EXHIBIT 10.11
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (this
"AGREEMENT") is made and entered into as of September 9, 2004, between XXXX XXXX
FUND V, L.P., a Delaware limited partnership ("SELLER"), and BEHRINGER HARVARD
MID-TERM VALUE ENHANCEMENT FUND I LP, a Texas limited partnership ("BUYER"),
with reference to the following:
A. Seller is the owner of the improved real property (the "REAL
PROPERTY") described on EXHIBIT A attached hereto together with certain personal
property located upon or used in connection with such improved real property and
certain other assets relating thereto, all as more particularly described in
SECTION 2 hereof.
B. Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, the Real Property, together with certain personal property and related
assets on the terms and subject to the conditions contained in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. BASIC TERMS AND DEFINITIONS; REFERENCES
1.1 BASIC TERMS AND DEFINITIONS.
(a) Effective Date. The effective date of this Agreement shall
be the date set forth above ("EFFECTIVE Date").
(b) Closing Date. The last day that Close of Escrow may occur
shall be September 30, 2004, at 1:00 p.m. (California time) (the "CLOSING
DATE").
(c) Title Review Period. The "TITLE REVIEW PERIOD" shall end on
September 16, 2004, at 5:00 p.m. (California time).
(d) Due Diligence Period. The "DUE DILIGENCE PERIOD" shall end
on September 16, 2004, at 5:00 p.m. (California time).
(e) Escrow Holder. The escrow holder shall be Chicago Title
Company ("ESCROW HOLDER"), whose address is 00000 Xxx Xxxxxx, Xxxxxx, Xxxxxxxxxx
00000, Escrow Officer: Xxx Xxxxx; Telephone: (000) 000-0000; Telecopier: (949)
263-0356.
(f) Title Company. The title company shall be Chicago Title
Insurance Company ("TITLE COMPANY") whose address is 00000 Xxx Xxxxxx, Xxxxxx,
Xxxxxxxxxx 00000, Title Coordinator: Xxxx Xxxxxx; Telephone: (000) 000-0000;
Telecopier: (000) 000-0000.
1.2 REFERENCES. All references to Exhibits refer to Exhibits attached to
this Agreement and all such Exhibits are incorporated herein by reference. The
words "herein," "hereof," "hereinafter" and words of similar import refer to
this Agreement as a whole and not to any particular Section hereof.
2. PURCHASE AND SALE.
Subject to the terms and conditions of this Agreement, Seller agrees to
sell, assign and transfer to Buyer and Buyer agrees to purchase from Seller, for
the purchase price set forth in SECTION 3 hereof, all of Seller's right, title
and interest in and to the following (collectively, the "PROPERTY"):
2.1 The Real Property, together with the buildings located thereon, and
all associated parking areas, and all other improvements located thereon (the
buildings and such other improvements are referred to herein collectively as the
("IMPROVEMENTS"); all references hereinafter made to the Real Property shall be
deemed to include all rights, privileges, easements and appurtenances benefiting
the Real Property and/or the Improvements situated thereon, including, without
limitation, all mineral and water rights and all easements, rights-of-way and
other appurtenances used or connected with the beneficial use or enjoyment of
the Real Property;
2.2 All personal property, equipment, supplies and fixtures
(collectively, the "PERSONAL PROPERTY") listed on EXHIBIT B attached hereto or
otherwise left on the Real Property at the Close of Escrow (as defined in
SECTION 8.1 hereof) to the extent owned by Seller;
2.3 All of Seller's interest in any intangible property (expressly
excluding the names "Xxxx," "Bren", "K/B" or any derivative thereof, or any name
that includes the word "Xxxx", the word "Bren", or the word "K/B", or any
derivative thereof) used or useful in connection with the foregoing, including,
without limitation, all contract rights, warranties, guaranties, licenses,
permits, entitlements, governmental approvals and certificates of occupancy
which benefit the Real Property and/or the Personal Property;
2.4 All of Seller's interest in the lease affecting the Real Property as
of the Close of Escrow (the "Lease"); and
2.5 All of Seller's interests in the contracts listed on EXHIBIT C
attached hereto and all contracts hereafter entered into by Seller to the extent
permitted by the provisions of this Agreement (the "CONTRACTS").
Notwithstanding anything to the contrary contained herein, the term "Property"
shall expressly exclude any Rents (as such term is defined in SECTION 10.1
hereof) or any other amounts payable by the tenant under the Lease for periods
prior to the Close of Escrow, any Rent or other amounts payable by any former
tenants of the Property, and any judgments, stipulations, orders, or settlements
with the tenant under the Lease or former tenants of the Property (hereinafter
collectively referred to as the "EXCLUDED PROPERTY").
3. PURCHASE PRICE AND DEPOSIT.
3.1 PURCHASE PRICE. The purchase price for the Property shall be Nine
Million One Hundred Thousand Dollars ($9,100,000) (the "PURCHASE PRICE").
3.2 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be payable as
follows:
3.2.1 Within one (1) business day after the Effective Date of this
Agreement, and as a condition precedent to the effectiveness hereof, Buyer shall
deposit in escrow with Escrow Holder (as defined in SECTION 9.1 hereof), in cash
or current funds, the sum of (a) Seven Hundred Fifty Thousand Dollars ($750,000)
(the "TRANSACTION Deposit"), plus (b) Two Hundred Fifty Thousand Dollars
($250,000) (the "PERFORMANCE DEPOSIT"); the Transaction Deposit and the
Performance Deposit are sometimes hereinafter collectively referred to as the
"DEPOSIT." Immediately upon Escrow Holder's receipt of the Deposit (the "OPENING
OF ESCROW"), Escrow Holder shall invest the same in a federally insured
interest-bearing account acceptable to Seller and Buyer, with all interest
accruing thereon credited to the Purchase Price. For purposes of this Agreement,
any interest accruing on the Deposit from time to time shall be deemed part of
the Deposit. Upon expiration of the Due Diligence Period, if Buyer has not
previously terminated this Agreement by its terms, then Seller shall be entitled
to have the Performance Deposit released to it and Escrow Holder is hereby
directed to remit the Performance Deposit to Seller without further instruction
from Buyer or Seller, and, at Escrow Holder's request, Buyer shall promptly sign
and deliver to Escrow Holder such written instructions as Escrow Holder may
request confirming that the Performance Deposit may be released to Seller. Buyer
acknowledges and agrees that there shall not be any interest earned on the
Performance Deposit after its release to Seller. Concurrently with the Close of
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Escrow, the Deposit (including the Performance Deposit) shall be credited to the
Purchase Price. Buyer agrees that in consideration of Seller's entering into the
Purchase Agreement with Buyer and providing Buyer the opportunity to purchase
the Property in accordance with the terms and conditions set forth herein, the
Performance Deposit shall be deemed earned in full by Seller as of the execution
and delivery of this Agreement and, notwithstanding anything stated to the
contrary in this Agreement, if this Agreement is terminated by Buyer prior to
the expiration of the Due Diligence Period for any reason other than Seller's
breach of its obligations hereunder or the occurrence of damage or destruction
to any portion of the Property or condemnation to any portion of the Property
that permits Buyer to terminate this Agreement pursuant to SECTION 5.4 herein,
the Performance Deposit shall be remitted to Seller and the Transaction Deposit
shall be returned to Buyer. Buyer acknowledges and agrees that Seller would not
have entered into this Agreement with Buyer and provided Buyer the opportunity
to acquire the Property in accordance with the terms and conditions of this
Agreement but for Buyer's agreement to treat the Performance Deposit in the
manner provided in this SECTION 3.2.1.
3.2.2 Provided all the conditions in SECTION 7.1 hereof have been
satisfied or waived by Buyer, Buyer shall deposit in cash or current funds with
Escrow Holder no later than 1:00 p.m. (California time) one (1) business day
prior to the Closing Date (as defined in SECTION 1.1(B) hereof) an amount equal
to the Purchase Price LESS the Deposit and all interest accrued thereon PLUS or
minus applicable prorations pursuant to SECTION 10 hereof.
3.3 DISPOSITION OF DEPOSIT UPON FAILURE TO CLOSE. If the Close of Escrow
fails to occur due to Buyer's default under this Agreement (all of the
conditions to Buyer's obligation to close having been satisfied or waived), then
the disposition of the Deposit and all interest accrued thereon shall be
governed by SECTION 13.1 hereof; if the Close of Escrow fails to occur due to
Seller's default under this Agreement (all of the conditions to Seller's
obligation to close having been satisfied or waived), then the Deposit
(including the Performance Deposit) and all interest accrued thereon shall
promptly be refunded to Buyer; and if the Close of Escrow fails to occur due to
the failure of any of the conditions set forth in SECTIONS 7.1 or 7.2 hereof
other than as a result of Buyer's or Seller's default under this Agreement, then
the disposition of the Deposit and all interest accrued thereon shall be
governed by SECTION 9.3 hereof. Notwithstanding the foregoing, the provisions of
this SECTION 3.3 are expressly subject to the provisions of SECTION 3.2.1
herein.
4. PROPERTY INFORMATION; TITLE REVIEW; INSPECTIONS AND DUE DILIGENCE;
TENANT ESTOPPEL CERTIFICATE; CONFIDENTIALITY.
4.1 PROPERTY INFORMATION. Seller shall make available to Buyer and
Buyer's auditors within five (5) business days after the date of this Agreement,
to the extent in Seller's possession, the following, all of which shall be made
available for review and copying (at Buyer's cost and expense) at the offices of
Xxxx Xxxx Xxxxxxxxx Realty Advisors, Inc. (at the address set forth in SECTION
15.1 hereof) or at the Real Property (collectively, the "PROPERTY INFORMATION"):
(a) the Lease;
(b) a current rent roll for the Real Property, indicating rents
collected, scheduled rents and concessions, delinquencies, and security deposits
held (collectively, the "RENT ROLL");
(c) the most current operating statements and/or financial operating
statements for the Real Property and the operating statements for the Real
Property for 2001, 2002 and 2003 (collectively, the "OPERATING STATEMENTS");
(d) copies of the Contracts;
(e) existing land title surveys, if any, for the Real Property
(collectively, the "EXISTING SURVEYS"); and
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(f) any environmental, soils and/or engineering reports prepared for
Seller or Seller's predecessors.
Under no circumstances shall Buyer be entitled to review any appraisals relating
to the Property or any internal financial audits relating to the Property.
4.2 TITLE AND SURVEY REVIEW; TITLE POLICY.
4.2.1 DELIVERY OF TITLE REPORT. Seller shall promptly request the
Title Company to deliver to Buyer a preliminary report or title commitment
covering the Real Property (the "TITLE REPORT"), together with copies of all
documents (collectively, the "TITLE DOCUMENTS") referenced in the Title Report.
Buyer, at its option and expense, may (a) obtain a new survey for the Real
Property or (b) cause one or more of the Existing Surveys to be updated or
recertified. Buyer understands and acknowledges that if Buyer elects to obtain a
new survey or an updated or recertified survey for the Real Property the
completion and/or delivery of the surveys or updated or recertified surveys
shall not be a condition precedent to the Close of Escrow. Notwithstanding the
foregoing, Buyer further acknowledges that Seller makes no representations or
warranties, and Seller shall have no responsibility, with respect to the
completeness of the Title Documents made available to Buyer by the Title
Company.
4.2.2 TITLE REVIEW AND CURE. Commencing from the date of this
Agreement and continuing through and including the Title Review Period, Buyer
shall have the right to approve or disapprove the condition of title to the Real
Property. On or before the expiration of the Title Review Period, Buyer shall
deliver to Seller and Escrow Holder written notice ("BUYER'S TITLE NOTICE") of
Buyer's approval or disapproval of the matters reflected in the Title Report and
any Existing Survey; Buyer's Title Notice delivered by Buyer to Seller must
state that it is a "Buyer's Title Notice being delivered in accordance with the
provisions of SECTION 4.2.2 of the Purchase Agreement." The failure of Buyer to
deliver to Seller Buyer's Title Notice on or before the expiration of the Title
Review Period shall be deemed to constitute Buyer's approval of the condition of
title to the Real Property. If Buyer disapproves any matter of title shown in
the Title Report or Existing Survey for the Real Property pursuant to the
delivery of a Buyer's Title Notice, then this Agreement shall automatically
terminate, the parties shall be released from all further obligations under this
Agreement (except pursuant to any provisions which by their terms survive a
termination of this Agreement), the Deposit shall be immediately returned to
Buyer (exclusive of the Performance Deposit, which shall be delivered to Seller)
and Buyer shall immediately return all Property Information to Seller.
Notwithstanding any provision to the contrary contained in this Agreement,
Seller covenants and agrees to cause to be released from the Property prior to
the Close of Escrow any deeds of trust executed or expressly assumed in writing
by Seller.
4.2.3 DELIVERY OF TITLE POLICY AT CLOSING. As a condition precedent
to the Close of Escrow, the Title Company shall have issued and delivered to
Buyer, or shall have committed to issue and deliver to Buyer, with respect to
the Real Property, a Standard Coverage Owner's Policy of Title Insurance (1992
Form) (the "TITLE POLICY") issued by the Title Company as of the date and time
of the recording of the Deed (as such term is defined in SECTION 6.1 hereof) for
the Real Property , in the amount of the Purchase Price insuring Buyer as owner
of good, marketable and indefeasible fee simple title to the Real Property,
subject only to the Permitted Exceptions (as hereinafter defined). For purposes
of this Agreement, "PERMITTED EXCEPTIONS" shall mean and include (a) any lien to
secure payment of real estate taxes, including special assessments, not
delinquent, (b) all matters which could be revealed or disclosed by a physical
inspection or a survey of the Real Property and matters affecting the Real
Property which are created by or with the written consent of Buyer (including,
without limitation, a declaration of easement in the form of that attached
hereto as EXHIBIT J and made a part hereof, the recording of which Buyer hereby
grants its consent); (c) the rights of the tenant under the Lease affecting the
Real Property, (d) all exceptions disclosed by the Title Report relating to the
Real Property and which are approved or deemed approved by Buyer in accordance
with SECTION 4.2.2 hereof, and (e) all applicable laws, ordinances, rules and
governmental regulations (including, without limitation, those relating to
building, zoning and land use) affecting the development, use, occupancy or
enjoyment of the Real Property.
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4.3 INSPECTIONS; DUE DILIGENCE PERIOD.
4.3.1 INSPECTIONS IN GENERAL. Commencing from the Effective Date and
continuing through and including the Close of Escrow, Buyer, its agents, and
employees shall have a limited license (the "LICENSE") to enter upon the Real
Property for the purpose of making non-invasive inspections at Buyer's sole
risk, cost and expense. Before any such entry, Buyer shall provide Seller with a
certificate of insurance naming Seller as an additional insured and with an
insurer and insurance limits and coverage reasonably satisfactory to Seller. All
of such entries upon the Real Property shall be at reasonable times during
normal business hours and after at least 48 hours prior notice to Seller or
Seller's agent, and Seller or Seller's agent shall have the right to accompany
Buyer during any activities performed by Buyer on the Real Property and such
inspections shall not interfere with the rights of the tenant. Notwithstanding
anything stated to the contrary herein, Buyer shall have no right to inspect any
of the occupied space in the Real Property and Buyer shall not contact or speak
to the tenant unless Buyer provides Seller with no less than twenty-four (24)
hours prior written notice of such intention and Seller or Seller's
representative is present during such inspections and/or discussions with the
tenant; any discussions with the tenant must be limited to its existing tenancy
and premises and may not involve any lease renegotiations. Seller agrees to make
itself or its agents available at any reasonable time during the Due Diligence
Period to meet with Buyer and/or Buyer's representatives for purposes of
conducting interviews with the tenant and/or inspecting its space. Buyer shall
have the right to interview Seller's property manager and Seller's asset
manager, which are responsible for the day-to-day operation of the Property. At
Seller's request, Buyer shall provide Seller (at no cost to Seller) with a copy
of the results of any tests and inspections made by Buyer, excluding only market
and economic feasibility studies. If any inspection or test disturbs the Real
Property, Buyer will restore the Real Property to the same condition as existed
before the inspection or test. Buyer shall defend, indemnify Seller and hold
Seller, Seller's trustees, officers, tenants, agents, contractors and employees
and the Real Property harmless from and against any and all losses, costs,
damages, claims, or liabilities, including but not limited to, mechanic's and
materialmen's liens and Seller's attorneys' fees, arising out of or in
connection with Buyer's, its agents, contractors, employees, or invitees entry
upon or inspection of the Real Property. The License may be revoked by Seller at
any time after a default by Buyer in the performance of its obligations under
this Agreement and shall in any event be deemed revoked upon termination of this
Agreement. The provisions of this SECTION 4.3.1 shall survive the Close of
Escrow or the earlier termination of this Agreement.
4.3.2 ENVIRONMENTAL INSPECTIONS. The inspections under SECTION 4.3.1
may include non-invasive Phase I environmental inspections of the Real Property,
but no Phase II environmental inspections or other invasive inspections or
sampling of soil or materials, including without limitation construction
materials, either as part of the Phase I inspections or any other inspections,
shall be performed without the prior written consent of Seller, which may be
withheld in its sole and absolute discretion, and if consented to by Seller, the
proposed scope of work and the party who will perform the work shall be subject
to Seller's review and approval. At Seller's request, Buyer shall deliver to
Seller (at no cost to Seller) copies of any Phase II or other environmental
reports to which Seller consents as provided above.
4.3.3 TERMINATION DURING DUE DILIGENCE PERIOD. If Buyer determines,
in its sole discretion, before the expiration of the Due Diligence Period, that
the Real Property is unacceptable for Buyer's purposes, Buyer shall have the
right to terminate this Agreement by giving to Seller notice of termination
("TERMINATION NOTICE") before the expiration of the Due Diligence Period, in
which event the Transaction Deposit shall be immediately refunded to Buyer, the
Performance Deposit shall be remitted to Seller, Buyer shall immediately return
all Property Information to Seller and, except for those provisions of this
Agreement which expressly survive the termination of this Agreement, the parties
hereto shall have no further obligations hereunder. If Buyer fails to deliver a
Termination Notice to Seller and Escrow Holder on or before the expiration of
the Due Diligence Period, then Buyer shall be deemed to be satisfied with all
aspects of all the Real Property, including, without limitation, the condition
and suitability of all the Real Property for Buyer's intended use, and Buyer
shall be obligated to acquire the Real Property in accordance with the
provisions of this Agreement. Buyer's delivery of a Termination Notice to Seller
with respect to the Real Property shall constitute Buyer's election to terminate
this Agreement with respect to the Real Property as provided above in this
SECTION 4.3.3.
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4.4 TENANT ESTOPPEL CERTIFICATE. Seller shall endeavor to secure and
deliver to Buyer by the Closing Date an estoppel certificate for the Lease
consistent with the information in the Rent Roll and substantially in the form
attached hereto as EXHIBIT D or such form as may be required under the Lease.
Buyer may terminate this Agreement after expiration of the Due Diligence Period,
upon five (5) days written notice to Seller, if no less than five (5) business
days prior to the Closing Date, Seller fails to deliver to Buyer an estoppel
certificate ("TENANT ESTOPPEL CERTIFICATES") in the form attached hereto as
EXHIBIT D or such form as may be required under the Lease, executed by the
tenant under the Lease and meeting the foregoing requirements (and in the event
of such termination, the Deposit, inclusive of the Performance Deposit, shall be
returned to Buyer).
4.5 CONTRACTS. Buyer shall assume the obligations arising from and after
the Closing Date under the Contracts; provided, however, notwithstanding
anything stated to the contrary herein, Buyer shall not be obligated to assume
any of Seller's obligations under, and Seller shall terminate at Close of
Escrow, the management agreement listed in EXHIBIT C attached hereto and made a
part hereof, except that, notwithstanding Seller's termination of the management
agreement listed in EXHIBIT C attached hereto, and in consideration of Seller's
terminating the same, Buyer shall be responsible for, and Buyer shall assume
pursuant to the terms and provisions of the Assignment of Lease and Contracts
and Xxxx of Sale, as hereinafter defined, all leasing commissions, if any,
payable (notwithstanding the termination of the management agreement) under the
management agreement after the Close of Escrow arising out of the lease of space
in the Property after the Close of Escrow.
4.6 CONFIDENTIALITY. Prior to the Close of Escrow or in the event the
Close of Escrow never occurs, the Property Information and all other
information, other than matters of public record or matters generally known to
the public, furnished to, or obtained through inspection of the Real Property
by, Buyer, its affiliates, lenders, employees, attorneys, accountants and other
professionals or agents relating to the Real Property, will be treated by Buyer,
its affiliates, lenders, employees and agents as confidential, and will not be
disclosed to anyone (except as reasonably required in connection with Buyer's
evaluation of the Real Property) except to Buyer's consultants who agree to
maintain the confidentiality of such information, and will be returned to Seller
by Buyer if the Close of Escrow does not occur. The terms of this Agreement will
not be disclosed to anyone prior to or after the Close of Escrow except to
Buyer's and Seller's consultants who agree to maintain the confidentiality of
such information and Seller and Buyer agree not to make any public announcements
or public disclosures or communicate with any media with respect to the subject
matter hereof without the prior written consent of the other party (in their
sole and absolute discretion). The confidentiality provisions of this SECTION
4.6 shall not apply to any disclosures made by Buyer or Seller as required by
law, by court order, or in connection with any subpoena served upon Buyer or
Seller; provided Buyer and Seller shall provide each other with written notice
before making any such disclosure. Furthermore, notwithstanding anything
contained in this Agreement to the contrary, Buyer shall be permitted (a) to
make such disclosures to potential investors in the Property as may be
recommended by Buyer's legal counsel; and (b) to make such other disclosures as
may be recommended by Buyer's legal counsel in order to comply with all
financial reporting, securities laws and other legal requirements applicable to
Buyer.
5. OPERATIONS AND RISK OF LOSS
5.1 ONGOING OPERATIONS. During the pendency of this Agreement, but
subject to the limitations set forth below, Seller shall carry on its businesses
and activities relating to the Real Property substantially in the same manner as
it did before the date of this Agreement.
5.2 NEW CONTRACTS. Prior to the expiration of the Due Diligence Period,
Seller may without Buyer's consent enter into contracts relating to the Real
Property, provided that Seller provides Buyer with written notice of the same.
Following the expiration of the Due Diligence Period, Seller will not enter into
any contract that will be an obligation affecting the Real Property subsequent
to the Close of Escrow (except contracts entered into in the ordinary course of
business that are terminable without cause on 30-days' notice), without the
prior consent of the Buyer, which shall not be unreasonably withheld or delayed.
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5.3 LEASING ARRANGEMENTS. Prior to the expiration of the Due Diligence
Period, Seller may without Buyer's consent enter into new leases of space in the
Real Property and amendments, expansions and renewals of the Lease, provided
that Seller provides Buyer with prior written notice of the same. Following the
expiration of the Due Diligence Period, Seller shall obtain Buyer's consent,
which Buyer shall not unreasonably withhold or delay, before entering into any
new lease of space in the Real Property and before entering into a Lease
amendment, expansion, or renewal. Buyer shall be deemed to have consented to any
new lease or any Lease amendment, expansion, or renewal if it has not notified
Seller specifying with particularity the matters to which Buyer reasonably
objects, within 5 days after its receipt of Seller's written request for
consent, together with a copy of the Lease amendment, expansion, or renewal or
the new lease. At the Close of Escrow, Buyer shall reimburse Seller for
commissions, legal fees, the cost of tenant improvements, and all other leasing
costs and expenses paid by Seller with respect to all other Lease amendments,
expansions or renewals or new leases that were entered into pursuant to this
SECTION 5.3 and, at Close of Escrow, shall assume in writing (pursuant to the
Assignment of Lease and Contracts and Xxxx of Sale) Seller's obligations
(whether arising before or after the Closing Date) under such new leases and
Lease amendments, expansions or renewals.
5.4 DAMAGE OR CONDEMNATION. Risk of loss resulting from any condemnation
or eminent domain proceeding which is commenced or has been threatened against
the Real Property before the Close of Escrow, and risk of loss to the Real
Property due to fire, flood or any other cause before the Close of Escrow, shall
remain with Seller. If before the Close of Escrow the Real Property or any
portion thereof shall be materially damaged, or if the Real Property or any
material portion thereof shall be subjected to a BONA FIDE threat of
condemnation or shall become the subject of any proceedings, judicial,
administrative or otherwise, with respect to the taking by eminent domain or
condemnation, then Buyer may elect not to acquire the Real Property by
delivering written notice of such election to Seller within five (5) days after
Buyer learns of the damage or taking, in which event Buyer shall no longer be
obligated to purchase, and Seller shall no longer be obligated to sell, the Real
Property and the Deposit (including the Performance Deposit) shall be returned
to Buyer. If the Closing Date is within the aforesaid 5-day period, then the
Close of Escrow shall be extended to the next business day following the end of
said 5-day period. If no such election is made, and in any event if the damage
is not material, this Agreement shall remain in full force and effect, the
purchase contemplated herein, less any interest taken by eminent domain or
condemnation, shall be effected with no further adjustment, and upon the Close
of Escrow, Seller shall assign, transfer and set over to Buyer all of the right,
title and interest of Seller in and to any awards that have been or that may
thereafter be made for such taking, and Seller shall assign, transfer and set
over to Buyer any insurance proceeds that may thereafter be made for such damage
or destruction giving Buyer a credit at the Close of Escrow for any deductible
under such policies. For purposes of this SECTION 5.4, the phrase(s) (i)
"MATERIAL DAMAGE" or "MATERIALLY DAMAGED" means damage reasonably exceeding ten
percent of the Purchase Price of the Real Property, and (ii) "MATERIAL PORTION"
means any portion of the Real Property that has a "fair market value" exceeding
10% of the Purchase Price of the Real Property.
6. SELLER'S AND BUYER'S DELIVERIES
6.1 SELLER'S DELIVERIES INTO ESCROW. No less than one (1) business day
prior to the Closing Date, Seller shall deliver into Escrow (as such term is
defined in SECTION 9 hereof) to the Escrow Holder the following:
(a) DEED. A deed (the "DEED") in the form attached hereto as EXHIBIT
E, executed and acknowledged by Seller, conveying to Buyer Seller's title to the
Real Property.
(b) ASSIGNMENT OF LEASE AND CONTRACTS AND XXXX OF SALE. An
Assignment of Lease and Contracts and Xxxx of Sale ("ASSIGNMENT OF LEASE AND
CONTRACTS AND XXXX OF SALE") in the form of EXHIBIT F attached hereto, executed
by Seller.
(c) STATE LAW DISCLOSURES. Such disclosures and reports as are
required by applicable state and local law in connection with the conveyance of
the Real Property.
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(d) FIRPTA. A Foreign Investment in Real Property Tax Act affidavit
executed by Seller substantially in the form of EXHIBIT G attached hereto.
(e) ADDITIONAL DOCUMENTS. Any additional documents that Escrow
Holder or the Title Company may reasonably require for the proper consummation
of the transaction contemplated by this Agreement.
6.2 BUYER'S DELIVERIES INTO ESCROW. No less than one (1) business day
prior to the Closing Date, Buyer shall deliver into Escrow to the Escrow Holder
the following:
(a) PURCHASE PRICE. The Purchase Price, less the Deposit (which is
to be applied to the Purchase Price), plus or minus applicable prorations,
deposited by Buyer with the Escrow Holder in immediate, same-day federal funds
wired for credit into the Escrow Holder's escrow account and deposited in Escrow
Holder's escrow account no later than 3:00 p.m. (California time) one business
day prior to the Closing Date.
(b) ASSIGNMENT OF LEASE AND CONTRACTS AND XXXX OF SALE. An
Assignment of Lease and Contracts and Xxxx of Sale executed by Buyer.
(c) STATE LAW DISCLOSURES. Such disclosures and reports as are
required by applicable state and local law in connection with the conveyance of
the Real Property.
(d) ADDITIONAL DOCUMENTS. Any additional documents that Escrow
Holder or the Title Company may reasonably require for the proper consummation
of the transaction contemplated by this Agreement.
6.3 CLOSING STATEMENTS/ESCROW FEES; TENANT NOTICES. Concurrently with
the Close of Escrow, Seller and Buyer shall deposit with the Escrow Holder
executed closing statements consistent with this Agreement in the form required
by the Escrow Holder and, Seller and Buyer shall execute at the Close of Escrow,
and deliver to the tenant under the Lease immediately after the Close of Escrow,
a tenant notice regarding the sale of the Real Property in substantially the
form of EXHIBIT H attached hereto, or such other form as may be required by
applicable state law.
6.4 POST-CLOSING DELIVERIES AND AGREEMENTS. Immediately after the Close
of Escrow, to the extent in Seller's possession, Seller shall deliver to the
offices of Buyer's property manager: the original Lease; copies or originals of
all contracts, receipts for deposits, and unpaid bills; all keys, if any, used
in the operation of the Real Property; and, if in Seller's possession or
control, any "as-built" plans and specifications of the Improvements. During the
sixty (60) day period following the Close of Escrow, Seller shall (at no cost or
expense to Seller) cooperate with Buyer in making its asset manager and the
prior property manager available during normal business hours for Buyer's
auditors for purposes of discussing any of the Property Information.
7. CONDITIONS TO BUYER'S AND SELLER'S OBLIGATIONS.
7.1 CONDITIONS TO BUYER'S OBLIGATIONS. The Close of Escrow and Buyer's
obligation to consummate the transaction contemplated by this Agreement are
subject to the satisfaction of the following conditions for Buyer's benefit (or
Buyer's waiver thereof, it being agreed that Buyer may waive any or all of such
conditions) on or prior to the Closing Date or on the dates designated below for
the satisfaction of such conditions:
(a) All of Seller's representations and warranties contained herein
shall be true and correct in all material respects as of the date of this
Agreement and as of the Closing Date, subject to any qualifications hereafter
made to any of Seller's representations as provided for in SECTION 11.1 hereof;
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(b) As of the Closing Date, Seller shall have performed its
respective obligations hereunder and all deliveries to be made at Close of
Escrow by Seller shall have been tendered;
(c) There shall exist no actions, suits, arbitrations, claims,
attachments, proceedings, assignments for the benefit of creditors, insolvency,
bankruptcy, reorganization or other proceedings, pending or threatened against
Seller that would materially and adversely affect Seller's ability to perform
its respective obligations under this Agreement;
(d) There shall exist no pending or threatened action, suit or
proceeding with respect to Seller 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 transaction
contemplated hereby; and
(e) No less than five (5) business days prior to the Closing Date,
Seller shall have delivered or caused to be delivered to Buyer, with respect to
the Real Property, a Tenant Estoppel Certificate from the tenant under the
Lease, which estoppel certificate shall be consistent with the information set
forth in the Rent Roll.
If, notwithstanding the nonsatisfaction of any such condition, the Close of
Escrow occurs, there shall be no liability on the part of Seller for breaches of
representations and warranties of which Buyer had knowledge as of the Close of
Escrow.
7.2 CONDITIONS TO SELLER'S OBLIGATIONS.
The Close of Escrow and Seller's obligations to consummate the
transaction contemplated by this Agreement are subject to the satisfaction of
the following conditions for Seller's benefit (or Seller's waiver thereof, it
being agreed that Seller may waive any or all of such conditions) on or prior to
the Closing Date or the dates designated below for the satisfaction of such
conditions:
(a) All of Buyer's representations and warranties contained herein shall
be true and correct in all material respects as of the date of this Agreement
and as of the Closing Date;
(b) As of the Closing Date, Buyer has performed its obligations
hereunder and all deliveries to be made at Close of Escrow by Buyer shall have
been tendered including, without limitation, the deposit with Escrow Holder of
the amounts set forth in SECTION 6.2(A) hereof;
(c) There shall exist no actions, suits, arbitrations, claims,
attachments, proceedings, assignments for the benefit of creditors, insolvency,
bankruptcy, reorganization or other proceedings, pending or threatened against
Buyer that would materially and adversely affect Buyer's ability to perform its
obligations under this Agreement; and
(d) There shall exist no pending or threatened action, suit or
proceeding with respect to Buyer 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 transaction
contemplated hereby;
(e) Seller shall have received all consents and assignments and
approvals from all parties from whom such consents to assignments or approvals
are needed under all contracts, covenants and other agreements relating to the
Property;
(f) Seller shall have received a full general release signed by the
broker, if any, referred to in SECTION 14 hereof, which shall be in form and
substance reasonably acceptable to Seller, and shall release Seller from all
costs, obligations, liabilities, commissions, fees, and claims arising from the
transaction contemplated by this Agreement upon payment of the agreed upon
commission; and
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(g) Prior to the expiration of the Due Diligence Period, Seller shall
have received formal written approval from its partners for the consummation of
the transaction contemplated hereby.
8. CLOSE OF ESCROW; POSSESSION.
8.1 "CLOSE OF ESCROW" shall mean and refer to Seller's receipt of the
Purchase Price and the other amounts due Seller in accordance with the
provisions of SECTION 9.1(B) below. The Escrow and Buyer's right to purchase the
Real Property will terminate automatically if the Close of Escrow does not occur
on or before 1:00 p.m. (California time) on the Closing Date.
8.2 Sole exclusive possession of the Real Property, subject only to the
Permitted Exceptions, shall be delivered to Buyer on the Closing Date.
9. ESCROW.
9.1 CLOSING. The escrow (the "ESCROW") for the consummation of this
transaction shall be established with Escrow Holder at the address indicated in
SECTION 15.1 hereof by the deposit of an original signed copy of this Agreement
with Escrow Holder contemporaneously with the execution hereof. This Agreement
shall constitute both an agreement among Buyer and Seller and escrow
instructions for Escrow Holder. If Escrow Holder requires separate or additional
escrow instructions which it deems necessary for its protection, Seller and
Buyer hereby agree promptly upon request by Escrow Holder to execute and deliver
to Escrow Holder such separate or additional escrow instructions (the
"ADDITIONAL INSTRUCTIONS"). In the event of any conflict or inconsistency
between this Agreement and the Additional Instructions, this Agreement shall
prevail and govern, and the Additional Instructions shall so provide. The
Additional Instructions shall not modify or amend the provisions of this
Agreement unless otherwise agreed to in writing by Seller and Buyer.
On the Closing Date, provided that the conditions set forth in SECTIONS
7.1 and 7.2 hereof have been satisfied or waived, Escrow Holder shall take the
following actions in the order indicated below:
(a) With respect to all closing documents delivered to Escrow Holder
hereunder, and to the extent necessary, Escrow Holder is authorized to insert
into all blanks requiring the insertion of dates the date of the recordation of
the Deed or such other date as Escrow Holder may be instructed in writing by
Seller and Buyer;
(b) Deliver to Seller, in cash or current funds, the Purchase Price,
plus or minus, as the case may be, the amounts determined in accordance with the
provisions of SECTION 10 hereof, Buyer's signed counterparts of the Assignment
of Lease and Contracts and Xxxx of Sale and conformed copies of the recorded
Deed;
(c) Record the Deed in the official records of the County in which
the Real Property is located;
(d) Deliver to Buyer those items referred to in SECTION 6.1 hereof
and a conformed copy of the recorded Deed;
(e) Cause the Title Company to issue the Title Policy for the Real
Property in accordance with the provisions of SECTION 4.2.3 hereof; and
(f) Deliver to Seller and Buyer a final closing statement which has
been certified by Escrow Holder to be true and correct.
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9.2 ESCROW AND TITLE CHARGES.
(a) Upon the Close of Escrow, escrow, title charges and other
closing costs shall be allocated between Seller and Buyer as follows:
(i) Seller shall pay: the premiums for the Title Policy, the
cost of recording the Deed, and one-half (1/2) of any escrow fees or similar
charges of Escrow Holder.
(ii) Buyer shall pay one-half (1/2) of any escrow fees or
similar charges of Escrow Holder and all sales, gross receipts, compensating,
stamp, excise, documentary, transfer, deed or similar taxes or fees (City,
County and State) payable in connection with the consummation of the
transactions contemplated by this Agreement. If Buyer desires ALTA extended
coverage for any Title Policy, Buyer shall pay the premiums and any additional
costs (including any survey costs) for such coverage (additional to the premiums
for standard coverage) and the cost of any endorsements to the Title Policy, if
required by Buyer.
(iii) Buyer shall pay all costs incurred in connection with
Buyer's updating or recertifying the Existing Surveys or obtaining any surveys
for the Real Property.
(iv) Except to the extent otherwise specifically provided
herein, all other expenses incurred by Seller and Buyer with respect to the
negotiation, documentation and closing of this transaction, including, without
limitation, Buyer's and Seller's attorneys' fees, shall be borne and paid by the
party incurring same.
(b) If the Close of Escrow does not occur by reason of Buyer's
or Seller's default under this Agreement, then all escrow and title charges
(including cancellation fees) shall be borne by the party in default.
9.3 PROCEDURES UPON FAILURE OF CONDITION. Except as otherwise expressly
provided herein, if, following the expiration of the Due Diligence Period, any
condition set forth in SECTIONS 7.1 or 7.2 hereof is not timely satisfied or
waived for a reason other than the default of Buyer or Seller in the performance
of its respective obligations under this Agreement:
(a) This Agreement, the Escrow and the respective rights and
obligations of Seller and Buyer hereunder shall terminate (other than the
indemnity and insurance obligations of Buyer set forth in SECTIONS 4.3.1 AND 14
hereof and the confidentiality provisions of SECTION 4.6 hereof which shall
survive such termination) at the written election of the party for whose benefit
such condition was imposed, which written election must be made (i) within three
(3) business days after the date such condition was to be satisfied, or (ii) on
the date the Close of Escrow occurs, whichever occurs first;
(b) Escrow Holder shall promptly return the Transaction Deposit
to Buyer, Seller shall promptly return the Performance Deposit to Buyer, and
Escrow Holder shall promptly return to Seller and Buyer all documents deposited
by them respectively, which are then held by Escrow Holder;
(c) Buyer shall return to Seller the Property Information and
Buyer shall deliver to Seller all Work Product (as such term is defined in
SECTION 15.3 hereof); and
(d) Any escrow cancellation and title charges shall be borne
equally by Seller and Buyer.
10. PRORATIONS.
If the Purchase Price is received by Seller's depository bank in time to
credit to Seller's account on the Closing Date, the day the Close of Escrow
occurs shall belong to Buyer and all prorationshereinafter provided to be made
as of the Close of Escrow shall each be made as of the end of the day
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before the Closing Date. If the cash portion of the Purchase Price is not so
received by Seller's depository bank on the Closing Date, then the day the Close
of Escrow occurs shall belong to Seller and such proration shall be made as of
the end of the day that is the Closing Date. In each such proration set forth
below, the portion thereof applicable to periods beginning as of Close of Escrow
shall be credited to Buyer or charged to Buyer as applicable and the portion
thereof applicable to periods ending as of Close of Escrow shall be credited to
Seller or charged to Seller as applicable.
10.1 COLLECTED RENT. All rent (including, without limitation, all base
rents, additional rents and retroactive rents, and expressly excluding tenant
reimbursements for Operating Costs, as hereinafter defined) and all other income
(and any applicable state or local tax on rent) (hereinafter collectively
referred to as "Rents") collected under the Lease shall be prorated as of the
Close of Escrow. Uncollected Rent shall not be prorated and, to the extent
payable for the period prior to the Close of Escrow, shall remain the property
of Seller. Buyer shall apply Rent from the tenant under the Lease that is
collected within twelve (12) months after the Close of Escrow first to Rents
which were due to Seller on or before the Close of Escrow and second to Rents
which are due to Buyer after the Close of Escrow. Any prepaid Rents for the
period following the Closing Date shall be paid over by Seller to Buyer. Buyer
will make reasonable efforts, without suit, to collect any Rents applicable to
the period before the Close of Escrow including, without limitation, sending to
the tenant under the Lease bills for the payment of past due Rents during the
first twelve (12) month period following the Closing Date. Seller may pursue
collection of any Rents that were past due as of the Closing Date, provided that
Seller shall have no right to terminate the Lease or the tenant's occupancy
under any Lease in connection therewith.
10.2 OPERATING COSTS AND ADDITIONAL RENT RECONCILIATION. Seller, as
landlord under the Lease, is currently collecting from the tenant under the
Lease additional rent to cover taxes, insurance, utilities (to the extent not
paid directly by the tenant), common area maintenance and other operating costs
and expenses (collectively, "OPERATING COSTS") in connection with the ownership,
operation, maintenance and management of the Real Property. To the extent that
any additional rent (including, without limitation, estimated payments for
Operating Costs) is paid by the tenant to the landlord under the Lease based on
an estimated payment basis (monthly, quarterly, or otherwise) for which a future
reconciliation of actual Operating Costs to estimated payments is required to be
performed at the end of a reconciliation period, Buyer and Seller shall make an
adjustment at the Close of Escrow for the applicable reconciliation period based
on a comparison of the actual Operating Costs to the estimated payments at the
Close of Escrow. If, as of the Close of Escrow, Seller has received additional
rent payments in excess of the amount that the tenant will be required to pay,
based on the actual Operating Costs as of the Close of Escrow, Buyer shall
receive a credit in the amount of such excess. If, as of the Close of Escrow,
Seller has received additional rent payments that are less than the amount that
the tenant would be required to pay based on the actual Operating Costs as of
the Close of Escrow, Seller shall receive a credit in the amount of such
deficiency; provided, however, Seller shall not be entitled to the portion, if
any, of such deficiency for which Seller received a credit at the Close of
Escrow under clause (b) of SECTION 10.3 hereof. Operating Costs that are not
payable by the tenant either directly or reimbursable under the Lease shall be
prorated between Seller and Buyer and shall be reasonably estimated by the
parties if final bills are not available.
10.3 TAXES AND ASSESSMENTS. Real estate taxes and assessments imposed by
any governmental authority ("Taxes") with respect to the Real Property for the
relevant tax year in which the Real Property is being sold and that are not yet
due and payable or that have not yet been paid and that are not (and will not
be) reimbursable by the tenant under the Lease as Operating Costs shall be
prorated as of the Close of Escrow based upon the most recent ascertainable
assessed values and tax rates and based upon the number of days Buyer and Seller
will have owned the Real Property during such relevant tax year. Seller shall
receive a credit for any Taxes paid by Seller and applicable to (a) any period
after the Close of Escrow, and (b) any period before the Close of Escrow to the
extent reimbursable as Operating Costs by the tenant under the Lease and not yet
received from such tenant. If, as of the Closing Date, Seller is protesting or
has notified Buyer, in writing, that it has elected to protest any Taxes for the
Real Property, then Buyer agrees that Seller shall have the right (but not the
obligation), after the Closing Date, to continue such protest. In such case, any
Taxes paid by Buyer after the Closing Date with respect to the Real Property
shall be paid under protest and Buyer shall promptly notify Seller of any
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payments of Taxes made by Buyer with respect to the Real Property. Buyer further
agrees to cooperate with Seller and execute any documents requested by Seller in
connection with such protest. As to the Real Property, any tax savings received
("TAX REFUNDS") for the relevant tax year under any protest, whether filed by
Seller or Buyer, shall be prorated between the parties based upon the number of
days, if any, Seller and Buyer respectively owned the Real Property during such
relevant tax year; if such protest was filed by a Seller, any payment of Tax
Refunds to Buyer shall be net of any fees and expenses payable to any third
party for processing such protest, including attorneys' fees. Seller shall have
the obligation to refund to the tenant as of the date of such Tax Refund, any
portion of such Tax Refund paid to Seller which may be owing to such tenant,
which payment shall be paid to Buyer within fifteen (15) business days of
delivery to Seller by Buyer of written confirmation of such tenant's entitlement
to such Tax Refunds. Buyer shall have the obligation to refund to the tenant as
of the date of such Tax Refund, any portion of such Tax Refund paid to it which
may be owing to such tenant. Seller and Buyer agree to notify the other in
writing of any receipt of a Tax Refund within fifteen (15) business days of
receipt of such Tax Refund. To the extent either party obtains a Tax Refund, a
portion of which is owed to the other party, the receiving party shall deliver
the Tax Refund to the other party within fifteen (15) business days of its
receipt. If Buyer or Seller fail to pay such amount(s) to the other as and when
due, such amount(s) shall bear interest from the date any such amount is due to
Seller or Buyer, as applicable, until paid at the lesser of (a) twelve percent
(12%) per annum and (b) the maximum amount permitted by law. The obligations set
forth herein shall survive the Close of Escrow and Buyer agrees that, as a
condition to the transfer of the Property by Buyer, Buyer will cause any
transferee to assume the obligations set forth herein.
10.4 LEASING COMMISSIONS, TENANT IMPROVEMENTS AND CONTRACTS. At Close of
Escrow, Buyer shall assume (pursuant to the Assignment of Lease and Contracts
and Xxxx of Sale) the obligation to pay all (a) leasing costs that are due or
become due prior to the Closing Date to the extent that the same arise from a
new lease or any Lease amendment, extension or expansion hereafter entered into
by Seller in accordance with the terms and conditions of this Agreement, and (b)
leasing costs that are due after the Closing Date. Buyer will assume the
obligations arising from and after the Closing Date under the Contracts.
10.5 TENANT DEPOSITS. All tenant security deposits actually received by
Seller (and interest thereon if required by law or contract to be earned
thereon) and not theretofore applied to tenant obligations under the Lease shall
be transferred or credited to Buyer at the Close of Escrow or placed in escrow
if required by law. As of the Close of Escrow, Buyer shall assume Seller's
obligations related to the tenant security deposit. Buyer will indemnify,
defend, and hold Seller harmless from and against all demands and claims made by
the tenant under the Lease arising out of the transfer or disposition of any
such security deposit and will reimburse Seller for all attorneys' fees incurred
or that may be incurred as a result of any such claims or demands as well as for
all loss, expenses, verdicts, judgments, settlements, interest, costs and other
expenses incurred or that may be incurred by Seller as a result of any such
claims or demands by the tenant.
10.6 UTILITIES AND UTILITY DEPOSITS. Utilities for the Real Property
(excluding utilities for which payment is made directly by the tenant),
including water, sewer, electric, and gas, based upon the last reading of meters
prior to the Close of Escrow, shall be prorated. Seller shall be entitled to a
credit for all security deposits held by any of the utility companies providing
service to the Real Property. Seller shall endeavor to obtain meter readings on
the day before the Closing Date, and if such readings are obtained, there shall
be no proration of such items and Seller shall pay at Close of Escrow the bills
therefor for the period to the day preceding the Close of Escrow, and Buyer
shall pay the bills therefor for the period subsequent thereto. If the utility
company will not issue separate bills, Buyer will receive a credit against the
Purchase Price for Seller's portion and will pay the entire xxxx prior to
delinquency after Close of Escrow. If Seller has paid utilities no more than 30
days in advance in the ordinary course of business, then Buyer shall be charged
its portion of such payment at Close of Escrow. Buyer shall be responsible for
making any security deposits required by utility companies providing service to
the Real Property.
10.7 OWNER DEPOSITS. Seller shall receive a credit at the Close of
Escrow for all bonds, deposits, letters of credit, set aside letters or other
similar items, if any, that are outstanding with respect
13
to the Real Property that have been provided by Seller or any of its affiliates
to any governmental agency, public utility, or similar entity (collectively,
"OWNER DEPOSITS") to the extent assignable and assigned to Buyer. To the extent
any Owner Deposits are not assignable to Buyer, Buyer shall replace such Owner
Deposits and obtain the release of Seller (or its affiliates) from any
obligations under such Owner Deposits. To the extent that any funds are released
as a result of the termination of any Owner Deposits for which Seller did not
get a credit, such funds shall be delivered to Seller immediately upon their
receipt.
10.8 PERCENTAGE RENTS. Percentage rents ("PERCENTAGE RENTS") actually
collected for the month in which the Close of Escrow occurs shall be prorated as
of the Closing Date. Percentage Rents due after the Close of Escrow shall not be
prorated; provided, however, after Buyer has completed any reconciliation of
actual Percentage Rents payable and estimated Percentage Rents paid by the
subject tenant, and all reconciled amounts have been paid, a reconciliation
shall be made between Seller and Buyer with regard to such Percentage Rents.
Pursuant to such reconciliation, Seller and Buyer shall be entitled to their
proportionate share of all Percentage Rents paid for the subject fiscal Lease
year used to calculate each tenant's Percentage Rents (less any out-of-pocket
costs incurred in collecting said amounts, which shall belong to Buyer) based on
the number of days of such fiscal year Seller and Buyer owned the Property (and
adjusted for any amount of Percentage Rent prorated at Closing or received by
Seller or Buyer). As used in this paragraph, the term "Percentage Rents" shall
not include and shall have deducted from such Percentage Rent amount any "base"
or "minimum" rent component which is payable each month (regardless of actual
sales), which "base" or "minimum" rent component shall be prorated or otherwise
handled in the manner provided in this Agreement. Buyer will make reasonable
efforts, without suit, to collect all Percentage Rents payable after the Close
of Escrow and relating to the period prior to the Close of Escrow, and all
Percentage Rents which are delinquent as of the Close of Escrow, including,
without limitation, sending to the tenant bills for the payment of the same.
Seller may pursue collection of all Percentage Rents payable after the Close of
Escrow and relating to the period prior to the Close of Escrow and all
Percentage Rents which are delinquent as of the Close of Escrow, provided that
Seller shall have no right to terminate the Lease or the tenant's occupancy
under the Lease in connection therewith.
10.9 FINAL ADJUSTMENT AFTER CLOSING. If final prorations cannot be made
at the Close of Escrow for any item being prorated under this SECTION 10, then,
provided Buyer or Seller identify any such proration ("POST CLOSING PRORATION")
in writing before the Close of Escrow, Buyer and Seller agree to allocate such
items on a fair and equitable basis as soon as invoices or bills are available
and applicable reconciliation with the tenant have been completed, with final
adjustment to be made as soon as reasonably possible after the Close of Escrow
(but in no event later than forty-five (45) days after the Close of Escrow,
except that adjustments arising from any tax protest under SECTION 10.3 or from
Percentage Rents under SECTION 10.8 hereof shall not be subject to such 45 day
limitation, but shall be made as soon as reasonably possible), to the effect
that income and expenses are received and paid by the parties on an accrual
basis with respect to their period of ownership. Payments in connection with the
final adjustment shall be due no later than forty-five (45) days after the Close
of Escrow, except that adjustments arising from any tax protest under SECTION
10.3 or relating to Percentage Rents under SECTION 10.8 hereof shall not be
subject to such 45 day limitation, but shall be made as soon as reasonably
possible. Seller shall have reasonable access to, and the right to inspect and
audit, Buyer's books to confirm the final prorations for a period of one (1)
year after the Close of Escrow. Notwithstanding anything to the contrary stated
in this SECTION 10, except for any reconciliation arising out of a tax protest
under SECTION 10.3 hereof, or arising out of Percentage Rents under SECTION 10.8
hereof, and except for any Post Closing Prorations (which must be determined and
paid within forty-five (45) days after the Close of Escrow), all prorations made
under this SECTION 10 shall be final as of the Close of Escrow and shall not be
subject to further adjustment (whether due to an error or for any other reason)
after the Close of Escrow.
11. SELLER'S REPRESENTATIONS AND WARRANTIES; AS-IS.
11.1 SELLER'S REPRESENTATIONS AND WARRANTIES. In consideration of
Buyer's entering into this Agreement and as an inducement to Buyer to purchase
the Real Property from Seller, Seller makes the following representations and
warranties to Buyer:
14
(a) Seller has the legal right, power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby, and the
execution, delivery and performance of this Agreement have been duly authorized
and no other action by Seller is requisite to the valid and binding execution,
delivery and performance of this Agreement, except as otherwise expressly set
forth herein.
(b) There is no agreement to which Seller is a party or to Seller's
Actual Knowledge binding on Seller which would prevent Seller from consummating
the transaction contemplated by this Agreement.
(c) To Seller's Actual Knowledge (as such term is defined below),
except as disclosed on SCHEDULE 1 attached hereto, Seller has received no
written notice from any governmental agency of any condemnation proceedings
relating to the Property.
(d) To Seller's Actual Knowledge, except as disclosed on SCHEDULE 1
attached hereto, Seller has not received written notice of any litigation which
has been filed against Seller that arises out of the ownership of the Property
and would materially affect the Property or use thereof, or Seller's ability to
perform hereunder.
(e) To Seller's Actual Knowledge, except as disclosed on SCHEDULE 1
attached hereto, Seller has not received written notice from any governmental
agency of any uncured violation of any federal, state or local law relating to
the use or operation of the Property which would materially adversely affect the
Property or use thereof.
(f) To Seller's Actual Knowledge, Seller has made available to
Buyer all material documents in its possession with respect to the physical
condition of the Property, or that would be binding upon the Property after the
Close of Escrow and that are not recorded against the Property.
(g) To Seller's Actual Knowledge, Seller's property manager, CB
Xxxxxxx Xxxxx, has not committed fraud in connection with its preparation of any
of the Property related operational financial information made available to
Buyer as part of the Property Information.
For purposes of this SECTION 11.1, the phrase "TO SELLER'S ACTUAL KNOWLEDGE"
shall mean the actual (and not implied, imputed, or constructive) knowledge of
Xxxx Xxxxxxxx (whom the Seller represents is the Asset Manager for the Real
Property), without any inquiry or investigation of any other parties, including,
without limitation, the tenant and the property manager of the Real Property.
The representations and warranties made by Seller in this Agreement shall
survive the recordation of the Deed for a period of twelve (12) months and any
action for a breach of Seller's representations or warranties must be made and
filed within said twelve (12) month period. If, after the Effective Date, but
before the Close of Escrow, Seller becomes aware of any facts or changes in
circumstances that would cause any of its representations and warranties in this
Agreement to be untrue at Close of Escrow, Seller may notify Buyer in writing of
such fact. In such case, or in the event Buyer obtains information which would
cause any of Seller's representations and warranties to be untrue at Close of
Escrow, Buyer, as its sole and exclusive remedy, shall have the right to either
(i) terminate this Agreement, in which case the Transaction Deposit shall be
immediately returned to Buyer, the Performance Deposit shall be returned to
Buyer if, and only if, such termination occurs after the expiration of the Due
Diligence Period, and neither party shall have any rights or obligations under
this Agreement (except for SECTIONS 4.3.1, 15.3 AND 15.5 which survive
termination of this Agreement); or (ii) accept a qualification to Seller's
representations and warranties as of the Close of Escrow and complete the
purchase and sale of the Property without any rights to recovery for breach of
the unqualified representation and warranty. Other than as set forth in the
immediately preceding sentence, if Buyer proceeds with the Close of Escrow,
Buyer shall be deemed to have expressly waived any and all remedies for the
breach of any representation or warranty discovered by Buyer prior to the Close
of Escrow.
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11.2 AS-IS. As of the expiration of the Due Diligence Period, Buyer will
have:
(a) examined and inspected the Property and will know and be
satisfied with the physical condition, quality, quantity and state of repair of
the Property in all respects (including, without limitation, the compliance of
the Real Property with the Americans With Disabilities Act of 1990 Pub.L.
101-336, 104 Stat. 327 (1990), and any comparable local or state laws
(collectively, the "ADA") and by proceeding with this transaction following the
expiration of the Due Diligence Period shall be deemed to have determined that
the same is satisfactory to Buyer;
(b) reviewed the Property Information and all instruments, records
and documents which Buyer deems appropriate or advisable to review in connection
with this transaction, including, but not by way of limitation, any and all
architectural drawings, plans, specifications, surveys, building and occupancy
permits, and any licenses, leases, contracts, warranties and guarantees relating
to the Real Property or the business conducted thereon, and Buyer, by proceeding
with this transaction following the expiration of the Due Diligence Period,
shall be deemed to have determined that the same and the information and data
contained therein and evidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and
governmental regulations (including, but not limited to, those relating to
building, zoning and land use) affecting the development, use, occupancy or
enjoyment of the Real Property, and Buyer, by proceeding with this transaction
following the expiration of the Due Diligence Period, shall be deemed to have
determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent
investigation respecting the Property and all other aspects of this transaction,
and shall have relied thereon and on the advice of its consultants in entering
into this Agreement, and Buyer, by proceeding with this transaction following
the expiration of the Due Diligence Period, shall be deemed to have determined
that the same are satisfactory to Buyer.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER'S
REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY
WARRANTIES OF TITLE CONTAINED IN THE DEED DELIVERED AT THE CLOSE OF ESCROW
("SELLER'S WARRANTIES"), THIS SALE IS MADE AND WILL BE MADE WITHOUT
REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR,
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A
MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, BUYER AGREES TO ACCEPT
THE PROPERTY ON AN "AS IS" AND "WHERE IS" BASIS, WITH ALL FAULTS, AND WITHOUT
ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR
SELLER'S WARRANTIES. EXCEPT FOR SELLER'S WARRANTIES, NO WARRANTY OR
REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE,
MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE
WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR
TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND
REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND
THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). BUYER ACKNOWLEDGES
THAT BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND
RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE,
COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW
RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE
BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON
SELLER'S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY
AGREE THAT (A) EXCEPT FOR SELLER'S WARRANTIES, BUYER IS TAKING THE PROPERTY "AS
IS" WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER'S WARRANTIES,
THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR
PURPOSE, (B) EXCEPT FOR SELLER'S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS
EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER
16
THIS CONTRACT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR
IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE
DEED AND SELLER'S WARRANTIES).
WITH RESPECT TO THE FOLLOWING, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER
SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT
SELLER HAS MADE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF
ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR
ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT
LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO
BUYER'S REVIEW OF THE CONDITION OF THE PROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING
ANALYSIS OR OTHER INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY
BUYER WITH RESPECT TO THE PROPERTY.
BUYER ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS
AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT BUYER MAY OR MAY NOT BE
REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW.
BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE CLOSE
OF ESCROW, FAMILIAR WITH THE REAL PROPERTY AND ITS SUITABILITY FOR BUYER'S
INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY
CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE
DOCUMENTS EXECUTED AT CLOSE OF ESCROW.
BUYER'S INITIALS: _____________
12. BUYER'S COVENANTS, REPRESENTATIONS AND WARRANTIES; RELEASE; ERISA;
INDEMNIFICATION.
In consideration of Seller entering into this Agreement and as an
inducement to Seller to sell the Real Property to Buyer, Buyer makes the
following covenants, representations and warranties:
12.1 REPRESENTATIONS AND WARRANTIES.
(a) AUTHORITY. Buyer has the legal right, power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby, and the execution, delivery and performance of this Agreement have been
duly authorized and no other action by Buyer is requisite to the valid and
binding execution, delivery and performance of this Agreement, except as
otherwise expressly set forth herein. There is no agreement to which Buyer is a
party or to Buyer's knowledge binding on Buyer which is in conflict with this
Agreement.
(b) EXECUTIVE ORDER 13224. To the best of Buyer's knowledge,
neither Buyer nor any of its respective affiliates or constituents, nor any of
their respective brokers or other agents acting in any capacity in connection
with the transactions contemplated by this Agreement is or will be (a)
conducting any business or engaging in any transaction or dealing with any
person appearing on the U.S. Treasury Department's Office of Foreign Assets
Control ("OFAC") list of restrictions and prohibited persons ("PROHIBITED
PERSON") (which lists can be accessed at the following web address:
17
xxxx://xxx.xxxxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/), including the making or
receiving of any contribution of funds, goods or services to or for the benefit
of any Prohibited Person; (b) dealing in, or otherwise engaging in any
transaction relating to, any property or interests in property blocked pursuant
to Executive Order No. 13224 dated September 24, 2001, relating to "Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism"; or (c) engaging in or conspiring to engage in any
transaction that evades or avoids, or has the purpose of evading or avoiding, or
attempting to violate, any of the prohibitions set forth in any U.S. anti-money
laundering law.
12.2 RELEASE. By proceeding with this transaction following the
expiration of the Due Diligence Period, Buyer shall be deemed to have made its
own independent investigation of the Property, the Property Information and the
presence of Hazardous Materials on the Real Property as Buyer deems appropriate.
Accordingly, subject to the representations and warranties of Seller expressly
set forth in SECTION 11.1 hereof, Buyer, on behalf of itself and all of its
officers, directors, shareholders, employees, representatives and affiliated
entities (collectively, the "RELEASORS") hereby expressly waives and
relinquishes any and all rights and remedies Releasors may now or hereafter have
against Seller, its successors and assigns, partners, shareholders, officers
and/or directors (the "SELLER PARTIES"), whether known or unknown, which may
arise from or be related to (a) the physical condition, quality, quantity and
state of repair of the Real Property and the prior management and operation of
the Real Property, (b) the Property Information, (c) the Real Property's
compliance or lack of compliance with any federal, state or local laws or
regulations, and (d) any past, present or future presence or existence of
Hazardous Materials on, under or about the Real Property or with respect to any
past, present or future violation of any rules, regulations or laws, now or
hereafter enacted, regulating or governing the use, handling, storage or
disposal of Hazardous Materials, including, without limitation, (i) any and all
rights and remedies Releasors may now or hereafter have under the Comprehensive
Environmental Response Compensation and Liability Act of 1980 ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation
and Recovery Act, and the Toxic Substance Control Act, all as amended, and any
similar state, local or federal environmental law, rule or regulation, and (ii)
any and all claims, whether known or unknown, now or hereafter existing, with
respect to the Real Property under Section 107 of CERCLA (42 U.S.C.A. ss.9607).
As used herein, the term "HAZARDOUS MATERIAL(S)" includes, without limitation,
any hazardous or toxic materials, substances or wastes, such as (1) any
materials, substances or wastes which are toxic, ignitable, corrosive or
reactive and which are regulated by any local governmental authority, or any
agency of the United States government, (2) any other material, substance, or
waste which is defined or regulated as a hazardous material, extremely hazardous
material, hazardous waste or toxic substance pursuant to any laws, rules,
regulations or orders of the United States government, or any local governmental
body, (3) asbestos, (4) petroleum and petroleum based products, (5)
formaldehyde, (6) polychlorinated biphenyls (PCBs), and (7) freon and other
chlorofluorocarbons.
BUYER'S INITIALS: _____________
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER, ON BEHALF OF
ITSELF AND THE OTHER RELEASORS, HEREBY ASSUMES ALL RISK AND LIABILITY RESULTING
OR ARISING FROM, OR RELATING TO THE OWNERSHIP, USE, CONDITION, LOCATION,
MAINTENANCE, REPAIR, OR OPERATION OF, THE PROPERTY.
THE FOREGOING WAIVERS, RELEASES AND AGREEMENTS BY BUYER, ON BEHALF OF
ITSELF AND THE RELEASORS, SHALL SURVIVE THE CLOSE OF ESCROW AND THE RECORDATION
OF THE DEED AND SHALL NOT BE DEEMED MERGED INTO THE DEED UPON ITS RECORDATION.
12.3 ERISA. The following is true with respect to each class of
securities issued by the Buyer to any employee benefit plan investor: (i) the
securities were sold as part of an offering of securities to the public pursuant
to an effective registration statement under the Securities Act of 1933, and the
class of securities of which such security is a part will be subsequently
registered under the Securities Exchange Act of 1934 when required; (ii) the
securities in such class are owned by 100 or more investors independent of the
Buyer and one another; (iii) the minimum investment size is $10,000 or less; and
(iv)
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the securities do not have any restrictions on transfer or assignment, except
for transfer restrictions necessary to prevent reclassification of the Buyer as
a "publicly traded partnership" pursuant to Section 7704 of the Internal Revenue
Code of 1986, as amended, transfer restrictions necessary to ensure minimum
investment and suitability requirements set forth in the prospectus relating to
such securities and other restrictions necessary for compliance with applicable
federal and state securities laws. In the event that this Agreement, or any
transaction or other action by Seller in connection herewith, shall be deemed to
violate ERISA or result in an imposition of an excise tax under Section 4975 of
the Code, Seller may immediately terminate this Agreement (without any liability
to Seller) in accordance with, and subject to the terms and conditions of,
Section 9.3 hereof as if such termination arose from a failed condition under
Section 9.3 hereof.
12.4 INTENTIONALLY OMITTED.
13. DEFAULT AND DAMAGES.
13.1 DEFAULT BY BUYER. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE
THAT, IN THE EVENT THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A BUYER DEFAULT
(ALL OF THE CONDITIONS TO BUYER'S OBLIGATIONS TO CLOSE HAVING BEEN SATISFIED OR
WAIVED), SELLER WILL SUFFER DAMAGES IN AN AMOUNT WHICH WILL, DUE TO THE SPECIAL
NATURE OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THE SPECIAL NATURE
OF THE NEGOTIATIONS WHICH PRECEDED THIS AGREEMENT, BE IMPRACTICAL OR EXTREMELY
DIFFICULT TO ASCERTAIN. IN ADDITION, BUYER WISHES TO HAVE A LIMITATION PLACED
UPON THE POTENTIAL LIABILITY OF BUYER TO SELLER IN THE EVENT THE CLOSE OF ESCROW
FAILS TO OCCUR DUE TO A BUYER DEFAULT, AND WISHES TO INDUCE SELLER TO WAIVE
OTHER REMEDIES WHICH SELLER MAY HAVE IN THE EVENT OF A BUYER DEFAULT. BUYER AND
SELLER, AFTER DUE NEGOTIATION, HEREBY ACKNOWLEDGE AND AGREE THAT THE AMOUNT OF
THE DEPOSIT REPRESENTS A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WILL
SUSTAIN IN THE EVENT OF SUCH BUYER DEFAULT. BUYER AND SELLER HEREBY AGREE THAT
SELLER MAY, AS THE SOLE AND EXCLUSIVE REMEDY OF SELLER, IN THE EVENT THE CLOSE
OF ESCROW FAILS TO OCCUR DUE TO A BUYER DEFAULT, TERMINATE THIS AGREEMENT BY
WRITTEN NOTICE TO BUYER AND ESCROW HOLDER, CANCEL THE ESCROW AND RECEIVE OR
RETAIN (AS TO THE PERFORMANCE DEPOSIT) THE DEPOSIT AS LIQUIDATED DAMAGES AND
ESCROW HOLDER SHALL IMMEDIATELY DELIVER (UNLESS IT HAS ALREADY DONE SO) THE
DEPOSIT TO SELLER. SUCH RETENTION OF THE DEPOSIT BY SELLER IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES TO SELLER AND SHALL NOT BE DEEMED TO CONSTITUTE A
FORFEITURE OR PENALTY.
NOTHING IN THIS SECTION 13.1 SHALL (A) PREVENT OR PRECLUDE ANY RECOVERY
OF ATTORNEYS' FEES OR OTHER COSTS INCURRED BY SELLER PURSUANT TO SECTION 15.5 OR
(B) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE INDEMNIFICATION
OBLIGATIONS OF BUYER CONTAINED IN SECTIONS 4.3.1 AND 14 HEREOF. SELLER AND BUYER
ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION
13.1 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
Seller's Initials: ____________
Buyer's Initials: _____________
13.2 DEFAULT BY SELLER. If Seller defaults in its obligations to sell
and convey the Property to Buyer pursuant to this Agreement, Buyer's sole and
exclusive remedy shall be to elect one of the following: (a) to terminate this
Agreement, in which event Buyer shall be entitled to the return of the Deposit
(including the Performance Deposit), or (b) to bring a suit for specific
performance provided that any suit for specific performance must be brought as
to the Property within 30 days of Seller's default, Buyer's waiving the right to
bring suit at any later date to the extent permitted by law. This Agreement
confers no present right, title or interest in the Property to Buyer and Buyer
agrees not to file a lis
19
pendens or other similar notice against the Real Property except in connection
with, and after, the proper filing of a suit for specific performance.
14. BROKER'S COMMISSIONS.
Except for Seller's broker, Marcus & Millichap (whose commission shall
be paid by Seller), neither party hereto has had any contact or dealing
regarding the Real Property, or any communication in connection with the subject
matter of this transaction, through any licensed real estate broker or other
person who can claim a right to a commission or finder's fee as a procuring
cause of the sale contemplated herein. In the event that any other broker or
finder perfects a claim for a commission or finder's fee, the party responsible
for the contact or communication on which the broker or finder perfected such
claim shall indemnify, save harmless and defend the other party from said claim
and all costs and expenses (including reasonable attorneys' fees) incurred by
the other party in defending against the same.
15. MISCELLANEOUS PROVISIONS.
15.1 NOTICES. All written notices or demands of any kind which either
party hereto may be required or may desire to serve on the other in connection
with this Agreement shall be served by personal service, by registered or
certified mail, recognized overnight courier service or facsimile transmission.
Any such notice or demand so to be served by registered or certified mail,
recognized overnight courier service or facsimile transmission shall be
delivered with all applicable delivery charges thereon fully prepaid and, if the
party so to be served be Buyer, addressed to Buyer as follows:
Behringer Harvard Mid-Term Value
Enhancement Fund I LP
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxx Xxxxxx
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
with a copy thereof to:
Xxxxxx & Xxxxxxx, L.L.P.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
and, if the party so to be served be Seller, addressed to Seller as follows:
c/x Xxxx Xxxx Xxxxxxxxx Realty Advisors, Inc.
0000 Xxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
20
with copies thereof to:
Xxxxx Xxxxxxxxx, Esq.
0000 Xxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
and
Xxxxxx, Xxxxx & Bockius LLP
0 Xxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: L. Xxxxx Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
and, if the party to be served be Escrow Holder, addressed to Escrow Holder as
follows:
Chicago Title Company
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxx Xxxxx
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
Service of any such notice or demand so made by personal delivery, registered or
certified mail, recognized overnight courier or facsimile transmission shall be
deemed complete on the date of actual delivery as shown by the addressee's
registry or certification receipt or, as to facsimile transmissions, by "answer
back confirmation" (provided that a copy of such notice or demand is delivered
by any of the other methods provided above within one (1) business day following
receipt of such facsimile transmission), as applicable, or at the expiration of
the third (3rd) business day after the date of dispatch, whichever is earlier in
time. Either party hereto may from time to time, by notice in writing served
upon the other as aforesaid, designate a different mailing address to which or a
different person to whose attention all such notices or demands are thereafter
to be addressed.
15.2 ASSIGNMENT; BINDING ON SUCCESSORS AND ASSIGNS. Buyer shall not
assign, transfer or convey its rights or obligations under this Agreement or
with respect to the Property without the prior written consent of Seller, which
consent Seller may withhold in its sole, absolute and subjective discretion;
provided, however, Buyer may assign its rights under this Agreement without
Seller's consent to an Affiliate (as hereinafter defined), so long as (i) Buyer
provides Seller with no less than ten (10) days prior written notice of its
intentions to assign its rights under this Agreement to the Affiliate, which
notice must be accompanied by the name of such assignee and such assignee's
signature block, (ii) the Affiliate assumes, jointly and severally, in writing
Buyer's obligations hereunder and the Affiliate agrees in writing to be subject
to all of the terms and conditions set forth in this Agreement pursuant to an
assignment and assumption agreement substantially in the form attached hereto as
EXHIBIT I and made a part hereof (the "ASSIGNMENT AND ASSUMPTION AGREEMENT"),
and (iii) Buyer shall not be released from its obligations hereunder. As used in
this SECTION 15.2, the term "Affiliate" means (a) an entity that directly or
indirectly controls, is controlled by or is under common control with the Buyer,
(b) any fund or entity sponsored by Buyer, or (c) an entity at least a majority
of whose economic interest is owned by Buyer; and the term "control" means the
power to direct the management of such entity through voting rights, ownership
or contractual obligations. Any attempted assignment in violation of the
provisions of this SECTION 15.2 shall be void and Buyer shall be deemed in
default hereunder. Any permitted assignments shall not relieve the assigning
party from its liability under this Agreement. Subject to the foregoing, and
except as provided to the contrary herein, the terms, covenants, conditions and
warranties contained herein and the powers
21
granted hereby shall inure to the benefit of and bind all parties hereto and
their respective heirs, executors, administrators, successors and assigns, and
all subsequent owners of the Property.
15.3 WORK PRODUCT. Effective upon and in the event of a termination of
this Agreement for any reason, Buyer shall assign and deliver to Seller (at no
cost to Seller), and does hereby assign without the need for any further act or
instrument (at no cost to Seller), all reports, plans, studies, documents,
written information and the like which has been generated by Buyer in-house or
by Buyer's third party consultants, whether prior to the Opening of Escrow or
during the period of Escrow in connection with Buyer's proposed acquisition,
development, use or sale of the Real Property (collectively, the "WORK
PRODUCT"). In such event, Buyer shall deliver the Work Product which has been
assigned to Seller not later than five (5) days after the date of the
termination of this Agreement. The Work Product shall be fully paid for and
shall not be subject to any lien, encumbrance or claim of any kind. Buyer shall
also return all materials and information (including, without limitation, the
Property Information) given to it by Seller or its consultants during Escrow, in
the same condition as delivered to Buyer.
15.4 FURTHER ASSURANCES. In addition to the acts and deeds recited
herein and contemplated to be performed, executed or delivered by Seller or
Buyer, Seller and Buyer hereby agree to perform, execute and deliver, or cause
to be performed, executed and delivered, on the Closing Date or thereafter any
and all such further acts, deeds and assurances as Buyer or Seller, as the case
may be, may reasonably require in order to consummate fully the transactions
contemplated hereunder.
15.5 ATTORNEYS' FEES. If any legal action or any arbitration or other
proceeding is brought or if an attorney is retained for the enforcement of this
Agreement or any portion thereof, or because of any alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of this
Agreement, the prevailing party shall be entitled to recover from the other
reimbursement for the reasonable fees of attorneys and other costs (including
court costs and witness fees) incurred by it, in addition to any other relief to
which it may be entitled. The term "prevailing party" means the party obtaining
substantially the relief sought, whether by compromise, settlement or judgment.
15.6 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Unless
otherwise expressly stated in this Agreement (a) each of the covenants,
obligations, representations, and agreements contained in this Agreement shall
survive the Close of Escrow and the execution and delivery of the Deed only for
a period of twelve (12) months immediately following the Closing Date, and (b)
any claim based upon a misrepresentation or a breach of a warranty contained in
this Agreement shall be actionable or enforceable if and only if notice of such
claim is given to the party which allegedly made such misrepresentation or
breached such covenant, obligation, warranty or agreement within twelve (12)
months after the Closing Date; provided, however, in no event shall Seller's
liability, if any, with respect to any breach of Seller's representations or
warranties hereunder exceed $250,000 in the aggregate. Notwithstanding anything
stated to the contrary in this Agreement, the indemnification provisions of
SECTIONS 4.3.1, 10.5 and 14 hereof and the provisions of SECTIONS 4.6, 10.1,
10.3, 10.4, 10.8, 11.2, 12.1, 12.2, 12.3, 13.2, 15.3, 15.5, 15.17 and 15.20
hereof shall survive the termination of this Agreement or the Close of Escrow
without limitation, and shall not be merged with the recording of the Deed.
15.7 ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding of the parties in respect to the subject matter hereof, and the
parties intend for the literal words of this Agreement to govern and for all
prior negotiations, drafts, and other extrinsic communications, whether oral or
written, to have no significance or evidentiary effect. The parties further
intend that neither this Agreement nor any of its provisions may be changed,
amended, discharged, waived or otherwise modified orally except only by an
instrument in writing duly executed by the party to be bound thereby. The
parties hereto fully understand and acknowledge the importance of the foregoing
sentence and are aware that the law may permit subsequent oral modification of a
contract notwithstanding contract language which requires that any such
modification be in writing; but Buyer and Seller fully and expressly intend that
the foregoing requirements as to a writing be strictly adhered to and strictly
interpreted and enforced by any court which may be asked to decide the question.
Each party hereto acknowledges that this Agreement accurately reflect the
agreements and understandings of the parties hereto with respect to the subject
matter hereof and hereby waive any claim against the other party which such
party may now
22
have or may hereafter acquire to the effect that the actual agreements and
understandings of the parties hereto with respect to the subject matter hereof
may not be accurately set forth in this Agreement.
15.8 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Colorado.
15.9 COUNTERPARTS. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
15.10 HEADINGS; CONSTRUCTION. The various headings of this Agreement are
included for convenience only and shall not affect the meaning or interpretation
of this Agreement or any provision hereof. When the context and construction so
require, all words used in the singular herein shall be deemed to have been used
in the plural and the masculine shall include the feminine and the neuter and
vice versa. The use in this Agreement of the term "including" and related terms
such as "include" shall in all cases mean "without limitation." All references
to "days" in this Agreement shall be construed to mean calendar days unless
otherwise expressly provided and all references to "business days" shall be
construed to mean days on which national banks are open for business.
15.11 TIME OF ESSENCE. Seller and Buyer hereby acknowledge and agree
that time is strictly of the essence with respect to each and every term,
condition, obligation and provision hereof and failure to perform timely any of
the terms, conditions, obligations or provisions hereof by either party shall
constitute a material breach of, and non-curable (but waivable) default under
this Agreement by the parties so failing to perform.
15.12 PARTIAL VALIDITY; SEVERABILITY. If any term or provision of this
Agreement or the application thereof to any person or circumstance shall, to any
extent, be held invalid or unenforceable, the remainder of this Agreement, or
the application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each such term and provision of this Agreement shall be valid and
be enforced to the fullest extent permitted by law.
15.13 NO THIRD PARTY BENEFICIARIES. This Agreement is for the sole and
exclusive benefit of the parties hereto and their respective permitted
successors and assigns, and no third party is intended to, or shall have, any
rights hereunder.
15.14 JOINT PRODUCT OF PARTIES. This Agreement is the result of
arms-length negotiations between Seller and Buyer and their respective
attorneys. Accordingly, neither party shall be deemed to be the author of this
Agreement and this Agreement shall not be construed against either party.
15.15 CALCULATION OF TIME PERIODS. Unless otherwise specified, in
computing any period of time described herein, the day of the act or event after
which the designated period of time begins to run is not to be included and the
last day of the period so computed is to be included at, unless such last day is
a Saturday, Sunday or legal holiday for national banks in California, in which
event the period shall run until the end of the next day which is neither a
Saturday, Sunday, or legal holiday. Unless otherwise expressly provided herein,
the last day of any period of time described herein shall be deemed to end at
5:00 p.m., California time.
15.16 PROCEDURE FOR INDEMNITY. The following provisions govern actions
for indemnity under this Agreement. Promptly after receipt by an indemnitee of
notice of any claim, such indemnitee will, if a claim in respect thereof is to
be made against the indemnitor, deliver to the indemnitor written notice thereof
and the indemnitor shall have the right to participate in and, if the indemnitor
agrees in writing that it will be responsible for any costs, expenses,
judgments, damages, and losses incurred by the indemnitee with respect to such
claim, to assume the defense thereof, with counsel mutually satisfactory to the
parties; provided, however, that an indemnitee shall have the right to retain
its own counsel, with
23
the fees and expenses to be paid by the indemnitor, if the indemnitee reasonably
believes that representation of such indemnitee by the counsel retained by the
indemnitor would be inappropriate due to actual or potential differing interests
between such indemnitee and any other party represented by such counsel in such
proceeding. The failure of indemnitee to deliver written notice to the
indemnitor within a reasonable time after indemnitee receives notice of any such
claim shall relieve such indemnitor of any liability to the indemnitee under
this indemnity only if and to the extent that such failure is prejudicial to its
ability to defend such action, and the omission so to deliver written notice to
the indemnitor will not relieve it of any liability that it may have to any
indemnitee other than under this indemnity. If an indemnitee settles a claim
without the prior written consent of the indemnitor, then the indemnitor shall
be released from liability with respect to such claim unless the indemnitor has
unreasonably withheld such consent.
15.17 SECTION 1031 EXCHANGE. Seller may consummate the sale of the Real
Property as part of a so-called like kind exchange (the "EXCHANGE") pursuant to
ss. 1031 of the Internal Revenue Code of 1986, as amended (the "CODE"), provided
that: (a) the Close of Escrow shall not be delayed or affected by reason of the
Exchange nor shall the consummation or accomplishment of the Exchange be a
condition precedent or condition subsequent to Seller's obligations under this
Agreement; (b) Seller shall effect the Exchange through an assignment of its
rights under this Agreement to a qualified intermediary; and (c) Buyer shall not
be required to take an assignment of the purchase agreement for the replacement
property or be required to acquire or hold title to the Real Property for
purposes of consummating the Exchange. Buyer shall not by this agreement or
acquiescence to the Exchange (1) have its rights under this Agreement affected
or diminished in any manner or (2) be responsible for compliance with or be
deemed to have warranted to Seller that the Exchange in fact complies with ss.
1031 of the Code.
15.18 WAIVER OF JURY TRIAL. To the extent permitted by applicable law,
the parties hereby waive any right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
15.19 NO PERSONAL LIABILITY. Notwithstanding anything stated to the
contrary herein, Seller's liability under this Agreement shall be limited to
Seller's interest in the Property and neither Seller, Seller's constituent
partners, Seller's asset manager, nor Seller's directors, employees or agents
shall have any personal liability hereunder.
15.20 JOINT AND SEVERAL LIABILITY. If Buyer is composed of more than one
individual or entity, all obligations and liabilities of Buyer under this
Agreement shall be joint and several as to each of the individuals or entities
who compose Buyer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
[Signatures on following pages]
24
SELLER:
XXXX XXXX FUND V, L.P.,
a Delaware limited partnership
By: KBS Investors IV,
a Delaware general partnership,
its general partner
By: Xxxxxxxxx Real Estate Investments, L.P.,
a Delaware limited partnership,
its general partner
By: Xxxxxxxxx Investments, LLC,
a California limited liability company,
its general partner
By:
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Xxxxxxx X. Xxxxxxxxx, Xx.,
Manager
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BUYER:
BEHRINGER HARVARD MID-TERM VALUE ENHANCEMENT FUND I LP,
a Texas limited partnership,
By: Behringer Harvard Funds I LP,
a Texas limited partnership
its general partner
By:
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Name:
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Title:
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AGREED TO THIS ____
DAY OF ____________, 2004,
AS TO PROVISIONS RELATING
TO ESCROW HOLDER:
CHICAGO TITLE COMPANY
By
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Its
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