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EXHIBIT 10.4
▇▇▇/▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
PURCHASE AND SALE AGREEMENT
BETWEEN
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES,
a New York corporation
AS SELLER
AND
AMERICAN INDUSTRIAL PROPERTIES REIT,
a Texas Real Estate Investment Trust
AS PURCHASER
As of December 17, 1997
(Effective Date)
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made to be
effective as of the Effective Date (as hereinafter defined) by and between THE
EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a New York corporation
("Seller"), having its home office at 1290 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and AMERICAN INDUSTRIAL PROPERTIES REIT, a Texas Real
Estate Investment Trust ("Purchaser"), having an office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, #▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
W I T N E S S E T H:
ARTICLE I
PURCHASE AND SALE
1.1 Agreement of Purchase and Sale. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey and
Purchaser agrees to purchase the following:
(a) that certain tract or parcel of land situated in Arapahoe
County, Colorado, more particularly described on Exhibit A attached hereto and
made a part hereof, together with all and singular the rights and appurtenances
pertaining to such property, including any right, title and interest of Seller
in and to adjacent streets, alleys or rights-of-way (the property described in
clause (a) of this Section 1.1 being herein referred to collectively as the
"Land");
(b) the buildings and other improvements on the Land,
including specifically, without limitation, those certain two (2) office
buildings, aggregating approximately 96,386 square feet, located thereon having
a street address of 109 and ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the
property described in clause (b) of this Section 1.1 being herein referred to
collectively as the "Improvements");
(c) the personal property owned by Seller upon the Land or
within the Improvements, including specifically, without limitation, heating,
ventilation and air conditioning systems and equipment, appliances, furniture,
carpeting, draperies and curtains, tools and supplies, and other items of
personal property (excluding cash) used in connection with the operation of the
Land and the Improvements (the property described in clause (c) of this
Section 1.1 being herein referred to collectively as the "Personal Property");
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(d) all of Seller's right, title and interest in all oral or
written agreements pursuant to which any portion of the Land or Improvements is
used or occupied by anyone other than Seller (the property described in clause
(d) of this Section 1.1 being herein referred to collectively as the "Leases");
and
(e) all of Seller's right, title and interest in and to (i)
all assignable contracts and agreements relating to the upkeep, repair,
maintenance or operation of the Land, Improvements or Personal Property which
will extend beyond the date of Closing (as such term is defined in Section 4.1
hereof), including specifically, without limitation, all assignable equipment
leases (collectively, the "Operating Agreements"), and (ii) all assignable
warranties and guaranties (express or implied) issued to Seller in connection
with the Improvements or the Personal Property (the property described in this
Section 1.1(e) being sometimes herein referred to collectively as the
"Intangibles").
1.2 Property Defined. The Land, the Improvements, the Personal
Property, the Leases and the Intangibles are hereinafter sometimes referred to
collectively as the "Property."
1.3. Permitted Exceptions. The Property shall be conveyed subject
to the matters which are deemed to be Permitted Exceptions pursuant to Section
2.3 hereof and subject to the matters described in Section 2.5 hereof (herein
referred to collectively as the "Permitted Exceptions").
1.4 Purchase Price. Seller is to sell and Purchaser is to purchase
the Property for a total of Seven Million Five Hundred Fifty Thousand and
No/100 Dollars ($7,550,000.00) (the "Purchase Price").
1.5 Payment of Purchase Price. The Purchase Price shall be payable
in full at Closing (as hereinafter defined) in cash or immediately available
wire transferred funds.
1.6 ▇▇▇▇▇▇▇ Money. Within one (1) business day after the Effective
Date hereof, Purchaser shall deposit with Transnation Title Insurance Company
(the "Title Company"), having its office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the sum of One Hundred Thousand and
No/100 Dollars ($100,000.00) (the "▇▇▇▇▇▇▇ Money") in cash or immediately
available funds. The Title Company is hereby instructed to hold the ▇▇▇▇▇▇▇
Money in an interest bearing account. The Title
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Company shall hold and disburse the ▇▇▇▇▇▇▇ Money in accordance with the
provisions of this Agreement. All interest accruing on such sum shall become a
part of the ▇▇▇▇▇▇▇ Money and shall be distributed as ▇▇▇▇▇▇▇ Money in
accordance with the terms of this Agreement. In the event that Purchaser fails
to deliver the ▇▇▇▇▇▇▇ Money to the Title Company within the time period
provided in this Section 1.6, then Seller shall have the sole option to
terminate this Agreement by sending written notice to Purchaser.
ARTICLE II
TITLE AND SURVEY
2.1 Commitment for Title Insurance. Within five (5) days after the
Effective Date hereof, Seller shall obtain from the Title Company specified in
Section 1.6 hereof, at Seller's expense, a title insurance commitment (the
"Title Commitment") covering the Property, showing all matters affecting title
to the Property and binding the Title Company to issue at Closing an Owner's
Policy of Title Insurance in the full amount of the Purchase Price pursuant to
Section 2.4 hereof. Purchaser shall instruct the Title Company to deliver to
Purchaser, Seller and the surveyor described in Section 2.2 below copies of the
Title Commitment and copies of all instruments referenced in Schedule B
thereof.
2.2 Survey. Seller shall, at Seller's expense, employ a reputable
surveyor or surveying firm, licensed in Colorado, to survey the Property and
prepare and deliver to Purchaser and the Title Company a survey thereof (the
"Survey") within five (5) days after the surveyor's receipt of the Title
Commitment.
2.3 Title Review Period. Purchaser shall have ten (10) days (the
"Title Review Period") after the receipt of the Title Commitment, legible
copies of all instruments referred to in Schedule B thereof, and the Survey to
notify Seller, in writing, of such objections as Purchaser may have to anything
contained in the Title Commitment or the Survey; provided, however, that
Purchaser shall not be entitled to object to any Permitted Exceptions described
in Section 2.5 hereof. Any item contained in the Title Commitment or the Survey
to which Purchaser does not object during the Title Review Period shall be
deemed a Permitted Exception. In the event Purchaser shall notify Seller of
objections to title or the Survey prior to the expiration of the Title Review
Period, Seller shall have ten (10) days after receipt of notification of such
objections (the "Cure Period") within which Seller may (but shall not be
required to) cure or remove such objection. If Seller fails either to cure or
remove such objection to the reasonable satisfaction of the Title Company prior
to the expiration of the Cure Period, and
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if by reason of such objection the Title Company refuses to issue an Owner's
Policy of Title Insurance as provided in Section 2.4 below, Purchaser may
either terminate this Agreement by written notice to Seller or waive such
objection and accept such title as Seller is able to convey without any
reduction in the Purchase Price. Failure of Purchaser to send written notice of
the election available to it pursuant to the preceding sentence within five (5)
days after the expiration of the Cure Period shall be deemed an election by
Purchaser to elect to terminate this Agreement pursuant to Section 3.3.
2.4 Owner's Policy of Title Insurance. At Closing, Seller shall
convey and transfer to Purchaser by Special Warranty Deed such title to the
Property as will enable the Title Company to issue to Purchaser, at Seller's
expense, a standard coverage (similar to an ALTA policy) Owner's Policy of
Title Insurance (the "Title Policy") covering the Property, in the full amount
of the Purchase Price. The Title Policy may contain as exceptions the standard
printed exceptions and the Permitted Exceptions. Any endorsements or extended
coverage beyond the standard coverage shall be at Purchaser's option and
expense.
2.5 Title Conveyed Subject to Certain Matters. Notwithstanding
anything contained herein to the contrary, the Property shall be conveyed
subject to the following matters, which shall be deemed to be Permitted
Exceptions:
(a) building restrictions and zoning regulations heretofore or
hereafter adopted by any municipal or other public authority relating to the
Property, and rent or other regulations or laws, if any, now or hereafter in
effect with respect to the Property;
(b) all notes or notices of violation of law or municipal
ordinances, orders or requirements noted in or issued by any state or municipal
department or public authority having jurisdiction, against or affecting the
Property at the time of Closing;
(c) any and all assessments becoming liens subsequent to the
date hereof, and in addition if at the date hereof the Property or any part
thereof shall be or shall have been affected by any assessment or assessments
which are payable in installments or may be paid in installments without
penalty (other than interest), Purchaser shall pay all such installments which
shall become due and payable or which may be paid without penalty (other than
interest) after the date hereof, except that any installment relating to the
current fiscal year (with any interest thereon) shall be apportioned between
the parties at Closing;
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(d) all liens for real estate taxes on the Property for the
current year which are not yet due and payable at the time of Closing;
(e) all exceptions of record shown on the Title
Commitment as approved by Purchaser pursuant to Section 2.3; and
(f) all Leases affecting the Property.
ARTICLE III
INSPECTION PERIOD
3.1 Right of Inspection. During the period beginning upon the
Effective Date and ending on December 15, 1997 (hereinafter referred to as the
"Inspection Period"), subject to the rights of existing tenants of the
Property, Purchaser shall have the right to make a physical inspection of the
Property and to examine any books and records maintained by Seller relating to
the Property at such place or places as said books and records may be located
either at the site or at the Denver office of the Property Manager (excluding,
however, internal memoranda, financial projections, appraisals and budgets).
Purchaser understands and agrees that any on-site inspections of the Property
shall be conducted upon at least twenty-four (24) hours prior written notice to
Seller and in the presence of Seller or its representative. Purchaser agrees to
indemnify and hold Seller harmless of and from any claim for damages or
injuries arising from Purchaser's inspection of the Property, and
notwithstanding anything to the contrary in this Agreement, such obligation to
indemnify shall survive Closing or any termination of this Agreement. All
inspections shall occur at reasonable times agreed upon by Seller and Purchaser
and shall be conducted so as not to unreasonably interfere with use of the
Property by Seller or its tenants. Purchaser, at is sole cost and expense and
election, may obtain an ADA survey of the Property, prepared by an engineer
acceptable to Purchaser. Seller shall not be responsible to make or pay for any
improvements to the Property required by the ADA.
3.2 Independent Audit. Promptly following the execution of this
Agreement, Seller shall provide to Purchaser's representatives and independent
accounting firms access to all financial and other information relating to the
Property pursuant to Section 3.1 above, to enable Purchaser's representatives
and independent accounting firms to prepare audited financial statements for
1995, 1996, and 1997 year-to-date in conformity with generally accepted
accounting
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principles. Seller shall reasonably cooperate with Purchaser's representatives
and independent accounting firms in connection with the aforementioned
financial analysis. If this Agreement terminates prior to the Closing, other
than by reason of a default by Seller, Purchaser shall deliver to Seller copies
of any audited financial statements of the Property prepared for Purchaser and
assign to Seller without warranty all of Purchaser's rights thereto.
3.3 Right of Termination. Seller agrees that in the event
Purchaser determines (such determination to be made in Purchaser's sole
discretion) that the Property is not suitable for its purposes, Purchaser shall
have the right to terminate this Agreement by sending written notice thereof
(hereinafter referred to as the "Notice of Termination") to Seller prior to the
expiration of the Inspection Period. Upon delivery by Purchaser of such Notice
of Termination within the Inspection Period, this Agreement shall terminate and
the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser. If Purchaser fails to send
Seller a Notice of Termination prior to the expiration of the Inspection
Period, Purchaser shall no longer have any right to terminate this Agreement
under this Section 3.2 and shall be bound to proceed to Closing and consummate
the transaction contemplated hereby pursuant to the terms of this Agreement.
3.4 Confidentiality. Unless and until Closing, Purchaser shall
keep all information regarding the Property confidential, except to the extent
necessary to comply with applicable laws and regulations; provided, however,
that it is understood and agreed that Purchaser may disclose such data and
information to its employees, consultants, accountants and attorneys, provided
that such persons agree in writing to treat such data and information
confidentially or as otherwise required by applicable law. If, for any reason,
Closing does not occur, Purchaser shall provide copies of all third party
reports obtained by Purchaser relating to the Property to Seller at no expense
to Seller, and shall return all documents and copies of documents which have
been delivered by Seller to Purchaser back to Seller.
ARTICLE IV
CLOSING
4.1 Time and Place. Closing of the transaction contemplated hereby
("Closing") shall be held at the offices of Transnational Title Insurance
Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, at 10:00 a.m. on or before
December 31, 1997. At Closing, Seller and Purchaser shall perform the
obligations set forth in, respectively,
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Section 4.2 and Section 4.3, the performance of which obligations shall be
concurrent conditions.
4.2 Seller's Obligations at Closing. At Closing, Seller shall:
(a) deliver to Purchaser a Special Warranty Deed (the "Deed")
in the form of Exhibit B attached hereto and made a part hereof, executed and
acknowledged by Seller and in recordable form, conveying the Land and
Improvements to Purchaser, subject only to the Permitted Exceptions;
(b) join with Purchaser in the execution and acknowledgment of
a ▇▇▇▇ of Sale and Assignment (the "▇▇▇▇ of Sale") in the form of Exhibit C
attached hereto and made a part hereof with respect to the Property;
(c) join with Purchaser in the execution and acknowledgment of
an Assignment and Assumption of Contracts (the "Assignment of Contracts") in
the form of Exhibit D attached hereto and made a part hereof with respect to
the Property;
(d) join with Purchaser in the execution of a Closing
Memorandum and Indemnification Agreement (the "Closing Memorandum") in the form
of Exhibit E attached hereto and made a part hereof with respect to the
Property;
(e) join with Purchaser in the execution of a letter to each
tenant of the Property in the form of Exhibit F attached hereto and made a part
hereof;
(f) deliver to Purchaser a FIRPTA Affidavit in the form of
Exhibit G attached hereto and made a part hereof, duly executed by Seller,
stating that Seller is not a "foreign person" as defined in the federal Foreign
Investment in Real Property Tax Act of 1980 and the 1984 Tax Reform Act, and in
the event Seller is unable or unwilling to deliver the FIRPTA Affidavit, in
lieu thereof the funds payable to Seller shall be adjusted in such a manner as
to comply with the withholding provisions of such statutes;
(g) deliver to Purchaser the Tenant Estoppels (as hereinafter
defined) required by this Agreement;
(h) deliver to Purchaser such evidence as Purchaser's counsel
and/or the Title Company may reasonably require as to the authority of the
person or persons executing documents on behalf of Seller;
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(i) deliver to Purchaser possession and occupancy of the
Property, subject to the Permitted Exceptions;
(j) deliver to Purchaser all available keys to the Property in
Seller's possession; and
(k) originals of all leases, permits, certificates of
occupancy, and evidence of termination of all service contracts Purchaser has
elected to not assume prior to the expiration of the inspection period.
4.3 Purchaser's Obligations at Closing. At Closing, Purchaser
shall:
(a) pay to Seller the full amount of the Purchase Price in
cash or immediately available wire transferred funds pursuant to Section 1.5
above, it being agreed that at Closing the ▇▇▇▇▇▇▇ Money shall be delivered to
Seller and applied towards payment of the Purchase Price;
(b) join Seller in execution of the instruments described in
Sections 4.2(b), 4.2(c), 4.2(d) and 4.2(e) above;
(c) deliver to Seller a Certificate Regarding Disclaimers in
the form of Exhibit H attached hereto and made a part hereof, executed by
Purchaser and its counsel;
(d) deliver to Seller a separate letter in the form of Exhibit
I attached hereto and made a part hereof, duly executed by Purchaser,
confirming that Purchaser is not acquiring the Property with the assets of an
employee benefit plan as defined by Section 3(3) of the Employee Retirement
Income Security Act of 1974 ("ERISA"), and, in the event Purchaser is unable or
unwilling to make such a representation, Purchaser shall be deemed to be in
default hereunder, and Seller shall have the right to terminate this Agreement
and to receive and retain the ▇▇▇▇▇▇▇ Money; and
(e) deliver to Seller such evidence as Seller's counsel and/or
the Title Company may reasonably require as to the authority of the person or
persons executing documents on behalf of Purchaser.
4.4 Credits and Prorations.
(a) The following shall be apportioned with respect to the
Property as of 12:01 a.m., on the day of Closing, as if Purchaser were vested
with title to the Property during the entire day upon which Closing occurs:
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(i) rentals and prepaid rentals (collectively
"Rents") shall be prorated on the basis that Purchaser shall receive a
credit for all Rent which Seller has actually received before the
Closing which is allocable to the period after the Closing; any Rent
collected by Purchaser subsequent to the Closing for Rent due prior to
Closing shall be paid from Purchaser to Seller;
(ii) taxes (including personal property taxes on the
Personal Property);
(iii) any assessments to the extent specified in
Section 2.5(d) hereof;
(iv) payments under the Operating Agreements or other
agreements affecting the Property;
(v) gas, electricity and other utility charges for
which Seller is liable, if any, such charges to be apportioned at
Closing on the basis of the meter reading occurring on the date of
Closing; and
(vi) any other operating expenses of the Property
incurred during the month in which Closing occurs.
(b) Notwithstanding anything contained in the foregoing
provisions:
(i) At Closing, (A) Seller shall, at Seller's option,
either deliver to Purchaser any security deposits provided in the
Leases or credit to the account of Purchaser the amount of such
security deposits (to the extent such security deposits are not
applied against delinquent rents), and (B) Purchaser shall credit to
the account of Seller all refundable cash or other deposits posted
with utility companies serving the Property, or, at Seller's option,
Seller shall be entitled to receive and retain such refundable cash
and deposits.
(ii) Any taxes paid at Closing shall be prorated
based upon the amounts actually paid.
(iii) Charges referred to in Section 4.4(a) above
(other than those referred to in Section 4.4(a)(i)) which are payable
by any tenant to a third party shall not be apportioned hereunder, and
Purchaser shall accept title subject to any of such charges unpaid and
Purchaser
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shall look solely to the tenant responsible therefor for the payment
of the same. If Seller shall have paid any of such charges on behalf
of any tenant, and shall not have been reimbursed therefor by the time
of Closing, Purchaser shall credit to Seller an amount equal to all
such charges so paid by Seller.
(iv) Seller shall receive the entire advantage of any
discounts for the prepayment by it of any taxes, water rates or sewer
rents.
(v) As to gas, electricity and other utility charges
referred to in Section 4.4(a)(v) above, Seller may on notice to
Purchaser elect to pay one or more of all of said items accrued to the
date hereinabove fixed for apportionment directly to the person or
entity entitled thereto, and to the extent Seller so elects, such item
shall not be apportioned hereunder, and Seller's obligation to pay
such item directly in such case shall survive the Closing.
(vi) Purchaser shall be responsible for the payment
of (A) all Tenant Inducement Costs (as hereinafter defined) and
leasing commissions which become due and payable (whether before or
after Closing) (1) as a result of any renewals or expansions of
existing Leases which occur between the Effective Date and the date of
Closing by the express terms of the leases or as otherwise approved by
Purchaser, and (2) under any new Leases entered into between the
Effective Date and the date of Closing which have been approved by
Purchaser; and (B) all Tenant Inducement Costs and leasing commissions
which become due and payable from and after the date of Closing. If as
of the date of Closing Seller shall have paid any Tenant Inducement
Costs or leasing commissions for which Purchaser is responsible
pursuant to the foregoing provisions, Purchaser shall reimburse Seller
therefor at Closing. For purposes hereof, the term "Tenant Inducement
Costs" shall mean any out-of-pocket payments required under a Lease to
be paid by the landlord thereunder to or for the benefit of the tenant
thereunder which is in the nature of a tenant inducement, including
specifically, without limitation, tenant improvement costs, lease
buyout costs, and moving, design, refurbishment and club membership
allowances. The term "Tenant Inducement Costs" shall not include loss
of income resulting from any free rental period, it being agreed that
Seller shall bear the loss resulting from any
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free rental period until the date of Closing and that Purchaser shall
bear such loss from and after the date of Closing.
(c) All other matters with respect to apportionment shall be
governed by the Closing Memorandum. All prorations and adjustments described in
this Section 4.4 and in the Closing Memorandum shall be effected by increasing
or decreasing, as appropriate, the amount of cash to be paid by Purchaser to
Seller at Closing. The provisions of this Section 4.4 shall survive Closing.
4.5 Closing Costs. Seller shall pay the fees of any counsel
representing it in connection with this transaction; one-half (1/2) of any
escrow fee which may be charged by the Title Company; the premium for the
Owner's Policy of Title Insurance to be issued to Purchaser by the Title
Company at Closing; and the cost of the Survey. Purchaser shall pay the fees
of any counsel representing Purchaser in connection with this transaction; the
fees for recording the deed conveying the Property to Purchaser; any transfer
tax, documentary stamp tax or similar tax which becomes payable by reason of
the transfer of the Property; any title insurance fees or premiums in
connection with any endorsements for extended coverage; and one-half (1/2) of
any escrow fees charged by the Title Company. All other costs and expenses
incident to this transaction and the closing thereof shall be paid by the party
incurring same.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Representations and Warranties of Seller. Seller hereby
represents and warrants to Purchaser as follows:
(a) Seller has not (i) made a general assignment for the
benefit of creditors, (ii) filed any voluntary petition in bankruptcy or
suffered the filing of any involuntary petition by Seller's creditors, (iii)
suffered the appointment of a receiver to take possession of the Property or
all, or substantially all, of Seller's other assets, (iv) suffered the
attachment or other judicial seizure of the Property or all, or substantially
all, of Seller's other assets, (v) admitted in writing its inability to pay its
debts as they come due, or (vi) made an offer of settlement, extension or
composition to its creditors generally.
(b) Seller is not a "foreign person" as defined in Section 1445
of the Internal Revenue Code of 1986, as amended and any related regulations.
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(c) The Purchase and Sale Agreement (i) has been duly
authorized, executed and delivered by Seller, and (ii) does not violate any
provision of any agreement or judicial order to which Seller is a party or to
which Seller or the Property is subject.
(d) Seller has full and complete power and authority to
enter into the Purchase and Sale Agreement and to perform its obligations
hereunder.
(e) Seller is the lessor or landlord or the successor
lessor or landlord under the leases. Except as otherwise set forth in the
leases, to Seller's knowledge no presently effective rent concessions have been
given to any tenants and no rent has been paid in advance by any tenants
respecting a period subsequent to the Closing. To Seller's knowledge, no
tenants have asserted in writing any claims, defenses or offsets to rent
accruing from and after the date of Closing. To Seller's knowledge, except as
disclosed to Purchaser, no material default, delinquency or breach exists on
the part of any tenant. There are no material defaults or breaches on the part
of the landlord under any lease. In the event that any Tenant Estoppel
delivered to Purchaser with respect to any lease shall contain any statement of
fact, information or other matter which is inconsistent with the matters stated
in Seller's representations, the Tenant Estoppel shall control and Seller shall
have no liability for any claim based upon a breach of representation regarding
such statement of fact, information or other matter contained in the Tenant
Estoppel.
(f) To Seller's knowledge, there is no litigation,
arbitration or governmental proceeding pending or threatened with respect to
the Property or any unsatisfied judgment which could individually or in the
aggregate have a material adverse effect on title to the Property or the
consummation of the transaction.
(g) No condemnation proceedings relating to the Property
are pending or, to Seller's knowledge, threatened.
(h) To Seller's knowledge, Seller has not received any
written notice of any violation of applicable laws or codes concerning the
Property.
(i) Except as set forth in any environmental assessment
reports in Seller's possession and disclosed to Purchaser or as otherwise
disclosed to Purchaser in writing by Seller, to Seller's knowledge, Seller has
received no written notification, complaint or request for information that any
governmental or quasi-
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governmental authority, tenant or other third party has alleged or determined
that there are any violations of environmental statutes, ordinances or
regulations affecting the Property.
5.2 Covenants of Seller. Seller hereby covenants with Purchaser as
follows:
(a) From the Effective Date hereof until the Closing or
earlier termination of this Agreement, Seller shall use reasonable efforts to
operate and maintain the Property in the manner Seller has operated and
maintained the Property prior to the date hereof.
(b) Seller shall obtain and deliver to Purchaser prior to
Closing, a written estoppel certificate in the form of Exhibit J attached
hereto and made a part hereof signed by tenants of the Property representing
Eighty Percent (80%) of the total gross revenue of the Property. The signed
certificates are referred to herein as the "Tenant Estoppels".
(c) A copy of each Lease presented to Seller between the
Effective Date and the date of Closing for its approval and execution will be
submitted to Purchaser prior to execution by Seller. Purchaser agrees to notify
Seller in writing within five (5) business days after its receipt of each such
Lease of either its approval or disapproval thereof, including all Tenant
Inducement Costs and leasing commissions to be incurred in connection
therewith. In the event Purchaser fails to notify Seller in writing of its
approval or disapproval of any such Lease within the five (5) day time period
for such purpose set forth above, such failure shall be deemed the disapproval
by Purchaser of such Lease. At Closing, Purchaser shall reimburse Seller for
any Tenant Inducement Costs or leasing commissions incurred by Seller pursuant
to a new Lease approved (or deemed approved) by Purchaser.
5.3 Actual Knowledge Defined. References in Sections 5.1 and 5.2
above to the "actual knowledge" of Seller shall refer only to the actual
knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President of ERE Yarmouth, and shall not be
construed to refer to the knowledge of any other officer, agent or employee of
Seller or ERE Yarmouth or Compass Management & Leasing, Inc. or any affiliate
thereof or to impose upon him any duty to investigate the matter to which such
actual knowledge, or the absence thereof, pertains. No claim for a breach of
any representation or warranty of Seller shall be actionable or payable (a) if
the breach in question results from or is based on a condition, state of fact
or other matter which was known to Purchaser prior to Closing and (b) written
notice of the specific nature of the breach is not given to Seller prior to the
expiration of ninety (90) days after the Closing (the "Notice
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Deadline") and an action has not been commenced against Seller within sixty
(60) days after the Notice Deadline. Seller's maximum liability for a breach
of any representation or warranty shall be limited to One Million Dollars
($1,000,000.00).
5.4 Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller:
(a) Purchaser is not acquiring the Property with the assets of
an employee benefit plan as defined in Section 3(3) of ERISA.
(b) Purchaser has the full right, power and authority to
purchase the Property as provided in this Agreement and to carry out
Purchaser's obligations hereunder, and all requisite action necessary to
authorize Purchaser to enter into this Agreement and to carry out its
obligations hereunder have been, or by the Closing will have been taken.
5.5 Covenants of Purchaser.
(a) Purchaser hereby covenants with Seller that Purchaser
shall, in connection with its investigation of the Property during the
Inspection Period, inspect the Property for the presence of asbestos,
polychlorinated biphenyl emissions or other hazardous substances, materials and
wastes (as those terms may be defined by applicable federal or state law, rule
or regulation), and shall furnish to Seller at Closing copies of any reports
received by Purchaser in connection with any such inspection. Purchaser hereby
assumes full responsibility for such inspections and irrevocably waives any
claim against Seller arising from the presence of such materials on the
Property. Purchaser shall also furnish to Seller at Closing copies of any other
reports received by Purchaser relating to any other inspections of the Property
conducted on Purchaser's behalf, if any (including, specifically, without
limitation, any reports analyzing compliance of the Property with the
provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. Section
12101, et seq., if applicable).
(b) Upon the acquisition of the Property by Purchaser, Compass
Management and Leasing, Inc. ("Compass"), the current manager of the Property,
shall have the same right to register prospective tenants of the Property with
Purchaser as exists under the current management agreement affecting the
Property, and in the event a lease with any tenant so registered is consummated
within sixty (60) days after Closing, Purchaser shall pay Compass a leasing
commission in accordance with said management agreement.
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ARTICLE VI
DEFAULT
6.1 Default by Purchaser. In the event that the ▇▇▇▇▇▇▇ Money is
delivered to the Title Company as herein provided and Purchaser fails to
consummate this Agreement for any reason, except Seller's default or the
permitted termination of this Agreement by either Seller or Purchaser as herein
expressly provided, Seller shall be entitled, as its sole remedy, to terminate
this Agreement and receive the ▇▇▇▇▇▇▇ Money as liquidated damages for the
breach of this Agreement, it being agreed between the parties hereto that the
actual damages to Seller in the event of such breach are impractical to
ascertain and the amount of the ▇▇▇▇▇▇▇ Money is a reasonable estimate thereof.
Notwithstanding anything to the contrary contained in this Section 6.1, if
Purchaser or any affiliate of Purchaser asserts a claim to the Property which
clouds Seller's title thereto, and if such claim is found by a court of
competent jurisdiction to be without merit, then Seller shall have all remedies
available at law or in equity against Purchaser.
6.2 Default by Seller. In the event that Seller fails to
consummate this Agreement for any reason, except Purchaser's default or the
permitted termination of this Agreement by Seller or Purchaser as herein
expressly provided, Purchaser shall be entitled, as its sole remedy, either (a)
to receive the return of the ▇▇▇▇▇▇▇ Money, which return shall operate to
terminate this Agreement and release Seller from any and all liability
hereunder, or (b) to enforce specific performance of Seller's obligation to
execute the documents required to convey the Property to Purchaser, it being
understood and agreed that the remedy of specific performance shall not be
available to enforce any other obligation of Seller hereunder. Purchaser
expressly waives its rights to seek damages in the event of Seller's default
hereunder. Purchaser shall be deemed to have elected to terminate this
Agreement and receive back the ▇▇▇▇▇▇▇ Money if Purchaser fails to file suit
for specific performance against Seller in a court having jurisdiction in the
county and state in which the Property is located, on or before sixty (60) days
following the date upon which Closing was to have occurred.
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ARTICLE VII
RISK OF LOSS
7.1 Minor Damage. In the event of loss or damage to the Property
or any portion thereof (the "premises in question") which is not "major" (as
hereinafter defined), this Agreement shall remain in full force and effect
provided Seller performs any necessary repairs or, at Seller's option, reduces
the cash portion of the Purchase Price in an amount equal to the cost of such
repairs, Seller thereby retaining all of Seller's right, title and interest to
any claims and proceeds Seller may have with respect to any casualty insurance
policies or condemnation awards relating to the premises in question. In the
event that Seller elects to perform repairs upon the Property, Seller shall use
reasonable efforts to complete such repairs promptly and the date of Closing
shall be extended a reasonable time in order to allow for the completion of
such repairs.
7.2 Major Damage. In the event of a "major" loss or damage, either
Seller or Purchaser may terminate this Agreement by written notice to the other
party, in which event the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser. If
neither Seller nor Purchaser elects to terminate this Agreement within ten (10)
days after Seller sends Purchaser written notice of the occurrence of major
loss or damage, then Seller and Purchaser shall be deemed to have elected to
proceed with Closing, in which event Seller shall, at Seller's option, either
(a) perform any necessary repairs, or (b) assign to Purchaser all of Seller's
right, title and interest to any claims and proceeds Seller may have with
respect to any casualty insurance policies or condemnation awards relating to
the premises in question. In the event that Seller elects to perform repairs
upon the Property, Seller shall use reasonable efforts to complete such repairs
promptly and the date of Closing shall be extended a reasonable time in order
to allow for the completion of such repairs. Upon Closing, full risk of loss
with respect to the Property shall pass to Purchaser. For purposes of Sections
7.1 and 7.2, "major" loss or damage refers to the following: (i) loss or damage
to the Property or any portion thereof such that the cost of repairing or
restoring the premises in question to a condition substantially identical to
that of the premises in question prior to the event of damage would be, in the
certified opinion of a mutually acceptable architect, equal to or greater than
One Hundred Thousand and No/100 Dollars ($100,000.00), and (ii) any loss due to
a condemnation which permanently and materially impairs the current use of the
Property.
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ARTICLE VIII
COMMISSIONS
8.1 Brokerage Commissions. Seller agrees to pay to CB
Commercial Real Estate Group, Inc. (the "Broker") a brokerage commission
pursuant to a separate agreement in the event the transaction contemplated by
this Agreement is consummated, but not otherwise. Each party agrees that should
any claim be made for brokerage commissions or finder's fees by any broker or
finder other than the Broker by, through or on account of any acts of said
party or its representatives, said party will hold the other party free and
harmless from and against any and all loss, liability, cost, damage and expense
in connection therewith. By its signature hereto, the Broker represents to
Seller and Purchaser (a) that the Broker is a duly licensed real estate broker
under the laws of the state in which the Property is located and (b) that the
Broker has not entered into any arrangement with any other party whereby such
other party is entitled to any commission or finder's fee in connection with
this transaction, and the Broker agrees that should any claim be made for
brokerage commissions or finder's fees by any other party by, through or on
account of any acts of the Broker or its representatives, the Broker shall hold
Purchaser and Seller free and harmless from and against any and all loss, cost,
damage and expense in connection therewith. In the event the transaction
envisioned hereby fails to close for any reason, Seller shall have no
obligation for the payment of any commission or similar type fee hereunder. The
provisions of this paragraph shall survive Closing.
ARTICLE IX
DISCLAIMERS AND WAIVERS
9.1 No Reliance on Documents. Except as expressly stated herein,
Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information delivered by Seller to
Purchaser in connection with the transaction contemplated hereby. Purchaser
acknowledges and agrees that all materials, data and information delivered by
Seller to Purchaser in connection with the transaction contemplated hereby are
provided to Purchaser as a convenience only and that any reliance on or use of
such materials, data or information by Purchaser shall be at the sole risk of
Purchaser, except as otherwise expressly stated herein. Without limiting the
generality of the foregoing provisions, Purchaser acknowledges and agrees that
(a) any environmental or other report with respect to the Property which is
delivered by Seller to Purchaser shall be for general informational purposes
only, (b) Purchaser shall not have any right to rely on any such report
delivered by Seller to Purchaser, but rather will rely on its own inspections
and investigations of the Property and any reports commissioned by Purchaser
with respect thereto, and (c) neither Seller, any affiliate of Seller nor the
person or entity which prepared any such report delivered by Seller to
Purchaser
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shall have any liability to Purchaser for any inaccuracy in or omission from
any such report.
9.2 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME
MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR
IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE TO BE SET
FORTH IN THE DEED), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL
CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL
APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH,
ACCURACY OR COMPLETENESS OF THE PROPERTY DOCUMENTS OR ANY OTHER INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING
REGARDING THE PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING
SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE
PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS", EXCEPT TO THE EXTENT EXPRESSLY
PROVIDED OTHERWISE IN THIS AGREEMENT. PURCHASER HAS NOT RELIED AND WILL NOT
RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED
WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING
TO THE PROPERTY OR RELATING THERETO MADE OR FURNISHED BY SELLER, THE MANAGER OF
THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO
REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, VERBALLY
OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT. PURCHASER
REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO
CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE
PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY TO
SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR
NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR
TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON
SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS
AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH REPRESENTATIONS,
WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS
AGREEMENT. UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS,
INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND
ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S
INVESTIGATIONS, AND PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED,
RELINQUISHED AND RELEASED SELLER FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS,
CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES,
LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF
ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE
ASSERTED
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OR ALLEGED AGAINST SELLER AT ANY TIME BY REASON OF OR ARISING OUT OF ANY
CONSTRUCTION DEFECTS, PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS
(INCLUDING ANY ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER ACTS, OMISSIONS,
EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY. PURCHASER AGREES THAT
SHOULD ANY CLEANUP, REMEDIATION OR REMOVAL OF HAZARDOUS SUBSTANCES OR OTHER
ENVIRONMENTAL CONDITIONS ON THE PROPERTY BE REQUIRED AFTER THE DATE OF CLOSING,
SUCH CLEAN-UP, REMOVAL OR REMEDIATION SHALL BE THE RESPONSIBILITY OF AND SHALL
BE PERFORMED AT THE SOLE COST AND EXPENSE OF PURCHASER.
9.3 Effect and Survival of Disclaimers. Seller and Purchaser agree
that the provisions of this Article IX shall survive Closing.
ARTICLE X
MISCELLANEOUS
10.1 Confidentiality. Purchaser and its representatives shall hold
in strictest confidence all data and information obtained with respect to
Seller or its business, whether obtained before or after the execution and
delivery of this Agreement, and shall not disclose the same to others, except
as required by applicable laws or regulations; provided, however, that it is
understood and agreed that Purchaser may disclose such data and information to
the employees, consultants, accountants and attorneys of Purchaser and any
person or entity which Purchaser anticipates will invest in the Property. In
the event this Agreement is terminated or Purchaser fails to perform hereunder,
Purchaser shall promptly return to Seller any statements, documents, schedules,
exhibits or other written information obtained from Seller in connection with
this Agreement or the transaction contemplated herein. It is understood and
agreed that, with respect to any provision of this Agreement which refers to
the termination of this Agreement and the return of the ▇▇▇▇▇▇▇ Money to
Purchaser, such ▇▇▇▇▇▇▇ Money shall not be returned to Purchaser unless and
until Purchaser has fulfilled its obligation to return to Seller the materials
described in the preceding sentence. In the event of a breach or threatened
breach by Purchaser or its agents or representatives of this Section 10.1,
Seller shall be entitled to an injunction restraining Purchaser or its agents
or representatives from disclosing, in whole or in part, such confidential
information. Nothing herein shall be construed as prohibiting Seller from
pursuing any other available remedy at law or in equity for such breach or
threatened breach.
10.2 Public Disclosure. Prior to Closing, any release to the public
of information with respect to the matters set forth in this Agreement will be
made only in the form approved by Purchaser and
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Seller and their respective counsel, or as otherwise required by applicable
laws or regulations.
10.3 Discharge of Obligations. The acceptance of the Deed by
Purchaser shall be deemed to be a full performance and discharge of every
representation and warranty made by Seller herein and every agreement and
obligation on the part of Seller to be performed pursuant to the provisions of
this Agreement, except those, if any, which are herein specifically stated to
survive Closing.
10.4 Assignment. Purchaser may not assign its rights under this
Agreement without first obtaining Seller's written approval, which approval
shall not be unreasonably withheld or delayed by Seller.
10.5 Notices. Any notice pursuant to this Agreement shall be given
in writing by (a) personal delivery, or (b) expedited delivery service with
proof of delivery, or (c) United States Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) prepaid telegram, telex or
telecopy (provided that such telegram, telex or telecopy is confirmed by
expedited delivery service or by mail in the manner previously described), sent
to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designated by written notice sent in accordance herewith, and shall be deemed
to have been given either at the time of personal delivery, or, in the case of
expedited delivery service or mail, as of the date of first attempted delivery
at the address and in the manner provided herein, or, in the case of telegram,
telex or telecopy upon receipt. Unless changed in accordance with the preceding
sentence, the addresses for notices given pursuant to this Agreement shall be
as follows:
If to Seller:
The Equitable Life Assurance
Society of the United States
c/o ERE Yarmouth
ATTN: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Post Office Box 19780
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, #▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TELECOPY: (▇▇▇) ▇▇▇-▇▇▇▇
TELEPHONE: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Wood, Ris & ▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TELECOPY: (▇▇▇) ▇▇▇-▇▇▇▇
TELEPHONE: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser:
American Industrial Properties REIT
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
TELECOPY: (▇▇▇) ▇▇▇-▇▇▇▇
TELEPHONE: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: [Purchaser's Counsel]
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Liddell, Sapp, Zivley, Hill & ▇▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
TELECOPY: (▇▇▇) ▇▇▇-▇▇▇▇
TELEPHONE: (▇▇▇) ▇▇▇-▇▇▇▇
10.6 Binding Effect. This Agreement shall not be binding in any way
upon Seller unless and until (a) Seller shall execute and deliver the same to
Purchaser, (b) each stage of Seller's investment approval process has approved
this transaction, and (c) Seller's Investment Committee has thereafter given
its written approval thereof. If Seller has not sent Purchaser written notice
(the "Approval Notice") of such approvals within twenty (20) calendar days
after the Effective Date (the "Approval Deadline"), or if prior to the Approval
Deadline Seller notifies Purchaser in writing that this Agreement has been
disapproved by the persons or entities referred to in clauses (b) or (c) of the
preceding sentence, then this Agreement shall be deemed terminated and
Purchaser shall be entitled to the return of the ▇▇▇▇▇▇▇ Money. It is
understood and agreed that at each stage of Seller's investment approval
process, Seller or its investment advisor, Equitable Real Estate Investment
Management Inc., shall each have the right, in its unfettered discretion, to
disapprove the transaction contemplated by this Agreement, without obligation
thereafter to proceed to the next stage of Seller's investment approval
process. Seller's approval of this Agreement shall be evidenced only by both
Seller's execution of this Agreement and Seller's sending of the Approval
Notice to Purchaser prior to the Approval Deadline and, accordingly, Purchaser
acknowledges and agrees that Purchaser cannot and will not rely upon any other
statement or action of
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Seller or its representatives as evidence of Seller's approval of this
Agreement or the subject matter hereof.
10.7 Modifications. This Agreement cannot be changed orally, and no
executory agreement shall be effective to waive, change, modify or discharge it
in whole or in part unless such executory agreement is in writing and is signed
by the parties against whom enforcement of any waiver, change, modification or
discharge is sought.
10.8 Tenant Notification Letters. Seller shall prepare and
Purchaser shall deliver to each and every tenant of the Property under a lease
thereof a signed statement acknowledging Purchaser's receipt and responsibility
for each tenant's security deposit (to the extent delivered by Seller to
Purchaser at Closing), if any, all in compliance with and pursuant to the
applicable provisions of applicable law. The provisions of this paragraph shall
survive Closing.
10.9 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described in this Agreement, the day of the act or
event after which the designated period of time begins to run is not to be
included and the last day of the period so computed is to be included, unless
such last day is a Saturday, Sunday or legal holiday under the laws of the
State in which the Property is located, in which event the period shall run
until the end of the next day which is neither a Saturday, Sunday or legal
holiday. The final day of any such period shall be deemed to end at 5 p.m.,
local time.
10.10 Time of Essence. Seller and Purchaser agree that time is of
the essence of this Agreement.
10.11 Successors and Assigns. The terms and provisions of this
Agreement are to apply to and bind the permitted successors and assigns of the
parties hereto.
10.12 Entire Agreement. This Agreement, including the Exhibits,
contains the entire agreement between the parties pertaining to the subject
matter hereof and fully supersedes all prior agreements and understandings
between the parties pertaining to such subject matter.
10.13 Further Assurances. Each party agrees that it will without
further consideration execute and deliver such other documents and take such
other action, whether prior or subsequent to Closing, as may be reasonably
requested by the other party to consummate more effectively the purposes or
subject matter of this
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Agreement. Without limiting the generality of the foregoing, Purchaser shall,
if requested by Seller, execute acknowledgments of receipt with respect to any
materials delivered by Seller to Purchaser with respect to the Property.
10.14 Attorneys' Fees. In the event of any controversy, claim or
dispute between the parties affecting or relating to the subject matter or
performance of this Agreement, the prevailing party shall be entitled to
recover from the non-prevailing party all of its reasonable expenses, including
reasonable attorneys' and accountants' fees.
10.15 Counterparts. This Agreement may be executed in several
counterparts, and all such executed counterparts shall constitute the same
agreement. It shall be necessary to account for only one such counterpart in
proving this Agreement.
10.16 Severability. If any provision of this Agreement is determined
by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Agreement shall nonetheless remain in full force and effect.
10.17 Applicable Law. THIS AGREEMENT IS PERFORMABLE IN THE STATE IN
WHICH THE PROPERTY IS LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE SUBSTANTIVE FEDERAL LAWS OF THE UNITED STATES
AND THE LAWS OF SUCH STATE. SELLER AND PURCHASER HEREBY IRREVOCABLY SUBMIT TO
THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN, THE STATE IN WHICH
THE PROPERTY IS LOCATED IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF
SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN A STATE OR FEDERAL
COURT SITTING IN THE STATE IN WHICH THE PROPERTY IS LOCATED. PURCHASER AND
SELLER AGREE THAT THE PROVISIONS OF THIS SECTION 10.17 SHALL SURVIVE THE
CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT.
10.18 Limited Liability. The obligations of Seller arising by virtue
of this Agreement shall be limited to the interest of Seller in the Property
and resort shall not be had to any other assets of Seller.
10.19 No Third Party Beneficiary. The provisions of this Agreement
and of the documents to be executed and delivered at Closing are and will be
for the benefit of Seller and Purchaser only and are not for the benefit of any
third party, and accordingly, no third party shall have the right to enforce
the provisions of this Agreement or of the documents to be executed and
delivered at Closing.
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10.20 Exhibits and Schedules. The following schedules or exhibits
attached hereto shall be deemed to be an integral part of this Agreement:
(a) Exhibit A - Legal description of the Land
(b) Exhibit B - Form of Special Warranty Deed
(c) Exhibit C - Form of ▇▇▇▇ of Sale and Assignment
(d) Exhibit D - Form of Assignment and Assumption of
Contracts
(e) Exhibit E - Form of Closing Memorandum and
Indemnification Agreement
(f) Exhibit F- Form of Tenant Notification Letter
(g) Exhibit G - Form of FIRPTA Affidavit
(h) Exhibit H - Form of Certificate Regarding
Disclaimers
(i) Exhibit I - Form of ERISA Statement
(j) Exhibit J - Form of Tenant Estoppel
(k) Exhibit K - November 10, 1997 letter -
Underground Storage Tank
10.21 Captions. The section headings appearing in this Agreement are
for convenience of reference only and are not intended, to any extent and for
any purpose, to limit or define the text of any section or any subsection
hereof.
10.22 Construction. The parties acknowledge that the parties and
their counsel have reviewed and revised this Agreement and that the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this
Agreement or any exhibits or amendments hereto.
10.23 Termination of Agreement. It is understood and agreed that if
either Purchaser or Seller terminates this Agreement pursuant to a right of
termination granted hereunder, such termination shall operate to relieve Seller
and Purchaser from all
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obligations under this Agreement, except for such obligations as are
specifically stated herein to survive the termination of this Agreement (such
as the indemnification obligation of Purchaser set forth in Section 3.1).
10.24 Municipal Utility District Notices. Purchaser agrees that if
the Property or any portion thereof is located in a municipal utility district,
Purchaser will, within five (5) days after request by Seller, execute any and
all notices which, in the opinion of counsel for Seller, are required by law to
be given to Purchaser with respect to the Property.
10.25 Underground Storage Tank. Seller shall, within thirty (30)
days after Closing, cause the existing underground storage tank to be removed
pursuant to the procedure set forth in Exhibit K attached hereto and
incorporated herein and in accordance with applicable state and federal laws.
Seller shall be responsible for any claims arising from the existence and/or
removal of such tank.
10.26 Centura Health Corporation Tenant Improvement Allowance. At
Closing, Purchaser shall receive a credit for any undisbursed tenant
improvement allowance under the lease with Centura Health Corporation, in an
amount up to Four Hundred Twenty-Two Thousand Seventy-Four and 50/100 Dollars
($422,074.50). As of the date hereof, none of the tenant improvement allowance
has been disbursed and none will be disbursed without Purchaser's prior written
consent, which consent will not be unreasonably withheld nor delayed.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement to be effective as of the Effective Date.
SELLER:
Executed by Seller THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a
New York corporation, this _________ day of ______________, 1997.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: Investment Officer
----------------------------
PURCHASER:
Executed by Purchaser AMERICAN INDUSTRIAL PROPERTIES REIT this ______ day of
_______________, 1997.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Vice President
----------------------------
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ACKNOWLEDGMENT BY TITLE COMPANY
The Title Company, Transnation Title Insurance Company, hereby agrees
to perform its obligations under this Agreement and acknowledges receipt of a
fully executed counterpart of this Agreement on the ______ day of
______________, 1997.
TRANSNATION TITLE INSURANCE COMPANY
By:________________________________
Name:______________________________
Title:_____________________________
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