
under all leases of the Real Property in effect as of the Closing Date.
2. All rents and Tenant Contributions for the month of Closing shall be
prorated between Purchaser and Seller based upon their respective days of
ownership for such month in which the Closing occurs. Neither Purchaser nor
Seller shall receive credit at Closing for any payments of rental obligations
due but
not paid as of the Proration Date. At the time of each of the final calculations
and collections from tenants of Tenant Contributions for 1998, whether in the
nature of a reconciliation payment or full payment, in arrears, there shall be a
reproration between Purchaser and Seller as to the Tenant Contributions. Such
reproration shall not be made on the basis of a per diem method of allocation,
but shall instead be apportioned between Seller and Purchaser on the basis of
the relative share of actual expenses in question incurred by Seller and
Purchaser during the lease year in question. Seller covenants to provide
Purchaser with any information necessary to finalize such calculation. Purchaser
covenants to xxxx tenants for amounts due from tenants attributable to periods
prior to Closing (including, without limitation, 1997 Tenant Contributions due
from Tenants based on reconciliation calculations furnished to Purchaser by
Seller) and diligently pursue collections from tenants and, as collected, to
timely deliver to Seller amounts due Seller, provided, however, Purchaser shall
not be required to xxx any tenant for amounts due from such tenant.
3. Intentionally Omitted.
4. Any amounts received from tenants after Closing shall be applied on
a tenant by tenant basis in the following order: (i) first on account of any
amount due Purchaser from such tenant(s); (ii) next, on account of any amount
due Seller from such tenant(s) for the period up to and including the Proration
Date and (iii) finally, any balance then remaining to Purchaser. Seller retains
the right to pursue its remedies against tenants after Closing for any
delinquent payments or other amounts owed to Seller, except for actions or
proceedings affecting possession or landlord liens. However, Seller will not
exercise any such rights or remedies unless such delinquent rents have not been
collected by Purchaser and paid to Seller within three (3) months after the
Closing Date. Any money due to Seller shall be remitted to Seller, less a
proportionate share of any reasonable attorneys' fees and third party costs and
expenses in connection with collection thereof, within five days after the end
of the month in which it was received by Purchaser.
5. Operating expenses, including, without limitation, payments under
Service Contracts to be assigned to Purchaser, permits, licenses, membership
dues, and any other prepaid expenses, shall be prorated between Purchaser and
Seller based upon the actual days of their respective ownership of the Property
utilizing the actual expenses or reasonable estimates.
6. Real estate taxes shall be prorated between Seller and
Purchaser based upon the actual days of ownership of the parties for the year in
which Closing occurs utilizing the most recent ascertainable tax xxxx(s). Seller
and Purchaser agree to reprorate said real estate taxes upon Purchaser's receipt
of the actual tax xxxx for the tax year in question, if any. Seller reserves the
right (a) to meet with governmental officials and to contest any reassessment
governing or affecting Seller's obligations under this Section, and (b) to
contest any assessment of the Property or any portion thereof and to attempt to
obtain a refund for any taxes previously paid. Seller shall retain all rights
with respect to any refund of taxes applicable to any period prior to the
Closing Date.
7. Except for utilities billed directly to Tenants, utilities shall be
prorated as of the Proration Date based upon either meter readings on the
Proration Date or the prior month's actual invoices. Seller shall be credited
with any unapplied utility deposit in effect as of the Closing Date to the
extent such deposit is assignable.
8. Purchaser shall be responsible for and pay for both: (a) the cost of
all tenant improvements, concessions, inducements and abatements, and (b) all
leasing commissions due and payable as a result of leases made pursuant to (i)
Proposals listed on Schedule 4 attached hereto, (ii) any lease entered into
after the date hereof through the date which is five (5) days prior to the
expiration of the Due Diligence Period, and (iii) any Proposal which Purchaser
approved, or is deemed to have approved as provided in Section 15. Purchaser
shall receive a credit on the Closing Date equal to all leasing commissions due
to leasing or other agents for the current remaining term of each Lease listed
or required to be listed on Schedule 1 (determined without regard to any
unexercised termination or cancellation right), discounted to present value
using reasonable discount rates; provided, however, Seller shall have no
liability for any deferred commission due to the Xxxxxxx Groups for the lease to
Globeset, Inc. in the aggregate amount of $31,040.36. Purchaser shall assume, in
writing, the obligation to pay any such leasing commissions due thereunder after
the Closing Date up to the amount of such credit (without discount). Purchaser
shall promptly return to Seller any such commission (without discount) that, due
to later events, does not become due and payable. At Closing, Purchaser shall
assume leasing commissions for renewals or expansions under any Lease identified
in Schedule 1 as a result of the exercise of such right after the effective date
of this Agreement. If by Closing Seller has not completed and paid in full for
all tenant improvement expenses, tenant allowances, concessions, inducements and
abatements which are the obligation
of landlord under the Leases listed or required to be listed on Schedule 1 but
excluding obligations on which Seller has not commenced work and which are not
required to be completed prior to Closing ("TI Obligations"), then such costs as
reasonably agreed by Purchaser and Seller shall be withheld from the Purchase
Price at Closing and Purchaser shall be responsible for completing and paying
such TI Obligations. Anything in the prior sentence to the contrary
notwithstanding, the obligations for work or allowance under the New York Life
Insurance Company lease shall be a TI Obligation. Any funds withheld shall be
used by Purchaser to pay the landlord's share of such tenant improvement and
allowances. If there are any funds remaining after payment of such TI
Obligations, such excess shall be paid by Purchaser to Seller; but if the amount
withheld is insufficient for the purpose, Seller shall reimburse Purchaser for
such deficiency on demand.
9. All insurance policies and property management agreements shall be
terminated as of the Closing Date and there shall be no proration with respect
to these items.
All other items which are customarily prorated in transactions similar to the
transaction contemplated hereby and which were not heretofore dealt with, will
be prorated as of the Proration Date. In the event any prorations or
computations made under this Section are based on estimates or prove to be
incorrect, then either party shall be entitled to an adjustment to correct the
same, provided that it makes written demand on the party from whom it is
entitled to such adjustment within one hundred and twenty days after the end of
the current calendar year. Purchaser shall indemnify and hold Seller harmless
from and against any and all claims for which Purchaser received credits
pursuant to this Section 5. The indemnity set forth in the immediately preceding
sentence and the covenants contained in this Section 5 shall survive Closing and
constitute Surviving Obligations.
M. Seller's Representations, Warranties and Covenants. Seller
hereby represents, warrants and covenants to Purchaser as
follows:
1. Power. Seller has the legal power, right and authority
to enter into this Agreement and the instruments referenced
herein and to consummate the transactions contemplated hereby.
2. Requisite Action. All requisite action (corporate, trust,
partnership or otherwise) has been taken by Seller in connection with entering
into this Agreement and the instruments
referenced herein and the consummation of the transactions contemplated hereby.
No consent of any partner, shareholder, member, creditor, investor, judicial or
administrative body, authority or other party is required which has not been
obtained to permit Seller to enter into this Agreement and consummate the
transaction contemplated hereby.
3. Authority. The individuals executing this Agreement and the
instruments referenced herein on behalf of Seller have the legal power, right
and actual authority to bind Seller to the terms and conditions hereof and
thereof.
4. Validity. This Agreement and all documents required hereby to be
executed by Seller are and shall be valid, legally binding obligations of and
enforceable against Seller in accordance with their terms.
5. Conflicts. None of the execution and delivery of this Agreement and
documents referenced herein, the incurrence of the obligations set forth herein,
the consummation of the transactions herein contemplated or referenced herein
conflicts with or results in the material breach of any terms, conditions or
provisions of or constitutes a default under, any bond, note, or other evidence
of indebtedness or any contract, lease or other agreements or instruments to
which Seller is a party.
6. Leases. Attached hereto as Schedule 1 is a complete and accurate
list of the leases, occupancy agreements and amendments thereto relating to the
Property, which shall be updated by Seller prior to Closing, if necessary, by
adding thereto leases executed after the date hereof through Closing and all
Proposals which are approved or deemed approved by Purchaser as provided under
Section 15.
7. Service Contracts. Attached hereto as Schedule 2 is a complete and
accurate list of the service contracts, equipment leases and other agreements
(other than Leases) relating to the Property, which shall be updated by Seller
prior to Closing, if necessary for all such contracts and agreements entered
into or terminated in accordance with this Agreement.
8. Notices. Seller has not received any written notice that the
Property, and all present uses and operations thereof, are in violation of any
applicable deed restrictions or any covenants and restrictions affecting the
Property or any zoning, land-use, building, fire, health or safety laws.
9. Litigation. Except as set forth on Schedule 3 no
litigation has been served upon Seller, nor to the best of the Seller's
knowledge has been filed, or threatened in writing, affecting the Property.
Schedule 3 shall be updated by Seller prior to Closing, if necessary.
10. Environmental Condition. Seller has no knowledge of or notice of
any violation of Environmental Laws or Environmental Permits (as hereinafter
defined) related to the Property or the presence or release (other than as
permitted by law) of Hazardous Materials on, under, at, or emanating from the
Property except as disclosed in the environmental reports delivered by Seller to
Purchaser or made available by Seller for Purchaser's review, which are listed
on Schedule 5. Schedule 5 shall be updated by Seller prior to Closing, if
necessary. There are no above-ground or to Seller's knowledge underground tanks
at the Property. The term "Environmental Laws" includes, without limitation, the
Resource Conservation and Recovery Act and the Comprehensive Environmental
Response Compensation and Liability Act ("CERCLA") and other federal laws
governing the environment as in effect on the date of this Agreement together
with their implementing regulations and guidelines as of the date of this
Agreement, and all state, regional, county, municipal and other local laws,
regulations and ordinances that are equivalent or similar to the federal laws
recited above or that purport to regulate or are in any way related to Hazardous
Materials in effect as of the date of this Agreement. "Hazardous Materials"
means any substance which is (i) designated, defined, classified or regulated as
a hazardous substance, toxic substance, hazardous material, hazardous waste,
pollutant or contaminant under any Environmental Law, as currently in effect as
of the date of this Agreement, (ii) petroleum hydrocarbon, including crude oil
or any fraction thereof and all petroleum products and derivatives, (iii) PCBs,
(iv) lead, (v) friable asbestos, (vi) flammable explosives, (vii) infectious
materials, (viii) radioactive materials or (ix) ureaformaldehyde. "Environmental
Permits" means any federal, state, county or local license, certificate, permit
or authorization issued under or in connection with any Environmental Laws.
11. Inspection Items. Copies of all items provided to or made available
to Purchaser under Section 3.1 are true and complete copies of the originals of
each such instrument.
12. Leases. The Leases represent all of the written and oral
obligations of Seller with respect to space in the Property.
13. Condemnation. There are no condemnation proceedings
pending or to Seller's knowledge threatened with respect to any
portion of the Property.
14. ERISA Plans. Attachment B to the ERISA certificate attached hereto
as Exhibit F sets forth a complete list of each employee benefit plan (within
the meaning of Section 3(3) of ERISA) which owns an interest in Seller.
15. Disposal Facilities. The Property has not been used during Seller's
period of ownership as a transfer station, incinerator, resource recovery
facility, landfill or other similar facility for receiving or treating, storing
or disposing of waste, garbage, refuse and other discarded materials resulting
from, without limitation, industrial, commercial, agricultural, domestic and
community activities including without limitation, sanitary, hazardous, medical,
special or other waste.
16. Environmental Documentation. Seller has provided Purchaser with all
environmental documentation relating to the Property in its possession or in the
possession of HCMC, Xxxxxxx Properties of Texas Ltd., Xxxxxxx Financial Ltd. or
any of its subsidiaries, including without limitation, all sampling plans,
cleanup plans, preliminary assessment plans and reports, site investigation
plans and reports, remedial investigation plans and reports, remedial action
plans and reports, or the equivalent, correspondence to or from any governmental
authority, submissions to any governmental authority and directives, orders,
approvals and disapprovals issued by any governmental authority and shall
continue to do so after the execution of this Agreement promptly upon their
receipt.
17. Use of Property. No portion of the Property has ever been used by
Seller to generate, manufacture, refine, produce, treat, store, handle, dispose
of, transfer or process Hazardous Materials.
18. Indemnity. Seller shall indemnify, defend and hold Purchaser
harmless from and against any and all claims, actions, judgments, liabilities,
liens, damages, penalties, fines, costs and reasonable attorneys' fees, foreseen
or unforeseen, asserted against, imposed on or suffered or incurred by Purchaser
(or the Property) directly or indirectly arising out of or in connection with
any breach of the warranties, representations and covenants set forth in this
Section 6. The warranties and representations set forth in this Section 6 shall
be deemed remade as of Closing, and said warranties and representations as so
remade, and the indemnity obligation set forth in herein shall survive Closing
and constitute Surviving Obligations, provided that any claim by Purchaser based
upon a misrepresentation or breach of any
warranty or representation or indemnity obligation under this Section 6 shall be
deemed waived unless Purchaser has given Seller notice of such claim prior to
the date which is twelve (12) months after the Closing Date.
As used in this Section 6, the terms "to Seller's knowledge," "actual knowledge"
or "best of Sellers knowledge" (i) shall mean and apply to the actual knowledge
of Xxxxx Xxxxxxx (the asset manager), Xxx Xxxxxx and Xxxxxx Xxxxxxx and not to
any other parties, (ii) shall mean the actual knowledge of such individuals,
without any investigation or inquiry of any kind, and (iii) shall not mean such
individuals are charged with knowledge of the acts, omissions and/or knowledge
of Seller's agents or employees.
Notwithstanding anything contained in this Agreement to the contrary,
Seller shall have no liability for breaches of any representations, warranties
and certifications (the "Representations") which are made by Seller herein or in
any of the documents or instruments required to be delivered by Seller hereunder
if Purchaser, its officers, employees, shareholders, members, partners, or
agents had actual knowledge of such breach by Seller at or prior to Closing and
with such knowledge Purchaser elects to close in accordance with this Agreement,
and in such case Purchaser shall not have the right to bring any lawsuit or
other legal action against Seller, nor pursue any other remedies against Seller,
as a result of the breach of such Representation caused thereby.
N. Purchase As-Is. EXCEPT FOR THE REPRESENTATIONS OF SELLER EXPRESSLY SET FORTH
IN SECTION 6 OF THIS AGREEMENT AND IN THE CLOSING DOCUMENTS, PURCHASER WARRANTS
AND ACKNOWLEDGES TO AND AGREES WITH SELLER THAT PURCHASER IS PURCHASING THE
PROPERTY IN ITS "AS-IS, WHERE IS" CONDITION "WITH ALL FAULTS" AS OF THE CLOSING
DATE AND SPECIFICALLY AND EXPRESSLY WITHOUT ANY WARRANTIES, REPRESENTATIONS OR
GUARANTEES, EITHER EXPRESS OR IMPLIED, AS TO ITS CONDITION, FITNESS FOR ANY
PARTICULAR PURPOSE, MERCHANTABILITY, OR ANY OTHER WARRANTY OF ANY KIND, NATURE,
OR TYPE WHATSOEVER FROM OR ON BEHALF OF SELLER. EXCEPT FOR THE REPRESENTATIONS
OF SELLER EXPRESSLY SET FORTH IN SECTION 6 OF THIS AGREEMENT AND IN THE CLOSING
DOCUMENTS, SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR
REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING
(A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, THE WATER, STRUCTURAL INTEGRITY, SOIL AND GEOLOGY; (B) THE INCOME TO
BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND
ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, INCLUDING THE
POSSIBILITIES
FOR FUTURE DEVELOPMENT OF THE PROPERTY; (D) THE COMPLIANCE OF OR BY THE PROPERTY
OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (E) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PROPERTY; (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR
MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY; (G) THE MANNER, QUALITY,
STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY; (H) THE PRESENCE OR ABSENCE
OF HAZARDOUS MATERIALS AT, ON, UNDER, OR ADJACENT TO THE PROPERTY OR ANY OTHER
ENVIRONMENTAL MATTER OR CONDITION OF THE PROPERTY; OR (I) ANY OTHER MATTER WITH
RESPECT TO THE PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN SECTION 6 OF THIS
AGREEMENT AND IN THE CLOSING DOCUMENTS, ANY INFORMATION PROVIDED BY OR ON BEHALF
OF SELLER WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES
AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF
SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS
OF SUCH INFORMATION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR
WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY,
OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE,
SERVANT OR OTHER PERSON EXCEPT FOR THE EXPRESS REPRESENTATIONS SET FORTH IN
SECTION 6 OF THIS AGREEMENT AND IN THE CLOSING DOCUMENTS. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT PURCHASER IS A SOPHISTICATED AND EXPERIENCED
PURCHASER OF PROPERTIES SUCH AS THE PROPERTY AND HAS BEEN DULY REPRESENTED BY
COUNSEL IN CONNECTION WITH THE NEGOTIATION OF THIS AGREEMENT. EXCEPT AS MAY
OTHERWISE BE PROVIDED HEREIN, SELLER HAS MADE NO AGREEMENT TO ALTER, REPAIR OR
IMPROVE ANY OF THE PROPERTY.
O. Purchaser's Representations, Warranties and Covenants.
Purchaser hereby represents, warrants and covenants to Seller as
follows:
1. Power. Purchaser has the legal power, right and
authority to enter into this Agreement and the instruments
referenced herein and to consummate the transactions contemplated
hereby.
2. Requisite Action. All requisite action (corporate, trust,
partnership or otherwise) has been taken by Purchaser in connection with
entering into this Agreement and the instruments referenced herein and the
consummation of the transactions contemplated hereby. No consent of any partner,
shareholder, member, creditor, investor, judicial or administrative body,
authority or other party is required which has not been obtained to permit
Purchaser to enter into this Agreement and consummate
the transaction contemplated hereby.
3. Authority. The individuals executing this Agreement and the
instruments referenced herein on behalf of Purchaser have the legal power, right
and actual authority to bind Purchaser to the terms and conditions hereof and
thereof.
4. Validity. This Agreement and all documents required hereby to be
executed by Purchaser are and shall be valid, legally binding obligations of and
enforceable against Purchaser in accordance with their terms.
5. Conflicts. Neither the execution and delivery of this Agreement and
documents referenced herein, nor the incurrence of the obligations set forth
herein, nor the consummation of the transactions herein contemplated, nor
referenced herein conflict with or result in the material breach of any terms,
conditions or provisions of or constitute a default under, any bond, note, or
other evidence of indebtedness or any contract, lease or other agreements or
instruments to which Purchaser is a party.
6. Litigation. There is no action, suit or proceeding pending or
threatened against Purchaser in any court or by or before any other governmental
agency or instrumentality which would materially and adversely affect the
ability of Purchaser to carry out the transactions contemplated by this
Agreement.
7. Indemnity. Purchaser shall indemnify, defend and hold the
Indemnified Parties harmless from and against any and all claims, actions,
judgments, liabilities, liens, damages, penalties, fines, costs and reasonable
attorneys' fees, foreseen or unforeseen, asserted against, imposed on or
suffered or incurred by Seller directly or indirectly arising out of or in
connection with any breach of the warranties, representations and covenants set
forth in this Section 8 or the inaccuracy of any representation made by
Purchaser in the ERISA certificate. The warranties, representations and
indemnities set forth in this Section 8 shall be deemed remade as of Closing and
shall survive Closing and constitute a Surviving Obligation, and said warranties
and representations as so remade, and the indemnity obligation set forth in
herein shall be deemed waived unless Seller has given Purchaser written notice
of any such claim prior to the date which is twelve (12) months from the Closing
Date.
P. Closing Costs. Seller shall pay the following expenses: (i) the costs to
obtain a standard Texas owner's title policy; (ii) the costs to obtain the
Existing Survey; (iii) one-half of all closing escrow fees, including "New York
Style" closing fees
and fee for recording the Deed; (iv) all costs and expenses incurred in
connection with the transfer of any transferable permits, warranties or licenses
in connection with the ownership or operation of the Property; and (v) Seller's
legal fees and expenses. Purchaser shall pay the following expenses: (a) the
costs for any endorsements to the title policy, and deletion of the survey
exception; (b) the costs to obtain the Updated Survey; (c) one-half of all
closing escrow fees, including "New York Style" closing fees; (d) one-half of
the fee for the recording of the Deed; (e) all costs and expenses associated
with Purchaser's financing, if any; and (f) Purchaser's legal fees and expenses.
The provisions of this Section 9 shall survive Closing or any termination of
this Agreement and constitute a Surviving Obligation.
Q. Commissions. Seller shall be solely responsible for the payment of the
commission to CB Commercial Real Estate Group, Inc. Seller and Purchaser each
warrant and represent to the other that (other than CB Commercial Real Estate
Group, Inc.) neither has had any dealings with any broker, agent, or finder
relating to the sale of the Property or the transactions contemplated hereby,
and each agrees to indemnify and hold the other and their respective advisors
(including HCMC) harmless against any claim for brokerage commissions,
compensation or fees by any broker, agent, or finder in connection the sale of
the Property or the transactions contemplated hereby resulting from the acts of
the indemnifying party. The provisions of this Section 10 shall survive Closing
and constitute a Surviving Obligation.
R. New York Style Closing. It is contemplated that the transaction shall be
closed by means of a so-called New York Style Closing, with the concurrent
delivery of the documents of title, transfer of interest, delivery of the
marked-up title commitment described in Section 4.3(d) and the payment of the
Purchase Price. Seller and Purchaser shall each provide any undertaking to the
Title Company reasonably necessary to accommodate the New York Style Closing.
S. Attorneys' Fees and Costs. In the event suit or action is instituted to
interpret or enforce the terms of this Agreement, or in connection with any
arbitration or mediation of any dispute, the prevailing party shall be entitled
to recover from the other party such sum as the court, arbitrator or mediator
may adjudge reasonable as such party's costs and attorney's fees, including such
costs and fees as are incurred in any trial, on any appeal, in any bankruptcy
proceeding (including the adjudication of issues peculiar to bankruptcy law) and
in any
petition for review. Each party shall also have the right to recover its
reasonable costs and attorney's fees incurred in collecting any sum or debt owed
to it by the other party, with or without litigation, if such sum or debt is not
paid within fifteen (15) days following written demand therefor. The provisions
of this Section 12 shall survive Closing and constitute Surviving Obligations.
T. Notice. All notices, demands, deliveries and communications (a "Notice")
under this Agreement shall be delivered or sent by: (i) first class, registered
or certified mail, postage prepaid, return receipt requested, (ii) nationally
recognized overnight carrier, or (iii) facsimile with original Notice sent via
overnight delivery addressed to the address of the party in question set forth
in the first paragraph of this Agreement and copies to the parties designated
below or to such other address as either party may designate by Notice pursuant
to this Section 13. Notices shall be deemed given (x) three business days after
being mailed as provided in clause (i) above, (y) one business day after
delivery to the overnight carrier as provided in clause (ii) above, or (z) on
the day of the transmission of the facsimile so long as it is received in its
entirety by 5:00 pm (New York City, New York Time) on such day and the original
of such Notice is received the next business day via overnight mail as provided
in clause (iii) above.
Notices to Seller copy to: Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx - 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
Notices to Purchaser copy to: Mr. Xxxxx Xxxxxx
Xxxx-Xxxx Realty Corp.
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
and a copy to: Xxxxx X. Xxxxxx
Xxxxx, Day, Xxxxxx & Xxxxx
Suite 2300
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
U. Fire or Other Casualty; Condemnation.
1. If the Property or any part thereof is damaged by fire or other
casualty prior to the Closing Date which would cost in excess of $500,000.00 to
repair (as determined by an insurance adjuster selected by the insurance
carriers), or which can be the basis for any tenant to terminate any Leases
which, individually or in the aggregate, is for more than 20,000 square feet of
net rentable area, Purchaser may terminate this Agreement by written notice to
Seller given on or before the earlier of (i) twenty (20) days following receipt
of notice from Seller of such casualty or (ii) the Closing Date. In the event of
such termination, this Agreement shall be of no further force and effect and,
except for the Surviving Obligations, neither party shall thereafter have any
further obligation under this Agreement, and Seller shall direct the Title
Company to promptly return all Xxxxxxx Money to Purchaser. If Purchaser does not
have the right to or does not elect to terminate this Agreement, then the
Closing shall take place as herein provided without abatement of the Purchase
Price, and Seller shall assign and transfer to Purchaser on the Closing Date,
without warranty or recourse, all of Seller's right, title and interest to the
balance of insurance proceeds paid or payable to Seller on account of such fire
or casualty remaining after reimbursement to Seller for the total amount of all
costs and expenses incurred by Seller in connection therewith including but not
limited to making emergency repairs, securing the Property and complying with
applicable governmental requirements. Seller shall pay to Purchaser the amount
of the deductible of any of Seller's applicable insurance policies.
2. If any material portion of the Property is taken in eminent domain
proceedings prior to Closing, Purchaser may terminate this Agreement by notice
to Seller given on or before the earlier of (i) twenty (20) days after such
taking or (ii) the Closing Date, and, in the event of such termination, this
Agreement shall be of no further force and effect and, except for the Surviving
Obligations, neither party shall thereafter have any further obligation under
this Agreement, and Seller shall direct the Title Company to promptly return all
Xxxxxxx Money to Purchaser. If Purchaser does not so elect to terminate or if
the taking is not material, then the Closing shall take place as herein provided
without abatement of the Purchase Price, and Seller shall deliver or assign to
Purchaser on the Closing Date, without warranty or recourse, all of Seller's
right, title and interest in and to all condemnation awards paid or payable to
Seller. As used in this Section 14.2, "material portion" means a part of the
Property which if taken in eminent domain proceedings
would have an adverse effect on Purchaser's use or occupancy of
the Property.
V. Operations After Date of This Agreement. Seller covenants
and agrees with Purchaser that:
(a) after the date hereof through the Closing, Seller will (except as
specifically provided to the contrary herein):
(i) Refrain from transferring any of the Property or creating
on the Property any easements, liens, mortgages, encumbrances, or other
interests which will survive Closing or permitting any changes to the
zoning classification of the Land;
(ii) Refrain from entering into or amending any contracts, or
other agreements (excluding leases) regarding the Property (other than
contracts in the ordinary and usual course of business and which are
cancelable by the owner of the Property without penalty within thirty
(30) days after giving notice thereof);
(iii) Continue to operate, maintain, and repair the Property
in a manner consistent with Seller's current practices;
(iv) Fully comply with the terms of the Leases;
(v) Refrain from offering the Property for sale or marketing
the same or negotiating with respect to or entering into any other
agreement for the sale of the Property;
(vi) Cancel any Lease without Purchaser's prior written
consent (which shall not be unreasonably withheld);
(vii) Refrain from applying tenant security deposits without
Purchaser's approval (which shall not be unreasonably withheld);
(viii) Maintain existing insurance coverage relating to the
Property; and
(ix) Deliver to Purchaser not less than five (5) days prior to
the expiration of the Due Diligence Period copies of all leases entered
into after the date hereof through the date which is five (5) days
prior to the expiration of the Due Diligence Period and copies of all
Proposals (as defined
in Section 15(b) below) with respect to which no lease has been
executed and which has not expired or been withdrawn, except as
provided otherwise in Section 15(b) below.
(b) after the date which is five (5) days prior to the expiration of
the Due Diligence Period through the Closing, Seller will (except as
specifically provided to the contrary herein) refrain from (i) amending any
Leases of any portion of the Property, or (ii) executing any new leases without
the prior written consent of Purchaser (which consent shall not be unreasonably
withheld). As used herein, "Proposal" shall mean a description of the economic
terms of any proposed lease or amendment along with any financial information on
the tenant in Seller's possession. Purchaser shall be deemed to have approved:
(x) all Proposals listed on Schedule 4 attached hereto; and (y) any Proposals
delivered to Purchaser after the date hereof through the date which is five (5)
days prior to the expiration of the Due Diligence Period. Seller shall have the
right to execute lease documents evidencing a Proposal approved or deemed
approved by Purchaser.
W. Assignment. Purchaser shall not assign this Agreement without Seller's prior
written consent which consent may be withheld for any reason or no reason;
provided, however, Purchaser may assign this Agreement to an affiliate of
Xxxx-Xxxx Realty Acquisition Corp., without the consent of Seller so long as
such Assignee complies with the requirements of the last sentence of this
Section 16. Subject to the previous sentence, this Agreement shall apply to,
inure to the benefit of and be binding upon and enforceable against the parties
hereto and their respective successors and assigns. Seller's consent to any such
assignment shall be conditioned upon Seller's receipt of the following not less
than five (5) business days prior to the Closing Date: (i) a duly executed
express assumption of all of the duties and obligations of Purchaser by the
proposed assignee in a form acceptable to Seller, and (ii) an ERISA certificate,
in the form attached hereto as Exhibit B and the content of which is
satisfactory to Seller.
X. Remedies.
(a) IN THE EVENT THAT SELLER SHALL FAIL TO CONSUMMATE THIS AGREEMENT
AND SUCH FAILURE IS NOT A RESULT OF PURCHASER'S DEFAULT OR A TERMINATION OF THIS
AGREEMENT BY PURCHASER OR SELLER PURSUANT TO A RIGHT TO DO SO UNDER THE
PROVISIONS HEREOF, PURCHASER, SHALL ONLY BE ENTITLED TO SEEK AT ITS ELECTION,
EITHER: (i) THE REMEDY OF SPECIFIC PERFORMANCE, OR (ii) DAMAGES IN AN AMOUNT NOT
TO EXCEED $1,000,000.00 IN THE AGGREGATE FOR ALL
RECOURSE OF PURCHASER UNDER THE PURCHASE DOCUMENTS (AS DEFINED IN SECTION 19
HEREOF) EXCEPT ARISING OUT OF SELLER'S OBLIGATIONS FOR REPRORATIONS AND UNDER
SECTION 15. IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER FOR ANY PUNITIVE,
SPECULATIVE OR CONSEQUENTIAL DAMAGES; PROVIDED, HOWEVER, IN THE CASE WHERE SUCH
FAILURE IS BASED UPON AN ACT WHICH IS NOT WITHIN SELLER'S CONTROL, PURCHASER, AS
ITS SOLE AND EXCLUSIVE REMEDY, MAY TERMINATE THIS AGREEMENT AND RECEIVE A REFUND
OF THE XXXXXXX MONEY LESS SELLER RETENTION. IN NO EVENT SHALL PURCHASER BE
ENTITLED TO RECORD A LIS PENDENS OR NOTICE OF PENDENCY OF ACTION AGAINST THE
PROPERTY FOR ANY REASON WHATSOEVER EXCEPT IF PURCHASER ELECTS THE REMEDY OF
SPECIFIC PERFORMANCE.
(b) IN THE EVENT THAT PURCHASER SHOULD FAIL TO CONSUMMATE THIS
AGREEMENT FOR ANY REASON, EXCEPT SELLER'S DEFAULT OR THE TERMINATION OF THIS
AGREEMENT BY PURCHASER PURSUANT TO A RIGHT TO DO SO UNDER THE TERMS AND
PROVISIONS HEREOF, THEN SELLER, AS ITS SOLE AND EXCLUSIVE REMEDY MAY TERMINATE
THIS AGREEMENT BY NOTIFYING PURCHASER THEREOF AND RECEIVE OR RETAIN THE XXXXXXX
MONEY AS LIQUIDATED DAMAGES, PROVIDED THAT THIS PROVISION SHALL NOT LIMIT
SELLER'S RIGHTS TO RECEIVE REIMBURSEMENT FOR ATTORNEYS' FEES AND TO PURSUE AND
RECOVER ON A CLAIM WITH RESPECT TO ANY SURVIVING OBLIGATIONS. THE PARTIES AGREE
THAT SELLER WILL SUFFER DAMAGES IN THE EVENT OF PURCHASER'S DEFAULT ON ITS
OBLIGATIONS. ALTHOUGH THE AMOUNT OF SUCH DAMAGES IS DIFFICULT OR IMPOSSIBLE TO
DETERMINE, THE PARTIES AGREE THAT THE AMOUNT OF THE XXXXXXX MONEY IS A
REASONABLE ESTIMATE OF SELLER'S LOSS IN THE EVENT OF PURCHASER'S DEFAULT. THUS,
SELLER SHALL ACCEPT AND RETAIN THE XXXXXXX MONEY AS LIQUIDATED DAMAGES BUT NOT
AS A PENALTY. EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 17(b), SUCH
LIQUIDATED DAMAGES SHALL CONSTITUTE SELLER'S SOLE AND EXCLUSIVE REMEDY. IN THE
EVENT SELLER IS ENTITLED TO THE XXXXXXX MONEY AS LIQUIDATED DAMAGES AND TO THE
EXTENT SELLER HAS NOT ALREADY RECEIVED THE XXXXXXX MONEY, THE XXXXXXX MONEY
SHALL BE IMMEDIATELY PAID TO SELLER BY THE TITLE COMPANY UPON RECEIPT OF WRITTEN
NOTICE FROM SELLER THAT PURCHASER HAS DEFAULTED UNDER THIS AGREEMENT, AND
PURCHASER AGREES TO TAKE ALL SUCH ACTIONS AND EXECUTE AND DELIVER ALL SUCH
DOCUMENTS NECESSARY OR APPROPRIATE TO EFFECT SUCH PAYMENT.
SELLER AND PURCHASER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE
PROVISIONS OF THE FOREGOING LIQUIDATED DAMAGES PROVISION AND BY THEIR SIGNATURES
IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
SELLER: PURCHASER:
JMB Group Trust III
By: Xxxxxxx Capital Management Xxxx-Xxxx Realty
Acquisition Corp.,
Corporation, its attorney in fact a Delaware
corporation
By: By:
Name: Xxxxxx X. Xxxxxxx Name:
Its: Executive Vice President Its:
Y. Miscellaneous.
1. Entire Agreement. This Agreement, together with the exhibits
attached hereto, constitute the entire agreement of the parties hereto regarding
the purchase and sale of the Property, and all prior agreements, understandings,
representations and statements, oral or written, are hereby merged herein. In
the event of a conflict between the terms of this Agreement and any prior
written agreements, the terms of this Agreement shall prevail. This Agreement
may only be amended or modified by an instrument in writing, signed by the party
intended to be bound thereby.
2. Time. All parties hereto agree that time is of the essence in this
transaction. If the time for performance of any obligation hereunder shall fall
on a Saturday, Sunday or holiday (national, in the State of Illinois or in the
State of Texas) such that the transaction contemplated hereby can not be
performed, the time for performance shall be extended to the next such
succeeding day where performance is possible.
3. Counterpart Execution. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an
original.
4. Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF TEXAS AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS.
5. Publicity. Seller and Purchaser hereby covenant and agree that, at
all times after the date of execution hereof and continuing after the Closing,
unless consented to in writing by the other party or unless required to be made
by law or rule of
any stock exchange, no press release or other public disclosure concerning this
transaction shall be made, and each party agrees to use best efforts to prevent
disclosure of this transaction. The provisions of this Section 18.5 shall
constitute Surviving Obligations.
6. Recordation. Purchaser shall not record this Agreement or a
memorandum or other notice thereof in any public office without the express
written consent of Seller. A breach by Purchaser of this covenant shall
constitute a material default by Purchaser under this Agreement.
7. Benefit. This Agreement is for the benefit of Purchaser and Seller,
and except as provided in the indemnity granted by Purchaser under Paragraphs
3.2 and 8.7 with respect to the Indemnified Parties listed therein, no other
person or entity will be entitled to rely on this Agreement, receive any benefit
from it or enforce any provisions of it against Purchaser or Seller.
8. Section Headings. The Section headings contained in this Agreement
are for convenience only and shall in no way enlarge or limit the scope or
meaning of the various and several Sections hereof.
9. Further Assurances. Purchaser and Seller agree to execute all
documents and instruments reasonably required in order to consummate the
purchase and sale herein contemplated.
10. Severability. If any portion of this Agreement is held to be
unenforceable by a court of competent jurisdiction, the remainder of this
Agreement shall remain in full force and effect.
11. Waiver of Trial by Jury. Seller and Purchaser, to the extent they
may legally do so, hereby expressly waive any right to trial by jury of any
claim, demand, action, cause of action, or proceeding arising under or with
respect to this Agreement, or in any way connected with, or related to, or
incidental to, the dealings of the parties hereto with respect to this Agreement
or the transactions related hereto or thereto, in each case whether now existing
or hereafter arising, and irrespective of whether sounding in contract, tort, or
otherwise. To the extent they may legally do so, Seller and Purchaser hereby
agree that any such claim, demand, action, cause of action, or proceeding shall
be decided by a court trial without a jury and that any party hereto may file an
original counterpart or a copy of this Section with any court as written
evidence of the consent of the other party
or parties hereto to waiver of its or their right to trial by
jury.
12. Independent Counsel. Purchaser and Seller each acknowledge that:
(a) they have been represented by independent counsel in connection with this
Agreement; (b) they have executed this Agreement with the advice of such
counsel; and (c) this Agreement is the result of negotiations between the
parties hereto and the advice and assistance of their respective counsel. The
fact that this Agreement was prepared by Seller's counsel as a matter of
convenience shall have no import or significance. Any uncertainty or ambiguity
in this Agreement shall not be construed against Seller because Seller's counsel
prepared this Agreement in its final form.
13. Governmental Approvals. Nothing contained in this Agreement shall
be construed as authorizing Purchaser to apply for a zoning change, variance,
subdivision maps, lot line adjustment, or other discretionary governmental act,
approval or permit with respect to the Property prior to the Closing, and
Purchaser agrees not to do so. Purchaser agrees not to submit any reports,
studies or other documents, including, without limitation, plans and
specifications, impact statements for water, sewage, drainage or traffic,
environmental review forms, or energy conservation checklists to any
governmental agency, or any amendment or modification to any such instruments or
documents prior to the Closing. Purchaser's obligation to purchase the Property
shall not be subject to or conditioned upon Purchaser's obtaining any variances,
zoning amendments, subdivision maps, lot line adjustment or other discretionary
governmental act, approval or permit.
14. No Waiver. No covenant, term or condition of this Agreement other
than as expressly set forth herein shall be deemed to have been waived by Seller
or Purchaser unless such waiver is in writing and executed by Seller or
Purchaser, as the case may be.
15. Discharge and Survival. The delivery of the Deed by Seller, and the
acceptance thereof by Purchaser shall be deemed to be the full performance and
discharge of every covenant and obligation on the part of Seller to be performed
hereunder except the Surviving Obligations. No action shall be commenced after
the Closing on any covenant or obligation except the Surviving Obligations.
Anything in this Section 18.15 to the contrary notwithstanding, if Seller
breached the obligations of Seller under Section 15, the action against Seller
for such breach shall survive Closing and be a Surviving Obligation.
Z. Exculpation of Seller and Related Parties. Notwithstanding anything to the
contrary contained in this Agreement or in any exhibits attached hereto or in
any documents executed in connection herewith (collectively, including this
Agreement, said exhibits and any such document, the "Purchase Documents"), it is
expressly understood and agreed by and between the parties hereto that: (i) the
recourse of Purchaser or its successors or assigns against Seller with respect
to the alleged breach by or on the part of Seller of any representation,
warranty, covenant, undertaking, indemnity or agreement contained in any of the
Purchase Documents other than Seller's obligations hereunder for reprorations
and under Section 15 (collectively, "Seller's Undertakings") shall be limited to
an amount not to exceed $1,000,000.00 in the aggregate; and (ii) except as
provided in (i) above with respect to Seller, no personal liability or personal
responsibility of any sort with respect to any of Seller's Undertakings or any
alleged breach thereof is assumed by, or shall at any time be asserted or
enforceable against, Seller or HCMC, or against any of their respective
shareholders, directors, officers, employees, agents, constituent partners,
members, beneficiaries, trustees or representatives.
AA. Information and Audit Cooperation. At Purchaser's request, at any time
before Closing, and within one (1) year after Closing, Seller will provide to
Purchaser's designated independent auditor access to those books and records of
the Property which are in Seller's possession and not provided to Buyer at
Closing, and Seller shall provide to such auditor a representation letter
regarding the books and records of the Property, in substantially the form of
Exhibit "N", attached hereto and incorporated herein by reference, in connection
with the normal course of auditing the Property in accordance with generally
accepted auditing standards; provided, however, that Purchaser shall indemnify
and hold Seller harmless from any liability, damages, costs, expenses (including
reasonable attorneys' fees and expenses) incurred by Seller as a result of the
execution and delivery of any letter to Purchaser's auditor.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
made as of the day and year first above stated.
SELLER:
JMB GROUP TRUST III
an Illinois common law group
trust
By: Xxxxxxx Capital
Management Corporation,
its attorney in fact
By:
Name: Xxxxxx X. Xxxxxxx
Its: Executive Vice-President
PURCHASER:
XXXX-XXXX REALTY
ACQUISITION CORP.,
a Delaware Corporation
By:
Name:
Its:
Exhibit A - Legal Description
Exhibit B - Form of Xxxxxxx Money Escrow Agreement
Exhibit C - Survey Specifications
Exhibit D - Survey Certification
Exhibit E - Form of Tenant Estoppel Certificate
Exhibit F - Form of ERISA Certificate
Exhibit G - Form of Special Warranty Deed
Exhibit H - Form of Xxxx of Sale
Exhibit I - Form of Assignment and Assumption of Leases
Exhibit J - Form of Assignment and Assumption of Contracts,
Licenses and Permits
Exhibit K - Form of Non-Foreign Affidavit
Exhibit L - Form of Tenant Notification Letter
Exhibit M - Form of Vendor Notification Letter
Exhibit N - Form of Auditor Letter
Schedule 1 - List of Leases
Schedule 2 - List of Service Contracts
Schedule 3 - List of Litigation
Schedule 4 - List of Proposals
Schedule 5 - List of Environmental Reports
