EXHIBIT 10.3
AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY AND ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS
("Agreement") is made and entered into as of this 3rd day of November 2005, by
and between NNN Oakey Building 2003, LLC, a Delaware limited liability company,
("Seller"), and Trans-Aero Land & Development Corporation and/or nominee
("Buyer"), with reference to the following facts:
A. Seller owns certain real property located in Xxxxx County, Nevada
and more specifically described in Exhibit A attached hereto (the
"Land"), commonly known as the Oakey Building and such other assets,
as the same are herein described.
B. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller the Land and the associated assets.
NOW, THEREFORE, in consideration of the mutual covenants, premises and
agreements herein contained, the parties hereto do hereby agree as follows:
1. Purchase and Sale.
1.1. The purchase and sale includes, and at Close of Escrow (hereinafter
defined) Seller shall sell, assign, grant and transfer to Buyer,
Seller's entire right and interest in and to all of the following
(hereinafter sometimes collectively, the "Property"):
1.1.1. The Land, together with all structures, buildings,
improvements, machinery, fixtures, and equipment affixed or
attached to the Land and all easements and rights
appurtenant to the Land (all of the foregoing being
collectively referred to herein as the "Real Property");
1.1.2. The lease (the "Lease"), including any amendments, with the
tenant ("Tenant") leasing the Real Property as of the date
of this Agreement or hereafter entered into in accordance
with the terms hereof prior to Close of Escrow, together
with all security deposits, other deposits held in
connection with the Lease, lease guarantees and other
similar credit enhancements providing additional security
for the Lease;
1.1.3. All tangible and intangible personal property owned by
Seller located on or used in connection with the Real
Property, including, specifically, without limitation,
equipment, furniture, tools and supplies, and all related
intangibles including, without limitation,
Seller's interest, if any, in the name "Oakey Building" (the
"Personal Property");
1.1.4. All service contracts, agreements, warranties and guaranties
relating to the operation of the Property (the "Contracts");
and
1.1.5. To the extent transferable, all building permits,
certificates of occupancy and other certificates, permits,
licenses and approvals relating to the Property (the
"Permits").
2. Purchase Price.
The total Purchase Price of the Property shall be TWENTY TWO MILLION TWO
HUNDRED FIFTY THOUSAND Dollars ($22,250,000.00) ("Purchase Price") payable
as follows:
2.1. Deposit/Further Payments/Down Payment.
2.1.1. Concurrent with Opening of Escrow (as hereinafter defined),
Buyer shall deposit into Escrow the amount of $250,000.00
(the "Deposit"), in the form of a wire transfer payable to
FIRST AMERICAN TITLE COMPANY AT 0000 XXXXXX XXXXXX XXXXXXX,
XXXXX 000, XXX XXXXX, XX 00000, ATTN: XXXXX XXXXXXXX
("Escrow Holder"). Escrow Holder shall place the Deposit
into an interest bearing money market account at a bank or
other financial institution reasonably satisfactory to
Buyer, and interest thereon shall be credited to Buyer's
account. On or before the end of the Inspection Period
(hereinafter defined), Buyer shall deposit and additional
$150,000.00 (the "Additional Deposit") into escrow which
shall become Buyer's notification signifying Buyer's
approval and acceptance of all Inspections (hereinafter
defined) and all Due Diligence Items (hereinafter defined)
provided from Seller to Buyer. Both the Deposit and the
Additional Deposit shall become non-refundable upon
expiration of the Inspection Period and applicable to the
Purchase Price.
2.1.2. On or before Close of Escrow, Buyer shall deposit into
Escrow the balance of the Purchase Price, by wire transfer
payable to Escrow Holder.
3. Title to Property.
3.1. Title Insurance.
Escrow Holder will obtain an extended coverage ALTA owner's policy
of title insurance (1970, Form B) from Commonwealth Land Title (the
"Title Company") with their standard provisions and exceptions (the
"Title
Policy") in the amount of the Purchase Price, together with such
endorsements as Buyer may reasonably require. The Title Policy is to
be free and clear of encumbrances except as follows:
3.1.1. Real property taxes and assessments, which are a lien not
yet due; and
3.1.2. The permitted exceptions included in such policy and
approved by Buyer.
3.2. Procedure for Approval of Title.
During the Inspection Period (hereafter defined) Buyer shall review
the Title Documents (hereinafter defined) and the ALTA survey by
Xxxxx X. Xxxx, Xx. dated August 9, 2005(the "Survey") of the
Property which has been delivered by Seller. If the Title Documents
or Survey reflect or disclose any defect, exception or other matter
affecting the Property ("Title Defects") that is unacceptable to
Buyer, then prior to the expiration of the Inspection Period, Buyer
shall provide Seller With written notice of Buyer's objections.
Seller may, at its sole option, elect to cure or remove the
objections made by Buyer. Seller shall, in any event, and without
the necessity of an objection by Buyer, remove any encumbrance
securing financing. Should Seller elect to attempt to cure or remove
the objection, it shall be a condition precedent to Buyer's
obligation to acquire the Property that Seller cures such title
objection prior to the Close of Escrow. Unless Seller provides
written notice to Buyer before the expiration of the Inspection
Period that Seller intends to cure Buyer's title objections, Seller
shall be deemed to have elected not to cure or remove Buyer's title
objections, and Buyer shall be entitled, as Buyer's sole and
exclusive remedies, either to (i) terminate this Agreement and
obtain a refund of the Deposit by providing written notice of
termination to Seller before the end of the Inspection Period and
returning the Due Diligence Items (hereinafter defined) to the
extent delivered to Buyer or (ii) waive the objections and close
this transaction as otherwise contemplated herein. If Buyer shall
fail to terminate this Agreement during the Inspection Period, all
matters shown on the Survey or described in the Title Report, except
for monetary liens for indebtedness of the Seller and any matters
the Seller has agreed to cure in writing, and in fact cured to
Buyer's satisfaction prior to the Close of Escrow, shall be deemed
"Permitted Exceptions."
4. Due Diligence Items.
4.1. Seller shall deliver to Buyer each of the following (collectively,
the "Due Diligence Items"):
4.1.1. See attached Exhibit B - Due Diligence Document List.
4.2. Estoppel Certificate.
As a condition precedent to Buyer's obligation to acquire the
Property, Seller shall obtain and deliver to Buyer an estoppel
certificate, from Tenant substantially in the form of Exhibit A. The
estoppel certificate shall be deemed to satisfy this condition
precedent if it is in the form of Exhibit A and does not disclose
material adverse matters. Buyer shall notify Seller within three (3)
business days of receipt of a copy of the executed estoppel
certificate of its approval or disapproval and the basis of such
disapproval, if disapproved. If Buyer disapproves of the estoppel
certificate because of a material, adverse matter disclosed therein,
and Seller is unable to obtain a reasonably acceptable estoppel
certificate prior to the Close of Escrow, this Agreement shall
terminate at Buyer's option, Buyer shall be entitled to a refund of
the Deposit, and neither party shall have any further obligation to
the other except Buyer's indemnification obligations under Paragraph
5.
5. Inspections.
Buyer, at its sole expense, shall have the right to conduct
feasibility, environmental, engineering and physical studies or
other tests (the "Inspections") of the Property at any time during
the Inspection Period (hereinafter defined). Buyer, and its duly
authorized agents or representatives, shall be permitted to enter
upon the Property at all reasonable times during the Inspection
Period in order to conduct engineering studies, soil tests and any
other Inspections and/or tests that Buyer may deem necessary or
advisable. Buyer must arrange all Inspections of the Property with
Seller at least two (2) business days in advance of any Inspections.
In the event that the review and/or Inspection conducted pursuant to
this paragraph shows any fact, matter or condition to exist with
respect to the Property that is unacceptable to Buyer, in Buyer's
sole subjective discretion, then Buyer shall be entitled, as its
sole and exclusive remedy, to (1) terminate this Agreement and
obtain a refund of the Deposit, or (2) waive the objection, and
close the transaction as otherwise contemplated herein. Buyer agrees
to promptly discharge any liens that may be imposed against the
Property as a result of the Inspections and to defend, indemnify and
hold Seller harmless from all, claims, suits, losses, costs,
expenses (including without limitation court costs and attorneys'
fees), liabilities, judgments and damages incurred by Seller as a
result of any negligent act or omission by Buyer or its agents in
connection with the Inspections.
5.1. Approval.
5.1.1. Buyer shall have ten (10) days after the receipt of all of
the items referenced in the attached Exhibit B, the due
diligence list ("Inspection Period") to approve or
disapprove the Inspections. If (1) the Buyer shall
disapprove the Inspections within the Inspection
Period, or (2) the Buyer fails to inform seller and escrow
holder of its approval prior to the end of the inspection
period, this Agreement and the Escrow shall thereupon be
terminated, Buyer shall not be entitled to purchase the
Property, Seller shall not be obligated to sell the Property
to Buyer and the parties shall be relieved of any further
obligation to each other with respect to the Property,
except as provided in Paragraph 5.
5.1.2. Notwithstanding anything to the contrary contained herein,
Buyer hereby agrees that, in the event this Agreement is
terminated for any reason, then Buyer shall promptly and at
its sole expense return to Seller all Due Diligence Items
which have been delivered by Seller to Buyer in connection
with the Inspections, along with copies of all reports,
drawings, plans, studies, summaries, surveys, maps and other
data prepared by third parties relating to the Property, (a)
subject to restrictions on Buyer's ability to make any such
materials available to Seller that are imposed in any
agreement with a third party consultant preparing any such
reports or materials ("Buyer's Reports"), and (b) against
payment by Seller of 50% of Buyer's costs in obtaining the
Buyer's Reports. Buyer shall cooperate with Seller at no
expense to Buyer in order to obtain a waiver of any such
limitations. Buyer makes no representation as to the
accuracy or completeness of any of the Buyer's Reports.
5.1.3. Notwithstanding any contrary provision of this Agreement,
Buyer acknowledges that Seller is not representing or
warranting that any of the Due Diligence Items prepared by
third parties are accurate or complete, such as the Survey,
engineering reports and the like. Seller advises Buyer to
independently verify the facts and conclusions set forth
therein, provided however, Seller warrants that it has no
knowledge of any material errors or misstatements in such
information regarding the Property.
6. Escrow.
6.1. Opening.
Purchase and sale of the Property shall be consummated through an
escrow ("Escrow") to be opened with Escrow Holder within two (2)
business days after the execution of this Agreement by Seller and
Buyer. Escrow shall be deemed to be opened as of the date fully
executed copies (or counterparts) of this Agreement are delivered to
Escrow Holder by Buyer and Seller ("Opening of Escrow"). This
Agreement shall be considered as the Escrow instructions between the
parties, with such further instructions as Escrow Holder shall
reasonably require in order to clarify its duties and
responsibilities. Such further reasonable instructions shall be
promptly signed by Buyer and Seller and returned to
Escrow Holder within three (3) business days of receipt thereof. In
the event of any conflict between the terms and conditions of this
Agreement and such further instructions, the terms and conditions of
this Agreement shall control.
6.2. Close of Escrow.
6.2.1. Escrow shall close ("Close of Escrow") within three (3) days
following delivery to Buyer of a temporary certificate of
occupancy ("TCO") for the property and the Parking Garage
(hereinafter defined), but in no event before November 30,
2005. Buyer shall have the option to extend the closing date
by two additional ten (10) day periods by increasing the
non-refundable deposit by an additional One Hundred Thousand
Dollars ($100,000) for each ten (10) day period. Said
deposit(s) and all earned interest shall be applicable to
the Purchase Price.
6.3. Buyer Required to Deliver.
Buyer shall deliver to Escrow the following:
6.3.1. Concurrently with the Opening of Escrow, the Deposit;
6.3.2. On or before Close of Escrow, the payment required by
Paragraph 2.1.2; provided, however that Buyer shall not be
required to deposit the amount specified in Paragraph 2.1.2
until Buyer has been notified by Escrow Holder that (i)
Seller has delivered to Escrow each of the documents and
instruments to be delivered by Seller in connection with
Buyer's purchase of the Property, (ii) Title Company has
committed to issue and deliver the Title Policy to Buyer and
(iii) the only impediment to Close of Escrow is delivery of
such amount by or on behalf of Buyer;
6.3.3. On or before Close of Escrow, such other documents as Title
Company may require from Buyer in order to issue the Title
Policy;
6.3.4. Counterpart originals of the Assignment and Assumption
Agreement and Escrow Agreement referred to in Paragraph 6.4.
6.4. Seller Required to Deliver.
On or before Close of Escrow (or at such time prior to the Close of
Escrow as is specified below), Seller shall deliver to Escrow (or
directly to Buyer if specified below) the following:
6.4.1. A duly executed and acknowledged grant, bargain and sale
deed, conveying fee title to the Property to Buyer (the
"Grant Deed");
6.4.2. An executed Certificate of Non-Foreign Status;
6.4.3. A xxxx of sale of the Personal Property, if any, without
warranty, in favor of Buyer and duly executed by Seller;
6.4.4. An original assignment and assumption agreement (the
"Assignment and Assumption Agreement") duly executed by
Seller assigning and conveying to Buyer all of Seller's
right, title and interest in and to the Lease and the
Contracts.
6.4.5. An original escrow agreement (the "Escrow Agreement") duly
executed by Seller and Escrow Holder, in the form of Exhibit
B, together with the deposit in the sum of $1,745,629.00
which is required to be held in escrow by Escrow Holder for
the purposes described in the Escrow Agreement;
6.4.6. Such other documents as Title Company may require from
Seller in order to issue the Title Policy;
6.4.7. Tenant estoppel certificates as required by Paragraph 4.2,
at least 15 days prior to the date then scheduled for the
Close of Escrow;
6.4.8. Seller shall deliver directly to Buyer all keys to all
buildings and other improvements located on the Property,
combinations to any safes thereon, and security devices
therein in Seller's possession;
6.4.9. Seller shall deliver all records and files relating to the
management or operation of the Property, including, without
limitation, all insurance policies, all security contracts,
all tenant files (including correspondence), property tax
bills, and all calculations used to prepare statements of
rental increases under the Lease and statements of common
area charges, insurance, property taxes and other charges
which are paid by Tenant; and
6.4.10. A certificate of Seller to the effect that all of the
representations and warranties of Seller set forth in this
Agreement are accurate as of the Close of Escrow. If, due to
a circumstance beyond the Seller's reasonable control, the
Seller is unable to deliver a certificate to the effect that
all of the representations and warranties of Seller set
forth in this Agreement are accurate as of the Close of
Escrow, this Agreement and the Escrow shall thereupon be
terminated, Buyer shall not be entitled to purchase the
Property, Seller shall not be obligated to sell the Property
to Buyer and the parties shall be relieved of any further
obligation to each other with respect to the Property,
except as provided in Paragraph 5.
6.5. Buyer's Costs.
Buyer shall pay the following:
6.5.1. One-half (1/2) of Escrow Holder's fees, costs and expenses
(other than those in connection with the Escrow Agreement);
6.5.2. 50% of the documentary transfer tax;
6.5.3. All other costs customarily borne by purchasers of real
property in Xxxxx County, Nevada;
6.5.4. The amount by which the premium for an extended coverage
policy of title insurance in the amount of the Purchase
Price exceeds the premium for a CLTA owner's title insurance
policy in the same amount.
6.6. Seller's Costs.
Seller shall pay the following:
6.6.1. One-half (1/2) of Escrow Holder's fees, costs and expenses
(other than those in connection with the Escrow Agreement);
6.6.2. The cost of recording the Grant Deed, including 50%
documentary transfer taxes;
6.6.3. The Title Company's premium for the Title Policy, to the
extent not paid by Buyer under Paragraph 6.5;
6.6.4. All of Escrow Holder's fees, costs and expenses in
connection with the Escrow Agreement;
6.6.5. All other costs customarily borne by sellers of real
property in Xxxxx County, Nevada.
6.7. Prorations.
6.7.1. Real property taxes, assessments, rents, security deposits,
and CAM expenses shall be prorated through Escrow between
Buyer and Seller as of Close of Escrow. Rents, security
deposits and CAM expenses shall be approved by Buyer prior
to Close of Escrow. Rents and other charges under the Lease
that are delinquent as of the Close of Escrow will not be
prorated, and rents and other amounts received by Buyer on
or after the Close of Escrow in respect of the Lease will be
applied in the following order: (i) to Buyer's actual
out-of-pocket costs of collection incurred with
respect to the collected amounts; (ii) to rents due under
the Lease for the month in which the payment is received by
Buyer; (iii) to rents attributable to any period after the
Close of Escrow that are past due on the date of receipt;
and (iv) to rents and other charges delinquent as of the
Close of Escrow (and Buyer promptly will remit these amounts
to the Seller). Buyer will use commercially reasonable
efforts to collect any delinquent rents, provided that Buyer
has no obligation to institute legal proceedings, including
an action for unlawful detainer, against the Tenant. In no
event will Seller commence or maintain any action after the
Close of Escrow against the Tenant to collect any sums
purportedly owed by the Tenant to Seller. Tax and assessment
prorations shall be based on the latest available tax xxxx.
If, after Close of Escrow, Buyer receives any further or
supplemental tax xxxx relating to any period prior to Close
of Escrow, or Seller receives any further or supplemental
tax xxxx relating to any period after Close of Escrow, the
recipient shall promptly deliver a copy of such tax xxxx to
the other party, and not later than ten (10) days prior to
the delinquency date shown on such tax xxxx Buyer and Seller
shall deliver to the taxing authority their respective
shares of such tax xxxx, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with
respect to the Property transactions entered into prior to
execution of this Agreement shall be paid by Seller, and
Seller shall indemnify and hold Buyer harmless for Lease
commission claims brought against the Property arising
therefrom. All leasing commissions for new leases executed
after the date of this Agreement shall be prorated between
Buyer and Seller as their respective periods of ownership
bear to the primary term of the new lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and
from any and all liabilities, claims, demands, suits, and
judgments, of any kind or nature, including court costs and
reasonable attorneys' fees (except those items which under
the terms of this Agreement specifically become the
obligation of Buyer), brought by the Tenant or any other
third parties and based on events occurring on or before the
date of closing and which are in any way related to the
Property, and all expenses related thereto, including but
not limited to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and
from any and all liabilities, claims, demands, suits and
judgments, of any kind or nature, including court costs and
reasonable attorneys' fees, brought by the Tenant or any
other third parties and based on events occurring subsequent
to the date of closing and which are in any way related to
the Property, and all expenses related thereto, including,
but not limited to, court costs and attorneys' fees,
provided, that the foregoing indemnity shall not be
construed to limit the effect of, nor shall it be applicable
to the subject matter of, any of Seller's representations
and warranties expressed in this Agreement or in the closing
documents delivered by Seller.
6.8. Determination of Dates of Performance.
Promptly after delivery to Buyer of the Title Report, Escrow Holder
shall prepare and deliver to Buyer and Seller a schedule which shall
state each of the following dates:
6.8.1. The date of Opening of Escrow pursuant to Paragraph 6.1;
6.8.2. The date of receipt of the Title Report by Buyer;
6.8.3. The date by which title must be approved by Buyer pursuant
to Paragraph 3.2;
6.8.4. The date by which the Inspections must be approved by Buyer
pursuant to Paragraph 5.1.1;
6.8.5. The date by which the amounts described in Paragraph 2 must
be deposited by Buyer, for which determination Escrow Holder
shall assume satisfaction of the condition expressed in
Paragraph 2 on the last date stated for its satisfaction;
and
6.8.6. The date of Close of Escrow pursuant to Paragraph 6.2.
Unless promptly objected to in writing by Seller or Buyer, the
schedule delivered by Escrow Agent shall be binding on Buyer and
Seller. If any events which determine any of the aforesaid dates
occur on a date other than the date specified or assumed for its
occurrence in this Agreement, Escrow Holder shall promptly
redetermine as appropriate each of the dates of performance in the
aforesaid schedule and notify Buyer and Seller of the dates of
performance, as redetermined.
7. Representations, Warranties, and Covenants.
Seller hereby represents and warrants as of the date hereof to Buyer as
follows:
7.1. Seller is a limited liability company duly formed and validly
existing under the laws of the State of Delaware. Seller has full
power and authority to enter into this Agreement, to perform this
Agreement and to consummate the transactions contemplated hereby.
The execution, delivery and performance of this Agreement and all
documents contemplated hereby by Seller have been duly and validly
authorized by all necessary action on the part of Seller and all
required consents
and approvals have been duly obtained and will not result in a
breach of any of the terms or provisions of, or constitute a default
under any indenture, agreement or instrument to which Seller is a
party. This Agreement is a legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms,
subject to the effect of applicable bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws
affecting the rights of creditors generally.
7.2. Seller has good and marketable title to the Property, subject to the
conditions of title. There are no outstanding rights of first
refusal, rights of reverter or option relating to the Property or
any interest therein. To Seller's knowledge, there are no unrecorded
or undisclosed documents or other matters which affect title to the
Property. Subject to the Lease, Seller has enjoyed the continuous
and uninterrupted quiet possession, use and operation of the
Property, without material complaint or objection by any person.
7.3. Except as set forth in the Due Diligence Items, there are no pending
or, to the Manager's Knowledge (as defined below), threatened
actions, suits, arbitrations, claims, attachments, proceedings,
assignments for the benefit of creditors, insolvency, bankruptcy,
reorganization, or other proceedings affecting or with respect to
the Property, or by or against Seller.
7.4. Except as set forth in the Due Diligence Items, Seller has received
no written notice from any governmental authority of any material
violation of any law, statute, ordinance, regulation, or
administrative or judicial order or holding, whether or not
appearing in public records, with respect to the Property, which
violation has not, to the Manager's Knowledge, been corrected in
accordance with the notice or applicable law, statute, ordinance,
regulation or order.
7.5. Except as set forth in the Due Diligence Items, Seller has received
no written notice from any governmental authority of any
condemnation proceeding relating to the Property.
7.6. Except as set forth in the Due Diligence Items, Seller has not
received written notice from any Governmental Authority that (A) the
Property is in violation of any federal, state and local laws,
ordinances, regulations, administrative and judicial decrees,
judgments, orders and directives applicable to the Property with
respect to hazardous or toxic substances, industrial hygiene, the
protection of human health, public or worker safety, occupational
health, wildlife or the environment (collectively, "Environmental
Laws"), which violation has not, to the Manager's Knowledge, been
corrected in all material respects in accordance with the notice or
applicable law, statute,
ordinance, regulation, decree, judgment, directive or order, or (B)
past or current tenants of all or any portion of the Property or any
other person or entity have owned, used, generated, produced,
manufactured, treated, stored, transported, handled, installed,
released, discharged or disposed of any substance that is
designated, defined, classified, or regulated as a hazardous
substance, toxic substance, hazardous waste, pollutant or
contaminant (including petroleum hydrocarbons, PCBs, asbestos,
explosives, corrosives, toxic materials, flammable materials,
infectious materials, radioactive materials, carcinogenic materials
and reproductive toxicants) on or beneath the Property or on or in
the air, surface or ground water associated with the Property in
violation of applicable Environmental Laws.
7.7. Other than the Lease, there are no leases, licenses or occupancy
agreements in effect at the Property. Neither Seller nor the Tenant
is in breach or default of any obligation under the Lease and-Seller
has not received notice from the Tenant alleging that Seller is in
breach or default of any obligation under the Lease. Seller has
delivered to Buyer an accurate and complete copy of the Lease. All
leasing commissions and fees, and tenant improvement allowances due
with respect to the current term of the Lease have either been paid
in full or, if currently owed, will be satisfied before or at
Closing. . No brokerage commissions or fees, tenant improvement
allowances, free rent, or other concessions will become due in
connection with the exercise of any renewal or expansion option by
the Tenant under the terms of the Lease as of the date of the
execution of this Agreement.
7.8. True, correct, and complete copies of all documents in Seller's
possession or control, relating to the Property and containing
information material to its condition, usefulness, or value, have
been delivered by Seller to Buyer.
7.9. Seller is not a "foreign person" within the meaning of Section
1445(f) of the Internal Revenue Code of 1986, as amended (the
"Code").
7.10. Xxxxxxx Xxxxxxx is the asset manager of the Seller, and all material
circumstances relating to the Property would, in the ordinary course
of business of the Seller, come to his attention.
7.11. Covenants of Seller. Seller hereby covenants as follows:
7.11.1. At all times from the date hereof through the date of
closing, Seller shall cause to be in force fire and extended
coverage insurance upon the Property, and public liability
insurance with respect to damage or injury to persons or
property occurring on the Property in at least such amounts
as are maintained by Seller on the date hereof;
7.11.2. From the date of execution of this Agreement through the
date of closing, Seller will not enter into any new lease
with respect to the Property, without Buyer's prior written
consent, which shall not be unreasonably withheld. Exercise
by a Tenant of of a renewal option under an existing Lease
shall not be considered a new lease. Any brokerage
commission payable with respect to a new lease shall be
prorated between Buyer and Seller in accordance with their
respective periods of ownership as it bears to the primary
term of the new lease. Further, Seller will not modify any
existing Lease covering space in the Property without first
obtaining the written consent of Buyer which shall not be
unreasonably withheld. Buyer shall have five (5) business
days in which to approve or disapprove of any new lease for
which it has a right to consent. Failure to respond in
writing within said time period shall be deemed to be
consent;
7.11.3. From the date of execution of this Agreement through the
date of closing, Seller shall not sell, assign, or convey
any right, title or interest whatsoever in or to the
Property, or create or permit to attach any lien, security
interest, easement, encumbrance, charge, or condition
affecting the Property (other than the Permitted Exceptions)
without promptly discharging the same prior to closing;
7.11.4. Seller shall not, without Buyer's written approval, (a)
amend or waive any right under any Service Contract, or (b)
enter into any agreement of any type affecting the Property
that would survive the Closing Date;
7.11.5. Seller shall fully and timely comply with all obligations to
be performed by it under the Lease, the Contracts, and all
permits, licenses, approvals and laws, regulations and
orders applicable to the Property; Seller shall use
commercially reasonable efforts to arrange for the
expeditious completion of construction of the parking garage
(the "Parking Garage") currently under construction at the
Property, in accordance with the plans and specifications
previously delivered to Buyer and in compliance with all
applicable building permits, legal requirements, and
requirements of the Lease, provided that Seller is not
limited to the original plans and specifications of the
Parking Garage so long as all change orders are approved by
Tenant (if approval is required by the Lease) and all
applicable regulatory entities, and all material change
orders are also approved by the Buyer, for which purpose
Seller will give notice to the Buyer. If, after notification
of a proposed material change order, Buyer has not approved
or disapproved the change order within 10 days, the change
order shall be deemed approved by
Buyer). The Tenant has no right to approve or disapprove of
the construction of the Parking Garage. Seller shall
otherwise operate the Property in the same manner as during
Seller's ownership of the Property prior to the execution of
this Agreement.
7.12. Approval of Property. The consummation of the purchase and sale of
the Property pursuant to this Agreement shall be deemed Buyer's
acknowledgement that it has had an adequate opportunity to make such
legal, factual and other inspections, inquiries and investigations
as it deems necessary, desirable or appropriate with respect to the
Property. Such inspections, inquiries and investigations of Buyer
shall be deemed to include, but shall not be limited to, any leases
and contracts pertaining to the Property, the physical components of
all portions of the Property, the physical condition of the
Property, such state of facts as an accurate survey, environmental
report and inspection would show, the present and future zoning
ordinance, ordinances, resolutions. Buyer shall not be entitled to
and shall not rely upon, Seller or Seller's agents with regard to,
and Seller will not make any representation or warranty (except as
expressly set forth in this Agreement) with respect to: (i) the
quality, nature, adequacy or physical condition of the Property
including, but not limited to, the structural elements, foundation,
roof, appurtenances, access, landscaping, parking facilities, or the
electrical, mechanical, HVAC, plumbing, sewage or utility systems,
facilities, or appliances at the Property, if any; (ii) the quality,
nature, adequacy or physical condition of soils or the existence of
ground water at the Property; (iii) the existence, quality, nature,
adequacy or physical condition of any utilities serving the
Property; (iv) the development potential of the Property, its
habitability, merchantability, or the fitness, suitability, or
adequacy of the Property for any particular purpose; (v) the zoning
or other legal status of the Property; (vi) the Property or its
operations' compliance with any applicable codes, laws, regulations,
statutes, ordinances, covenants, conditions or restrictions of any
governmental or quasi-governmental entity or of any other person or
entity; (vii) the quality of any labor or materials relating in any
way to the Property; or (viii) the condition of title to the
Property or the nature, status and extent of any right-of-way,
lease, right of redemption, possession, lien, encumbrance, license,
reservation, covenant, condition, restriction, or any other matter
affecting the Property except as expressly set forth in this
Agreement. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND THE
CLOSING DOCUMENTS, SELLER HAS NOT, DOES NOT, AND WILL NOT MAKE ANY
WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROPERTY AND
SELLER SPECIFICALLY DISCLAIMS ANY OTHER IMPLIED WARRANTIES OR
WARRANTIES ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY
LIMITED TO, ANY WARRANTY OF CONDITION,
MERCHANTABILITY, HABITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE
OR USE. FURTHERMORE, SELLER HAS NOT, DOES NOT, AND WILL NOT MAKE ANY
REPRESENTATION OR WARRANTY WITH REGARD TO COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION, OR LAND USE LAWS, RULES,
REGULATIONS, ORDERS, OR REQUIREMENTS INCLUDING, BUT NOT LIMITED TO,
THOSE PERTAINING TO THE HANDLING, GENERATING, TREATING, STORING OR
DISPOSING OF ANY HAZARDOUS WASTE OR SUBSTANCE INCLUDING, WITHOUT
LIMITATION, ASBESTOS, PCB AND RADON. BUYER ACKNOWLEDGES THAT BUYER
IS A SOPHISTICATED BUYER FAMILIAR WITH THIS TYPE OF PROPERTY AND
THAT, SUBJECT ONLY TO THE EXPRESS WARRANTIES SET FORTH IN THIS
AGREEMENT AND CLOSING DOCUMENTS, BUYER WILL BE ACQUIRING THE
PROPERTY "AS IS AND WHERE IS, WITH ALL FAULTS," IN ITS PRESENT STATE
AND CONDITION, SUBJECT ONLY TO NORMAL WEAR AND TEAR AND BUYER SHALL
ASSUME THE RISK THAT ADVERSE MATTERS AND CONDITIONS MAY NOT HAVE
BEEN REVEALED BY BUYER'S INSPECTIONS AND INVESTIGATIONS. BUYER SHALL
ALSO ACKNOWLEDGE AND AGREE THAT THERE ARE NO ORAL AGREEMENTS,
WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE
PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTY. THE
TERMS AND CONDITIONS OF THIS PARAGRAPH SHALL SURVIVE THE CLOSING,
AND NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS. SELLER
SHALL NOT BE LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE
PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE,
SERVANT OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH
OR REFERRED TO IN THIS AGREEMENT.
7.13. As used in this Section 7, the term "Manager's Knowledge" shall mean
the actual knowledge of Xxxxxxx Xxxxxxx, without any duty of
investigation.
8. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to Seller as follows:
8.1. The execution, delivery and performance of this Agreement and all
documents contemplated hereby by Buyer will not result in a breach
of
any of the terms or provisions of, or constitute a default under any
indenture, agreement or instrument to which Buyer is a party. This
Agreement is a legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms, subject to
the effect of applicable bankruptcy, insolvency, reorganization,
arrangement, moratorium or other similar laws affecting the rights
of creditors generally.
9. Conditions Precedent to Closing.
The obligations of Buyer pursuant to this Agreement shall, at the option
of Buyer, be subject to the following conditions precedent:
9.1. All of the representations, warranties and agreements of Seller set
forth in this Agreement shall be true and correct in all material
respects as of the date hereof and as of the Closing Date, and
Seller shall not have on or prior to closing, failed to meet, comply
with or perform in any material respect any conditions or agreements
on Seller's part as required by the terms of this Agreement. If, due
to a circumstance beyond the Seller's reasonable control, this
condition cannot be met by the Seller, this Agreement and the Escrow
shall thereupon be terminated, Buyer shall not be entitled to
purchase the Property, Seller shall not be obligated to sell the
Property to Buyer and the parties shall be relieved of any further
obligation to each other with respect to the Property, except as
provided in Paragraph 5.
9.2. There shall be no change in the matters reflected in the Title
Report, and there shall not exist any encumbrance or title defect
affecting the Property not described in the Title Report except for
the Permitted Exceptions or matters to be satisfied at closing.
9.3. Effective as of closing, the management agreement affecting the
Property shall be terminated by Seller and any and all termination
fees incurred as a result thereof shall be the sole obligation of
Seller.
9.4. Seller shall have completed the construction of the Parking Garage,
in accordance with the plans and specifications previously delivered
to Buyer and in compliance with all applicable building permits,
legal requirements, and requirements of the Lease. Seller shall have
paid all of the costs of the construction of the Parking Garage and
shall have provided Buyer and the Title Company with such lien
waivers and other evidence of the payment as they may reasonably
require.
9.5. If any such condition is not fully satisfied by closing, Buyer shall
so notify Seller and may terminate this Agreement by written notice
to Seller whereupon this Agreement may be canceled, upon return of
the Due Diligence Items the Deposit shall be paid to Buyer and,
thereafter,
neither Seller nor Buyer shall have any continuing obligations
hereunder.
9.6. If Buyer notifies Seller of a failure to satisfy the conditions
precedent set forth in this paragraph, Seller may, within five (5)
days of receipt of Buyer's Notices agree to satisfy the condition by
written notice to Buyer, and Buyer shall thereupon be obligated to
close the transaction provided Seller so satisfies such condition.
If Seller fails to agree to cure or fails to cure such condition by
the Closing Date, this Agreement shall be canceled and the Deposit
shall be returned to Buyer and neither party shall have any further
liability hereunder.
10. Damage or Destruction Prior to Close of Escrow.
In the event that the Property should be damaged by any casualty prior to
the Close of Escrow, then if the cost of repairing such damage, as
estimated by an architect or contractor retained pursuant to the mutual
agreement of the parties, is:
10.1. Less than Two Hundred Fifty Thousand Dollars ($250,000), the Close
of Escrow shall proceed as scheduled, any insurance proceeds shall
be distributed to Buyer to the extent not expended by Seller for
restoration, and Buyer shall be credited against the Purchase Price
with the amount of any deductible under Seller's insurance policies
covering the loss;
or if said cost is:
10.2. Greater than Two Hundred Fifty Thousand Dollars ($250,000), then
either Buyer may elect to terminate this Agreement, in which case
upon return of the Due Diligence Items the Deposit shall be returned
to Buyer and neither party shall have any further obligation to the
other except for Buyer's indemnification obligations under Paragraph
5. If Buyer does not elect to terminate this Agreement under the
terms of this Paragraph 10.2, the Close of Escrow shall proceed as
scheduled, any insurance proceeds shall be distributed to Buyer to
the extent not expended by Seller for restoration, and Buyer shall
be credited against the Purchase Price with the amount of any
deductible under Seller's insurance policies covering the loss.
11. Eminent Domain.
11.1. If, before the Close of Escrow, proceedings are commenced for the
taking by exercise of the power of eminent domain of all or a
material part of the Property which, as reasonably determined by
Buyer, would render the Property unacceptable to Buyer or unsuitable
for Buyer's intended use, Buyer shall have the right, by giving
notice to Seller
\
within thirty (30) days after Seller gives notice of the
commencement of such proceedings to Buyer, to terminate this
Agreement, in which event this Agreement shall terminate, the
Deposit shall be returned to Buyer and neither party shall have any
further obligation to the other except for Buyer's indemnification
under Paragraph 5. If, before the Close of Escrow, proceedings are
commenced for the taking by exercise of the power of eminent domain
of less than such a material part of the Property, or if Buyer has
the right to terminate this Agreement pursuant to the preceding
sentence but Buyer does not exercise such right, then this Agreement
shall remain in full force and effect and, at the Close of Escrow,
the condemnation award (or, if not therefore received, the right to
receive such portion of the award) payable on account of the taking
shall be transferred in the same manner as title to the Property is
conveyed. Seller shall give notice to Buyer within three (3)
business days after Seller's receiving notice of the commencement of
any proceedings for the taking by exercise of the power of eminent
domain of all or any part of the Property.
12. Notices.
12.1. All notices, demands, or other communications of any type given by
any party hereunder, whether required by this Agreement or in any
way related to the transaction contracted for herein, shall be void
and of no effect unless given in accordance with the provisions of
this Paragraph. All notices shall be in writing and delivered to the
person to whom the notice is directed, either in person, by United
States Mail, as a registered or certified item, return receipt
requested by telecopy or by Federal Express. Notices delivered by
mail shall be deemed given when received. Notices by telecopy or
Federal Express shall be deemed received on the business day
following transmission. Notices shall be given to the following
addresses:
Seller: Xxxxxxx Xxxxxx
Triple Net Properties, LLC
0000 X. Xxxxxx Xxx. #000
Xxxxx Xxx, XX 00000
(000) 000-0000
(000) 000-0000 fax
With Required Copy to: Xxxxx Xxxxx, Esq.
Xxxxxxxxx Xxxxxxxxx
The Federal Reserve Bank Building, 16th Fl
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 fax
Buyer: Trans-Aero Land & Development Corp.
0000 Xxxxxxx Xxx., Xxxxx 00
Xxx Xxxxx, XX 00000
(000) 000-0000
(000) 000-0000 fax
With Required Copy to: Xxxxx Xxxxxxxxx
XxXxxxxx Carano Wilson
0000 X. Xxxxxx Xxx., Xxxxx 0000
Xxx Xxxxx, XX 00000
(000) 000-0000
(000) 000-0000 fax
13. Remedies.
13.1. Defaults by Seller. If there is any default by Seller under this
Agreement, following notice to Seller and seven (7) days, during
which period Seller may cure the default, Buyer may, at its option,
(a) declare this Agreement terminated in which case the Deposit
shall be returned to Buyer or (b) treat this Agreement as being in
full force and effect and bring an action against Seller for
specific performance.
13.2. Defaults by Buyer. If there is any default by Buyer under this
Agreement, following notice to Buyer and seven (7) days, during
which period Buyer may cure the default, then Seller may, as its
sole remedy, declare this Agreement terminated, in which case the
Deposit shall be paid to Seller as liquidated damages and each party
shall thereupon be relieved of all further obligations and
liabilities, except any which expressly survive termination. In the
event this Agreement is terminated due to the default of Buyer
hereunder, Buyer shall deliver to Seller, at no cost to Seller, the
Due Diligence Items and all of Buyer's Reports.
13.3. ARBITRATION OF DISPUTES. ANY CLAIM, CONTROVERSY OR DISPUTE, WHETHER
SOUNDING IN CONTRACT, STATUTE, TORT, FRAUD, MISREPRESENTATION OR
OTHER LEGAL THEORY, RELATED DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT, WHENEVER BROUGHT AND WHETHER BETWEEN THE PARTIES TO THIS
AGREEMENT OR BETWEEN ONE OF THE PARTIES TO THIS AGREEMENT AND THE
EMPLOYEES, AGENTS OR AFFILIATED BUSINESSES OF THE OTHER PARTY, SHALL
BE RESOLVED BY ARBITRATION AS PRESCRIBED IN THIS SECTION. THE
FEDERAL ARBITRATION ACT, 9 U.S.C. Sections 1-15, NOT STATE LAW,
SHALL GOVERN THE ARBITRABILITY OF ALL CLAIMS, AND THE DECISION OF
THE ARBITRATOR AS TO ARBITRABILITY SHALL BE FINAL.
A SINGLE ARBITRATOR WHO IS A RETIRED FEDERAL OR CALIFORNIA JUDGE
SHALL CONDUCT THE ARBITRATION UNDER THE THEN CURRENT RULES OF THE
AMERICAN ARBITRATION ASSOCIATION (THE "AAA"). THE ARBITRATOR SHALL
BE SELECTED BY MUTUAL AGREEMENT ON THE ARBITRATOR WITHIN THIRTY (30)
DAYS OF WRITTEN NOTICE BY ONE PARTY TO THE OTHER INVOKING THIS
ARBITRATION PROVISION, IN ACCORDANCE WITH AAA PROCEDURES FROM A LIST
OF QUALIFIED PEOPLE MAINTAINED BY THE AAA. THE ARBITRATION SHALL BE
CONDUCTED IN SANTA ANA, CALIFORNIA AND ALL EXPEDITED PROCEDURES
PRESCRIBED BY THE AAA RULES SHALL APPLY.
THERE SHALL BE NO DISCOVERY OTHER THAN THE EXCHANGE OF INFORMATION
WHICH IS PROVIDED TO THE ARBITRATOR BY THE PARTIES. THE ARBITRATOR
SHALL HAVE AUTHORITY ONLY TO GRANT SPECIFIC PERFORMANCE AND TO ORDER
OTHER EQUITABLE RELIEF AND TO AWARD COMPENSATORY DAMAGES, BUT SHALL
NOT HAVE THE AUTHORITY TO AWARD PUNITIVE DAMAGES OR OTHER
NONCOMPENSATORY DAMAGES OR ANY OTHER FORM OF RELIEF. THE ARBITRATOR
SHALL AWARD TO THE PREVAILING PARTY ITS REASONABLE ATTORNEYS' FEES
AND COSTS AND OTHER EXPENSES INCURRED IN THE ARBITRATION, EXCEPT THE
PARTIES SHALL SHARE EQUALLY THE FEES AND EXPENSES OF THE ARBITRATOR.
THE ARBITRATOR'S DECISION AND AWARD SHALL BE FINAL AND BINDING, AND
JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN
ANY COURT HAVING JURISDICTION THEREOF. IN THE EVENT OF ANY DISPUTE
SUBJECT TO ARBITRATION UNDER THE TERMS OF THIS AGREEMENT, IF
OCCURRING PRIOR TO THE CLOSE OF ESCROW, BUYER SHALL BE ENTITLED TO
RECORD A NOTICE OF THE PENDENCY OF THE ARBITRATION IN THE REAL
ESTATE RECORDS OF XXXXX COUNTY NEVADA.
14. Assignment.
Buyer may assign its rights under this Agreement to an entity in which
Buyer has a significant interest.
15. Interpretation and Applicable Law.
This Agreement shall be construed and interpreted in accordance with the
laws of the state in which the Property is located (the "State"). Where
required for proper interpretation, words in the singular shall include
the plural; the masculine gender shall include the neuter and the
feminine, and vice versa. The terms "successors and assigns" shall include
the heirs, administrators, executors, successors, and assigns, as
applicable, of any party hereto.
16. Amendment.
This Agreement may not be modified or amended, except by an agreement in
writing signed by the parties. The parties may waive any of the conditions
contained herein or any of the obligations of the other party hereunder,
but any such waiver shall be effective only if in writing and signed by
the party waiving such conditions and obligations.
17. Attorney's Fees.
In the event it becomes necessary for either party to file a suit or
arbitration to enforce this Agreement or any provisions contained herein,
the prevailing party shall be entitled to recover, in addition to all
other remedies or damages, reasonable attorneys' fees and costs of court
incurred in such suit or arbitration.
18. Entire Agreement; Survival.
This Agreement (and the items to be furnished in accordance herewith)
constitutes the entire agreement between the parties pertaining to the
subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings of the parties in connection therewith. No
representation, warranty, covenant, agreement, or condition not expressed
in this Agreement shall be binding upon the parties hereto nor affect or
be effective to interpret, change, or restrict the provisions of this
Agreement. The obligations of the parties hereunder and all other
provisions of this Agreement shall survive the closing or earlier
termination of this Agreement, except as expressly limited herein.
19. Multiple Originals only; Counterparts.
Numerous agreements may be executed by the parties hereto. Each such
executed copy shall have the full force and effect of an original executed
instrument. This Agreement may be executed in any number of counterparts,
all of which when taken together shall constitute the entire agreement of
the parties.
20. Acceptance.
Time is of the essence of this Agreement. The date of execution of this
Agreement by Seller shall be the date of execution of this Agreement. If
the final date of any period falls upon a Saturday, Sunday, or legal
holiday under Federal law, the laws of the State or the laws of the State
of California if it is not the State, then in such event the expiration
date of such period shall be extended to the next day which is not a
Saturday, Sunday, or legal holiday under Federal law, the laws of the
State or the State of California if it is not the State.
21. Real Estate Commission.
Seller and Buyer each represent and warrant to the other that neither
Seller nor Buyer has contracted or entered into any agreement with any
real estate broker, agent, finder or any other party in connection with
this transaction, and that neither party has taken any action which would
result in any real estate broker's, finder's or other fees or commissions
being due and payable to any party with respect to the transaction
contemplated hereby, except that Seller has contracted with (a) Xxxxx &
Xxxxx as its broker, (b) Triple Net Properties Realty, Inc., and (c)
Realty Executives of NV, "Buyers Broker" (who shall receive a commission
of one percent (1%)) and Seller will pay any commission due to said
brokers. Each party hereby indemnifies and agrees to hold the other party
harmless from any loss, liability, damage, cost, or expense (including
reasonable attorneys' fees) resulting to the other party by reason of a
breach of the representation and warranty made by such party in this
paragraph.
22. Exchange.
Seller reserves the right to structure the sale of the Property as a like
kind exchange pursuant to Section 1031 of the Code. In such event Seller
shall have the right to assign its interest in this Agreement to a
qualified exchange intermediary of its choosing to effect such exchange.
Buyer shall sign a customary assignment and/or notice of assignment,
however, such assignment shall at no cost or expense to Buyer and shall
not otherwise affect the terms of this Agreement. Buyer may acquire the
Property as part of a like kind exchange pursuant to Section 1031 of the
Code. In such event Seller shall accommodate the documentation for Buyer's
like kind exchange, provide that such accommodation shall be at no cost or
expense to Seller and shall not otherwise affect the terms of this
Agreement.
23. Confidentiality.
Buyer agrees that, prior to the closing, all Property information received
by Buyer shall be kept confidential as provided in this paragraph. Without
the prior written consent of Seller, prior to the closing, the Property
information shall not be disclosed by Buyer or its representatives, in any
manner whatsoever, in whole or in part, except (1) to Buyer's
representatives, lenders or investors who need to know the Property
information for the purpose of evaluating the Property and who are
informed by the Buyer of the confidential nature of the Property
information; (2) as may be necessary for Buyer or Buyer's representatives,
lenders or investors to comply with applicable laws, including, without
limitation, governmental, regulatory, disclosure, tax and reporting
requirements; to comply with other requirements and requests of regulatory
and supervisory authorities and self-regulatory organizations having
jurisdiction over Buyer or Buyer's representatives; to comply with
regulatory or judicial processes; or to satisfy reporting procedures and
inquiries of credit rating agencies in accordance with customary practices
of Buyer or its affiliates; and (3) to prospective tenants of the
Property.
24. Approval.
Seller's obligation to sell the Property is subject to the condition
precedent that approval of the sale is obtained from all entities
comprising Seller no later than fifteen business days after full execution
of this Agreement, provided that, if such approvals are not obtained,
Buyer shall not be required to buy the property, all Buyer's deposit(s)
shall be returned to buyer, and Seller shall reimburse Buyer for the
actual out-of-pocket costs incurred by the Buyer in conducting its due
diligence investigation of the Property and the fees and expenses of
Buyer's counsel in reviewing and negotiating this Agreement and related
documentation, to a maximum of $25,000
THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR
The Oakey Building
0000 Xxxx Xxxxx Xxxxxxxx
Xxx Xxxxx, XX
EXECUTED on this the 31st day of Oct., 2005.
SELLER:
NNN Oakey Building 2003, LLC, a Delaware limited
liability company
By: Triple Net Properties, LLC, a Virginia limited
liability company
Its: Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: CEO
EXECUTED on this the 4th day of November, 2005.
BUYER:
Trans-Aero Land & Development Company,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Xxxxxx X. Xxxxxxx, President
EXHIBIT A
Legal Description of the Property
That portion of the Southwest Quarter (SW 1/4) of the Northwest Quarter (NW 1/4)
of Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 61 East, M.D.B. & M., described as
follow:
Lot three (3) of that certain Parcel Map in File 52 of Parcel Maps, Page 20 in
the Office of the County Recorder of Xxxxx County, Nevada and recorded March 18,
1987 in Book 870318 as Document No. 00702, and by Certificate of Amendment
recorded January 25, 1989 in Book 890125 as Instrument No. 00179 of Official
Records of Xxxxx County, Nevada.
EXHIBIT B
Delivery
Comment DATE Item
1 Oct. 20, 2005 The lease, and any amendments and modifications.
2 Oct. 20, 2005 All correspondence between City of Las Vegas, the Tenant and Landlord or correspondence
material to the operation and management of the building
3 Oct. 20, 2005 All service contracts, vendor or maintenance agreements in effect or in negotiation
4 Oct. 20, 2005 Any third party management agreement
5 Oct. 20, 2005 Utility bills for the past twelve months
6 Oct. 20, 2005 Property tax bills for the past two tax years
7 Oct. 20, 2005 All structural, mechanical and tenant improvement plans for the improvements
8 Oct. 20, 2005 Declarations pages for current insurance coverages
9 Intentionally deleted
10 Oct. 20, 2005 Year-to-date and prior year income and expense statements for the property
11 Dated 8/09/2005 Oct. 20, 2005 ALTA survey, if available
12 None N/A Environmental assessment reports, if available
13 None N/A Appraisal reports, if available
14 None N/A Property condition report, if available
15 None N/A MEP (mechanical, engineering and plumbing) report, if available
16 None N/A Seismic or PML report, if available
17 None N/A Any warranties in effect for roof, HVAC, elevator, or other building components
18 None N/A Documents relating to any pending litigation or insurance or other claims effecting the
property, together with a three-year claim and loss history for the property
19 None N/A Any agreement or lease regarding the operation of the parking structure
20 1 TCO (0xx Xxxxx) Oct. 20, 2005 Temporary and final certificates of occupancy currently in Seller's possession.
21 Oct. 20, 2005 Building permits and any other permits or licenses held in connection with the property
22 Oct. 20, 2005 Any interior, exterior or aerial building photographs, if available
23 None N/A Any other reports relevant to the property
RENT LEASE INCOME YEAR ONE
WORKSHEET NAME SUITE SQFT AUG-05 SEP-05 OCT-05 NOV-05 DEC-05 JAN-06 FEB-06
First Floor 100 16,836 0.00 0.00 0.00 0.00 0.00 0.00 0.00
First Floor CA 100 8,126 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Xxxxxx Xxxxx 000 2,259 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Second Floor (2) 200 406 787.64 787.64 787.64 787.64 787.64 787.64 787.64
Second Floor (3) 200 6,632 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Second Floor (4) 200 3,702 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Second Floor (5) 200 9,655 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Xxxxx Xxxxx 000 9,574 0.00 18,573.56 18,573.56 18,573.56 18,573.56 18,573.56 18,573.56
Third Floor (2) 300 7,820 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Third Floor (3) 300 3,765 0.00 7,304.10 7,304.10 7,304.10 7,304.10 7,304.10 7,304.10
Third Floor (4) 300 4,052 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Xxxxxx Xxxxx 000 25,333 0.00 0.00 0.00 0.00 0.00 0.00 0.00
98,160 787.64 26,665.30 26,665.30 26,665.30 26,665.30 26,665.30 26,665.30
RENT LEASE INCOME YEAR ONE
WORKSHEET NAME SUITE SQFT MAR-06 APR-06 MAY-06 JUN-06 JUL-06
First Floor 100 16,836 0.00 0.00 0.00 0.00 0.00
First Floor CA 100 8,126 0.00 0.00 0.00 0.00 0.00
Xxxxxx Xxxxx 000 2,259 0.00 0.00 0.00 0.00 0.00
Second Floor (2) 200 406 787.64 787.64 787.64 787.64 787.64
Second Floor (3) 200 6,632 0.00 0.00 0.00 0.00 0.00
Second Floor (4) 200 3,702 0.00 0.00 0.00 0.00 0.00
Second Floor (5) 200 9,655 0.00 0.00 0.00 0.00 0.00
Xxxxx Xxxxx 000 9,574 18,573.56 18,573.56 18,573.56 18,573.56 18,573.56
Third Floor (2) 300 7,820 0.00 0.00 0.00 0.00 0.00
Third Floor (3) 300 3,765 7,304.10 7,304.10 7,304.10 7,304.10 7,304.10
Third Floor (4) 300 4,052 0.00 0.00 0.00 0.00 0.00
Xxxxxx Xxxxx 000 25,333 0.00 0.00 0.00 0.00 0.00
98,160 26,665.30 26,665.30 26,665.30 26,665.30 26,665.30
RENT GUARANTY RENT GUARANTY YEAR ONE
WORKSHEET NAME SUITE SQFT DEC-05 JAN-06 FEB-06 MAR-06 APR-06 MAY-06 JUN-06 JUL-06
First Floor 100 16,836 31,988.40 31,988.40 31,988.40 31,988.40 31,988.40 31,988.40 31,988.40 31,988.40
Xxxxx Xxxxx XX 000 8,126 15,439.40 15,439.40 15,439.40 15,439.40 15,439.40 15,439.40 15,439.40 15,439.40
Xxxxxx Xxxxx 000 2,259 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17
Second Floor (2) 200 406 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Second Floor (3) 200 6,632 12,600.80 12,600.80 12,600.80 12,600.80 12,600.80 12,600.80 12,600.80 12,600.80
Second Floor (4) 200 3,702 7,033.80 7,033.80 7,033.80 7,033.80 7,033.80 7,033.80 7,033.80 7,033.80
Second Floor (5) 200 9,655 18,344.50 18,344.50 18,344.50 18,344.50 18,344.50 18,344.50 18,344.50 18,344.50
Xxxxx Xxxxx 000 9,574 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Third Floor (2) 300 7,820 14,858.00 14,858.00 14,858.00 14,858.00 14,858.00 14,858.00 14,858.00 14,858.00
Third Floor (3) 300 3,765 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Third Floor (4) 300 4,052 7,698.80 7,698.80 7,698.80 7,698.80 7,698.80 7,698.80 7,698.80 7,698.80
Xxxxxx Xxxxx 000 25,333 48,132.70 48,132.70 48,132.70 48,132.70 48,132.70 48,132.70 48,132.70 48,132.70
98,160 160,720.57 160,720.57 160,720.57 160,720.57 160,720.57 160,720.57 160,720.57 160,720.57
RENT GUARANTY RENT GUARANTY TWO
WORKSHEET NAME SUITE SQFT AUG-06 SEP-06 OCT-06 NOV-06
First Floor 100 16,836 34,463.29 34,463.29 34,463.23 34,463.29
Xxxxx Xxxxx XX 000 8,126 0.00 0.00 0.00 0.00
Xxxxxx Xxxxx 000 2,259 0.00 0.00 0.00 0.00
Second Floor (2) 200 406 0.00 0.00 0.00 0.00
Second Floor (3) 200 6,632 13,575.70 13,575.70 13,575.71 13,575.70
Second Floor (4) 200 3,702 0.00 0.00 0.00 0.00
Second Floor (5) 200 9,655 0.00 0.00 0.00 0.00
Xxxxx Xxxxx 000 9,574 0.00 0.00 0.00 0.00
Third Floor (2) 300 7,820 16,007.54 16,007.54 16,007.54 16,007.54
Third Floor (3) 300 3,765 0.00 0.00 0.00 0.00
Third Floor (4) 300 4,052 8,294.44 8,294.44 8,294.44 8,294.44
Xxxxxx Xxxxx 000 25,333 0.00 0.00 0.00 0.00
98,160 72,340.97 72,340.97 72,340.97 72,340.97
TOTAL RENT GUARANTY:
RENT LEASE INCOME YEAR TWO
WORKSHEET NAME SUITE SQFT AUG-06 SEP-06 OCT-06 NOV-06 DEC-06 JAN-07
First Floor 100 16,836 0.00 0.00 0.00 0.00 0.00 34,463.29
Xxxxx Xxxxx XX 000 8,126 16,633.92 16,633.92 16,633.92 16,633.92 16,633.92 16,633.92
Xxxxxx Xxxxx 000 2,259 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17
Second Floor (0) 000 000 000.00 831.08 831.08 831.08 831.08 831.08
Second Floor (3) 200 6,632 0.00 0.00 0.00 0.00 0.00 13,575.70
Second Floor (4) 200 3,702 7,577.99 7,577.99 7,577.99 7,577.99 7,577.99 7,577.99
Second Floor (5) 200 9,655 19,763.79 19,763.79 19,763.79 19,763.79 19,763.79 19,763.79
Xxxxx Xxxxx 000 9,574 19,597.98 19,597.98 19,597.98 19,597.98 19,597.98 19,597.98
Third Floor (2) 300 7,820 0.00 0.00 0.00 0.00 0.00 16,007.54
Third Floor (3) 300 3,765 7,706.96 7,706.96 7,706.96 7,706.96 7,706.96 7,706.96
Third Floor (4) 300 4,052 0.00 0.00 0.00 0.00 0.00 8,294.44
Xxxxxx Xxxxx 000 25,333 51,856.65 51,856.65 51,856.65 51,856.65 51,856.65 51,856.65
98,160 128,592.54 128,592.54 128,592.54 128,592.54 128,592.54 200,933.52
RENT LEASE INCOME YEAR TWO
WORKSHEET NAME SUITE SQFT FEB-07 MAR-07 APR-07 MAY-07 JUN-07 JUL-07
First Floor 100 16,836 34,463.29 34,463.29 34,463.29 34,463.29 34,463.29 34,463.29
Xxxxx Xxxxx XX 000 8,126 16,633.92 16,633.92 16,633.92 16,633.92 16,633.92 16,633.92
Xxxxxx Xxxxx 000 2,259 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17
Second Floor (2) 200 406 831.08 831.08 831.08 831.08 831.08 831.08
Second Floor (3) 200 6,632 13,575.70 13,575.70 13,575.70 13,575.70 13,575.70 13,575.70
Second Floor (4) 200 3,702 7,577.99 7,577.99 7,577.99 7,577.99 7,577.99 7,577.99
Second Floor (5) 200 9,655 19,763.79 19,763.79 19,763.79 19,763.79 19,763.79 19,763.79
Xxxxx Xxxxx 000 9,574 19,597.98 19,597.98 19,597.98 19,597.98 19,597.98 19,597.98
Third Floor (2) 300 7,820 16,007.54 16,007.54 16,007.54 16,007.54 16,007.54 16,007.54
Third Floor (3) 300 3,765 7,706.96 7,706.96 7,706.96 7,706.96 7,706.96 7,706.96
Third Floor (4) 300 4,052 8,294.44 8,294.44 8,294.44 8,294.44 8,294.44 8,294.44
Xxxxxx Xxxxx 000 25,333 51,856.65 51,856.65 51,856.65 51,856.65 1,856.65 51,856.65
98,160 200,933.52 200,933.52 200,933.52 200,933.52 200,933.52 200,933.52
TOTAL ANNUAL RENT 2,049,497.34
RENT GUARANTY
WORKSHEET NAME SUITE SQFT DEC-06 JAN-07 FEB-07 MAR-07 APR-07 MAY-07 JUN-07 JUL-07 AUG-07 SEP-07 OCT-07 NOV-07
First Floor 100 16,836 34,463.29
First Floor CA 100 8,126 0.00
Second Floor 200 2,259 0.00
Second Floor (2) 200 406 0.00
Second Floor (3) 200 6,632 13,575.70
Second Floor (4) 200 3,702 0.00
Second Floor (5) 200 9,655 0.00
Third Floor 300 9,574 0.00
Third Floor (2) 300 7,820 16,007.54
Third Floor (3) 300 3,765 0.00
Third Floor (4) 300 4,052 8,294.44
Xxxxxx Xxxxx 000 25,333 0.00
98,160 72,340.97
1,745,629
RENT YEAR THREE
WORKSHEET NAME SUITE SQFT AUG-07 SEP-07 OCT-07 NOV-07 DEC-07 JAN-08
First Floor 100 16,836 35,497.19 35,497.19 35,497.19 35,497.19 35,497.19 35,497.19
Xxxxx Xxxxx XX 000 8,126 17,132.94 17,132.94 17,132.94 17,132.94 17,132.94 17,132.94
Xxxxxx Xxxxx 000 2,259 4,762.90 4,762.90 4,762.90 4,762.90 4,762.90 4,762.90
Second Floor (2) 200 406 856.01 856.01 856.01 856.01 856.01 856.01
Second Floor (3) 200 6,632 13,982.98 13,982.98 13,982.98 13,982.98 13,982.98 13,982.98
Second Floor (4) 200 3,702 7,805.33 7,805.33 7,805.33 7,805.33 7,805.33 7,805.33
Second Floor (5) 200 9,655 20,356.70 20,356.70 20,356.70 20,356.70 20,356.70 20,356.70
Xxxxx Xxxxx 000 9,574 20,185.92 20,185.92 20,185.92 20,185.92 20,185.92 20,185.92
Third Floor (2) 300 7,820 16,487.77 16,487.77 16,487.77 16,487.77 16,487.77 16,487.77
Third Floor (3) 300 3,765 7,938.16 7,938.16 7,938.16 7,938.16 7,938.16 7,938.16
Third Floor (4) 300 4,052 8,543.28 8,543.28 8,543.28 8,543.28 8,543.28 8,543.28
Xxxxxx Xxxxx 000 25,333 53,412.35 53,412.35 53,412.35 53,412.35 53,412.35 53,412.35
98,160 206,961.53 206,961.53 206,961.53 206,961.53 206,961.53 206,961.53
RENT YEAR THREE
WORKSHEET NAME SUITE SQFT FEB-08 MAR-08 APR-08 MAY-08 JUN-08 JUL-08
First Floor 100 16,836 35,497.19 35,497.19 35,497.19 35,497.19 35,497.19 35,497.19
Xxxxx Xxxxx XX 000 8,126 17,132.94 17,132.94 17,132.94 17,132.94 17,132.94 17,132.94
Xxxxxx Xxxxx 000 2,259 4,762.90 4,762.90 4,762.90 4,762.90 4,762.90 4,762.90
Second Floor (2) 200 406 856.01 856.01 856.01 856.01 856.01 856.01
Second Floor (3) 200 6,632 13,982.98 13,982.98 13,982.98 13,982.98 13,982.98 13,982.98
Second Floor (4) 200 3,702 7,805.33 7,805.33 7,805.33 7,805.33 7,805.33 7,805.33
Second Floor (5) 200 9,655 20,356.70 20,356.70 20,356.70 20,356.70 20,356.70 20,356.70
Xxxxx Xxxxx 000 9,574 20,185.92 20,185.92 20,185.92 20,185.92 20,185.92 20,185.92
Third Floor (2) 300 7,820 16,487.77 16,487.77 16,487.77 16,487.77 16,487.77 16,487.77
Third Floor (3) 300 3,765 7,938.16 7,938.16 7,938.16 7,938.16 7,938.16 7,938.16
Third Floor (4) 300 4,052 8,543.28 8,543.28 8,543.28 8,543.28 8,543.28 8,543.28
Xxxxxx Xxxxx 000 25,333 53,412.35 53,412.35 53,412.35 53,412.35 53,412.35 53,412.35
98,160 206,961.53 206,961.53 206,961.53 206,961.53 206,961.53 206,961.53
TOTAL ANNUAL RENT 2,483,538.31
RENT GUARANTY YEAR THREE
WORKSHEET NAME SUITE SQFT DEC-07 JAN-08 FEB-08 MAR-08 APR-08 MAY-08 JUN-08 JUL-08 AUG-08 SEP-08 OCT-08 NOV-08
First Floor 100 16,836
First Floor CA 100 8,126
Second Floor 200 2,259
Second Floor (2) 200 406
Second Floor (3) 200 6,632
Second Floor (4) 200 3,702
Second Floor (5) 200 9,655
Xxxxx Xxxxx 000 9,574
Third Floor (2) 300 7,820
Third Floor (3) 300 3,765
Third Floor (4) 300 4,052
Fourth Floor 400 25,333
98,160
RENT YEAR FOUR
WORKSHEET NAME SUITE SQFT AUG-08 SEP-08 OCT-08 NOV-08 DEC-08 JAN-09
First Floor 100 16,836 36,562.11 36,562.11 36,562.11 36,562.11 36,562.11 36,562.11
Xxxxx Xxxxx XX 000 8,126 17,646.93 17,646.93 17,646.93 17,646.93 17,646.93 17,646.93
Xxxxxx Xxxxx 000 2,259 4,905.79 4,905.79 4,905.79 4,905.79 4,905.79 4,905.79
Second Floor (2) 200 406 881.69 881.69 881.69 881.69 881.69 881.69
Second Floor (3) 200 6,632 14,402.46 14,402.46 14,402.46 14,402.46 14,402.46 14,402.46
Second Floor (4) 200 3,702 8,039.49 8,039.49 8,039.49 8,039.49 8,039.49 8,039.49
Second Floor (5) 200 9,655 20,967.40 20,967.40 20,967.40 20,967.40 20,967.40 20,967.40
Xxxxx Xxxxx 000 9,574 20,791.49 20,791.49 20,791.49 20,791.49 20,791.49 20,791.49
Third Floor (2) 300 7,820 16,982.40 16,982.40 16,982.40 16,982.40 16,982.40 16,982.40
Third Floor (3) 300 3,765 8,176.31 8,176.31 8,176.31 8,176.31 8,176.31 8,176.31
Third Floor (4) 300 4,052 8,799.58 8,799.58 8,799.58 8,799.58 8,799.58 8,799.58
Xxxxxx Xxxxx 000 25,333 55,014.72 55,014.72 55,014.72 55,014.72 55,014.72 55,014.72
98,160 213,170.37 213,170.37 213,170.37 213,170.37 213,170.37 213,170.37
RENT YEAR FOUR
WORKSHEET NAME SUITE SQFT FEB-09 MAR-09 APR-09 MAY-09 JUN-09 JUL-09
First Floor 100 16,836 36,562.11 36,562.11 36,562.11 36,562.11 36,562.11 36,562.11
Xxxxx Xxxxx XX 000 8,126 17,646.93 17,646.93 17,646.93 17,646.93 17,646.93 17,646.93
Xxxxxx Xxxxx 000 2,259 4,905.79 4,905.79 4,905.79 4,905.79 4,905.79 4,905.79
Second Floor (2) 200 406 881.69 881.69 881.69 881.69 881.69 881.69
Second Floor (3) 200 6,632 14,402.46 14,402.46 14,402.46 14,402.46 14,402.46 14,402.46
Second Floor (4) 200 3,702 8,039.49 8,039.49 8,039.49 8,039.49 8,039.49 8,039.49
Second Floor (5) 200 9,655 20,967.40 20,967.40 20,967.40 20,967.40 20,967.40 20,967.40
Xxxxx Xxxxx 000 9,574 20,791.49 20,791.49 20,791.49 20,791.49 20,791.49 20,791.49
Third Floor (2) 300 7,820 16,982.40 16,982.40 16,982.40 16,982.40 16,982.40 16,982.40
Third Floor (3) 300 3,765 8,176.31 8,176.31 8,176.31 8,176.31 8,176.31 8,176.31
Third Floor (4) 300 4,052 8,799.58 8,799.58 8,799.58 8,799.58 8,799.58 8,799.58
Xxxxxx Xxxxx 000 25,333 55,014.72 55,014.72 55,014.72 55,014.72 55,014.72 55,014.72
98,160 213,170.37 213,170.37 213,170.37 213,170.37 213,170.37 213,170.37
TOTAL ANNUAL RENT 2,558,044.46
RENT GUARANTY YEAR FOUR
WORKSHEET NAME SUITE SQFT DEC-08 JAN-09 FEB-09 MAR-09 APR-09 MAY-09 JUN-09 JUL-09 AUG-09 SEP-09 OCT-09 NOV-09
First Floor 100 16,836
First Floor CA 100 8,126
Second Floor 200 2,259
Second Floor (2) 200 406
Second Floor (3) 200 6,632
Second Floor (4) 200 3,702
Second Floor (5) 200 9,655
Xxxxx Xxxxx 000 9,574
Third Floor (2) 300 7,820
Third Floor (3) 300 3,765
Third Floor (4) 300 4,052
Xxxxxx Xxxxx 000 25,333
98,160
RENT YEAR FIVE
WORKSHEET NAME SUITE SQFT AUG-09 SEP-09 OCT-09 NOV-09 DEC-09 JAN-10
First Floor 100 16,836 37,658.97 37,658.97 37,658.97 37,658.97 37,658.97 37,658.97
Xxxxx Xxxxx XX 000 8,126 18,176.34 18,176.34 18,176.34 18,176.34 18,176.34 18,176.34
Xxxxxx Xxxxx 000 2,259 5,052.96 5,052.96 5,052.96 5,052.96 5,052.96 5,052.96
Second Floor (2) 200 406 908.15 908.15 908.15 908.15 908.15 908.15
Second Floor (3) 200 6,632 14,834.54 14,834.54 14,834.54 14,834.54 14,834.54 14,834.54
Second Floor (4) 200 3,702 8,280.68 8,280.68 8,280.68 8,280.68 8,280.68 8,280.68
Second Floor (5) 200 9,655 21,596.42 21,596.42 21,596.42 21,596.42 21,596.42 21,596.42
Xxxxx Xxxxx 000 9,574 21,415.24 21,415.24 21,415.24 21,415.24 21,415.24 21,415.24
Third Floor (2) 300 7,820 17,491.87 17,491.87 17,491.87 17,491.87 17,491.87 17,491.87
Third Floor (3) 300 3,765 8,421.60 8,421.60 8,421.60 8,421.60 8,421.60 8,421.60
Third Floor (4) 300 4,052 9,063.56 9,063.56 9,063.56 9,063.56 9,063.56 9,063.56
Xxxxxx Xxxxx 000 25,333 56,665.16 56,665.16 56,665.16 56,665.16 56,665.16 56,665.16
98,160 219,565.48 219,565.48 219,565.48 219,565.48 219,565.48 219,565.48
RENT YEAR FIVE
WORKSHEET NAME SUITE SQFT FEB-10 MAR-10 APR-10 MAY-10 JUN-10 JUL-10
First Floor 100 16,836 37,658.97 37,658.97 37,658.97 37,658.97 37,658.97 37,658.97
Xxxxx Xxxxx XX 000 8,126 18,176.34 18,176.34 18,176.34 18,176.34 18,176.34 18,176.34
Xxxxxx Xxxxx 000 2,259 5,052.96 5,052.96 5,052.96 5,052.96 5,052.96 5,052.96
Second Floor (2) 200 406 908.15 908.15 908.15 908.15 908.15 908.15
Second Floor (3) 200 6,632 14,834.54 14,834.54 14,834.54 14,834.54 14,834.54 14,834.54
Second Floor (4) 200 3,702 8,280.68 8,280.68 8,280.68 8,280.68 8,280.68 8,280.68
Second Floor (5) 200 9,655 21,596.42 21,596.42 21,596.42 21,596.42 21,596.42 21,596.42
Xxxxx Xxxxx 000 9,574 21,415.24 21,415.24 21,415.24 21,415.24 21,415.24 21,415.24
Third Floor (2) 300 7,820 17,491.87 17,491.87 17,491.87 17,491.87 17,491.87 17,491.87
Third Floor (3) 300 3,765 8,421.60 8,421.60 8,421.60 8,421.60 8,421.60 8,421.60
Third Floor (4) 300 4,052 9,063.56 9,063.56 9,063.56 9,063.56 9,063.56 9,063.56
Xxxxxx Xxxxx 000 25,333 56,665.16 56,665.16 56,665.16 56,665.16 56,665.16 56,665.16
98,160 219,565.48 219,565.48 219,565.48 219,565.48 219,565.48 219,565.48
TOTAL ANNUAL RENT 2,634,785.79
RENT GUARANTY YEAR FIVE
WORKSHEET NAME SUITE SQFT DEC-09 JAN-10 FEB-10 MAR-10 APR-10 MAY-10 JUN-10 JUL-10 AUG-10 SEP-10 OCT-10 NOV-10
First Floor 100 16,836
First Floor CA 100 8,126
Second Floor 200 2,259
Second Floor (2) 200 406
Second Floor (3) 200 6,632
Second Floor (4) 200 3,702
Second Floor (5) 200 9,655
Xxxxx Xxxxx 000 9,574
Third Floor (2) 300 7,820
Third Floor (3) 300 3,765
Third Floor (4) 300 4,052
Xxxxxx Xxxxx 000 25,333
98,160
RENT YEAR SIX
WORKSHEET NAME SUITE SQFT AUG-10 SEP-10 OCT-10 NOV-10 DEC-10 JAN-11
First Floor 100 16,836 38,788.74 38,788.74 38,788.74 38,788.74 38,788.74 38,788.74
Xxxxx Xxxxx XX 000 8,126 18,721.63 18,721.63 18,721.63 18,721.63 18,721.63 18,721.63
Xxxxxx Xxxxx 000 2,259 5,204.55 5,204.55 5,204.55 5,204.55 5,204.55 5,204.55
Second Floor (2) 200 406 935.39 935.39 935.39 935.39 935.39 935.39
Second Floor (3) 200 6,632 15,279.57 15,279.57 15,279.57 15,279.57 15,279.57 15,279.57
Second Floor (4) 200 3,702 8,529.10 8,529.10 8,529.10 8,529.10 8,529.10 8,529.10
Second Floor (5) 200 9,655 22,244.31 22,244.31 22,244.31 22,244.31 22,244.31 22,244.31
Xxxxx Xxxxx 000 9,574 22,057.70 22,057.70 22,057.70 22,057.70 22,057.70 22,057.70
Third Floor (2) 300 7,820 18,016.63 18,016.63 18,016.63 18,016.63 18,016.63 18,016.63
Third Floor (3) 300 3,765 8,674.25 8,674.25 8,674.25 8,674.25 8,674.25 8,674.25
Third Floor (4) 300 4,052 9,335.47 9,335.47 9,335.47 9,335.47 9,335.47 9,335.47
Xxxxxx Xxxxx 000 25,333 58,365.12 58,365.12 58,365.12 58,365.12 58,365.12 58,365.12
98,160 226,152.45 226,152.45 226,152.45 226,152.45 226,152.45 226,152.45
YEAR SIX
WORKSHEET NAME SUITE SQFT FEB-11 MAR-11 APR-11 MAY-11 JUN-11 JUL-11
First Floor 100 16,836 38,788.74 38,788.74 38,788.74 38,788.74 38,788.74 38,788.74 2,023,327.11
Xxxxx Xxxxx XX 000 8,126 18,721.63 18,721.63 18,721.63 18,721.63 18,721.63 18,721.63 1,059,741.01
Xxxxxx Xxxxx 000 2,259 5,204.55 5,204.55 5,204.55 5,204.55 5,204.55 5,204.55 294,604.35
Second Floor (2) 200 406 935.39 935.39 935.39 935.39 935.39 935.39 62,399.61
Second Floor (3) 200 6,632 15,279.57 15,279.57 15,279.57 15,279.57 15,279.57 15,279.57 797,024.56
Second Floor (4) 200 3,702 8,529.10 8,529.10 8,529.10 8,529.10 8,529.10 8,529.10 482,791.19
Second Floor (5) 200 9,655 22,244.31 22,244.31 22,244.31 22,244.31 22,244.31 22,244.31 1,259,143.42
Xxxxx Xxxxx 000 9,574 22,057.70 22,057.70 22,057.70 22,057.70 22,057.70 22,057.70 1,452,889.08
Third Floor (2) 300 7,820 18,016.63 18,016.63 18,016.63 18,016.63 18,016.63 18,016.63 939,796.75
Third Floor (3) 300 3,765 8,674.25 8,674.25 8,674.25 8,674.25 8,674.25 8,674.25 571,352.35
Third Floor (4) 300 4,052 9,335.47 9,335.47 9,335.47 9,335.47 9,335.47 9,335.47 486,963.74
Xxxxxx Xxxxx 000 25,333 58,365.12 58,365.12 58,365.12 58,365.12 58,365.12 58,365.12 3,303,768.03
98,160 226,152.45 226,152.45 226,152.45 226,152.45 226,152.45 226,152.45 12,733,801.20
TOTAL ANNUAL RENT 2,713,829.36
RENT GUARANTY YEAR SIX
WORKSHEET NAME SUITE SQFT DEC-10 JAN-11 FEB-11 MAR-11 APR-11 MAY-11 JUN-11 JUL-11
First Floor 100 16,835
First Floor CA 100 8,126
Second Floor 200 2,259
Second Floor (2) 200 406
Second Floor (3) 200 6,632
Second Floor (4) 200 3,702
Second Floor (5) 200 9,655
Xxxxx Xxxxx 000 9,574
Third Floor (2) 300 7,820
Third Floor (3) 300 3,765
Third Floor (4) 300 4,052
Xxxxxx Xxxxx 000 25,333
98,160
Oakey Building Rent Guaranty Schedule - Exhibit B
RENT GUARANTY YEAR ONE
SPACE SUITE SQFT DEC-05 JAN-06 FEB-06 MAR-06 APR-06 MAY-06 JUN-06 JUL-06
First Floor 100 16,836 31,988.40 31,988.40 31,988.40 31,988.40 31,988.40 31,988.40 31,988.40 31,988.40
Xxxxx Xxxxx XX 000 8,126 15,439.40 15,439.40 15,439.40 15,439.40 15,439.40 15,439.40 15,439.40 15,439.40
Xxxxxx Xxxxx 000 2,259 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17 4,624.17
Second Floor (2) 200 406 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Second Floor (3) 200 6,632 12,600.80 12,600.80 12,600.80 12,600.80 12,600.80 12,600.80 12,600.80 12,600.80
Second Floor (4) 200 3,702 7,033.80 7,033.80 7,033.80 7,033.80 7,033.80 7,033.80 7,033.80 7,033.80
Second Floor (5) 200 9,655 18,344.50 18,344.50 18,344.50 18,344.50 18,344.50 18,344.50 18,344.50 18,344.50
Xxxxx Xxxxx 000 9,574 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Third Floor (2) 300 7,820 14,858.00 14,858.00 14,858.00 14,858.00 14,858.00 14,858.00 14,858.00 14,858.00
Third Floor (3) 300 3,765 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Third Floor (4) 300 4,052 7,698.80 7,698.80 7,698.80 7,698.80 7,698.80 7,698.80 7,698.80 7,698.80
Xxxxxx Xxxxx 000 25,333 48,132.70 48,132.70 48,132.70 48,132.70 48,132.70 48,132.70 48,132.70 48,132.70
98,160 160,720.57 160,720.57 160,720.57 160,720.57 160,720.57 160,720.57 160,720.57 160,720.57
Daily Rate $ 5,184.53 $ 5,184.53 $ 5,184.53 $ 5,184.53 $ 5,184.53 $ 5,184.53 $ 5,184.53 $ 5,184.53
RENT GUARANTY YEAR ONE
SPACE SUITE SQFT AUG-06 SEP-06 OCT-06 NOV-06 DEC-06
First Floor 100 16,836 34,463.29 34,463.29 34,463.29 34,463.29 34,463.29
Xxxxx Xxxxx XX 000 8,126 0.00 0.00 0.00 0.00 0.00
Xxxxxx Xxxxx 000 2,259 0.00 0.00 0.00 0.00 0.00
Second Floor (2) 200 406 0.00 0.00 0.00 0.00 0.00
Second Floor (3) 200 6,632 13,575.70 13,575.70 13,575.70 13,575.70 13,575.70
Second Floor (4) 200 3,702 0.00 0.00 0.00 0.00 0.00
Second Floor (5) 200 9,655 0.00 0.00 0.00 0.00 0.00
Xxxxx Xxxxx 000 9,574 0.00 0.00 0.00 0.00 0.00
Third Floor (2) 300 7,820 16,007.54 16,007.54 16,007.54 16,007.54 16,007.54
Third Floor (3) 300 3,765 0.00 0.00 0.00 0.00 0.00
Third Floor (4) 300 4,052 8,294.44 8,294.44 8,294.44 8,294.44 8,294.44
Xxxxxx Xxxxx 000 25,333 0.00 0.00 0.00 0.00 0.00
98,160 72,340.97 72,340.97 72,340.97 72,340.97 72,340.97
Daily Rate $ 2,333.58 $ 2,333.58 $ 2,333.58 $ 2,333.58 $ 2,333.58
TOTAL RENT GUARANTY: 1,745,629
EXHIBIT B TO PURCHASE AND SALE AGREEMENT
FOR THE OAKEY BUILDING
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of
the _________day of______________________, 2005, between NNN OAKEY BUILDING
2003, LLC, a Delaware limited liability company ("Seller"), TRANS-AERO LAND AND
DEVELOPMENT CORP. ("Purchaser"), and FIRST AMERICAN TITLE CORPORATION ("Escrow
Agent").
RECITALS
A. Seller and Purchaser entered into a Purchase and Sale Agreement dated
as of _______________ _________, 2005 (the "PSA") for the purchase and sale of
certain real property located at 0000 Xxxx Xxxxx Xxxx. (Xxxxx Xxxxxx), Xxxxxx,
as more particularly described in the PSA (the "Property"). Any capitalized
terms not defined herein shall have the meanings set forth in the PSA.
B. The leaseable area within the building on the Property is leased to the
Las Vegas Metropolitan Police Department ("P. D. Lease"). Under the terms of the
P. D. Lease, the Police Department is not required to pay rent for certain space
within the building (the "Free Rent Space"), until such time as Seller fulfills
certain requirements under the terms of its agreement with the Police Department
(the "Free Rent Period"). Unless sooner terminated, the Free Rent Period ends on
December 31, 2006.
C. Section 6.4.5 of the PSA provides that Seller is responsible to cover
the rent which would otherwise be payable during the Free Rent Period. In order
to secure Seller's obligation to cover the rent payable during the Free Rent
Period, the parties are entering into this agreement. The guaranty shall
commence upon close of escrow and continue through the Free Rent Period
described in the P. D. Lease.
NOW THEREFORE, in consideration of the mutual covenants and premises
herein contained, and other good and valuable consideration, and intending to be
legally bound hereby, the parties hereby agree as follows:
1. FREE RENT ESCROW.
(a) At closing, Seller shall escrow from the Seller's net proceeds
with Escrow Agent in an interest-bearing account, the sum of $1,745,629.00. This
amount has been calculated pursuant to a rent commencement schedule more
particularly set forth on Exhibit B attached hereto and incorporated herein.
(b) Upon the rent commencement for the Free Rent Space, the amount
of the monthly Escrow payment shall be reduced by the amount of rent being paid
by the Police Department with respect to portions of the Free Rent Space, from
time to time.
1
(c) Beginning on the fifteenth (15th) day of each calendar month
following December, 2005, and until such time as the Police Department is paying
the full rent, the Escrow Agent shall, with instruction from both parties,
disburse a mutually agreed upon amount (the "Rent Payment") to Purchaser.
(e) Any balance remaining in the Escrow on January 2, 2007, shall be
disbursed to Seller immediately.
2. DISPUTES. In the event of a dispute between any of the parties hereto
as to their respective rights and interests hereunder, the Escrow Agent shall be
entitled to hold any and all cash then in its possession hereunder until such
dispute shall have been resolved by the parties in dispute and the Escrow Agent
shall have been notified by instrument jointly signed by all of the parties in
dispute, or until such dispute shall have been finally adjudicated by a court of
competent jurisdiction.
3. LIABILITY OF ESCROW AGENT. The Escrow Agent hereby consents and agrees
to all of the provisions hereof, and agrees to accept, as Escrow Agent
hereunder, all cash and documents deposited hereunder, and agrees to hold and
dispose of said cash and documents deposited hereunder in accordance with the
terms and provisions hereof. It is agreed that the Escrow Agent shall have no
obligation or liability hereunder except as a depositary to retain the cash
which may be deposited with it hereunder and to dispose of the same in
accordance with the terms hereof. The Escrow Agent shall be entitled to rely and
act upon any written instrument received by it, and if a corporation, purporting
to be executed by an officer thereof, and if a partnership, purporting to be
executed by a general partner thereof and shall not be required to inquire into
the authority of such officer or partner or the correctness of the facts stated
in said instrument. By acceptance of this agreement, Escrow Agent agrees to use
its best judgment and good faith in the performance of any of its obligations
and duties under this Agreement and shall incur no liability to any person for
its acts or omissions hereunder, except for those acts or omissions which may
result from its gross negligence or willful misconduct. Upon disposition by the
Escrow Agent, in accordance with the terms hereof, of the cash deposited with
the Escrow Agent hereunder, the Escrow Agent shall be fully and finally released
and discharged from any and all duties, obligations, and liabilities hereunder.
4. NOTICES. Any notice which any party may be required or may desire to
give hereunder shall be deemed to have been duly given when personally
delivered, against receipt therefore signed by the party to whom the notice is
given, or with respect to any party other than the Escrow Agent, on the next
business day if sent by overnight courier, or on the fourth business day after
mailing by certified or registered mail, postage prepaid, addressed as set forth
below, or to such other address as a party hereto may designate by a notice to
the other parties. Any notice mailed, sent by facsimile transmission, or given
to the Escrow Agent shall be deemed given only when received. Any notice given
by any party hereto shall be given to both of the other parties hereto
simultaneously.
2
If to Seller: c/o Triple Net Properties, LLC
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
(000) 000-0000
(000) 000-0000 Fax
Attn: Xxxxxxx Xxxxxx
If to Purchaser: Trans-Aero Land & Development
Corp.
0000 Xxxxxxx Xxx., Xxxxx 00
Xxx Xxxxx, XX 00000
(000)000-0000
(000) 000-0000 fax
If to Escrow Agent: First American Title Company
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Phone: 000.000.0000
Fax: 000.000.0000
Attention: Xxxxx Xxxxxxxx
5. MISCELLANEOUS. This Escrow Agreement and all of the provisions hereof
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective legal representatives, successors and assigns. This Agreement
may only be modified or supplemented by an instrument in writing executed by
duly authorized representatives of all parties hereto. This Amendment may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. This Amendment may be executed and delivered by facsimile signature.
In the event of any conflict or inconsistency between the terms of this Escrow
Agreement and the terms of the PSA, the terms of this Escrow Agreement shall
govern and control.
6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEVADA, AND VENUE SHALL LIE EXCLUSIVELY IN XXXXX COUNTY, NEVADA.
{THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK. SIGNATURES
APPEAR ON THE FOLLOWING PAGE.}
3
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be duly executed the day and year first above written.
SELLER: NNN OAKEY BUILDING 2003, LLC
a Delaware limited liability company
By:________________________________________
Name:______________________________________
Title:_____________________________________
PURCHASER: TRANS-AERO LAND AND DEVELOPMENT CORP.
By:________________________________________
Name:______________________________________
Title:_____________________________________
ESCROW AGENT: FIRST AMERICAN TITLE COMPANY
By:________________________________________
Name:______________________________________
Title:_____________________________________
4
EXHIBIT A
WIRING INSTRUCTIONS
5
EXHIBIT B
RENT SCHEDULE PERSUANT TO TENANTS LEASE
6
TENANT ESTOPPEL CERTIFICATE
To: LaSalle Bank National Association
000 Xxxxx Xx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Commercial Real Estate Division
Re: Lease Dated: April 25, 2005 (the "Lease")
Tenant: Las Vegas Metropolitan Police Department (the "Tenant")
Landlord: NNN Oakey Building 2003, LLC, (the "Landlord")
a Delaware limited liability company
Common Address of Building:
0000 Xxxx Xxxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxxx (the "Building")
Leased Premises within the Building: 98,160 square feet (the "Premises")
The Tenant acknowledges that (a) LaSalle Bank National Association, a
national banking association (the "Lender") has agreed, subject to the
satisfaction of certain terms and conditions, to make a loan (the "Loan") to NNN
OAKEY BUILDING 2003, LLC, A DELAWARE LIMITED LIABILITY COMPANY (the "Landlord"),
secured by a mortgage lien on the Landlord's interest in the Building and the
land on which the Building is located, and (b) the Lender is requiring this
Certificate as a condition to its making the Loan. Accordingly, the Tenant
hereby certifies and confirms to the Lender and acknowledges and agrees as
follows:
1. Pursuant to Exhibit "B-1" of the Lease, the Tenant anticipates being in
partial possession of the Premises demised under the Lease on or about August
1,2005, such possession to be delivered by the Landlord pursuant to the Lease
and accepted by the Tenant.
2. The Tenant anticipates that the improvements to the Premises that the
Landlord is required to furnish under the Lease will be completed in all
respects to the satisfaction of the Tenant, and the Premises will be open for
the use of the Tenant, its customers, employees and invitees. All contributions
required to be paid by the Landlord to the Tenant in connection with
improvements to the Premises have been paid in full.
3. To date, all duties or obligations of the Landlord required under the
Lease which were an inducement to the Tenant to enter into the Lease have been
fully performed.
4. The Lease is in full force and effect. No default exists on the part of
the Landlord or the Tenant under the Lease, nor does any circumstance currently
exist that, but for the giving of notice or the passage of time, or both, would
be such a default. The Lease constitutes the entire rental agreement between the
Landlord and the Tenant with respect to the Premises and has not been amended,
modified or supplemented, except as attached hereto, and has not been
superceded. There are no oral agreements between the Landlord and the Tenant
with respect to the Premises. A true and correct copy of the Lease (including
all amendments thereto) is
attached to this Certificate as Exhibit "A", and the Tenant agrees not to amend
or modify the Lease without the prior written consent of the Lender.
5. No rents under the Lease have been prepaid. The Tenant agrees that it
shall not prepay any rents under the Lease more than one month from the date
when such rents are due. The Tenant does not now have or hold any claim or
defense against the Landlord which might be set off or credited against future
accruing rents or which might otherwise excuse the Tenant's performance under
the Lease.
6. The Tenant has received no notice of a prior sale, transfer,
assignment, hypothecation or pledge of the Lease or of the rents secured
therein.
7. The Tenant does not have any outstanding options or rights of first
refusal to purchase the Premises, or any part thereof, or to purchase or lease
any other part of the Building, except (state none, if applicable): those spaces
identified in Exhibit "B-2" of the Lease.
8. No actions, whether voluntary or involuntary, are pending against the
Tenant or any guarantor of the Lease under any bankruptcy, insolvency or similar
laws of the United States or any state thereof.
9. The term of the Lease is estimated to commence on August 1, 2005 and
end on July 31, 2011, subject to options to renew, if any, and Sections 2.4 and
2.5 set forth in the Lease.
10. Beginning on the Lease Commencement Date, as that term is defined in
the Lease, the monthly base rental payable by Tenant under the Lease will be
$787.64. Percentage Rent is not payable, as provided in the Lease. The estimated
monthly payments made by the Tenant under the Lease in respect of common area
maintenance costs and real estate taxes will be $TBD and $TBD, respectively.
11. The security deposit under the Lease is currently N/A.
12. So long as the Loan is outstanding, the Tenant shall pay any
termination fees payable for the early termination of the Lease to the Landlord
and the Lender jointly.
IN WITNESS WHEREOF, the Tenant has executed this Tenant Estoppel
Certificate as of July_______,2005.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Sheriff
2
EXHIBIT "A"
COPY OF LEASE
[TO BE ATTACHED BY TENANT]
3
This document was prepared by,
and after recording, return to:
Xxxxx Xxxxxxxx
Jenner & Block LLP
Xxx XXX Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Permanent Tax Index Number[s]:
__________________ This space reserved for Recorders use only.
Property Address:
0000 XXXX XXXXX XXXXXXXXX, XXX XXXXX, XXXXXX
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT dated as of
April 25, 2005 (the "Agreement"), is executed by and among NNN Oakey Building
2003, LLC, a Delaware limited liability company (the "Landlord"), Las Vegas
Metropolitain Police Department, a metropolitan police department formed
pursuant to the laws of Chapter 280 of the Nevada Revised Statutes (the
"Tenant"), and LASALLE BANK NATIONAL ASSOCIATION, a national banking association
(the "Lender").
RECITALS:
A. The Lender is the mortgagee under that certain Mortgage, Security
Agreement, Assignment of Leases and Rents and Fixture Filing
dated__________________, 200___, to be recorded concurrently herewith (the
"Mortgage"), which Mortgage encumbers the Real Estate (as hereinafter defined)
and secures a principal indebtedness in the amount of___________________and
00/100 Dollars ($______________).
B. The Tenant has entered into that certain lease agreement (such lease
agreement hereinafter being referred to as the "Lease Agreement", and the Lease
Agreement, together with all amendments and modifications thereof, hereinafter
being referred to as the "Lease") dated APRIL 25. 2005 with the Landlord (or the
Landlord's predecessor-in-interest), pursuant to which the Tenant has leased
certain premises (the "Leased Premises") [CONSISTING OF APPROXIMATELY 98,160
RENTABLE SQUARE FEET OF SPACE IN THE BUILDING ("BUILDING")] on the parcel of
land (the "Land"; the Land and Building being collectively referred to herein as
the "Real Estate") legally described on Exhibit "A" attached hereto and made a
part hereof.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby covenant and
agree as follows:
AGREEMENTS:
1. The Tenant represents and warrants to the Lender that the Lease
constitutes the entire agreement between the Tenant and the Landlord with
respect to the Leased Premises and there are no other agreements, written or
verbal, governing the tenancy of the Tenant with respect to the Leased Premises.
2. The Tenant has executed and delivered to the Lender that certain Tenant
Estoppel Certificate dated on or about the date hereof (the "Estoppel
Certificate"). The provisions of the Estoppel Certificate are hereby
incorporated into this Agreement as if fully set forth in this Agreement in
their entirety.
3. The Tenant covenants with the Lender that the Lease shall be subject
and subordinate to the lien and all other provisions of the Mortgage and to all
modifications and extensions thereof, to the full extent of all principal,
interest and all other amounts now or hereafter secured thereby and with the
same force and effect as if the Mortgage had been executed and delivered prior
to the execution and delivery of the Lease. Without limiting the generality of
the foregoing subordination provision, the Tenant hereby agrees that any of its
right, title and interest in and to insurance proceeds and condemnation awards
(or other similar awards arising from eminent domain proceedings) with respect
to damage to or the condemnation (or similar taking) of any of the Real Estate,
shall be subject and subordinate to the Lender's right, title and interest in
and to such proceeds and awards.
4. The Tenant acknowledges that the Landlord has collaterally assigned to
the Lender any and all leases affecting the Real Estate, including the Lease,
and the rents and other amounts, including, without limitation, lease
termination fees, if any, due and payable under such leases, In connection
therewith, the Tenant agrees that, upon receipt of a notice of a default by the
Landlord under such assignment and a demand by the Lender for direct payment to
the Lender of the rents due under the Lease, the Tenant will honor such demand
and make all subsequent rent payments directly to the Lender. The Tenant further
agrees that any Lease termination fees payable under the Lease shall be paid
jointly to the Landlord and the Lender.
5. The Lender agrees that so long as the Tenant is not in default under
the Lease:
(a) The Tenant shall not be named or joined as a party in any suit,
action or proceeding for the foreclosure of the Mortgage or the
enforcement of any rights under the Mortgage (unless the Tenant is a
necessary party under applicable law); and
2
(b) The possession by the Tenant of the Leased Premises and the
Tenant's rights thereto shall not be disturbed, affected or impaired by,
nor will the Lease or the term thereof be terminated or otherwise
materially adversely affected by (i) any suit, action or proceeding for
the foreclosure of the Mortgage or the enforcement of any rights under the
Mortgage, or by any judicial sale or execution or other sale of the Leased
Premises, or any deed given in lieu of foreclosure, or (ii) any default
under the Mortgage.
6. Prior to pursuing any remedy available to the Tenant under the Lease,
at law or in equity as a result of any failure of the Landlord to perform or
observe any covenant, condition, provision or obligation to be performed or
observed by the Landlord under the Lease (any such failure being hereinafter
referred to as a "Landlord's Default"), the Tenant shall: (a) provide the Lender
with a notice of the Landlord's Default, specifying the nature thereof, the
section of the Lease under which such Landlord's Default arose, and the remedy
which the Tenant will elect under the terms of the Lease or otherwise, and (b)
allow the Lender not less than thirty (30) days following receipt of notice of
the Landlord's Default to cure the same; provided, however, that, if such
Landlord's Default is not readily curable within such thirty (30) day period,
the Tenant shall give the Lender such additional time as the Lender may
reasonably need to obtain possession and control of the Real Estate and to cure
such Landlord's Default so long as the Lender is diligently pursuing a cure. The
Tenant shall not pursue any remedy available to it as a result of any Landlord's
Default unless the Lender fails to cure same within the time period specified
above. For purposes of this Section 6, a Landlord's Default shall not be deemed
to have occurred until all grace and/or cure periods applicable thereto under
the Lease have lapsed without the Landlord having effectuated a cure thereof.
7. If the Lender or any future holder of the Mortgage shall become the
owner of the Real Estate by reason of foreclosure of the Mortgage or otherwise,
or if the Real Estate shall be sold as a result of any action or proceeding to
foreclose the Mortgage or transfer of ownership by deed given in lieu of
foreclosure, the Lease shall continue in full force and effect, without
necessity for executing any new lease, as a direct lease between the Tenant and
the new owner of the Real Estate as "landlord" upon all the same terms,
covenants and provisions contained in the Lease (subject to the exclusions set
forth in subsection (b) below), and in such event:
(a) The Tenant shall be bound to such new owner under all of the
terms, covenants and provisions of the Lease for the remainder of the term
thereof (including the extension periods, if the Tenant elects or has
elected to exercise its options to extend the term), and the Tenant hereby
agrees to attorn to such new owner and to recognize such new owner as
"landlord" under the Lease without any additional documentation to effect
such attornment (provided, however, if applicable law shall require
additional documentation at the time the Lender exercises its remedies
then the Tenant shall execute such additional documents evidencing such
attornment as may be required by applicable law);
3
(b) Such new owner shall be bound to the Tenant under all of the
terms, covenants and provisions of the Lease for the remainder of the
term thereof (including the extension periods, if the Tenant elects or
has elected to exercise its options to extend the term); provided,
however, that such new owner shall not be:
(i) liable for any act or omission of any prior landlord
(including the Landlord);
(ii) subject to any offsets or defenses which the Tenant has
against any prior landlord (including the Landlord) unless the
Tenant shall have provided the Lender with (A) notice of the
Landlord's Default that gave rise to such offset or defense, and (B)
the opportunity to cure the same, all in accordance with the terms
of Section 6 above;
(iii) bound by any base rent, percentage rent, additional rent
or any other amounts payable under the Lease which the Tenant might
have paid in advance for more than the current month to any prior
landlord (including the Landlord);
(iv) liable to refund or otherwise account to the Tenant for
any security deposit not actually paid over to such new owner by the
Landlord;
(v) bound by any amendment or modification of the Lease made
without the Lender's consent;
(vi) bound by, or liable for any breach of, any representation
or warranty or indemnity agreement contained in the Lease or
otherwise made by any prior landlord (including the Landlord); or
(vii) personally liable or obligated to perform any such term,
covenant or provision, such new owner's liability being limited in
all cases to its interest in the Real Estate.
8. Any notices, communications and waivers under this Agreement shall be
in writing and shall be (i) delivered in person, (ii) mailed, postage prepaid,
either by registered or certified mail, return receipt requested, or (iii) by
overnight express carrier, addressed in each case as follows:
To the Lender LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Commercial Real Estate Division
4
With a copy to: Jenner & Block LLP
Xxx XXX Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
To the Landlord: NNN Oakey Building 2003, LLC
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
Attention: Notices Department
With a copy to: The Xxxxxxxxx Law Group
0000 Xxx Xxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
With a copy to: Triple Net Properties
0000 X. Xxxx Xxxx Xxxx., Xxx 000
Xxx Xxxxx, XX 00000
Attention:
To the Tenant: Director, General Services Bureau
Las Vegas Metropolitain Police Department
0000 Xxxx Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxx
With a copy to: Marquis & Aurbach
00000 Xxxx Xxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
or to any other address as to any of the parties hereto, as such party shall
designate in a written notice to the other party hereto. All notices sent
pursuant to the terms of this section shall be deemed received (i) if personally
delivered, then on the date of delivery, (ii) if sent by overnight, express
carrier, then on the next federal banking day immediately following the day
sent, or (iii) if sent by registered or certified mail, then on the earlier of
the third federal banking day following the day sent or when actually received.
9. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto, their respective successors and assigns and any nominees
of the Lender, all of whom are entitled to rely upon the provisions hereof. This
Agreement shall be exclusively governed by the laws of the State of Nevada.
5
10. This Agreement may be executed in multiple counterparts and all of
such counterparts together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Subordination,
Non-Disturbance and Attornment Agreement the day and year first above written.
LANDLORD:
NNN OAKEY BUILDING 2003, LLC,
a Delaware limited liability company
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
TENANT:
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, a metropolitan police
department formed pursuant to
Chapter 280 of the Nevada Revised
Statutes
By: /s/ XXXX XXXXX
-------------------------------------
Name: Xxxx Xxxxx
Title: Sheriff
LENDER:
LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
By: ______________________________
Name: ______________________________
Title: ______________________________
6
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
The undersigned, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that___________________________________________,
the _____________________________________________of LASALLE BANK NATIONAL
ASSOCIATION, a national banking association, as trustee as aforesaid, who is
personally known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in person and acknowledged
that as such_______________________________________, he/she signed and delivered
the said instrument as his/her own free and voluntary act and as the free and
voluntary act of said banking association, as trustee as aforesaid, for the uses
and purposes therein set forth.
GIVEN under my hand and notarial seal this___________day
of_____________________, 200_.
_______________________________
Notary Public
My Commission Expires:
_______________________________
STATE OF NEVADA )
) SS.
COUNTY OF XXXXX )
The undersigned, a Notary Public in and for the said County, in the State
aforesaid, DO HEREBY CERTIFY that______________________________________________,
the ______________________________________, of Las Vegas Metropolitan Police
Department, a metropolitan police department formed pursuant to NRS Chapter 280,
who is personally known to me to be the same person whose name is subscribed to
the foregoing instrument as such ___________________________, appeared before me
this day in person and acknowledged that he/she signed and delivered the said
instrument as his/her own free and voluntary act and as the free and voluntary
act of said police department, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 20 day of July, 2005
/s/ Xxxxx Xxxxx
-----------------------------------
Notary Public Notary Public
State of Nevada My Commission Expires:
County of Clerk
Xxxxx Xxxxx
Appl. No. 00-0000-0
My Appl. Express Aug 12, 2006
7
STATE OF ILLINOIS )
) SS.
COUNTY OF________________ )
The undersigned, a Notary Public in and for the said County, in the State
aforesaid, DO HEREBY CERTIFY that_________________________________________, the
____________________________________, of _______________________________, a[N]
________ [CORPORATION / LIMITED PARTNERSHIP / LIMITED LIABILITY COMPANY], who is
personally known to me to be the same person whose name is subscribed to the
foregoing instrument as such ______________________, appeared before me this
day-in person and acknowledged that he/she signed and delivered the said
instrument as his/her own free and voluntary act and as the free and voluntary
act of said [CORPORATION / LIMITED PARTNERSHIP / LIMITED LIABILITY COMPANY], for
the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this___________day
of_____________________, 20__,
__________________________________
Notary Public
My Commission Expires:
__________________________________
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
The undersigned, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that______________________________________________,
the ________________________________________ of LASALLE BANK NATIONAL
ASSOCIATION, a national banking association, who is personally known to me to be
the same person whose name is subscribed to the foregoing instrument, appeared
before me this day in person and acknowledged that as such
_________________________________________, he/she signed and delivered the said
instrument as his/her own free and voluntary act and as the free and voluntary
act of said banking association, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this__________day
of_________________ , 200_.
_________________________________
Notary Public
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My Commission Expires:
______________________________
9
EXHIBIT "A"
LEGAL DESCRIPTION OF REAL ESTATE
LOT _ IN_______________SUBDIVISION, A SUBDIVISION OF A PART OF THE NORTHEAST
QUARTER OF SECTION __, TOWNSHIP _ NORTH, RANGE __ EAST OF THE THIRD PRINCIPAL
MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED AS DOCUMENT
NO._______________________________IN _____ COUNTY, ILLINOIS; IN BOOK __ OF
PLATS, PAGE __.
PROPERTY ADDRESS OF REAL ESTATE:
______________________
______________________
PERMANENT TAX IDENTIFICATION NUMBER:
______________________
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