EXHIBIT 10.125
PURCHASE AGREEMENT FOR TRANSOCEAN HOUSTON BUILDING
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
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THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (the "Agreement"), is
made and entered into as of the 15 day of January, 2002, by and between
BROADFIELD ASSOCIATES, L.P., a Texas limited partnership ("Seller") and XXXXX
CAPITAL, INC., a Georgia corporation ("Purchaser").
W I T N E S S E T H:
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WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property (as hereinafter defined) subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, the mutual
agreements contained herein, the sum of Ten Dollars ($10.00) in hand paid by
Purchaser to Seller at and before the sealing and delivery of these presents and
for other good and valuable consideration, the receipt, adequacy, and
sufficiency which are hereby expressly acknowledged by the parties hereto, the
parties hereto do hereby covenant and agree as follows:
1. Purchase and Sale of Property. Subject to and in accordance with the
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terms and provisions of this Agreement, Seller hereby agrees to sell to
Purchaser and Purchaser hereby agrees to purchase from Seller, the Property,
which term "Property" shall mean and include the following:
(a) all that tract or parcel of land (the "Land") located in Houston,
Texas, containing approximately 3.879 acres, having an address of 0000
Xxxxxxxxxx Xxxxxxxxx, and being more particularly described on Exhibit "A"
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hereto; and
(b) all rights, privileges, and easements appurtenant to the Land,
including all water rights, mineral rights, reversions, or other
appurtenances to said Land, and all right, title, and interest of Seller,
if any, in and to any land lying in the bed of any street, road, alley, or
right-of-way, open or proposed, adjacent to or abutting the Land; and
(c) all buildings, structures, and improvements situated on the Land,
including, without limitation, that certain two story office building
containing approximately 155,040 rentable square feet, the parking areas
containing approximately 521 parking spaces and other amenities located on
the Land, and all apparatus, built-in appliances, equipment, pumps,
machinery, plumbing, heating, air conditioning, electrical and other
fixtures located on the Land which are owned by Seller (all of which are
herein collectively referred to as the "Improvements"); and
(d) all personal property, if any, now owned by Seller and located on
or to be located on or in, or used in connection with, the Land and
Improvements ("Personal Property"); and
(e) all of Seller's right, title, and interest, as landlord or
lessor, in and to (i) that certain Lease Agreement (the "Transocean Lease")
with Transocean Offshore Deepwater Drilling, Inc., a Delaware Corporation
("Transocean"), dated as of April 18, 2001, guaranteed by Transocean Sedco
Forex, Inc., a Cayman Islands corporation, and (ii) that certain Lease
Agreement with Newpark Drilling Fluids, Inc., a Texas corporation
("Newpark"), dated as of May 28, 1998, last amended by Third Amendment to
Lease Agreement, dated April 19, 2001 (the "Newpark Lease"), guaranteed by
Newpark Resources, Inc., a Delaware corporation; and
(f) all of Seller's right, title, and interest in and to (i) the
plans and specifications with respect to the Improvements, (ii) any
guarantees, trademarks, rights of copyright, warranties, or other rights
related to the ownership of or use and operation of the Land, Personal
Property, or Improvements, and (iii) all governmental licenses and permits,
and all intangibles associated exclusively with the Land, Personal
Property, and Improvements.
2. Xxxxxxx Money. Within two (2) business days after the full execution
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of this Agreement, Purchaser shall deliver to Charter Title Insurance Company
("Escrow Agent"), whose offices are at 0000 Xxx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxx 00000, Purchaser's check, payable to Escrow Agent, in the
amount of $250,000 (the "Xxxxxxx Money"), which Xxxxxxx Money shall be held and
disbursed by Escrow Agent in accordance with this Agreement. The Xxxxxxx Money
shall be paid by Escrow Agent to Seller at Closing (as hereinafter defined) and
shall be applied as a credit to the Purchase Price (as hereinafter defined), or
shall otherwise be paid to Seller or refunded to Purchaser in accordance with
the terms of this Agreement. All interest and other income from time to time
earned on the Xxxxxxx Money shall become a part of the Xxxxxxx Money and be paid
or credited to the party entitled to the Xxxxxxx Money.
3. Purchase Price. Subject to adjustment, prorations and credits as
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otherwise specified in this Agreement, the purchase price (the "Purchase Price")
to be paid by Purchaser to Seller for the Property shall be TWENTY TWO MILLION
THREE HUNDRED FIFTY THOUSAND DOLLARS ($22,350,000.00). The Purchase Price shall
be paid by Purchaser to Seller at the Closing (as hereinafter defined) by wire
transfer of immediately available federal funds, less the amount of Xxxxxxx
Money and subject to prorations, adjustments and credits as otherwise specified
in this Agreement.
4. Purchaser's Inspection and Review Rights. Subject to the rights of the
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tenants under the leases (as hereinafter defined), Purchaser and its agents,
engineers, or representatives, with Seller's reasonable, good faith cooperation,
shall have the privilege of going upon the Land and Improvements as needed to
inspect, examine, test, and survey the Property at all reasonable times and from
time to time. Purchaser hereby agrees to indemnify Seller and hold Seller
harmless from any liens, claims, liabilities, and damages incurred through the
exercise of such privilege, and Purchaser further agrees to repair any damage to
the Land and Improvements caused by the exercise of such privilege. Said
indemnity shall survive Closing or termination of this Agreement. All such
inspections shall be non-destructive in nature and specifically shall not
include any physically intrusive testing; provided however, that if Purchaser
desires to undertake such intrusive testing, Purchaser shall first obtain
Seller's written approval which shall not be unreasonably withheld if Purchaser
conducts such testing in accordance with commercially customary standards.
Purchaser shall maintain and shall insure that Purchaser and Purchaser's
consultants and contractors maintain public liability insurance and property
damage insurance in an amount not less than Two Million Dollars ($2,000,000) and
in form and substance adequate to insure against all liability of Purchaser and
its consultants and contractors, respectively, and each of their respective
agents, employees and contractors, arising out of inspections and testing of the
Land and Improvements or any part thereof made on Purchaser's behalf and, at
Seller's request, Purchaser shall furnish Sellers with appropriate certificates
and endorsements reflecting Seller as an additional insured under any such
insurance. At all reasonable times prior to the Closing (as hereinafter
defined), Seller shall make available to Purchaser, or Purchaser's agents and
representatives, for review and copying, all books, records, and files in
Seller's possession relating to the ownership and operation of the Property,
including, without limitation, title matters, surveys, tenant files, service and
maintenance agreements, and other contracts, books, records, operating
statements, and other information relating solely to the operation of the
Property. Seller further agrees to in good faith assist and cooperate with
Purchaser in coming to a thorough understanding of the books, records, and files
relating to the Property. Seller further agrees to provide to Purchaser prior to
the date which is five (5) days after the Effective Date of this Agreement the
most current boundary and "as-built" surveys of the Land and Improvements (the
"Existing Survey") and any title insurance policies, appraisals, building
inspection reports and environmental reports relating thereto and in the
possession or under the control of Seller. At no cost or liability to Seller,
Seller shall cooperate with Purchaser, its counsel, accountants, agents, and
representatives, provide them with access to Seller's books and records with
respect to the ownership, management, maintenance, and operation of the Property
for the applicable period, and permit them to copy the same. Seller shall use
commercially reasonable efforts but shall have no obligation to spend any funds,
to cause the authors of appraisal, environmental and building inspection reports
to issue reliance letters addressed to Purchaser and Purchaser's lender, if any,
in form and substance reasonably acceptable to Purchaser, at least 15 days prior
to the expiration of the Inspection Period. Failure of Seller to accomplish the
matters described in the immediately preceding sentence shall not be a condition
at Closing.
5. Special Condition to Closing. Purchaser shall have thirty (30) days
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from the Effective Date of this Agreement (the "Inspection Period") to make
investigations, examinations, inspections, market studies, feasibility studies,
lease reviews, and tests relating to the Property and the operation thereof in
order to determine, in Purchaser's sole opinion and discretion, the suitability
of the Property for acquisition by Purchaser. Purchaser shall have the right to
terminate this Agreement at any time prior to the expiration of the Inspection
Period by giving written notice to Seller of such election to terminate. In the
event Purchaser so elects to terminate this Agreement,
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Seller shall be entitled to receive and retain the sum of Twenty-Five Dollars
($25.00) of the Xxxxxxx Money, and the balance of the Xxxxxxx Money shall be
promptly refunded by Escrow Agent to Purchaser, whereupon, except as expressly
provided to the contrary in this Agreement, no party hereto shall have any other
or further rights or obligations under this Agreement. Seller acknowledges that
the sum of $25.00 is good and adequate consideration for the termination rights
granted to Purchaser hereunder.
6. General Conditions Precedent to Closing. In addition to the conditions
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to Purchaser's obligations set forth in Paragraph 5 above, the obligations and
liabilities of Seller and Purchaser hereunder shall in all respects be
conditioned upon the satisfaction of each of the following conditions, any of
which may be waived by written notice from the party entitled to the benefit
thereof:
(a) The parties shall have complied in all material respects with and
otherwise performed in all material respects each of the covenants and
obligations set forth in this Agreement, as of the date of Closing (as
hereinafter defined).
(b) All representations and warranties as set forth in this Agreement
shall be true and correct in all material respects as of the date of
Closing.
(c) There shall have been no adverse change to the title to the
Property subsequent to the effective date of the Title Commitment, which
has not been cured, and the Title Company (as hereinafter defined) shall
have issued the Title Commitment (as hereinafter defined) on the Land and
Improvements without exceptions other than as described in paragraph 7 and
the Title Company shall be prepared to issue to Purchaser upon the Closing
a fee simple owner's title insurance policy on the Land and Improvements
pursuant to such Title Commitment.
(d) Purchaser shall have received the Tenant Estoppel Certificates
referred to in Paragraph 9(c) hereof, duly executed by each tenant and
guarantor at least five (5) days prior to the end of the Inspection Period.
7. Title and Survey. Seller covenants and agrees that it shall on or
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before ten (10) days after the Effective Date of this Agreement, cause Charter
Title Insurance Company (herein referred to as the "Title Company"), to deliver
to Purchaser its commitment (herein referred to as the "Title Commitment") to
issue to Purchaser, upon the recording of the Deed conveying title to the Land
and Improvements from Seller to Purchaser, the payment of the Purchase Price,
and the payment to the Title Company of the policy premium therefor, an owner's
policy of title insurance, in the amount of the Purchase Price, insuring good
and marketable fee simple record title to the Land and Improvements to be in
Purchaser subject only to the Permitted Exceptions (as hereinafter defined).
Such Title Commitment shall not contain any exception for rights of tenants
except for the rights of Newpark and Transocean, as tenants only, under their
respective leases. If Purchaser desires, the survey exception shall be amended
to except only "shortages in area." The additional premium for the survey
modification shall be borne by Purchaser. If Purchaser desires to update the
Existing Survey, Purchaser shall, at its sole initial cost, obtain an "as built"
survey of the Land and the Improvements (the "As-built Survey") prior to the
expiration of the Inspection Period certified to Purchaser, Purchaser's lender,
if any, and to the Title Company showing the boundaries and the legal
description of the Land, which survey shall be made in compliance with the
"Minimum Standard Detail Requirements for Land Title Surveys" established by the
ALTA/ACSM for Urban Land title surveys, including all items on Table A thereof,
except items 5, 12 and 14, and currently in effect. The As-built Survey shall
disclose no encroachments or improvements from or upon adjoining properties,
shall show the availability of all utility services at the perimeter of the
Land, and shall otherwise be in form and content sufficient to enable the Title
Company to issue include only those survey exceptions which have been approved
or deemed to have been approved by Purchaser. If Purchaser closes the
transaction contemplated herein, Seller will reimburse Purchaser for the cost of
the As-built Survey at Closing. Seller shall also cause to be delivered to
Purchaser together with such Title Commitment, legible copies of all documents
and instruments referred to therein. Purchaser, upon receipt of the Title
Commitment, the copies of the documents and instruments referred to therein and
the As-built Survey, shall then have ten (10) days during which to examine the
same, after which Purchaser shall notify Seller of any defects or objections
affecting the marketability of the title to the Property. Current year ad
valorem taxes which are not past due and any matters not objected to by the
Purchaser shall be deemed to be "Permitted Exceptions." Seller shall then have
until the Closing to cure such defects and objections and shall, in good faith,
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exercise reasonable diligence to cure such defects and objections, but shall not
be obligated to expend any funds to do so. If any such defects or objections
arose by, through, or under Seller or if any such defects or objections consist
of past due taxes, mortgages, deeds of trust, deeds to secure debt, uncontested
mechanic's or materialman's liens, or other such monetary encumbrances,
Purchaser shall have the right to cure such defects or objections, in which
event the Purchase Price shall be reduced by an amount equal to the costs and
expenses incurred by Purchaser in connection with the curing of such defects or
objections, and upon such curing, the Closing hereof shall proceed in accordance
with the terms of this Agreement.
8. Representations and Warranties of Seller. Seller hereby makes the
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following representations and warranties to Purchaser, each of which shall be
deemed material:
(a) Leases. The Transocean Lease and the Newpark Lease (the "Leases")
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are the only leases with respect to the property. True and accurate copies
of the Leases, together with all modifications and amendments thereto have
been delivered to Purchaser. Seller is the "landlord" under the Leases and
owns unencumbered legal and beneficial title to the Leases and the rents
and other income thereunder, subject only to the collateral assignment of
the Leases and the rents thereunder in favor of the holder of an existing
mortgage or deed of trust encumbering the Property, which mortgage or deed
of trust shall be cancelled and satisfied by Seller at the Closing.
(b) Leases - Assignment. To the best of Seller's knowledge, without
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further investigation, no tenant has assigned its interest in its Lease or
sublet any portion of its premises.
(c) Leases - Default. (i) Seller has not received any notice of
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termination or default under the Leases, (ii) to the best of Seller's
knowledge and belief, there are no existing or uncured defaults by Seller
or any tenant under the Leases, (iii) to the best of Seller's knowledge,
there are no events which with the passage of time or notice, or both,
would constitute a default by Seller or by any tenant, and to the best of
Seller's knowledge, Seller has complied with each and every material
undertaking, covenant, and obligation of Seller under the Leases, and (iv)
no tenant has asserted any defense, set-off, or counterclaim with respect
to its tenancy or its obligation to pay rent, additional rent, or other
charges pursuant to its Lease.
(d) Leases - Rents and Special Consideration. Except as set forth on
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Schedule 8(d) hereto, no tenant: (i) has prepaid rent for more than the
current month under its lease, (ii) has received or is entitled to receive
any rent concession in connection with its tenancy under its lease, (iii)
is entitled to any special work (not yet performed), or consideration (not
yet given) in connection with its tenancy, and (iv) except as expressly set
forth in its lease, has any deed, option, or other evidence of any right or
interest in or to the Property. Installation of the fiber optic service has
been completed in anticipation of the requirements of paragraph 8 of the
Addendum to the Transocean Lease.
(e) Leases - Commissions. Except as set forth on Schedule 8(e)
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hereto, there are no obligations for rental, leasing or other commissions
with respect to the Leases which will not be cashed-out and paid prior to
Closing. All such obligations which are currently due and payable have been
paid in full. Seller agrees to indemnify, defend and hold Purchaser
harmless from and against any such obligations created or arising by,
through or under Seller or its affiliates, which are currently due and
payable. This indemnity shall survive Closing.
(f) Leases - Acceptance of Premises. (i) Each tenant has accepted its
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leased premises located within the Property, including any and all work
performed therein or thereon pursuant to its lease, (ii) each tenant is in
full and complete possession of its premises, and (iii) Seller has not
received notice from any tenant that its premises are not in full
compliance with the terms and provisions of its lease or are not
satisfactory for its purposes.
(g) No Other Agreements. Other than the Leases, the Permitted
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Exceptions and those matters, if any, listed on Schedule 8(g) hereto, there
are no leases, service contracts, management agreements, or other similar
agreements in force and effect, oral or written, to which Seller is a party
and that grant to any person whomsoever or any entity whatsoever any right,
title, interest or benefit in or to all or any part of the Property or any
rights relating to the use, operation, management, maintenance, or repair
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of all or any part of the Property that will survive Closing.
(h) No Litigation. There are no actions, suits, or proceedings
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pending, or, to the best of Seller's knowledge, threatened by any
organization, person, individual, or governmental agency against Seller
with respect to the Property or against the Property which could affect
title to the Property, nor does Seller know of any basis for such action.
Seller has no knowledge of any pending or threatened application for
changes in the zoning applicable to the Property or any portion thereof.
(i) Condemnation. No condemnation or other taking by eminent domain
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of the Property or any portion thereof has been instituted and, to the best
of Seller's knowledge, there are no pending or threatened condemnation or
eminent domain proceedings (or proceedings in the nature or in lieu
thereof) affecting the Property or any portion thereof or its use.
(j) Intentionally Omitted.
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(k) No Assessments. To the best of Seller's knowledge, no assessments
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have been made against the Property that are past due, whether or not they
have become liens.
(l) Condition of Improvements. Seller is not aware of any structural
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or other defects, in the Improvements. The heating, ventilating, air
conditioning, electrical, plumbing, water, elevator(s), roofing, storm
drainage and sanitary sewer systems at or servicing the Land and
Improvements are, to the best of the Seller's knowledge, in good condition
and working order and Seller is not aware of any defects or deficiencies,
latent or otherwise, therein.
(m) Certificates. To the best of Seller's knowledge, there are
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presently in effect temporary certificates of occupancy, licenses, and
permits as may be required for the Property. There has been no notice or
request of any municipal department, insurance company or board of fire
underwriters (or organization exercising functions similar thereto), or
mortgagee directed to Seller and requesting the performance of any work or
alteration to the Property which has not been complied with. Seller will
obtain and deliver to Purchaser at Closing permanent Certificates of
Occupancy.
(n) Violations. To the best of Seller's knowledge, there are no
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violations of law, municipal or county ordinances, or other legal
requirements with respect to the Property, and the Improvements thereon
comply with all applicable legal requirements with respect to the use,
occupancy, and construction thereof; Notwithstanding anything contained
herein to the contrary, no representation is given as to compliance with
legal requirements that are the obligation of tenants under the Leases.
(o) Utilities. All utilities necessary for the use of the Property as
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an office building of the size and nature situated thereon and required to
be furnished pursuant to the Lease, including water, sanitary sewer, storm
sewer, electricity, and telephone, are installed and operational, and such
utilities either enter the Property through adjoining public streets, or,
if they pass through adjoining private land, do so in accordance with valid
public easements or private easements which inure to the benefit of the
Property.
(p) Tax Returns. All property tax returns required to be filed by
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Seller relating to the Property under any law, ordinance, rule, regulation,
order, or requirement of any governmental authority have been, or will be,
as the case may be, truthfully, correctly, and timely filed.
(q) Bankruptcy. Seller is "solvent as said term is defined by
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bankruptcy law" and has not made a general assignment for the benefit of
creditors nor been adjudicated a bankrupt or insolvent, nor has a receiver,
liquidator, or trustee for any of Seller's properties (including the
Property) been appointed or a petition filed by or against Seller for
bankruptcy, reorganization, or arrangement pursuant to the Federal
Bankruptcy Act or any similar Federal or state statute, or any proceeding
instituted for the dissolution or liquidation of Seller.
(r) Pre-existing Right to Acquire. No person or entity has any right
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or option to acquire the Property or any portion thereof, which will have
any force or effect after the execution of this Agreement,
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other than Purchaser.
(s) Effect of Certification. To the best of Seller's knowledge,
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neither this Agreement nor the transactions contemplated herein will
constitute a breach or violation of, or default under, or will be modified,
restricted, or precluded by the Leases or the Permitted Exceptions.
(t) Authorization. Seller is a duly organized and validly existing
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limited partnership under the laws of the State of Texas and is qualified
to conduct business in Texas. This Agreement has been duly authorized and
executed on behalf of Seller and constitutes the valid and binding
agreement of Seller, enforceable in accordance with its terms subject to
equitable principles, and all necessary action on the part of Seller to
authorize the transactions herein contemplated has been taken, and no
further action is necessary for such purpose.
(u) Seller Not a Foreign Person. Seller is not a "foreign person"
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which would subject Purchaser to the withholding tax provisions of Section
1445 of the Internal Revenue Code of 1986, as amended.
(v) Approvals. The requirements of all covenants, conditions and
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restrictions of record relating to the development or construction of the
Improvements, including all covenants requiring consent from any third
party, have been, or on the Closing Date will be, fully satisfied and
complied with in all material respects.
Except as specifically provided herein (or in any other documents executed
by Seller at Closing), Seller hereby specifically disclaims any warranty,
guaranty, or representation, oral or written, past, present or future, of, as
to, or concerning (A) the nature and condition of the Property, for and all
activities and uses which Purchaser may elect to conduct thereon, income to be
derived therefrom or expenses to be incurred with respect thereto, or any
obligations or any other matter or thing relating to or affecting the same; (B)
the manner of construction and condition and state of repair or lack of repair
of any Improvements, (C) the nature and extent of any easement, right-of-way,
lease, possession, lien, encumbrance, license, reservation, condition or
otherwise; and (D) the compliance of the Property or the operation of the
Property with any laws, rules, ordinances, or regulations of any government or
other body. EXCEPT AS PROVIDED HEREIN (OR IN ANY OTHER DOCUMENTS EXECUTED BY
SELLER AT CLOSING), IN CONNECTION WITH THE CONVEYANCE OF THE PROPERTY AS
PROVIDED FOR HEREIN, SELLER HAS NOT MADE AND IS NOT MAKING ANY REPRESENTATIONS,
WARRANTIES OR COVENANTS OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR
IMPLIED, WITH RESPECT TO THE QUALITY OR CONDITION OF THE PROPERTY, THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER
MAY CONDUCT THEREON, COMPLIANCE BY THE PROPERTY WITH ANY LAWS, RULES, ORDINANCES
OR REGULATIONS OF ANY APPLICABLE GOVERNMENT AUTHORITY OR HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND SPECIFICALLY, EXCEPT AS
PROVIDED HEREIN, SELLER MAKES NO REPRESENTATIONS REGARDING HAZARDOUS SUBSTANCES
AFFECTING THE PROPERTY. Purchaser agrees to accept the Property at Closing with
the Property being in its present AS IS condition WITH ALL FAULTS except as
specifically provided herein (or in any other documents executed by Seller at
Closing) and except for Seller's special warranty of title to be contained in
the deed.
PURCHASER ACKNOWLEDGES AND AGREES THAT PURCHASER IS EXPERIENCED IN THE
OWNERSHIP, DEVELOPMENT AND/OR OPERATION OF PROPERTIES SIMILAR TO THE PROPERTY
AND THAT PURCHASER PRIOR TO THE CLOSING WILL HAVE INSPECTED THE PROPERTY TO
PURCHASER'S SATISFACTION AND IS QUALIFIED TO MAKE SUCH INSPECTION. PURCHASER
ACKNOWLEDGES THAT PURCHASER HAS (OR PURCHASER'S REPRESENTATIVES HAVE) OR PRIOR
TO THE CLOSING WILL HAVE, THOROUGHLY INSPECTED AND EXAMINED THE PROPERTY TO THE
EXTENT DEEMED NECESSARY BY PURCHASER IN ORDER TO ENABLE PURCHASER TO EVALUATE
THE CONDITION OF THE PROPERTY AND ALL OTHER ASPECTS OF THE PROPERTY (INCLUDING,
BUT NOT LIMITED TO, THE ENVIRONMENTAL CONDITION OF THE PROPERTY); AND PURCHASER
ACKNOWLEDGES THAT PURCHASER IS RELYING UPON ITS OWN (OR ITS
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REPRESENTATIVES') INSPECTION, EXAMINATION AND EVALUATION OF THE PROPERTY AND NOT
UPON ANY STATEMENT (ORAL OR WRITTEN) THAT MAY HAVE BEEN MADE OR MAY BE MADE BY
SELLER OR ANY OF ITS REPRESENTATIVES EXCEPT SUCH REPRESENTATIONS PROVIDED HEREIN
(OR IN ANY OTHER DOCUMENTS EXECUTED BY SELLER AT CLOSING).
At Closing, Seller shall represent and warrant to Purchaser that all
representations and warranties of Seller in this Agreement remain true and
correct as of the date of the Closing in all material respects, except for any
changes in any such representations or warranties that occur and are disclosed
by Seller to Purchaser expressly and in writing at any time and from time to
time prior to Closing upon their occurrence, which disclosures shall thereafter
be updated by Seller to the date of Closing. Subject to the limitations
expressly provided in this Agreement, each and all of the express warranties,
covenants, and indemnifications made and given by either party given to the
other party herein shall survive the execution and delivery of the Deed by
Seller to Purchaser for a period of one (1) year.
9. Seller's Additional Covenants. Seller does hereby further covenant and
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agree as follows:
(a) Operation of Property. Seller hereby covenants that, from the
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date of this Agreement up to and including the date of Closing, Seller
shall: (i) not negotiate with any third party respecting the sale of the
Property or any interest therein, (ii) not modify, amend, or terminate the
Leases or enter into any new lease, contract, or other agreement respecting
the Property without Purchaser's consent (not to be unreasonably withheld),
(iii) not grant or otherwise create or consent to the creation of any
easement, restriction, lien, assessment, or encumbrance respecting the
Property, (iv) cause the Property to be operated, maintained, and repaired
in the same manner as the Property is currently being operated, maintained,
and repaired; and (v) not discharge, release, store or generate any
hazardous substances on the Property.
(b) Preservation of Leases. Seller shall, from and after the date of
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this Agreement to the date of Closing, use its good faith efforts to
perform and discharge all of the duties and obligations and shall otherwise
comply with every covenant and agreement of the landlord under the Leases,
at Seller's expense, in the manner and within the time limits required
thereunder. Furthermore, Seller shall, for the same period of time, use
diligent and good faith efforts to cause the Tenant under the Leases to
perform all of its duties and obligations and otherwise comply with each
and every one of its covenants and agreements under such Leases and shall
take such actions as are reasonably necessary to enforce the terms and
provisions of the Leases.
(c) Tenant Estoppel Certificates. Seller shall use commercially
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reasonable efforts to obtain and deliver to Purchaser at least five (5)
days prior to expiration of the Inspection Period a fully completed
estoppel certificate with respect to the Leases in substantially the form
of Exhibit "B" (the "Tenant Estoppel Certificate"), duly executed by each
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tenant. The Tenant Estoppel Certificates shall be executed as of a date no
earlier than the Effective Date.
(d) Insurance. From and after the date of this Agreement to the date
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and time of Closing, Seller shall (or shall cause Tenant), at its expense,
continue to maintain the all risk fire and extended coverage insurance
policy covering the Property which is currently in force and effect.
10. Closing. The consummation of the sale by Seller and purchase by
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Purchaser of the Property (herein referred to as the "Closing") shall be held at
2:00 p.m., local time, on the first business day which is at least 10 business
days after the end of the Inspection Period, at the offices of Title Company, or
at such earlier time as shall be designated by Purchaser in a written notice to
Seller not less than two (2) business days prior to Closing.
11. Seller's Closing Documents. For and in consideration of, and as a
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condition precedent to, Purchaser's delivery to Seller of the Purchase Price
described in Paragraph 3 hereof, Seller shall obtain or execute, at Seller's
expense, and deliver to Purchaser at Closing the following documents (all of
which shall be duly executed, acknowledged, and notarized where required and
shall survive the Closing):
(a) Special Warranty Deed. A Special Warranty Deed (the "Deed") in
---------------------
substantially the form of Exhibit "C" hereto subject only to the Permitted
-----------
Exceptions. The legal description set forth in the Deed shall be as set
forth on Exhibit "A". In the event Purchaser shall obtain a new or updated
-----------
survey of the Land
7
and Improvements and the legal description set forth in Purchaser's survey
shall differ from the legal description set forth on Exhibit "A", the Deed
-----------
shall convey title by the legal description based upon such survey;
(b) Xxxx of Sale. A Xxxx of Sale conveying to Purchaser the Personal
------------
Property in the form and substance of Exhibit "D";
-----------
(c) Blanket Transfer. A Blanket Transfer and Assignment in the form
----------------
and substance of Exhibit "E";
----------
(d) Assignment and Assumption of Leases. An Assignment and Assumption
-----------------------------------
of Lease in the form and substance of Exhibit "F", assigning to Purchaser
-----------
all of Seller's right, title, and interest in and to the Lease and the
rents thereunder;
(e) Seller's Affidavit. A customary seller's affidavit in the form
------------------
required by the Title Company;
(f) FIRPTA Certificate. A FIRPTA Certificate in such form as
------------------
Purchaser shall reasonably approve;
(g) Certificates of Occupancy. The original or copies of Certificates
-------------------------
of Occupancy for all space within the Improvements;
(h) Marked Title Commitment. The Title Commitment marked to delete
-----------------------
the "gap" exception and to reflect that Purchaser is vested with the fee
simple title to the Land and the Improvements, and to reflect that all
requirements for the issuance of the final title policy pursuant to such
Title Commitment have been satisfied;
(i) Keys and Records. All of the keys to any doors or locks on the
----------------
Property and the original tenant files and other books and records and
warranties relating to the Property in Seller's possession;
(j) Tenant Notices. Notice from Seller to each tenant of the sale of
--------------
the Property to Purchaser in such form as Purchaser shall reasonably
approve;
(k) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement; and
(l) Other Documents. Such other documents as shall be reasonably
---------------
required by Purchaser's counsel.
12. Purchaser's Closing Documents. At Closing, Purchaser shall deliver the
-----------------------------
balance of the Purchase Price and shall obtain or execute and deliver to Seller
at Closing the following documents, all of which shall be duly executed and
acknowledged where required and shall survive the Closing:
(a) Blanket Transfer. The Blanket Transfer and Assignment;
----------------
(b) Assignment and Assumption of Lease. The Assignment and Assumption
----------------------------------
of Lease;
(c) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement; and
(d) Other Documents. Such other documents as shall be reasonably
---------------
required by Seller's counsel.
13. Closing Costs. Seller shall pay the cost of any recording, transfer or
-------------
documentary tax imposed by any jurisdiction in which the Property is located,
the cost of the base premium for the title policy, reimburse
8
Purchaser for the cost of the As-built Survey, the attorneys' fees of Seller,
and all other costs and expenses incurred by Seller in closing and consummating
the purchase and sale of the Property pursuant hereto. Purchaser shall pay the
attorneys' fees of Purchaser, and all other costs and expenses incurred by
Purchaser in closing and consummating the purchase and sale of the Property
pursuant hereto. Each party shall pay one-half of any escrow fees.
14. Prorations. The following items shall be prorated and/or credited
----------
between Seller and Purchaser as of Midnight preceding the date of Closing:
(a) Rents. Rents, additional rents, and other income of the Property
-----
(other than security deposits, which shall be assigned and paid over to
Purchaser) collected by Seller for the month of Closing. Purchaser shall
also receive a credit against the Purchase Price payable by Purchaser to
Seller at Closing for any rents or other sums (not including security
deposits) prepaid by any tenant for any period following the month of
Closing, or otherwise.
(b) Property Taxes. To the extent not paid or reimbursed by tenants,
--------------
city, state, county, and school district ad valorem taxes based on the ad
valorem tax bills for the Property, if then available, or if not, then on
the basis of the latest available tax figures and information. Should such
proration be based on such latest available tax figures and information and
prove to be inaccurate upon receipt of the ad valorem tax bills for the
Property for the year of Closing, either Seller or Purchaser, as the case
may be, may demand at any time after Closing a payment from the other
correcting such malapportionment. In addition, if after Closing there is an
adjustment or reassessment by any governmental authority with respect to,
or affecting, any ad valorem taxes for the Property for the year of Closing
or any prior year, any additional tax payment for the Property required to
be paid with respect to the year of Closing shall be prorated between
Purchaser and Seller, any such additional tax payment for the Property for
any year prior to the year of Closing shall be paid by Seller and any
refund for any year prior to the year of Closing shall be paid to Seller.
This agreement shall expressly survive the Closing.
(c) Utility Charges/Operating Expenses. To the extent not paid or
----------------------------------
reimbursed by tenants, Seller shall be responsible for all such costs
applicable to the period prior to Closing and Purchaser shall be
responsible for all such costs applicable to the period subsequent to the
Closing. Seller and Purchaser hereby agree to prorate and pay their
respective shares of all utility bills and operating costs received
subsequent to Closing, which agreement shall survive Closing.
15. Purchaser's Default. In the event of default by Purchaser under the
-------------------
terms of this Agreement, Seller's sole and exclusive remedy shall be to receive
the Xxxxxxx Money as liquidated damages and thereafter the parties hereto shall
have no further rights or obligations hereunder whatsoever except matters which
by their express terms survive termination of this Agreement. It is hereby
agreed that Seller's damages will be difficult to ascertain and that the Xxxxxxx
Money constitutes a reasonable liquidation thereof and is intended not as a
penalty, but as fully liquidated damages. Seller agrees that in the event of
default by Purchaser, it shall not initiate any proceeding to recover damages
from Purchaser, but shall limit its recovery to the retention of the Xxxxxxx
Money.
16. Seller's Default. In the event of default by Seller under the terms of
----------------
this Agreement (i) Purchaser shall have the right to terminate this Agreement by
giving written notice of such termination to Seller, whereupon Escrow Agent
shall promptly refund all Xxxxxxx Money to Purchaser, and Purchaser and Seller
shall have no further rights, obligations, or liabilities hereunder, except as
may be expressly provided to the contrary herein; or (ii) Purchaser shall have
the right to accept title to the Property subject to such defects and objections
with no reduction in the Purchase Price, in which event such defects and
objections shall be deemed "Permitted Exceptions"; or (iii) Purchaser may elect
to seek specific performance of this Agreement.
17. Condemnation. If, prior to the Closing, all or any part of the
------------
Property is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or condemnation (or sale
in lieu thereof), or if Seller has received notice that any condemnation action
or proceeding with respect to the Property is contemplated by a body having the
power of eminent domain, Seller shall give Purchaser immediate written notice of
such threatened or contemplated condemnation or of such taking or sale, and
Purchaser may by written notice to Seller given within fifteen (15) days of the
receipt of such notice from Seller, elect to cancel this Agreement. If Purchaser
chooses to cancel this Agreement in accordance with this Paragraph 17,
9
then the Xxxxxxx Money shall be returned immediately to Purchaser by Escrow
Agent and the rights, duties, obligations, and liabilities of the parties
hereunder shall immediately terminate and be of no further force and effect,
except matters which by their express terms survive termination of this
Agreement. If Purchaser does not elect to cancel this Agreement in accordance
herewith, this Agreement shall remain in full force and effect and the sale of
the Property contemplated by this Agreement, less any interest taken by eminent
domain or condemnation, or sale in lieu thereof, shall be effected with no
further adjustment and without reduction of the Purchase Price, and at the
Closing, Seller shall assign, transfer, and set over to Purchaser all of the
right, title, and interest of Seller in and to any awards that have been or that
may thereafter be made for such taking.
18. Damage or Destruction. If any of the Improvements shall be destroyed
---------------------
or damaged prior to the Closing, and the estimated cost of repair or replacement
exceeds Two Hundred Fifty Thousand Dollars ($250,000.00) or if the Lease shall
terminate as a result of such damage, Purchaser may, by written notice given to
Seller within twenty (20) days after receipt of written notice from Seller of
such damage or destruction, elect to terminate this Agreement, in which event
the Xxxxxxx Money shall immediately be returned by Escrow Agent to Purchaser and
except as expressly provided herein to the contrary, the rights, duties,
obligations, and liabilities of all parties hereunder shall immediately
terminate and be of no further force or effect. If Purchaser does not elect to
terminate this Agreement pursuant to this Paragraph 18, or has no right to
terminate this Agreement (because the damage or destruction does not exceed
$250,000.00 and the Lease remains in full force and effect), and the sale of the
Property is consummated, Purchaser shall be entitled to receive all insurance
proceeds paid or payable to Seller by reason of such destruction or damage under
the insurance required to be maintained by Seller pursuant to Paragraph 9(d)
hereof (less amounts of insurance theretofore received and applied by Seller to
restoration). If the amount of said casualty or rent loss insurance proceeds is
not settled by the date of Closing, Seller shall execute at Closing all proofs
of loss, assignments of claim, and other similar instruments to ensure that
Purchaser shall receive all of Seller's right, title, and interest in and under
said insurance proceeds, plus the amount of any deductible and Seller shall have
no further obligation with respect thereto.
19. Hazardous Substances. Seller hereby warrants and represents, to the
--------------------
best of Seller's actual knowledge but without investigation other than that
certain Phase I Environmental Site Assessment dated June 9, 1998, prepared by
Environmental Systems Design and Management, Inc. for the benefit of Seller (the
"Phase I Report"), that, except as shown on the Phase I Report (i) no "hazardous
substances", as that term is defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601, et. seq., the Resource Conservation and Recovery Act, as amended, 42
-- ---
U.S.C. Section 6901 et. seq., and the rules and regulations promulgated pursuant
-- ---
to these acts, any so-called "super-fund" or "super-lien" laws or any applicable
state or local laws, nor any other pollutants, toxic materials, or contaminants
have been discharged, disbursed, released, stored, treated, generated, disposed
of, or allowed to escape on the Property, (ii) no asbestos or asbestos
containing materials have been installed, used, incorporated into, or disposed
of on the Property, (iii) no polychlorinated biphenyls are located on or in the
Property, in the form of electrical transformers, fluorescent light fixtures
with ballasts, cooling oils, or any other device or form, (iv) no underground
storage tanks are located on the Property or were located on the Property and
subsequently removed or filled, (v) no investigation, administrative order,
consent order and agreement, litigation, or settlement with respect to Hazardous
Substances is proposed, threatened, anticipated or in existence with respect to
the Property, and (vi) the Property has not previously been used as a landfill,
cemetery, or as a dump for garbage or refuse. Seller hereby indemnifies
Purchaser and holds Purchaser harmless from and against any loss, cost, damage,
liability or expense due to or arising out of the breach of any representation
or warranty contained in this paragraph. The provisions of this paragraph shall
survive Closing for a period of one year, except for such matters arising during
Seller's ownership of the Property which shall survive for an unlimited time.
20. Assignment. Purchaser's rights and duties under this Agreement shall
----------
not be assignable except to an affiliate of Purchaser without the consent of
Seller which consent shall not be unreasonably withheld.
21. Broker's Commission. In the event, but only in the event, this
-------------------
transaction closes in accordance with its terms, Seller will pay, at Closing, a
brokerage commission to Broadfield Associates in the amount of 1% of the
Purchase Price, and to Means Xxxxx in the amount of 1% of the Purchase Price and
to Xxxxxxxx Xxxxxx in the amount of $50,000.00 (the "Brokers"). Purchaser and
Seller hereby represent each to the other that they have not discussed this
Agreement or the subject matter hereof with any real estate broker or agent
other than Brokers so as to create any legal right in any such broker or agent
to claim a real estate commission with respect to the conveyance of
10
the Property contemplated by this Agreement. Seller shall and does hereby
indemnify and hold harmless Purchaser from and against any claim, whether or not
meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Seller, including any claim asserted by Brokers and any
broker or agent claiming under Brokers. Likewise, Purchaser shall and does
hereby indemnify and hold harmless Seller from and against any claim, whether or
not meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Purchaser. The provisions of this paragraph shall
survive the Closing or any termination of this Agreement.
22. Notices. Wherever any notice or other communication is required or
-------
permitted hereunder, such notice or other communication shall be in writing and
shall be delivered by overnight courier, by facsimile or telecopy, by hand, or
sent by U.S. registered or certified mail, return receipt requested, postage
prepaid, to the addresses set out below or at such other addresses as are
specified by written notice delivered in accordance herewith:
PURCHASER: c/x Xxxxx Capital, Inc.
0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxxxx
Facsimile: 770.200.8199
with a copy to: X'Xxxxxxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxxxx, X. X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. X'Xxxxxxxxx, Esq.
Facsimile: 404.522.3080
SELLER: Broadfield Associates, L.P.
c/o Fidinam Capital
00000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxx
Facsimile: 281.820.1673
with a copy to: Gardere Xxxxx Xxxxxx & Xxxxx, L.L.P.
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx Xxxxx 00000-0000
Attn: W. Xxxxx Xxxxxxx, Esq.
Facsimile: 713.276.6565
All notices shall be deemed given three (3) business days following deposit in
the United States mail with respect to certified or registered letters, one (1)
business day following deposit if delivered to an overnight courier guaranteeing
next day delivery and on the same day if sent by personal delivery or by
telecopy or facsimile transmission (with proof of transmission). Attorneys for
each party shall be authorized to give notices for each such party. Any party
may change its address for the service of notice by giving written notice of
such change to the other party, in any manner above specified.
23. Possession. Possession of the Property shall be granted by Seller to
----------
Purchaser on the date of Closing, subject only to the Lease and the Permitted
Exceptions.
24. Time Periods. If the time period by which any right, option, or
------------
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day.
25. Survival of Provisions. All covenants, warranties, indemnities and
----------------------
agreements set forth in this
11
Agreement shall survive the execution or delivery of any and all deeds and other
documents at any time executed or delivered under, pursuant to, or by reason of
this Agreement, and shall survive the payment of all monies made under, pursuant
to, or by reason of this Agreement, for a period of one year from Closing or for
such longer period as may be specified in the paragraph relating thereto.
26. Severability. This Agreement is intended to be performed in accordance
------------
with, and only to the extent permitted by, all applicable laws, ordinances,
rules, and regulations. If any provision of this Agreement, or the application
thereof to any person or circumstance, shall, for any reason and to any extent
be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby but rather shall be enforced to the greatest extent permitted by law.
27. Authorization. Purchaser represents to Seller that this Agreement has
-------------
been duly authorized and executed on behalf of Purchaser and constitutes the
valid and binding agreement of Purchaser, enforceable in accordance with its
terms subject to equitable principles, and all necessary action on the part of
Purchaser to authorize the transactions herein contemplated has been taken, and
no further action is necessary for such purpose.
28. General Provisions. No failure of either party to exercise any power
------------------
given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon the parties
hereto unless such amendment is in writing and executed by all parties hereto.
The provisions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, legal representatives,
successors, and assigns. Time is of the essence of this Agreement. This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one and
the same agreement. The headings inserted at the beginning of each paragraph are
for convenience only, and do not add to or subtract from the meaning of the
contents of each paragraph. This Agreement shall be construed and interpreted
under the laws of the State of Texas. Except as otherwise provided herein, all
rights, powers, and privileges conferred hereunder upon the parties shall be
cumulative but not restrictive to those given by law. All personal pronouns used
in this Agreement, whether used in the masculine, feminine, or neuter gender
shall include all genders, and all references herein to the singular shall
include the plural and vice versa.
29. Effective Date. The "Effective Date" of this Agreement shall be deemed
--------------
to be the date this Agreement is fully executed by both Purchaser and Seller and
a fully executed original counterpart of this Agreement has been received by
both Purchaser and Seller.
30. Duties as Escrow Agent. In performing its duties hereunder, Escrow
----------------------
Agent shall not incur any liability to anyone for any damages, losses or
expenses, except for its gross negligence or willful misconduct, and it shall
accordingly not incur any such liability with respect to any action taken or
omitted in good faith upon advice of its counsel or in reliance upon any
instrument, including any written notice or instruction provided for in this
Agreement, not only as to its due execution and the validity and effectiveness
of its provision, but also as to the truth and accuracy of any information
contained therein that Escrow Agent shall in good faith believe to be genuine,
to have been signed or presented by a proper person and to conform to the
provisions of this Agreement. Seller and Purchaser hereby agree to indemnify and
hold harmless Escrow Agent against any and all losses, claims, damages,
liabilities and expenses, including reasonable costs of investigation and legal
fees and disbursements, that may be imposed upon Escrow Agent or incurred by
Escrow Agent in connection with its acceptance or performance of its duties
hereunder as escrow agent, including without limitation, any litigation arising
out of this Agreement. If any dispute shall arise between Seller and Purchaser
sufficient in the discretion of Escrow Agent to justify its doing so, Escrow
Agent shall be entitled to tender into the registry or custody of the clerk of
the Court for the county in which the Property is located or the clerk for the
United States District Court having jurisdiction over the county in which the
Property is located, any or all money (less any sums required to pay Escrow
Agent's attorneys' fees in filing such action), property or documents in its
hands relating to this Agreement, together with such pleadings as it shall deem
appropriate, and thereupon be discharged from all further duties under this
Agreement. Seller and Purchaser shall bear all costs and expenses of any such
legal proceedings.
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective seals to be affixed hereunto as of the day,
month and year first above written.
"SELLER":
BROADFIELD ASSOCIATES, L.P., a Texas limited partnership
By: Broadfield Management, L.L.C., a Texas limited
liability company, its general partner
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Its: President
-------------------------------------
"PURCHASER":
XXXXX CAPITAL, INC., a Georgia corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Its: Senior Vice President
-------------------------------------
"ESCROW AGENT":
Charter Title Insurance Corporation
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Its: _____________________________________
13
Schedule of Exhibits
--------------------
Exhibit "A" - Description of Land
Schedule 8(b) - List of Agreements, if any
Schedule 8(d) - List of Special Consideration
Schedule 8(e) - List of Lease Commission Obligations
Exhibit "B" - Tenant Estoppel Certificate Form
Exhibit "C" - Special Warranty Deed Form
Exhibit "D" - Xxxx of Sale Form
Exhibit "E" - Blanket Transfer and Assignment Form
Exhibit "F" - Assignment and Assumption of Lease Form
14
