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EXHIBIT 10.5
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
NANOOK PARTNERS, L.P.
AND
AMERICAN INDUSTRIAL PROPERTIES REIT
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TABLE OF CONTENTS
Page(s)
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1. Property Included in Sale..............................................................................(1)
2. Purchase Price; Xxxxxxx Money..........................................................................(2)
3. Title to the Property..................................................................................(3)
4. Due Diligence Documents................................................................................(3)
5. Due Diligence Review...................................................................................(7)
6. Conditions Precedent to Closing........................................................................(8)
7. Remedies...............................................................................................(9)
8. Closing and Escrow.....................................................................................(9)
9. Representations, Warranties and Covenants of Seller...................................................(14)
11. Representations and Warranties of Buyer...............................................................(17)
12. Continuation and Survival.............................................................................(18)
13. Indemnity.............................................................................................(18)
14. Risk of Loss..........................................................................................(18)
15. Possession............................................................................................(19)
16. Maintenance of the Property and Property Personnel....................................................(19)
17. Leasing; Buyer's Consent to New Contracts Affecting the Property; Termination of
Existing Contracts....................................................................................(20)
18. Insurance.............................................................................................(20)
19. Brokers and Finders...................................................................................(20)
20. Marketing.............................................................................................(21)
(i)
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21. Publicity and Confidentiality.........................................................................(21)
22. Exculpation...........................................................................................(21)
23. Miscellaneous.........................................................................................(21)
(ii)
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is dated as of
December __, 1997, (the "Effective Date") by and between NANOOK PARTNERS, L.P.,
a Texas limited partnership("Seller"), and AMERICAN INDUSTRIAL PROPERTIES REIT,
a Texas real estate investment trust ("Buyer").
IN CONSIDERATION of the respective agreements hereinafter set forth,
Seller and Buyer agree as follows:
1. Property Included in Sale. Seller hereby agrees to sell and convey
to Buyer, and Buyer hereby agrees to purchase from Seller, subject to the terms
and conditions set forth herein, the following:
(a) that certain real property located in Carrollton, Texas,
and being more particularly described in Exhibit A attached hereto (the
"Land");
(b) any and all rights, privileges and easements appurtenant
to the Land, including, without limitation, all minerals, oil, gas and
other hydrocarbon substances on and under and that may be produced from
the Land, as well as all development rights, land use entitlements,
including without limitation building permits, licenses, permits and
certificates, utilities commitments, air rights, water, water rights,
riparian rights, and water stock relating to the Land and any
rights-of-way or other appurtenances used in connection with the
beneficial use and enjoyment of the Land and all of Seller's right,
title and interest in and to all roads, easements, rights of way and
alleys adjoining, serving or servicing the Land (collectively, the
"Appurtenances");
(c) all improvements and fixtures located on the Land and
appurtenances, including, without limitation, building(s) located on
the Land containing approximately 69,694 square feet of net rentable
area (Seller making no representation or warranty as to such square
footage), and all apparatus, and equipment located on the Land used in
connection with the operation or occupancy of the Land and
appurtenances, such as heating and air conditioning systems and
facilities used to provide any utility, refrigeration, ventilation,
garbage disposal or other services on the Land and appurtenances, and
along with all on-site parking facilities (collectively, the
"Improvements", and together with the Land and Appurtenances, the "Real
Property");
(d) Seller's right, title and interest to any and all tangible
personal property owned by Seller located on or in and used in
connection with the Real Property as of the date hereof and as of the
"Closing Date" (as defined in Paragraph 8(b) below) including, without
limitation, those items, if any, described in the Personal Property
Inventory attached hereto as Exhibit B attached hereto (collectively,
the "Tangible Personal Property"); and
(e) Seller's right, title and interest to any and all
intangible personal property now or hereafter owned by Seller and used
in the ownership, use or operation or development of the Real Property
and Tangible Personal Property, including, without limitation, any
right, title and interest of Seller in the right to use the name "Avion
Business Center" and any other
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trade name now used in connection with the Real Property, and any
contract or lease rights (including, without limitation, the lessor's
interest in and to all tenant leases, rental agreements, subleases and
tenancies, including all amendments, modifications, agreements,
records, and other documents relating in any way to a right to occupy
any portion of the Real Property (individually and collectively, the
"Leases"), and Seller's interest in all security deposits and prepaid
rent, if any, under the Leases covering any period of time after the
Closing and any and all guaranties of the Leases, utility contracts,
warranties or other agreements or rights relating to the ownership, use
and operation of the Real Property or Tangible Personal Property
(collectively, the "Intangible Property", and together with the
Tangible Personal Property, the "Personal Property").
All of the items referred to in Subparagraphs (a), (b), (c), (d) and
(e) above are collectively referred to as the "Property."
2. Purchase Price; Xxxxxxx Money.
(a) The purchase price of the Property is Four Million Seven
Hundred Fifty Thousand Dollars ($4,750,000.00), subject to adjustments
as provided in this Agreement (the "Purchase Price").
(b) The Purchase Price less any adjustments to the Purchase
Price provided this Agreement, shall be delivered in immediately
available funds at the closing of the purchase and sale contemplated
hereunder (the "Closing") to Chicago Title Insurance Company, whose
address is 000 Xxxxx Xx. Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000,
Attn: Xx. Xxxxxxx Xxx ("Escrow Holder"). Buyer shall be deemed to have
satisfied in full its obligation to deliver the Purchase Price at such
time as the same has been received at the Closing by the Escrow Holder
at the financial institution designated by Escrow Holder.
(c) Within three (3) days after the Effective Date, Buyer
shall deliver to the Escrow Holder a copy of this Agreement together
with a check or wired funds in the amount of $25,000.00 (the "Xxxxxxx
Money"), which Xxxxxxx Money shall be held in escrow by the Escrow
Holder and delivered to the party entitled thereto in accordance with
the provisions of this Agreement. The Xxxxxxx Money shall be invested
by the Escrow Holder in an interest-bearing escrow account in a bank or
other financial institution acceptable to Buyer. All interest earned on
the Xxxxxxx Money shall be considered a part of the Xxxxxxx Money.
(d) A portion of the Xxxxxxx Money in the amount of One
Hundred and No/100 Dollars ($100.00) (the "Independent Contract
Consideration") shall be deemed independent consideration for Seller's
execution and delivery of this Contract. If the Closing occurs, the
Independent Contract Consideration shall be applied as a credit towards
the Purchase Price. However, if the Closing does not occur, for any
reason, the Independent Contract Consideration shall be paid by the
Escrow Holder to Seller.
(2)
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3. Title to the Property.
(a) At the Closing, Seller shall convey to Buyer indefeasible
and insurable fee simple title to the Real Property and Improvements,
by duly executed and acknowledged special warranty deed substantially
in the form attached hereto as Exhibit C (the "Deed"). Evidence of
delivery of indefeasible and insurable fee simple title shall be the
issuance by Chicago Title Insurance Company (the "Title Company") to
Buyer at the Closing of an Owner's Policy of Title Insurance in the
form promulgated by the Texas State Board of Insurance in the amount of
the Purchase Price, insuring fee simple title to the Real Property in
Buyer, subject only to such exceptions as Buyer shall approve or shall
be deemed to have approved pursuant to Paragraph 5, below (the "Title
Policy"). The Title Policy shall provide full coverage against
mechanics' and materialmen's liens, the printed form survey exception
shall be limited to "shortages in area" at Buyer's expense and the
standard exception for taxes shall read: "standby fees and taxes for
the year 1997 and subsequent years, and subsequent assessments for
prior years due to change in land usage or ownership" and shall contain
such special endorsements as Buyer may, at Buyer's expense, require,
including, without limitation, any endorsements required as a condition
to Buyer's approval of any title exceptions pursuant to Paragraph 5,
below (the "Endorsements").
(b) At the Closing, Seller shall transfer all of Seller's
right, title and interest in and to the Tangible Personal Property by a
xxxx of sale in the form attached hereto as Exhibit D (the "Xxxx of
Sale").
(c) At the Closing, Seller shall transfer all of Seller's
right, title and interest in and to the Intangible Property, the
"Assumed Contracts" (as hereinafter defined), the "Permits" (as
hereinafter defined), and the "Warranties and Guaranties" (as hereafter
defined) by an assignment of intangible property in the form attached
hereto as Exhibit E (the "Assignment of Intangible Property"), and
shall assign the Leases by an assignment of leases in the form attached
hereto as Exhibit F (the "Assignment of Leases").
(d) Anything contained herein to the contrary notwithstanding
and notwithstanding any approval or consent given by Buyer hereunder,
Seller shall cause all monetary encumbrances caused by Seller,
including without limitation all mechanics' liens to be released (or
insured around to Buyer's satisfaction) from the Property on or prior
to the Closing and shall cause the Title Company to insure title to the
Property as vested in Buyer without any exception for such matters.
4. Due Diligence Documents.
(a) Seller has provided, at Seller's expense, the documents
hereinafter described (collectively, the "Preliminary Documents") to
Buyer prior to the Effective Date hereof. The Preliminary Documents
consist of the following:
(i) Title Commitment. A current title commitment (the
"Title Commitment") for an Owner's Policy of Title Insurance,
covering the Real Property
(3)
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and issued by the Title Company, together with a legible copy
of each document, map and survey referred to in the Title
Commitment;
(ii) Survey. An as-built survey of the Property dated
within thirty (30) days of the Effective Date (the "Survey")
prepared by a registered public surveyor, in accordance with
the most recent Texas Surveyor's Association standards for a
Category A1, Condition II Survey, certified by such surveyor
to Buyer and the Title Company in the form attached hereto as
Exhibit G and acceptable to the Title Company for the purpose
of limiting the standard printed exception for survey matters
to "shortages in area" in the Title Policy. The Survey at a
minimum shall (a) set forth the legal description and street
address of the Real Property, (b) show the location of all of
the Improvements, all recorded restrictions, easements,
rights-of-way, ingress and egress, all building restriction
lines or applicable yard or setback requirements, all curb
cuts, all utility lines and facilities, all visible
restrictions, easements, rights-of-way, party walls and
encroachments (either onto the Land from adjacent property or
onto adjacent property from the Land) affecting the Real
Property, and (c) locate all improvements on adjoining
property which are within five feet of the property lines of
the Land;
(iii) Agreements. Copies of written easements,
covenants, restrictions, agreements and contracts, which (a)
affect the Property and (b) are not disclosed by the Title
Commitment, including without limitation any agreements
relating to the service, operation, repair, supply,
advertising, promotion, sale, leasing or management of the
Property or the use of common facilities (collectively,
"Service Contracts"). A list of all Service Contracts that
Seller shall assign to Buyer and that Buyer shall assume as of
the Closing Date (which contracts to be assumed by Buyer are
referred to herein as "Assumed Contracts") is attached hereto
as Addendum I;
(iv) Plans. To the extent existing and in Seller's
possession or control, copies of all as-built plans and
specifications for the Improvements, including without
limitation the plans and specifications for and a complete
description of all existing renovations and improvements to
the Real Property and all rentable space therein, and as-built
drawings for all underground utilities (collectively, the
"Plans");
(v) Warranties. To the extent existing and in
Seller's possession or control, copies of any and all
guarantees or warranties and other rights given to Seller in
connection with the construction of the Improvements or the
purchase of any of the Personal Property, if any (collectively
the "Warranties and Guaranties");
(vi) Reports. Any and all reports in Seller's
possession or control relating to the Property including
reports relating to the (i) environmental condition of the
Property, including without limitation, environmental reports,
environmental audits and the like (which reports are listed on
Exhibit H); (ii) soil, seismological, geological and drainage
conditions, and the flood and wind characteristics of the
Property; (iii) design of the Improvements and its compliance
with guidelines
(4)
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established by the Uniform Building Code in effect at the time
the Improvements were constructed; "
(vii) Rent Roll. A rent roll, dated no earlier than
ten (10) days prior to the Effective Date, and certified by
Seller, to Seller's knowledge, to be accurate and complete,
showing:
1) the name of each tenant of the Improvements;
2) the rentable square footage for each tenant;
3) the commencement and expiration date of each
tenant's Lease;
4) the monthly rental payable by each tenant;
and
6) the amount of any security deposit
(collectively, the "Rent Roll").
The Rent Roll is attached as Exhibit I. Seller shall
deliver to Buyer at the Closing, an updated Rent Roll
dated not earlier than ten (10) days prior to the
Closing Date and certified by Seller to, Seller's
knowledge, to be accurate and complete (the "Updated
Rent Roll").
(viii) Leases. Copies of all Leases with all tenants
of the Improvements, and access to copies of all
correspondence to or from such tenants. Seller may comply with
its obligation to deliver copies of Leases by providing Buyer
and its agents with full access to its lease files;
(ix) Operating Statements. Copies of operating
statements for the Property for the prior three (3) calendar
years and the current year to date, each certified by Seller
(or audited, if audited statements are available), to Seller's
knowledge, to be accurate and complete, which shall cover the
monthly periods for 1997 from January to date.
(x) Licenses, Etc. To the extent in Seller's
possession or control, copies of any licenses, permits or
certificates required by governmental authorities in
connection with construction or occupancy of the Improvements,
including, without limitation, building permits, certificates
of completion, certificates of occupancy, environmental
permits and licenses, and swimming pool and sign permits;
(xi) Insurance Policies. Copies of all liability,
fire and casualty insurance policies carried by Seller and an
insurance claims history for the most recent calendar year
prior to Closing;
(xii) Commission Agreements and Proposed Leases. A
complete list, and copies, of all agreements for leasing
commissions and/or locator fees payable on prior leases,
existing leases and renewals or options affecting the
Property. Any fee or commission which would be due or payable
after the Effective Date relating to leasing activity
occurring before the Effective Date (including any commissions
relating to the exercise of any renewal, extension, expansion
or right of first refusal
(5)
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option under any Lease occurring before the Effective Date)
shall be paid by Seller and such obligation of Seller shall
survive the Closing. Conversely, provided the transaction
contemplated by this Agreement is consummated, any such fee or
commission relating to such leasing activity on and after the
Effective Date (including any commissions relating to the
exercise of any renewal, extension, expansion or right of
first refusal option under any Lease occurring on and after
the Effective Date) shall be paid by Buyer and such obligation
of Buyer shall survive the Closing. At Closing, Seller shall
provide to Buyer an executed release from the broker or finder
releasing Buyer and its successors and assigns from any
obligation to pay a commission or locator fee which is the
responsibility of Seller under this paragraph and agreeing to
look solely to Seller for payment of such commission or fee
(the "Commission Releases"). This Section 4(a)(xii) shall
govern any contrary provisions contained in this Agreement
with respect to leasing commissions or locator fees.
(xiii) Other Documents. Current property tax bills,
and all data, correspondence, documents, agreements, waivers,
notices, applications and other records with respect to the
Property relating to transactions with taxing authorities,
governmental agencies, utilities, vendors, tenants and others
with whom Buyer may be dealing from and after the Closing
Date. Seller may satisfy this requirement by making its files
available to Buyer at Seller's management company's offices.
(b) Independent Audit. Promptly following the execution of
this Agreement and to the extent not already provided pursuant to the
terms of Paragraph 4(a), above, Seller shall provide to Buyer's
representatives and independent accounting firm access to all financial
and other information relating to the Property which would be
sufficient to enable Buyer's representatives and independent accounting
firm to prepare, at Buyer's sole cost and expense, audited financial
statements for 1995, 1996 and 1997 year-to-date in conformity with
generally accepted accounting principles and to enable them to prepare
such statements, reports or disclosures as Buyer may deem necessary or
advisable. Seller shall reasonably cooperate with Buyer's
representatives and independent accounting firm in connection with the
aforementioned financial analysis and shall provide any additional
information necessary to allow Buyer to make disclosures required by
and otherwise comply with the financial accounting requirements of
Regulation S-X promulgated by the Securities and Exchange Commission.
Seller shall provide Buyer's independent accounting firm a signed
representation letter which will be sufficient to enable an independent
public accountant to render an opinion on the financial statements
related to the Property. Seller shall authorize any attorneys who have
represented Seller in any material litigation pertaining to or
affecting the Property to respond, at Buyer's expense, to inquiries
from Buyer's representatives and independent accounting firm. If and to
the extent Seller's financial statements pertaining to the Property for
any periods during the years 1995, 1996 or 1997 year-to-date have been
audited, promptly after the execution of this Agreement, Seller shall
provide Buyer with copies of such audited financial statements and
shall cooperate with Buyer's representatives and independent public
accountants to enable them to contact the auditors who prepared such
audited financial statements and to obtain, at Buyers expense, a
reissuance of such audited
(6)
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financial statements. If this Agreement terminates prior to the
Closing, other than by reason of a default of Seller, Buyer shall
deliver to Seller copies of any audited financial statements of the
Property prepared for Buyer and assign to Seller without warranty all
of Buyer's rights thereto.
5. Due Diligence Review.
Buyer's obligation to consummate the transactions contemplated in this
Agreement is expressly conditioned upon the satisfaction of each of the
conditions set forth in this section prior to the expiration of the Due
Diligence Period (defined below).
(a) Approval of Preliminary Documents and Physical Condition.
Buyer shall review each of the Preliminary Documents, and the physical
condition of the Property, and such other items as Buyer deems
necessary and shall advise Seller in writing of its approval of the
foregoing or of any objectionable condition revealed in its review by
written notice to Seller on or before December 22, 1997 (the "Due
Diligence Period"). If Buyer notifies Seller in writing within the Due
Diligence Period that Buyer approves each of the Preliminary Documents
and the physical condition of the Property (the "Approval Notice"),
then, subject to the first sentence of Section 5(b) hereof, Buyer shall
have waived all objections to the Preliminary Documents and the
condition of the Property and the conditions of this Section 5 shall be
deemed satisfied. If Buyer fails to give Seller the Approval Notice and
does not give specific written disapproval of any of the Preliminary
Documents or the physical condition of the Property within the Due
Diligence Period, then such Preliminary Document(s) or physical
condition shall be deemed disapproved by Buyer, this Agreement shall
terminate, and the Xxxxxxx Money shall be immediately returned to
Buyer. If Buyer gives Seller specific written notice of disapproval of
any Preliminary Document(s) or of any condition of the Property (the
"Disapproval Notice") within the Due Diligence Period, Seller shall
have one (1) business day to notify Buyer in writing that either (1)
Seller shall cause all of the objections set forth in the Disapproval
Notice to be cured, removed or terminated, as the case may be, prior to
the Closing Date, or (2) Seller shall not cause all of the objections
set forth in the Disapproval Notice or condition to be cured, removed
or terminated. If Seller fails to so notify Buyer within the one (1)
business day period, then Seller shall be deemed to have elected the
option in clause (2) above. If Seller elects, or is deemed to have
elected, the option in clause (2) above, then, this Agreement shall
terminate and the Xxxxxxx Money shall be immediately returned to Buyer.
If Seller gives notice pursuant to clause (l), above, then the parties
shall proceed to Closing and all conditions of this Section 5 shall be
deemed satisfied except for the obligations which are the subject of
the Disapproval Notice; provided, however, if Seller fails to remove or
otherwise satisfy all of the objectionable conditions set forth in the
Disapproval Notice on or before Closing, and Buyer is unwilling to
waive such condition(s), Seller shall be in default and Buyer shall
have the rights and remedies set forth in Paragraph 7, below.
(b) Termination of Agreement . Notwithstanding anything in
this Agreement to the contrary, Buyer shall have the right to terminate
this Agreement by written notice to Seller at any time during the Due
Diligence Period. In the event this Agreement is terminated
(7)
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pursuant to this Section 5, then, the Xxxxxxx Money shall be returned
to Buyer and all obligations of Buyer and Seller hereunder (except the
provisions of this Agreement which recite that they survive
termination) shall terminate and be of no further force or effect. The
provisions of this Subparagraph shall survive termination of this
Agreement.
6. Conditions Precedent to Closing. The following are conditions
precedent to Buyer's obligation to purchase the Property (the "Conditions
Precedent"). The Conditions Precedent are intended solely for the benefit of
Buyer and may be waived only by Buyer in writing or by the occurrence of
Closing. In the event any condition precedent is not satisfied or waived by
Buyer, Buyer may, in its sole and absolute discretion, terminate this Agreement
at which point the Xxxxxxx Money shall be returned to Buyer and, subject to the
provisions of Paragraph 7, all obligations of Buyer and Seller hereunder (except
provisions of this agreement which recite that they survive termination) shall
terminate and be of no further force or effect.
(a) All of Seller's representations and warranties contained
in this Agreement shall have been true and correct when made and shall
be true and correct as of the Closing Date.
(b) The physical condition of the Property shall be
substantially the same on the Closing Date as on the date of Buyer's
execution of this Agreement, except for reasonable wear and tear and
loss by casualty (subject to the provisions of Paragraph 13,
below), condemnation and repairs, replacements and improvements made
with Buyer's written approval or those required by any Lease.
(c) As of the Closing Date, there shall be no litigation or
administrative agency or other governmental proceeding of any kind
whatsoever, pending or threatened, which was not disclosed in writing
to Buyer during the Due Diligence Period and no proceedings shall be
pending or threatened which could or would cause the redesignation or
other modification of the zoning classification of the Property.
(d) Seller shall terminate at or prior to the Closing Date, at
no cost or expense to Buyer, any and all Service Contracts or other
agreements affecting the Property that are not Assumed Contracts.
(e) Seller shall have substantially complied with all of
Seller's duties and obligations contained in this Agreement.
(f) There shall have been no material adverse change, in the
Preliminary Documents reviewed and approved by Buyer during the Due
Diligence Period.
(g) Seller shall have delivered to Buyer tenant certificates
("Tenant Certificates") within thirty (30) days of the Closing Date in
a form substantially similar to Exhibit "L" attached hereto from
tenants under Leases accounting for eighty percent (80%) of the gross
revenue being currently generated by the Property.
(8)
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7. Remedies.
(a) In the event the sale of the Property is not consummated
solely because of a breach or default under this Agreement on the part
of Buyer, the Xxxxxxx Money shall be paid to and retained by Seller as
liquidated damages. The parties have agreed that Seller's actual
damages, in the event of a default by Buyer, would be extremely
difficult or impracticable to determine. THEREFORE, BY PLACING THEIR
INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT TWENTY-FIVE THOUSAND
DOLLARS ($25,000.00) PLUS APPLICABLE INTEREST HAS BEEN AGREED UPON,
AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S
DAMAGES AND AS SELLER'S EXCLUSIVE REMEDY AGAINST BUYER, AT LAW OR IN
EQUITY, IN THE EVENT OF A DEFAULT UNDER THIS AGREEMENT ON THE PART OF
BUYER.
INITIALS: Seller __________ Buyer __________
(b) In the event the sale of the Property is not consummated
solely because of a breach or default under or breach of this Agreement
on the part of Seller or if a Condition Precedent cannot be fulfilled
because of Seller's breach or if Seller fails to remove or otherwise
satisfy all of the objectionable conditions set forth in Buyer's
Disclosure Notice after Seller has given notice pursuant to clause (1)
of Section 5(a) hereof, Buyer shall, as its sole and exclusive
remedies, either terminate this Agreement and receive a return of the
Xxxxxxx Money or have the option of continuing this Agreement pending
Buyer's action for specific performance; provided, however, Buyer shall
not have the remedy of specific performance with respect to (i) a
failure by Seller to satisfy the Condition Precedent set forth in
Section 6(g) of this Agreement or (ii) a failure of Seller to effect
the cure referred to in the last sentence of Section 5(a) of this
Agreement, and in either of such events, Buyer's sole and exclusive
remedy shall be to terminate this Agreement and receive a return of the
Xxxxxxx Money.
8. Closing and Escrow.
(a) Upon mutual execution of this Agreement, the parties
hereto shall deposit an executed counterpart of this Agreement with
Escrow Holder and this Agreement shall serve as instructions to Escrow
Holder for consummation of the purchase and sale contemplated hereby.
(b) The parties shall conduct the Closing on or before
December 31, 1997, or on such other date mutually agreed upon between
Buyer and Seller in writing (the "Closing Date"). In the event the
Closing does not occur on or before the Closing Date, Escrow Holder
shall, unless it is notified by both parties to the contrary within
five (5) days after the Closing Date, return to the depositor thereof
items which were deposited hereunder. Any such return shall not,
however, relieve either party of any liability it may have for its
wrongful failure to Close.
(c) At or before the Closing, Seller shall deliver to Escrow
Holder or Buyer the following:
(9)
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(i) a duly executed and acknowledged Deed;
(ii) a duly executed Xxxx of Sale;
(iii) to the extent in Seller's possession or control,
originals of all Leases and a duly executed and acknowledged
Assignment of Leases;
(iv) originals of the Assumed Contracts not previously
delivered to Buyer (to the extent originals are available;
provided if originals are not available Seller shall provide
Buyer with complete copies of what is in Seller's possession
or control);
(v) a duly executed Assignment of Intangible Property;
(vi) to the extent in Seller's possession or control,
originals of the building permits and certificates of
occupancy for the Improvements and all tenant-occupied space
included within the Improvements and all Warranties and
Guaranties not previously delivered to Buyer;
(vii) notices to the Tenants, each prepared and
completed by Seller for each Tenant, in the form attached as
Exhibit J, each duly executed by Seller;
(viii) Tenant Certificates meeting the requirements of
Paragraph 6(g);
(ix) a duly executed affidavit that Seller is not a
"foreign person" within the meaning of Section 1445(e)(3) of
the Internal Revenue Code of 1986 (the "Code") in the form
attached as Exhibit K;
(x) such resolutions, authorizations, bylaws or other
corporate and/or partnership documents or agreements relating
to Seller and its partners as shall be reasonably required by
the Title Company to evidence authority to convey;
(xi) a full release of all monetary encumbrances
affecting the Property caused by Seller, including without
limitation any mechanics' liens and such bond, indemnity or
other arrangements as shall be necessary to cause the Title
Company to insure title to the Property as vested in Buyer
without any exception for such matters;
(xii) a closing statement prepared by the Title Company
(the "Closing Statement") duly executed by Seller;
(xiii) all keys to the Property (except for keys in the
possession of the tenants);
(xiv) evidence of termination of any Service Contracts
and other agreements affecting the Property that are not
Assumed Contracts; and
(10)
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(xv) any documents or agreements reasonably required
by the Title Company to issue the Title Policy.
Buyer may waive compliance on Seller's part under any of the foregoing items by
an instrument in writing or by the occurrence of Closing.
(d) At or before the Closing, Buyer shall deliver to Escrow
Holder or Seller the following:
(i) a duly executed Assignment of Leases;
(ii) a duly executed Assignment of Intangible
Property;
(iii) the Closing Statement, duly executed by Buyer;
(iv) the Purchase Price in immediately available and
good funds less any holdbacks and proration credits provided
for this Agreement; and
(v) a Certificate of Buyer in the form attached
hereto as Exhibit M.
(e) Seller and Buyer shall each deposit such other instruments
as are reasonably required by Escrow Holder or Title Company or
otherwise required to close the escrow and consummate the purchase of
the Property in accordance with the terms hereof.
(f) Prorations, Closing Costs and Adjustments.
(1) The following are to be apportioned as of 12:01
AM on the Closing Date, as follows:
(i) Rent. Rent under the Leases shall be
apportioned as of the Closing Date. With respect to
any rent arrearages arising under the Leases, after
Closing, Buyer shall pay to Seller any rent actually
collected which is applicable to the period preceding
the Closing Date; provided, however, that all rent
collected by Buyer shall be applied first to all
unpaid rent accruing after the Closing Date, and then
to unpaid rent accruing prior to the Closing Date.
Buyer shall not be obligated to take any steps to
recover any rent arrearages. Seller shall be
permitted to pursue its remedy for collection of any
rent arrearages applicable to the period prior to the
Closing Date, provided that Buyer shall incur no
cost, expense or liability in connection therewith,
but Seller shall not be permitted to enforce any
other legal or equitable remedies specifically
including commencing eviction procedures.
(ii) Leasing Costs. Seller shall pay as of
the Closing all leasing commission costs required to
be paid by Seller pursuant to Section 4(a)(xii) of
this Agreement and tenant improvement costs, if any,
in connection with
(11)
15
any Lease executed on or before the Effective Date
that are or will become due and payable as of the
Closing. To the extent not paid by Seller, Buyer
shall be entitled to a credit against the Purchase
Price for any such commissions or costs.
(iii) Security Deposits. Buyer shall be
entitled to a credit against the Purchase Price for
the total sum of all security deposits paid to Seller
by tenants under any Leases, and any interest earned
thereon which, by law or the terms of such Leases, is
payable to such tenants.
(iv) Unexpired Concessions. Buyer shall be
entitled to a credit against the Purchase Price for
any free rent, abatements, or other unexpired
concessions under any Leases to the extent they apply
to any period after the Closing.
(v) Tenant Charges. Where the Leases contain
tenant obligations for taxes, common area expenses,
operating expenses or additional charges of any other
nature, and where Seller has collected any portion
thereof in excess of amounts owed by tenants for such
items for the period prior to the Closing Date, then
there shall be an adjustment and credit given to
Buyer on the Closing Date for such excess amounts
collected. Buyer shall apply all such excess amounts
to the charges owed by tenants for such items for the
period after the Closing Date and, if required by the
Leases, shall rebate or credit tenants with any
remainder. If it is determined that the amount
collected during Seller's ownership period exceeded
the tenants' obligation to pay for such expenses
incurred during the same period by more than the
amount previously credited to Buyer at Closing, then
Seller shall promptly pay to Buyer the deficiency
upon demand after the Closing.
(vi) Utility Charges. Seller shall use
reasonable efforts to cause all the utility meters to
be read on the Closing Date, and whether such meters
can be read or not, will be responsible for the cost
of all utilities used prior to the Closing Date,
except to the extent such utility charges are billed
to and paid by tenants directly.
(vii) Real Estate Taxes and Special
Assessments. General real estate taxes payable for
the 1997 calendar year and all prior years shall be
paid by Seller. General real estate taxes payable for
the 1997 calendar year shall be prorated between
Seller and Buyer as of the Closing Date. Seller shall
pay on or before Closing the full amount of any
installment due and owing on any bonds or assessments
against the Property including interest payable
therewith, including any installment on bonds or
assessments that may be payable after the Closing
Date as a result of or in relation to the
construction or operation of any Improvements or any
public improvements that took place or for which any
assessment was levied prior to the Closing Date.
Buyer shall
(12)
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pay the full amount of any bonds or assessments
incurred after the Closing Date that are not subject
to the immediately preceding sentence.
(viii) Other Apportionments. Amounts payable
under the Assumed Contracts, annual or periodic
permit and/or inspection fees (calculated on the
basis of the period covered), and liability for other
Property operation and maintenance expenses and other
recurring costs shall be apportioned as of the
Closing Date.
(ix) Preliminary Closing Adjustment. Seller
and Buyer shall jointly prepare and approve a
preliminary Closing adjustment on the basis of the
Leases and other sources of income and expenses, and
shall deliver such computation to Escrow Holder prior
to Closing.
(x) Post-Closing Reconciliation. Subject to
the provisions of Subparagraph vii above, if any of
the aforesaid prorations cannot be definitely
calculated on the Closing Date, then they shall be
estimated at the Closing and definitely calculated as
soon after the Closing Date as feasible, but in any
event within sixty (60) days after the Closing Date.
As soon as the necessary information is available,
Buyer shall conduct a post-Closing audit to determine
the accuracy of all prorations made to the Purchase
Price (the "Post-Closing Audit"). Either party owing
the other party a sum of money based on such
subsequent proration(s) or the Post-Closing Audit
shall promptly pay said sum to the other party, and,
if not paid within thirty (30) days after written
demand, then together with interest thereon at the
rate of two percent (2%) over the "prime rate" (as
announced from time to time in the Wall Street
Journal) per annum from the Closing Date to the date
of payment if payment is not made within ten (10)
days after delivery of a xxxx therefor.
(2) Closing Costs. Seller shall pay for the Survey,
the Title Commitment and the premium for the Title Policy,
excluding the charge for the survey deletion, the cost of any
Endorsements, search any escrow fees or costs and sales tax
(if any). Seller shall pay the cost of any transfer taxes
applicable to the sale. Recording fees, shall be paid by
Buyer. Seller shall be responsible for all costs incurred in
connection with the prepayment or satisfaction of any loan or
bond secured by the Property including, without limitation,
any prepayment fees, penalties or charges. All other costs and
charges of the escrow for the sale not otherwise provided for
in this Agreement shall be allocated in accordance with the
closing customs for Dallas County. Buyer and Seller shall each
be responsible for their respective legal fees to negotiate
and execute this Agreement. In the event this Agreement is
terminated or Closing occurs, the foregoing allocation of
costs shall survive such termination or Closing.
(13)
17
(3) Survival. The provisions of this Subparagraph (f)
shall survive the Closing.
9. Representations, Warranties and Covenants of Seller. As of the date
hereof and again as of Closing, Seller represents and warrants to, and covenants
with, Buyer as follows:
(a) To Seller's knowledge, Seller has not received any notice
of any material physical or mechanical defects of the Property,
including, without limitation, the structural and load-bearing
components of the Property, the parking lots, the plumbing, heating,
air conditioning and electrical and life safety systems, and has not
received any notice that the roofs have not been constructed and
installed in compliance with all manufacturer requirements or that all
manufacturer warranties and guaranties are not in full force and
effect. To Seller's knowledge, Seller has not received any notice that
the items described in (i) and (ii), above, are not in compliance with
applicable building codes, environmental, zoning, life safety, laws,
rules and regulations related to handicapped or disabled (including,
without limitation, ADA and the Fair Housing Amendments Act of 1988)
and land use laws and regulations, and other applicable local, state
and federal laws and regulations (collectively, "Laws").
(b) To Seller's knowledge, Seller has not received any notice
that the use and operation of the Property is not in compliance with
all Laws. Seller shall not commit or knowingly permit to occur, any
action which will result in such a violation between the date hereof
and the Closing.
(c) All documents delivered by Seller to Buyer, or made
available to Buyer for review in connection with the transactions
contemplated hereunder, including without limitation, all documents
described in Paragraph 4, above, are and at the time of Closing will be
complete copies of all such documents in Seller's possession and/or
control. To Seller's knowledge, all of Seller's files in connection
with the Property, and all other matters described in Paragraph 4,
above, in Seller's possession and/or control have been delivered to or
made available to Buyer for Buyer's review.
(d) To Seller's knowledge, there are no condemnation,
environmental, zoning or other land-use regulation proceedings, either
instituted or threatened, which would detrimentally affect the use or
operation of the Property, nor has Seller received written notice of
any special assessment proceedings affecting the Property (other than
as set forth in the Title Commitment). Seller shall notify Buyer
promptly of any such proceedings of which Seller becomes aware.
(e) Seller has not been served with, Seller has no knowledge
of any pending, and Seller has received no written notice of any
threatened litigation against Seller or any basis therefor that arises
out of the ownership of the Property or the ability of Seller to
perform its obligations under this Agreement. Seller shall notify Buyer
promptly of any such litigation of which Seller becomes aware.
(14)
18
(f) Except for Leases executed after the Effective Date and
approved by Buyer, at the time of Closing there will be no outstanding
written or oral contracts made by Seller for any improvements to the
Property which have not been fully paid for and Seller shall cause to
be discharged all mechanics' and materialmen's liens arising from any
labor or materials furnished to the Property in connection with such
Leases prior to the time of Closing.
(g) Seller has not received any notice that Seller and the
Property and any real estate in the vicinity of the Property are not in
compliance in all material respects with all Environmental Laws; or
(ii) Seller has not received any notice, order, directive, complaint or
other communication, written or oral, from any governmental agency or
other person or entity alleging the occurrence of any violation of any
Environmental Laws at the Property. For the purposes of this
subparagraph, the following words shall have the following meanings:
(1) "Environmental Law" means federal, state and
local laws, statutes, ordinances, rules, regulations
(including without limitation the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended
from time to time (42 U.S.C. xx.xx. 9601 et seq.) ("CERCLA"),
the Federal Insecticide Fungicide and Rodenticide Act of 1976
(7 U.S.C. xx.xx. 136, et. seq. ("FIFRA") and the applicable
provisions of the Texas Health and Safety Code, and Texas
Water Code, as amended from time to time (the "Texas Codes")
and rules and regulations promulgated thereunder),
authorizations, judgments, decrees, administrative orders,
concessions, grants, franchises, agreements and other
governmental restrictions and requirements relating to the
environment or to any Hazardous Material.
(2) "Hazardous Material" means, at any time, (a) any
substance, product, chemical, compound, material, mixture,
waste or other material of any nature whatsoever (i) which is
now or hereafter listed, defined or otherwise classified
pursuant to any Environmental Laws as a "hazardous substance",
"hazardous waste", "infectious waste", "hazardous material",
"extremely hazardous waste", "toxic substance", "toxic
pollutant" or any other formulation intended to define, list
or classify substances by reason of deleterious properties
such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity or reproductive toxicity; (ii) which
is now or hereafter regulated or listed by any local, state or
federal governmental authority, entity or agency pursuant to
any Environmental Laws; or (iii) which may give rise to any
liability under any Environmental Laws or under any statutory
or common law theory based on negligence, trespass,
intentional tort, nuisance or strict liability or under any
reported decisions of state or federal court; (b) asbestos and
asbestos-containing materials; and (c) radon; (d) PCB's,
petroleum and petroleum products or fractions thereof,
including without limitation, crude oil, and any fraction
thereof, natural gas, natural gas liquids, liquefied natural
gas or synthetic gas usable for fuel or any mixture thereof.
(15)
19
(h) As of the Closing Date, to Seller's knowledge, Seller
shall have (i) completed all original building and tenant construction
and punch list items, (ii) completed all obligations with respect to
any remodeling or renovating to be completed by Seller as landlord
under the Leases existing as of the Effective Date; and (iii) paid all
obligations of the landlord pursuant to the Leases existing as of the
Effective Date; including, without limitation, tenant improvement,
remodeling or renovating costs, leasing commissions, locator fees and
other concessions except those which will accrue upon exercise of any
renewal, extension, expansion or right of first refusal option provided
in any Lease.
(i) Seller has not filed or been the subject of any filing of
a petition under the Federal Bankruptcy Law or any federal or state
insolvency laws or laws for composition of indebtedness or for the
reorganization of debtors.
(j) To Seller's knowledge, no portion of the Property is
currently affected by or subject to any special assessment or special
use or tax abatement recognized or permitted by any taxing authority
including, but not limited to, any agricultural use exemption or other
tax exemption, and no penalty, special assessment, or back taxes from
any special assessment or exemption shall be due upon transfer of title
to the Property to Buyer or upon any change of use of the Property by
Buyer.
(k) To Seller's knowledge, there are no free rent, abatements,
incomplete tenant improvements, rebates, allowances, or other unexpired
concessions (collectively referred to as "Offsets") or rights under any
existing or pending Leases that will be outstanding after the Closing
Date and Seller has paid in full any of landlord's leasing costs or
obligations which Seller is required to pay under this Agreement.
(l) No brokerage, finders fee or commission, locator fee or
similar fee or commission which is required to be paid by Seller
pursuant to Section 4(a)(xii) of this Agreement is due and unpaid by
Seller.
(m) Except as disclosed by Seller to Buyer in writing, to
Seller's knowledge, there exist no defaults or events which, with the
giving of notice or passage of time, or both, would constitute a
default by Seller as landlord under the Leases listed thereon. To
Seller's knowledge, there exist no defaults and no events which, with
the giving of notice or passage of time, or both, would constitute a
default by any tenants thereon.
(n) Seller is a limited partnership, duly organized and
validly existing and in good standing under the laws of the State of
Texas; this Agreement and all documents executed by Seller which are to
be delivered to Buyer at the Closing are and at the time of Closing
will be duly authorized, executed and delivered by Seller, are and at
the time of Closing will be legal, valid and binding obligations of
Seller enforceable against Seller in accordance with their respective
terms, are and at the time of Closing will be sufficient to convey
title (as provided in this Agreement and if they purport to do so), and
do not and at the time of Closing will not violate any provision of any
agreement or judicial order to which Seller or the Property is subject.
Seller has obtained all necessary authorizations, approvals and
(16)
20
consents to the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
(o) Seller is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Code.
(p) Seller has not granted any option or right of first
refusal or first opportunity to any party to acquire any interest in
any of the Property.
For purposes of this Agreement, whenever the phrase "to Seller's
knowledge" or words of similar import are used, they shall be deemed to refer to
the actual knowledge after due and diligent inquiry by F. Xxxxx Xxxxxxx, Vice
President of Xxxxxxxx Corp., the managing general partner of Seller.
10. CONDITION OF PROPERTY. BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT
FOR ANY REPRESENTATIONS OR WARRANTIES PROVIDED IN THIS AGREEMENT, IT IS
PURCHASING THE PROPERTY IN AN "AS IS, WHERE IS" CONDITION, WITHOUT RELYING UPON
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, OF ANY KIND,
HEREBY WAIVING AND RELINQUISHING ALL CLAIMS WITH RESPECT TO ANY IMPLIED
WARRANTIES. WITHOUT LIMITING THE ABOVE, BUYER ACKNOWLEDGES THAT NEITHER SELLER,
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE DEED, NOR ANY OTHER
PARTY THAT IS AN AGENT, EMPLOYEE OR CONTRACTOR OF SELLER HAS MADE ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ON WHICH BUYER IS RELYING AS
TO ANY MATTERS, DIRECTLY OR INDIRECTLY, CONCERNING THE PROPERTY INCLUDING, BUT
NOT LIMITED TO, THE LAND, THE SQUARE FOOTAGE OF THE PROPERTY, IMPROVEMENTS,
DEVELOPMENT RIGHTS, TAXES, ASSESSMENTS, BONDS, PERMISSIBLE USES, TITLE
EXCEPTIONS, WATER OR WATER RIGHTS, TOPOGRAPHY, UTILITIES, ZONING OF THE
PROPERTY, SOIL, SUBSOIL, THE PURPOSES FOR WHICH THE PROPERTY IS TO BE USED,
DRAINAGE, ENVIRONMENTAL OR BUILDING LAWS, RULES AND REGULATIONS, TOXIC WASTE OR
HAZARDOUS MATERIALS OR ANY OTHER MATTERS AFFECTING OR RELATING TO THE PROPERTY.
BUYER HEREBY EXPRESSLY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE.
11. Representations and Warranties of Buyer. Buyer hereby represents
and warrants to Seller that Buyer is a real estate investment trust organized
under the laws of the State of Texas; this Agreement and all documents executed
by Buyer which are to be delivered to Seller at the Closing are or at the time
of Closing will be duly authorized, executed and delivered by Buyer, and are or
at the Closing will be legal, valid and binding obligations of Buyer, and do not
and at the time of Closing will not violate any provisions of any agreement or
judicial order to which Buyer is subject. Buyer has obtained all necessary
authorizations, approvals and consents to the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby.
(17)
21
12. Continuation and Survival. All representations, warranties and
covenants by the respective parties contained herein or made in writing pursuant
to this Agreement are intended to and shall be deemed made as of the date of,
this Agreement or such writing and again-at the Closing, shall be deemed to be
material, and unless expressly provided to the contrary shall survive and shall
survive the execution and delivery of this Agreement and the Closing until the
first (1st) anniversary of the Closing Date and shall terminate upon such date
except as to any claim asserted by Buyer to Seller by notice given before such
date.
13. Indemnity.
(a) Seller shall hold harmless, indemnify and defend Buyer,
its successors and assigns and their respective agents, employees,
officers, trustees, members and retirants
from and against any and all obligations, liabilities, claims, liens or
encumbrances, demands, losses, damages, causes of action, judgments,
costs and expenses (including attorneys' fees), whether direct,
contingent or consequential and no matter how arising ("Losses and
Liabilities") in any way related to the Property and arising or
accruing during the xxxx Xxxxxx owned or had any interest in the
Property prior to the Closing.
(b) Except for Losses and Liabilities arising directly or
indirectly from or out of a circumstance resulting from a breach of any
of Seller's representations or warranties, or which shall have arisen
out of any aspect of the Property, its management or operations prior
to Closing, Buyer shall hold harmless, indemnify and defend Seller, its
successors and assigns and their respective agents, employees, officers
and partners, from and against any and all Losses and Liabilities in
any way related to the Property and arising or accruing during the time
that Buyer owns or has any interest in the Property.
14. Risk of Loss. In the event any of the Property is damaged or
destroyed prior to the Closing Date, and such damage or destruction (a) is fully
covered by Seller's insurance, except for the deductible amounts and any
coinsurance contribution due from Seller thereunder, and the insurer agrees to
timely pay for the entire cost of such repair less such deductible and
coinsurance, and (b) would cost less than One Hundred Thousand Dollars
($100,000.00) to repair or restore, then this Agreement shall remain in full
force and effect and Buyer shall acquire the Property upon the terms and
conditions set forth herein. In such event, Buyer shall receive a credit against
the Purchase Price equal to such deductible and coinsurance amounts, and Seller
shall assign to Buyer all of Seller's right, title and interest in and to all
proceeds of insurance on account of such damage or destruction. In the event any
of the Property is damaged or destroyed prior to the Closing Date, and such
damage or destruction (c) is not fully covered by Seller's insurance, other than
the deductible and coinsurance amounts, and (d) would cost less than One Hundred
Thousand Dollars ($100,000.00) to repair or restore, then the transaction
contemplated by this Agreement shall be consummated with Buyer receiving a
credit against the Purchase Price at the Closing in an amount reasonably
determined by Seller and Buyer (after consultation with unaffiliated experts) to
be the cost of repairing such damage or destruction, but in no event more than
One Hundred Thousand Dollars ($100,000.00). In the event (e) any of the Property
is damaged or destroyed prior to the Closing and the cost of repair would exceed
One Hundred Thousand Dollars ($100,000.00), or (f) if condemnation proceedings
are commenced against any of the Property, then, notwithstanding anything to the
contrary set forth
(18)
22
in this Paragraph, Buyer shall have the right, at its election, either to
terminate this Agreement in its entirety, or only as to that portion of the
Property subject to condemnation proceedings (in which case there shall be an
adjustment to the Purchase Price equal to the proceeds Seller receives from the
condemning authority for the portion taken), or to not terminate this Agreement
and purchase the Property. Buyer shall have thirty (30) days after Seller
notifies Buyer that any portion of the Property is subject to condemnation
proceedings to make such election by delivery to Seller of an election notice
(the "Election Notice"). Buyer's failure to deliver the Election Notice within
such thirty (30) day period shall be deemed an election to terminate this
Agreement in its entirety. In the event this Agreement is terminated in its
entirety or in part pursuant to this Paragraph, by delivery of notice of
termination to Seller, Buyer and Seller shall each be released from all
obligations hereunder pertaining to that portion of the Property affected by
such termination. In the event Buyer elects not to terminate this Agreement,
Seller shall notify Buyer that Buyer shall receive a credit against the Purchase
Price at the Closing in the amount equal to the value (i.e., the amount Seller
receives for the portion taken) of any Property taken as a result of such
proceeding, in which case this Agreement shall otherwise remain in full force
and effect, and Seller shall be entitled to any condemnation awards. Any repairs
elected to be made by Seller pursuant to this Paragraph shall be made within one
hundred and eighty (180) days following such damage or destruction and the
Closing shall be extended until the repairs are substantially completed.
15. Possession. Possession of the Property shall be delivered to Buyer
on the Closing Date (subject to the rights of the tenants in possession under
Leases), provided, however, that prior to the Closing Date Seller shall afford
authorized representatives of Buyer reasonable access to the Property, subject
to the rights of tenants under the Leases, for purposes of satisfying Buyer with
respect to the representations, warranties and covenants of Seller contained
herein and with respect to satisfaction of any Conditions Precedent to the
Closing contained herein, including, without limitation, a Phase I environmental
investigation. Buyer shall be required to obtain Seller's prior written consent
to any investigation affecting the physical nature of the Property, and
covenants and agrees that Buyer and its agents and consultants will maintain
adequate liability insurance coverage relating to such inspection activities. In
the event this Agreement is terminated, Buyer shall restore the Property to
substantially the condition in which it was found. Buyer hereby agrees to
indemnify and hold Seller harmless from any damage or injury to persons or
property caused by Buyer or its authorized representatives during their entry
and investigations prior to the Closing. The indemnity contained in the
preceding sentence shall survive the termination of this Agreement or the
Closing, as applicable, provided that Buyer shall have no liability under such
indemnity unless Seller gives Buyer written notice of any claim it may have
against Buyer under such indemnity within twelve (12) months of such termination
or the Closing Date, as applicable.
16. Maintenance of the Property and Property Personnel. Between
Seller's execution of this Agreement and the Closing, Seller shall maintain the
Property in the same condition of repair, reasonable wear and tear excepted,
shall perform all work required to be performed by the landlord under the terms
of any Lease, and shall make all repairs, maintenance and replacements of the
Improvements and any Tangible Personal Property and otherwise operate the
Property in the same manner as before the making of this Agreement, as if Seller
were retaining the Property. After full execution of this Agreement and until
the Closing, Seller shall maintain all existing personnel on the Property, if
any, in their current employment positions at their current (or an increased)
rate of
(19)
23
compensation. Any changes in such personnel, other than in the ordinary
course of business which would not result in a reduction in the level of
management attention or service to the Property, shall be subject to Buyer's
reasonable approval.
17. Leasing; Buyer's Consent to New Contracts Affecting the Property;
Termination of Existing Contracts. Seller shall use commercially reasonable
efforts until Closing to lease any vacant space in the Improvements to tenants
pursuant to Leases in form and content acceptable to Buyer. Seller shall not,
after the date of Seller's execution of this Agreement, enter into any Lease or
contract affecting the Property, or any amendment thereof, or permit any tenant
to enter into any sublease, assignment or agreement pertaining to the Property,
or waive, compromise or settle any rights of Seller under any contract or Lease,
or agree to return any security deposit, or modify, amend, or terminate any
Assumed Contract, without in each case obtaining Buyer's prior written consent
thereto, which consent shall not be unreasonably withheld or delayed. Buyer
shall be deemed to have disapproved any request for consent made by Seller
pursuant to this paragraph if Buyer fails to respond to Seller with Buyer's
approval or disapproval within five (5) business days of Seller's request for
Buyer's approval. Seller shall terminate prior to the Closing, at no cost or
expense to Buyer, any and all management agreements or contracts affecting the
Property that are not listed on the Schedule of Agreements.
18. Insurance. Through the Closing Date, Seller shall maintain or cause
to be maintained, at Seller's sole cost and expense:
(a) a policy or policies of insurance in amounts equal to the
full replacement value of the Improvements and the Tangible Personal
Property, insuring against all insurable risks, including, without
limitation, fire, vandalism, malicious mischief, lightning, windstorm,
water, earthquake and other perils customarily covered by casualty
insurance and the costs of demolition and debris removal; and
19. Brokers and Finders. Pursuant to separate agreement, Seller shall
pay The Xxxxx Companies/Oncor International and Ensearch Realty Services a
brokerage commission for their services in this transaction. Except as provided
in the foregoing sentence, neither party has had any contact or dealings
regarding the Property, or any communication in connection with the subject
matter of this transaction, through any real estate broker or other person who
can claim a right to a commission or finder's fee in connection with the sale
contemplated herein. In the event that any other broker or finder claims a
commission or finder's fee based upon any contact, dealings or communication,
the party through whom the broker or finder makes its claim shall be responsible
for said commission or fee and all costs and expenses (including reasonable
attorneys' fees) incurred by the other party in defending against the same. The
party through whom any other broker or finder makes a claim shall hold harmless,
indemnify and defend the other party hereto, its successors and assigns, agents,
employees, officers, trustees, members and retirants and the Property from and
against any and all obligations, liabilities, claims, demands, liens,
encumbrances and losses (including attorneys' fees), whether direct, contingent
or consequential, arising out of, based on, or incurred as a result of such
claim. The provisions of this Paragraph shall survive the Closing or termination
of this Agreement.
(20)
24
20. Marketing. Seller agrees not to market or show the Property to any
other prospective purchasers during the term of this Agreement.
21. Publicity and Confidentiality. The parties shall at all times keep
this transaction and any documents received from each other confidential, except
to the extent necessary to (a) comply with applicable laws and regulations, or
(b) carry out the obligations set forth in this Agreement. Any such disclosure
to third parties shall indicate that the information is confidential and should
be so treated by the third party. No press release or other public disclosure
may be made by either party or any of their respective agents concerning this
transaction without the prior written consent of the other party unless
otherwise required by applicable laws or regulations.
22. Exculpation. Seller acknowledges and agrees that all persons
dealing with Buyer must look solely to the amount of liquidated damages provided
in Paragraph 7 for the enforcement of any claims against or liability of Buyer.
No present or future officer, director, employee, trust manager, shareholder or
agent of Buyer or Seller shall have any personal liability, directly or
indirectly, and recourse shall not be had against any such officer, director,
employee, trust manager, shareholder or agent, under or in connection with this
Agreement or any other document or instrument heretofore or hereafter executed
in connection with this Agreement. Seller and Buyer each hereby waives and
releases any and all such personal liability and recourse.
23. Miscellaneous.
(a) Notices. Any notice, consent or approval required or
permitted to be given under this Agreement shall be in writing and
shall be deemed to have been given upon (i) hand delivery, (ii) one (1)
business day after being deposited with Federal Express or another
reliable overnight courier service or next day delivery, (iii) being
transmitted by facsimile telecopy, or (iv) two (2) business days after
being deposited in the United States mail, registered or certified
mail, postage prepaid, return receipt required, and addressed as
follows:
If to Seller: Nanook Partners, L.P.
00000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Mr. F. Xxxxx Xxxxxxx
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
And a copy to: Xxxxxxxx & Brusilow, P.C.
750 Signature Place
00000 Xxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
(21)
25
If to Seller: American Industrial Properties REIT
0000 Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Attn: Xx. Xxxxx X. Xxxxxxxxx and Xx. Xxx X. Xxxxx
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
And a copy to: Liddell, Sapp, Zivley, Hill & XxXxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
or such other address as either party may from time to time specify in
writing to the other.
(b) Successors and Assigns. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their
respective successors, heirs, administrators and assigns. Neither Buyer
nor Seller shall assign its right, title and interest in and to this
Agreement without the other party's prior written consent unless any
such assignment is to an affiliate of Buyer or Seller, as the case may
be, in which event no such consent shall be required.
(c) Amendments. Except as otherwise provided herein, this
Agreement may be amended or modified only by a written instrument
executed by Seller and Buyer.
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
(e) Merger of Prior Agreements. This Agreement and the
exhibits hereto constitute the entire agreement between the parties and
supersede all prior agreements and understandings between the parties
relating to the subject matter hereof, including without limitation,
that certain Letter of Intent dated October 27, 1997, executed by Buyer
and Seller (the "Letter of Intent"), as the same may have been amended,
which shall be of no further force or effect upon execution of this
Agreement by Buyer and Seller.
(f) Enforcement. In the event a dispute arises concerning the
performance, meaning or interpretation of any provision of this
Agreement, the party not prevailing in such dispute shall pay any and
all costs and expenses incurred by the other party in enforcing or
establishing its rights hereunder, including, without limitation, court
costs and attorneys' fees. In addition to the foregoing award of
attorneys' fees to the prevailing party, the prevailing party in any
lawsuit on this Agreement shall be entitled to its attorneys' fees
incurred in any post judgment proceedings to collect or enforce the
judgment. This provision is separate and several and shall survive the
merger of this Agreement into any judgment on this Agreement.
(22)
26
(g) Time of the Essence. Time is of the essence of this
Agreement.
(h) Severability. If any provision of this Agreement, or the
application thereof to any person, place, or circumstance, shall be
held by a court of competent jurisdiction to be invalid, unenforceable
or void, the remainder of this Agreement and such provisions as applied
to other persons, places and circumstances shall remain in full force
and effect.
(i) Exhibits. All exhibits attached hereto are incorporated
herein as though fully set forth herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
(23)
27
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Buyer:
[BUYER TO INITIAL AMERICAN INDUSTRIAL PROPERTIES REIT
SUBPARAGRAPH 7(a)]
By: /s/ XXXXX X. XXXXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
Seller:
[SELLER TO INITIAL NANOOK PARTNERS, L.P.
SUBPARAGRAPH 7(a)]
By: Xxxxxxxx Corp.
General Partner
By: /s/ [ILLEGIBLE]
--------------------------------
Name: [ILLEGIBLE]
------------------------------
Title: [ILLEGIBLE]
-----------------------------
Chicago Title Insurance Company agrees to act as Escrow Holder and disburse
and/or apply the Xxxxxxx Money in accordance with the terms of this Agreement
and to comply with the terms and provisions of Paragraph 20 of this Agreement.
Chicago Title Insurance Company agrees to comply with all reporting requirements
of Section 6045 of the United States Internal Revenue Code and the regulations
promulgated thereunder.
CHICAGO TITLE INSURANCE COMPANY
By:
-----------------------------------
Its:
----------------------------------
Dated:
--------------------------------
(24)
28
LIST OF EXHIBITS
Section Reference
-----------------
Exhibit A - Description of Land l(a)
Exhibit B - Inventory of Tangible Personal
Property l(d)
Exhibit C - Deed 3(a)
Exhibit D - Xxxx of Sale 3(b)
Exhibit E - Assignment and Assumption of
Intangible Property 3(c)
Exhibit F - Assignment of Leases 3(c)
Exhibit G - Surveyor's Certificate 4(a)(ii)
Exhibit H - Environmental Reports 4(a)(vi)
Exhibit I - Rent Roll 4(a)(vii)
Exhibit J - Notice of Lease Assignment 8(c)(vii)
Exhibit K - Transferor's Certification of 8(c)(ix)
Non-Foreign Status
Exhibit L - Tenant Certificate 6(g)
Exhibit M - Certificate of Buyer 8(d)(v)
Addendum I - Service Contracts 4(a)(iii)
(25)
29
EXHIBIT A
REAL PROPERTY
30
EXHIBIT B
PERSONAL PROPERTY INVENTORY
NONE
31
EXHIBIT C
SPECIAL WARRANTY DEED
RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
-----------------------------
-----------------------------
-----------------------------
-----------------------------
-----------------------------
-----------------------------
MAIL TAX STATEMENT TO:
American Industrial Properties REIT
0000 Xxxxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Attn: Xx. Xxxx Xxxxxxx
--------------------------------------------------------------------------------
(Space Above Line for Reorder's Use Only)
SPECIAL WARRANTY DEED
THE STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ________ )
_________________________________, a ______________________________
("Grantor"), and for and in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration to it in hand paid by AMERICAN INDUSTRIAL
PROPERTIES REIT, a Texas real estate investment trust ("Grantee"), whose address
is 0000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000-0000 the receipt and
sufficiency of which is hereby acknowledged and confessed, has GRANTED,
BARGAINED, SOLD, ASSIGNED and CONVEYED, and by these presents does GRANT,
BARGAIN, SELL, ASSIGN and CONVEY, unto Grantee:
A. The fee simple title to all of that certain real property located in
_____________ County, Texas and more particularly described in Exhibit A hereto
attached and made a part hereof for all purposes and any and all structures,
fixtures, buildings and improvements situated thereon (collectively, the
"Land"); together with (i) any and all rights to present or future use of (and
other
32
rights, titles and interests in and to) waste water, waste water capacity,
drainage, water, water rights or other utility facilities or capacity to the
extent same pertain to or benefit the Land, including without limitation all
reservations of, or commitments or letters covering, any such use now or in the
future, whether now owned or hereafter acquired, (ii) any and all deposits,
reimbursements and reimbursement rights and tax refunds relating to periods
occurring after the date hereof and any and all contracts, licenses and zoning
or other permits, whether executed, granted or issued by a private person or
entity or a governmental or quasi-governmental agency or body, which are
directly or indirectly related to or connected with the Land or the development
or use of the Land, whether now or at any time hereafter existing; (iii) any and
all oil, gas, and other minerals in, on, or under the Land or which may be
produced from the Land as well as any other mineral rights and interests
relating to the Land (present or reversionary); (iv) any and all leases covering
or affecting all or any portion of the Land; (v) any and all roads, streets,
alleys, strips, gores, pieces of property and other ways (open or proposed)
adjacent or contiguous to or abutting, affecting, crossing, fronting or bounding
the Land, including without limitation any awards to be made after the date
hereof relating thereto (including without limitation any unpaid awards or
damages payable by reason of damages thereto or by reason of a widening or
changing of the grade with respect thereto); (vi) all and singular, the
benefits, privileges, easements, rights of ingress and egress to and from, air
rights, tenements, hereditaments and appurtenances thereon or in anywise thereto
appertaining, and (vii) any and all reversionary interests in and to, and all of
Grantor's rights to use, any of the foregoing (clauses (i) through (vii) above
being herein collectively called the "Rights and Appurtenances") and the Land
and the Rights and Appurtenances being herein collectively called the
("Property").
TO HAVE AND TO HOLD the Property, together with all and singular any
other rights and appurtenances thereto in anywise belonging, unto Grantee, its
legal representatives, successors and assigns, FOREVER, subject to those
restrictions and encumbrances listed on Exhibit B, attached hereto and
incorporated herein by reference for all purposes, to the extent (but no
further) that same are valid and subsisting as of the date hereof and affect
title to the Property (collectively, the "Encumbrances"); and Grantor does
hereby bind itself, its legal representatives, successors and assigns, to
WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee, its legal
representatives, successors and assigns, against every person whomsoever
lawfully claiming or to claim the same or any part thereof, by, through or under
Grantor, but not otherwise, subject, however, to the Encumbrances.
Grantee assumes the obligations to pay ad valorem taxes and assessments
as they become due and payable subsequent to December 31, 1997. Grantor warrants
and represents that all ad valorem taxes and assessments and all maintenance
fees for the Conveyed Property for 1997 and all prior years have been fully
paid. If the proration as of the date hereof is based upon an estimate of ad
valorem taxes and assessments and maintenance fees for the current year, then
upon demand by either party hereto, the parties shall, if necessary, promptly
and equitably adjust all such ad valorem taxes and assessments and maintenance
fees as soon as reasonably practical after the date actual figures for such
items for the current year are available.
33
IN TESTIMONY WHEREOF, this instrument is executed effective as of the
____ day of ___________________, 199__.
----------------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Exhibit A - Land
Exhibit B - Encumbrances
34
STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on _____, 199__, by
______________________, _______________________ of ___________________, a
______________________________, on behalf of said _____________________.
---------------------------------
Notary Public in and for
the State of Texas
My Commission Expires:
---------------------------------
STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on _______, 199__, by
______________________, _______________________ of ___________________, a
______________________________, on behalf of said _____________________.
---------------------------------
Notary Public in and for
the State of Texas
My Commission Expires:
---------------------------------
Exhibit A - Land
Exhibit B - Existing Encumbrances
35
EXHIBIT A to Exhibit C
LEGAL DESCRIPTION
36
EXHIBIT B to EXHIBIT C
ENCUMBRANCES
37
EXHIBIT D
XXXX OF SALE
FOR VALUE RECEIVED, the undersigned ("Seller") hereby sells and assigns
to AMERICAN INDUSTRIAL PROPERTIES REIT, a Texas real estate investment trust
("Buyer"), all of the undersigned's right, title and interest in and to all
equipment, fixtures, inventory and other tangible personal property of any kind
and nature owned by Grantor and attached to or located on the real property
described on Exhibit A attached hereto ("Real Property"), including without
limitation all furniture, furnishings, floor coverings; office equipment and
supplies; heating, lighting, refrigeration, plumbing, ventilating, incinerating,
communication, electrical, air conditioning fixtures, systems and equipment;
disposals; window screens; storm windows; sprinklers; hoses; tools; lawn
equipment; elevators and escalators; compressors; engines; boilers, and all
other related machinery, equipment, fixtures, supplies, replacement parts and
other tangible personal property whatsoever, including, without limitation, the
personal property described in Schedule 1 which is attached hereto and
incorporated herein.
IN WITNESS WHEREOF, the undersigned has executed this Xxxx of Sale on
this ____ day of ________________, 19__.
----------------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
38
Schedule 1
PERSONAL PROPERTY
NONE
39
EXHIBIT E
ASSIGNMENT AND ASSUMPTION OF
SERVICE CONTRACTS, WARRANTIES,
GUARANTIES, PERMITS AND OTHER INTANGIBLE PROPERTY
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS,
WARRANTIES, GUARANTIES AND OTHER INTANGIBLE PROPERTY (this "Assignment") is made
and entered into as of the ____ day of __________, 199__, by ________________, a
______________________ ("Assignor"), to _____________________, a
_________________ ("Assignee").
WITNESSETH:
WHEREAS, Assignor is contemporaneously herewith selling
pursuant to that certain Purchase and Sale Agreement dated _____ by and between
Assignor and Assignee (the "Purchase Agreement") that certain real property and
improvements thereon located in the City of Carrollton, County of Dallas, State
of Texas, the real property which is more particularly described on Schedule 1
attached hereto and incorporated herein by this reference ("Real Property").
Terms used in this Agreement and not otherwise defined shall be given the
meanings defined in the Purchase Agreement.
WHEREAS, Assignor desires to assign its interest in and to the
following to Assignee as of the date on which title to the Real Property is
vested in Assignee (the "Transfer Date"), to the extent any of the following
exist, and Assignee desires to accept the assignment thereof and assume
Assignor's obligations thereunder from and after the Transfer Date:
(a) Any and all service contracts described in Schedule 2
attached hereto and incorporated herein by this reference (the
"Contracts");
(b) Any and all Warranties and Guaranties (the "Warranties and
Guaranties", hereafter defined);
(c) Any and all Names and Marks (the "Names and Marks",
hereafter defined);
(d) Any and all Intangible Property (the "Intangible
Property", hereafter defined); and
(e) Any and all Permits (the "Permits", hereafter defined).
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
40
1. As of the Transfer Date, Assignor hereby assigns and transfers unto
Assignee all of its right, title, claim and interest in, to and under the (a)
Contracts; (b) Warranties and Guarantees; (c) Names and Marks; (d) Intangible
Property and (e) Permits (collectively the "Assigned Interests"). Assignor
hereby agrees to indemnify, defend and hold harmless Assignee from and against
any and all cost, liability, loss, damage or expense, including, without
limitation, reasonable attorneys' fees and expenses (collectively, "Losses and
Liabilities"), arising out of or in any way related to the Assigned Interests
prior to or on the Transfer Date or which arise out of or are in any way related
to the Assigned Interests after the Transfer Date on account of any event
occurring or liability accruing on or prior to the Transfer Date.
2. Assignee, as of the Transfer Date, hereby accepts the foregoing
assignment and assumes all of the Assignor's obligations under the Assigned
Interests which arise or relate to the period after the Transfer Date. Assignee
hereby agrees to indemnify, defend and hold harmless Assignor from and against
any and all Losses and Liabilities arising out of or in any way related to the
Assigned Interests after the Transfer Date, except for Losses and Liabilities
which arise out of or are in any way related to the Assigned Interests after the
Transfer Date on account of any event occurring or liability accruing on or
prior to the Transfer Date.
3. The following terms shall have the following meanings:
(a) The term "Warranties and Guaranties" as used herein shall
mean and include all warranties and guarantees to the extent
assignable, whether or not written, for all or any portion of the
Property, including, without limitation, the Improvements and the
tangible Personal Property, including, without limitation, construction
warranties from contractors and subcontractors.
(b) The term "Names and Marks" as used herein shall mean and
include all patents, licenses, trademarks, tradenames, telephone
numbers, identifying material, service marks and names used in
connection with the operation of the Property, and all symbols, emblems
with the operation of the Property, and all symbols, emblems and logos
used in connection with the ownership or operation of the Property,
whether in black and white or in color, and irrespective of size, and
all of Assignor's right, title and interest in and to all goodwill
associated therewith, including, without limitation the name "Avion
Business Center". Seller makes no representation or warranty with
respect to Names and Marks or rights thereto and expressly states that
it has not registered any Names or Marks, including "Avion Business
Center."
(c) The term "Intangible Property" as used herein shall mean
and include all intangible property exclusively relating to or used in
connection with the Property, including without limitation, all of the
Real Property which is held or deemed to constitute intangible personal
property; to the extent assignable, all plans and specifications,
working drawings, site elevation and as-built surveys, soil and
substrata studies, architectural plans, engineering plans and studies,
floor plans, landscape plans, and other technical reports of any kind,
character or description; to the extent assignable, all promotional
material, market studies, tenant data and other related material of any
kind; all claims, demands or causes of action
41
related to injury or damage to the Property or the condition thereof,
including without limitation, any arising out of or relating to or
caused by any defects in design or construction; and all rights under
any restrictive or protective covenants or declarations or other
matters affecting title to any of the property herein conveyed.
Intangible Property shall not include Assignor's books and records,
internal reports and memoranda and appraisals of the Real Property.
(d) The term "Permits" as used herein shall mean and include
all environmental, air pollution control, waste water, building,
occupancy, governmental permits and approvals of every kind and nature
relating to the construction, operation, use or occupancy of the
Property in Seller's possession.
4. In the event of any litigation between Assignor and Assignee arising
out of the obligations of the parties under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the prevailing party's costs and expenses of such litigation,
including, without limitation, reasonable attorneys' fees and expenses. In
addition to the foregoing award of attorneys' fees to the prevailing party, the
prevailing party in any lawsuit on this Agreement shall be entitled to its
reasonable attorneys' fees incurred in any post judgment proceedings to collect
or enforce the judgment. This provision is separate and several and shall
survive the merger of this Assignment into any judgment on this Assignment.
5. This Assignment shall be binding on and inure to the benefit of the
parties herein, their heirs, executors, administrators, successors-in-interest
and assigns.
6. This Assignment shall be governed by and construed in accordance
with the laws of the State of Texas.
7. This Assignment may be executed in any number of counterparts, each
of which shall be deemed an original and all of which taken together shall
constitute one and the same agreement.
----------------------------------------
ASSIGNOR:
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
---------------------------
42
----------------------------------------
ASSIGNEE:
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
43
Schedule 1
LEGAL DESCRIPTION OF REAL PROPERTY
44
Schedule 2
DESCRIPTION OF THE CONTRACTS
45
EXHIBIT F
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "Assignment") dated as
of the day of ___________________, 199__,is made and entered into by and between
_______________________________, a ____________________________ ("Assignor"),
and _____________________________________, a _____________________________
("Assignee").
WITNESSETH:
WHEREAS, Assignor is the lessor under certain leases executed with
respect to that certain real property located in the City of Carrollton, County
of Dallas, State of Texas, incorporated herein by this reference (the
"Property") more particularly described on Schedule 1, attached hereto and
incorporated herein by this reference, which leases are described in Schedule 2
attached hereto and incorporated herein by this reference (the "Leases").
WHEREAS, Assignor is contemporaneously herewith selling the Property to
Assignee pursuant to that certain Purchase and Sale Agreement dated by and
between Assignor and Assignee (the "Purchase Agreement").
WHEREAS, Assignor desires to assign its interest in and to the Leases
to Assignee as of the date on which title to the Property is vested in Assignee
(the "Transfer Date"), and Assignee desires to accept the assignment thereof and
assume Assignor's obligations thereunder from and after the Transfer Date.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereby agree as follows:
1. As of the Transfer Date, Assignor hereby assigns to Assignee all of
its right, title and interest in and to the Leases. On the Transfer Date,
Assignor has transferred those security deposits in the amounts and under the
Leases listed on Schedule 3 attached hereto to Assignee (the "Transferred
Security Deposits").
2. Assignor hereby agrees to indemnify, defend and hold harmless
Assignee from and against any and all cost, liability, loss, damage or expense,
including, without limitation, reasonable attorneys' fees and expenses
(collectively, "Losses and Liabilities"), arising out of or in any way related
to the lessor's obligations under the Leases described in Schedule 2 and related
to the period prior to or on the Transfer Date or which arise out of or are in
any way related to the lessor's obligations under said Leases after the Transfer
Date on account of any event occurring or liability accruing on or prior to the
Transfer Date.
3. Assignee, as of the Transfer Date, hereby accepts the foregoing
assignment and assumes all of the lessor's obligations under the Leases
described in Schedule 2 relating to the period from and after the Transfer Date,
including the obligation to return the Transferred Security Deposits
46
in accordance with the terms of the Leases. Assignee hereby agrees to indemnify,
defend and hold harmless Assignor from and against any and all Losses and
Liabilities arising out of Lessor's obligations under the Leases described in
Schedule 2 and related to the period after the Transfer Date, except for Losses
and Liabilities on account of any event occurring or liability accruing on or
prior to the Transfer Date.
4. In the event of any litigation between Assignor and Assignee arising
out of the obligations of the parties under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the prevailing party's costs and expenses in such litigation,
including, without limitation, reasonable attorneys' fees and expenses. In
addition to the foregoing award of attorneys' fees to the prevailing party, the
prevailing party in any lawsuit on this Agreement shall be entitled to its
reasonable attorneys' fees incurred in any post judgment proceedings to collect
or enforce the judgment. This provision is separate and several and shall
survive the merger of this Assignment into any judgment on this Assignment.
5. This Assignment shall be binding on and inure to the benefit of the
parties herein, their heirs, executors, administrators, successors-in-interest
and assigns.
6. This Assignment may be executed in any number of counterparts, each
of which shall be deemed an original and all of which taken together shall
constitute one and the same agreement.
47
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
the date and year first above written.
----------------------------------------
ASSIGNOR:
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
----------------------------------------
ASSIGNEE:
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
48
Schedule 1
LEGAL DESCRIPTION OF REAL PROPERTY
49
Schedule 2
DESCRIPTION OF THE LEASES
50
Schedule 3
TRANSFERRED SECURITY DEPOSITS
51
EXHIBIT G
SURVEYOR'S CERTIFICATE
I hereby certify that on the ____ day of ________________, 199__:
(a) this survey was made on the ground as per the field notes
shown on this survey and correctly shows (i) the boundaries and areas
of the subject property and the size, location and type of buildings
and improvements thereon (if any) and the distance therefrom to the
nearest facing exterior property lines of the subject property (ii) the
location of all rights-of-way, easements and any other matters of
record (or of which are visible or of which I have knowledge or have
been advised, whether or not of record) affecting the subject property
including, without limitation, those described on the Commitment);
(iii) the location of the parking areas on the subject property showing
the number of parking spaces provided thereby; (iv) all abutting
dedicated public streets providing access to the subject property
together with the width and name thereof; and (v) all other significant
items on the subject property;
(b) except as shown on the survey, there are no (i)
encroachments upon the subject property by improvements on adjacent
property; (ii) encroachments on adjacent property, streets or alleys by
any improvements on the subject property; (iii) party walls, or (iv)
conflicts or protrusions;
(c) adequate ingress to and egress from the subject property
is provided by (name of street), the same being paved, dedicated public
right(s)-of-way maintained by (name of maintaining authority);
(d) all required building setback lines on the subject
property are located as shown hereon;
(e) no part of the subject property lies within a flood plain
or flood prone area or flood way of any body of water (or note
otherwise);
(f) this survey conforms to the current Texas Society of
Professional Surveyors Standards and Specifications for a Category 1 A,
Condition II Survey;
(g) The description of the property shown hereon corresponds
to the boundaries of the property shown on the Title Commitment, and
such description closes by engineering calculation.
52
(h) No covenants, restriction or easements that are of record
appear to me to have been violated in any respect except as follows:
___________________________ (if none, so state).
---------------------------------------------------
(Signature of Surveyor)
Registered Public Surveyor
Registration No.
-----------------------------------
(Name, address, telephone number and job number of
Surveyor)
53
EXHIBIT H
ENVIRONMENTAL REPORTS
NONE
54
EXHIBIT I
RENT ROLL
55
EXHIBIT J
NOTICE OF LEASE ASSIGNMENT
________________, 199___
To: [Tenant]
-------------------------
-------------------------
-------------------------
-------------------------
Re: [Property name][Property address]
Gentlemen:
Please be advised that the undersigned Seller, as Landlord under your
Lease at the above location (as said Lease may have been amended, the "Lease")
has transferred and conveyed all of its interest in the lease to American
Industrial Properties REIT ("Buyer") effective as of the date hereof, and Buyer
has assumed the obligations of the Landlord under the Lease. Therefore,
effective immediately, all correspondence, communications and rent and/or other
charges due under the Lease (including past rent due, if any) should be directed
as follows:
American Industrial Properties REIT
c/o
--------------------------------
--------------------------------
--------------------------------
Attn:
------------------------------
Phone:
-----------------------------
You security deposit in connection with the Lease in the amount of
$____________ has been transferred to the Buyer. Buyer acknowledges receipt of
the deposit and responsibility for the return of any such security deposit
subject to the terms of the Lease.
SELLER: BUYER:
, AMERICAN INDUSTRIAL PROPERTIES
------------------------------
a REIT
----------------------------
By:
-----------------------------------
By: Name:
------------------------------ ---------------------------------
Name: Title:
---------------------------- --------------------------------
Title:
---------------------------
56
EXHIBIT K
TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
To inform _____________________________________, a
_______________________ ("Transferee"), that withholding of tax under Section
1445 of the Internal Revenue Code of 1954, as amended ("Code"), will not be
required upon the transfer of certain real property to the Transferee by
__________________________________________, a _____________________
("Transferor"), the undersigned hereby certifies the following on behalf of the
Transferor:
1. The Transferor is not a foreign corporation, foreign partnership, foreign
trust, foreign estate or foreign person (as those terms are defined in the Code
and the Income Tax Regulations promulgated thereunder);
2. The Transferor's U.S. employer or tax (social security)
identification number is __________________________;
3. The Transferor understands that this Certification may be disclosed
to the Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
4. The Transferor understands that the Transferee is relying on this
Certification in determining whether withholding is required upon said transfer.
5. The Transferor hereby agrees to indemnify, defend and hold the
Transferee harmless from and against any and all obligations, liabilities,
claims, losses, actions, causes of action, rights, demands, damages, costs and
expenses of every kind, nature or character whatsoever (including, without
limitation, reasonable attorneys' fees and court costs) incurred by the
Transferee as a result of: (i) the Transferor's failure to pay U.S. Federal
income tax which the Transferor is required to pay under applicable U.S. law; or
(ii) any false or misleading statement contained herein.
6. Under penalty of perjury I declare that I have examined this
Certification and to the best of my knowledge and belief it is true and correct
and complete, and I further declare that I have authority to sign this document
on behalf of the Transferor.
Date: , 199
--------------------- ---
--------------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
57
EXHIBIT L
TENANT CERTIFICATE
American Industrial Properties REIT
0000 Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
"Buyer"
_________________________
_________________________
_________________________
_________________________
"Landlord"
Ladies and Gentlemen:
Landlord, as owner of the property (the "Property") of which the leased
premises are a part, intends to sell the Property to American Industrial
Properties REIT or an affiliate thereof ("Buyer") who, as a condition to the
purchase of the Property and to satisfy the requirements of Lender, has required
this Tenant Certificate.
Buyer is about to make, execute and deliver its Promissory Note
("Note") to a financial institution ("Lender") which Note shall be secured by,
among other security, a lien encumbering the Property pursuant to a Deed of
Trust, Security Agreement and Assignment of Leases and Rents (as thereafter
amended and modified, the "Mortgage"). The Mortgage and all other instruments
securing the Note are herein collectively called the "Security Documents".
In consideration of Buyer's agreement to purchase the Property, Tenant
agrees and certifies to Landlord, Buyer and Lender as follows:
ACKNOWLEDGMENT OF LEASE
1. Tenant is the tenant under that certain lease dated _______ (the
"Lease"), the undersigned ("Tenant") has leased from Landlord, or its
predecessors in interest the leased premises consisting of approximately _____
rentable square feet located at as more particularly described in the Lease. A
true and correct copy of the Lease together with all amendments, modifications
and/or renewals is attached as Exhibit "A".
2. The leased premises and possession thereof are accepted by Tenant
and Tenant is in actual occupancy of the leased premises; the lease is in full
force and effect; the term of the Lease commenced as of _______ and the
expiration date of the Lease is _________.
3. Rental at the rate provided by the Lease is payable in accordance
with its terms, all minimum rent and additional rent have been paid through
______ and is not paid and will not be paid more than one month in advance of
the due date set forth in the Lease. Minimum monthly base rent of $________
plus monthly estimated operating expenses of $__________ (with the tenant
responsible for taxes, insurance and common area operating expenses in excess of
$__________) are due on the ________ of each month.
4. Landlord is holding a security deposit in the amount of $_________
as of the date hereof. Tenant is not entitled to any interest on the security
deposit except as follows:_____________________________________
______________________________________________________.
5. Tenant claims no present charge, lien or claim of offset against
rent.
6. Tenant has no option to extend the lease except as follows:
______________________________________________________________________________.
58
7. Tenant has not subleased nor assigned all or any portion of the
Leased premises, except as follows:
_________________________________________________________________.
8. Tenant is not in default in the performance of any covenant,
agreement or condition contained in the Lease and no circumstances exist which,
with the passage of time, would result in Tenant being in default in the
performance of any covenant, agreement or condition contained in the Lease.
9. Except for de minimis quantities that are used in connection with
the ordinary course of Tenant's business, and then only in strict compliance
with all applicable laws, rules and regulations, Tenant does not and will not
engage in any activity, which would involve the use of the leased premises for
the storage, generation, use, treatment, transportation or disposal of any
chemical, material or substance which is regulated as toxic or hazardous or
exposure to which is prohibited, limited or regulated by any federal, state,
county, regional, local or other governmental authority or which, even if not so
regulated, may or could pose a hazard to the health and safety of the other
tenants and occupants of Landlord's property.
10. Tenant does not have any rights or options to purchase the
Property.
11. Tenant's interest in the Lease is not subject to any mortgage,
liens or other encumbrances except as follows: ___________________.
12. There are no existing defaults under the Lease by reason of any act
or omission of the Landlord and to Tenant's knowledge no circumstances exist
which, with the passage of time, would place Landlord in default under the
Lease, except as follows: ___________________.
13. There are no outstanding unsatisfied obligations of Landlord under
the Lease except as follows: ________________________.
14. The following is (are) guarantor(s) or Tenant's obligations under
the lease:__________________________________ , ___________ and [its] [his] [her]
[their] current address(es) [is] [are] as follows:______________________________
________________________________________________________________________________
________________________________________________________________________________
SUBORDINATION
The Lease and all right, title and interest in the Property created
thereby (including without limitation any purchase options, rights of first
refusal, lease renewal rights, etc.) are, shall be and shall at all times remain
and continue to be subject and subordinate in all respects to the liens, terms,
covenants, provisions and conditions of the Security Documents.
NON-DISTURBANCE
So long as the Lease is in full force and effect and Tenant is not in
default under the Lease (beyond any period given to Tenant in the Lease to cure
such default) or under this Agreement:
(a) Tenant's possession of the Property and Tenant's rights
and privileges under the Lease shall not be diminished or interfered
with by Lender, and Tenant's occupancy of the Premises shall not be
disturbed by Lender for any reason whatsoever during the term of the
Lease or any extensions or renewals thereof; and
(b) Lender will not join Tenant as a party defendant in any
action or proceeding to foreclose the Mortgage or to enforce any rights
or remedies of Lender under the Mortgage which would cut-off, destroy,
terminate or extinguish the Lease or Tenant's interest and estate under
the Lease.
Notwithstanding the foregoing provisions of the paragraph, if it would be
procedurally disadvantageous for Lender not to name or join Tenant as a party in
a foreclosure proceeding with respect to the Mortgage, Lender may so name or
join Tenant without terminating or in any way diminishing or otherwise affecting
the rights and privileges granted to, or inuring to the benefits of, Tenant
under the lease and this Agreement.
59
ATTORNMENT
(a) After notice is given by Lender that a default has
occurred under the Mortgage and that the rentals and all other payments
to be made by Tenant under the Lease should be paid to Lender, Tenant
will attorn to Lender and pay to Lender, or in accordance with the
directions of Lender, all rentals and other monies due and to become
due to Current Landlord (as hereinafter defined) under the Lease or
otherwise in respect to the Property, such payments will be made
regardless of any right of set-off, counterclaim or other defense which
Tenant may have against Current Landlord, whether as tenant under the
Lease or otherwise; and
(b) in addition, if Lender (or its nominee or designee) shall
succeed to the rights of Current Landlord under the Lease through
possession or foreclosure action and thereafter assume obligations of
Current Landlord accruing after any foreclosure action, delivery of a
deed or otherwise or another person purchases the Property upon or
following foreclosure of the Mortgage, then at the request of Lender
(or its nominee or designee) or such purchaser (Lender, its nominees
and designees, and such purchaser, each being a "Successor-Landlord"),
Tenant shall attorn to and recognize Successor-Landlord as Tenant's
landlord under the Lease and shall promptly execute and deliver any
instrument that Successor-Landlord may reasonably request to evidence
such attornment. Upon such attornment, the lease shall continue in full
force and effect as, or as if it were, a direct lease between
Successor-Landlord and Tenant upon all terms, conditions and covenants
as are set forth in the Lease, except that Successor-Landlord shall
not:
i) be liable for any previous act or omission of
Current Landlord under the Lease;
ii) be subject to any off-set, defense or
counterclaim which shall have previously accrued to Tenant
against Current Landlord;
iii) be bound by any modification of the Lease or by
any previous prepayment of rent or additional rent for more
than one month which Tenant might have paid to Current
Landlord, unless such modification or prepayment shall have
been expressly approved in writing by Lender; or
iv) be liable for any security deposited under the
Lease unless such security has been physically delivered to
Lender.
LEASE MODIFICATION
Tenant agrees that without the prior written consent of Lender, it
shall not: (a) amend, modify, terminate or cancel the Lease or any extensions or
renewals thereof; (b) tender a surrender of the Lease or make a prepayment of
any rent or additional rent in excess of one (1) month; or (c) subordinate or
permit the subordination of the Lease to any lien subordinate to the Mortgage.
Any such purported action without such consent shall be void as against the
holder of the Mortgage.
NOTICE OF DEFAULT; OPPORTUNITY TO CURE
a) Any notice required or permitted to be given by Tenant to
Current Landlord shall be simultaneously given also to Lender, and any right of
Tenant dependent upon notice shall take effect only after such notice to Lender
is so given. Performance by Lender shall satisfy any conditions of the Lease
requiring performance by Current Landlord, and Lender shall have a reasonable
time to complete such performance as provided in section (b) below.
b) Without limiting the generality of the foregoing, Tenant
shall promptly notify Lender of any default, act or omission of Current Landlord
which would give Tenant the right, immediately or after the lapse of a period of
time, to cancel or terminate the Lease or to claim a partial or total eviction
(a "Landlord Default"). In the event of a Landlord Default, Tenant shall not
exercise any rights available to it: (i) until it has given written notice of
such Landlord Default to Lender; and (ii) unless Lender has failed, within
thirty (30) days after Lender receives such notice, to cure or remedy the
Landlord Default or, if the same is not reasonably capable of being remedied by
Lender within such thirty (30) day period, until a reasonable period for
remedying such Landlord Default has elapsed following the giving of such notice
and following the time when Lender shall have become entitled under the Security
Documents to remedy the same (which reasonable period shall in no event be less
than the period to which Current Landlord would be entitled under the Lease or
otherwise, after similar notice, to effect such remedy); provided that Lender
shall with due diligence commence and prosecute a remedy for such Landlord
Default.
60
NOTICE OF LIEN
To the extent that the Lease entitles Tenant to notice of the existence
of any mortgage and the identity of any lender, this Agreement shall constitute
such notice to Tenant with respect to the Mortgage.
REMEDIES
Upon and after the occurrence of a default under the Mortgage, Lender
shall be entitled, but not obligated, to exercise the claims, rights, powers,
privileges and remedies of Current Landlord under the Lease and shall be further
entitled to the benefits of, and to receive and enforce performance of, all of
the covenants to be performed by Tenant under the Lease as though Lender were
named therein as Current Landlord.
LIMITATION OF LIABILITY
Except as specifically provided in this Agreement, Lender shall not, by
virtue of this Agreement, the Mortgage or any other instrument to which Lender
may be a party, be or become subject to any liability or obligation to Tenant
under the Lease or otherwise.
PRIORITY
(a) Tenant acknowledges and agrees that this Agreement
supersedes (but only to the extent inconsistent with) any provisions of the
Lease relating to the priority or subordination of the Lease and the interests
or estates created thereby to the Mortgage.
(b) Tenant agrees to enter into a subordination,
non-disturbance and attornment agreement with any entity which shall succeed
Lender with respect to the Property, or any portion thereof, provided such
agreement is substantially similar to this Agreement.
NOTICES
Any notice, consent, request or other communication required or
permitted to be given hereunder shall be in writing and shall be: (a) personally
delivered; (b) delivered by Federal Express or other comparable overnight
delivery service; or (c) transmitted by postage prepaid registered or certified
mail, return receipt requested. All such notices, consents, requests or other
communications shall be addressed to Tenant or Lender at the address for such
party previously set forth in this Agreement, or to such other address as Tenant
or Lender shall in like manner designate in writing. All notices and other
communications shall be deemed to have been duly given on the first to occur of
actual receipt of the same or; (i) the date of delivery if personally delivered;
(ii) one (1) business day after depositing the same with the delivery service if
by overnight delivery service; and (iii) three (3) days following posting if
transmitted by mail. Any party may change its address for purposes hereof by
notice to the other parties given in accordance with the provisions hereof.
GENERAL
This Agreement may not be modified or terminated orally. This Agreement
shall inure to the benefit of and be binding upon the parties hereto, their
successors and assigns. The term "Lender" shall include the then holder of any
interest in the Mortgage. The term "Current Landlord" shall mean the then holder
of the lessor's interest in the Lease. The term "person" shall mean any
individual, joint venture, corporation, partnership, trust, unincorporated
association or other entity. All references herein to the Lease shall mean the
Lease as modified by this Agreement and any amendments or modifications to the
Lease which are consented to in writing by the Lender. Any inconsistency between
the Lease and the provisions of this Agreement shall be resolved in favor of
this Agreement.
This Tenant Certificate is being executed and delivered by Tenant to
induce Lender to make the Loan which is to be secured in part by an assignment
to Lender of Landlord's interest in the Lease and with the intent and
understanding that the above statements will be relied upon by Lender. This
Tenant Certificate shall inure to the benefit of and be binding upon the parties
hereto, their successors and permitted assigns, and any purchaser or purchasers
at foreclosure of the Property, and their respective heirs, personal
representatives, successors and assigns.
61
GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State in which the Property is located.
IN WITNESS WHEREOF, the parties hereto have executed this Tenant
Certificate to be effective as of the day and year first stated above.
"LENDER"
------------------------------------------
a
-----------------------------------------
By:
---------------------------------------
Printed Name:
-----------------------------
Title:
------------------------------------
"TENANT"
------------------------------------------
a
-----------------------------------------
By:
---------------------------------------
Printed Name:
-----------------------------
Title:
------------------------------------
AGREED AND CONSENTED TO:
"BUYER"
American Industrial Properties REIT,
a Texas real estate investment trust
By:
---------------------------------------
Printed Name:
-----------------------------
Title:
------------------------------------
Date:
-------------------------------------
62
ACKNOWLEDGMENTS
STATE OF __________________ )
)
COUNTY OF ________________ )
BEFORE ME, the undersigned authority on this day personally appeared
________________________, the ______________ of
____________________________________, a ________________, known to me to be the
person whose name is subscribed to the foregoing instrument, and acknowledged to
me that he executed the same for the purposes and consideration therein
expressed, and as the act and deed of said _______________________, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, in this ____ day of __________,
199__.
--------------------------------------------
NOTARY PUBLIC, State of
---------------------
63
ACKNOWLEDGMENTS
STATE OF __________________ )
)
COUNTY OF ________________ )
BEFORE ME, the undersigned authority on this day personally appeared
________________________, the ______________ of
____________________________________, a ________________, known to me to be the
person whose name is subscribed to the foregoing instrument, and acknowledged to
me that he executed the same for the purposes and consideration therein
expressed, and as the act and deed of said _______________________, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, in this ____ day of __________,
199__.
------------------------------------------
NOTARY PUBLIC, Xxxxx xx Xxxxx
00
XXXXXXXXXXXXXXX
XXXXX XX XXXXX )
)
COUNTY OF )
BEFORE ME, the undersigned authority on this day personally appeared
________________________, the ______________ of American Industrial Properties
REIT, a Texas real estate investment trust, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he
executed the same for the purposes and consideration therein expressed, and as
the act and deed of said real estate investment trust [and
______________________], and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, in this ____ day of __________,
199__.
-----------------------------------
NOTARY PUBLIC, State of
-----------
65
EXHIBIT A
Lease
66
EXHIBIT M
CERTIFICATE OF BUYER
The undersigned, AMERICAN INDUSTRIAL PROPERTIES REIT ("Buyer"), has
this day purchased from NANOOK PARTNERS, L.P. ("Seller") that certain real
property described on Exhibit A and all of Seller's right, title, claim and
interest in and to any improvements situated thereon (such real property and
improvements being herein called the "Property") under and pursuant to the terms
of that certain Purchase and Sale Agreement dated _______________ (the
"Agreement") between Buyer and Seller. The Buyer executes this Certificate to
confirm and acknowledge that Buyer has purchased the Property in its AS IS,
WHERE IS condition, with all faults.
BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR ANY REPRESENTATIONS OR
WARRANTIES PROVIDED IN THE AGREEMENT, IT HAS PURCHASED THE PROPERTY IN AN "AS
IS, WHERE IS" CONDITION, WITHOUT RELYING UPON ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS, IMPLIED OR STATUTORY, OF ANY KIND, HEREBY WAIVING AND RELINQUISHING ALL
CLAIMS WITH RESPECT TO ANY IMPLIED WARRANTIES. WITHOUT LIMITING THE ABOVE, BUYER
ACKNOWLEDGES THAT NEITHER SELLER, EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT
OR IN THE DEED, NOR ANY OTHER PARTY THAT IS AN AGENT, EMPLOYEE OR CONTRACTOR OF
SELLER HAS MADE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ON WHICH
BUYER IS RELYING OR HAS RELIED AS TO ANY MATTERS, DIRECTLY OR INDIRECTLY,
CONCERNING THE PROPERTY INCLUDING, BUT NOT LIMITED TO, THE LAND, THE SQUARE
FOOTAGE OF THE PROPERTY, IMPROVEMENTS, DEVELOPMENT RIGHTS, TAXES, ASSESSMENTS,
BONDS, PERMISSIBLE USES, TITLE EXCEPTIONS, WATER OR WATER RIGHTS, TOPOGRAPHY,
UTILITIES, ZONING OF THE PROPERTY, SOIL, SUBSOIL, THE PURPOSES FOR WHICH THE
PROPERTY IS TO BE USED, DRAINAGE, ENVIRONMENTAL OR BUILDING LAWS, RULES AND
REGULATIONS, TOXIC WASTE OR HAZARDOUS MATERIALS OR ANY OTHER MATTERS AFFECTING
OR RELATING TO THE PROPERTY. BUYER HEREBY EXPRESSLY ACKNOWLEDGES THAT NO SUCH
REPRESENTATIONS HAVE BEEN MADE.
Executed this day of , 1997.
--------- -------------
AMERICAN INDUSTRIAL PROPERTIES REIT
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Exhibit A - Description of the Property
67
ADDENDUM I
SERVICE CONTRACTS
1. Landscape Maintenance Contract by and between Landscape Resources,
Inc. ("Contractor") and Carmel Property Management as Agent for Nanook Partners,
L.P. ("Purchaser) dated July 10, 1997, for the period beginning July 1, 1997
through and including June 30, 1998.
2. Sweeping Service Contract with DFW Sweeping Company ("Contractor")
dated January 27, 1997.
