EXHIBIT 10.2
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AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
THE REALTY ASSOCIATES FUND VI, L.P.,
AS SELLER,
AND
CENTENE MANAGEMENT CORPORATION,
AS PURCHASER
Date: April 24, 2003
Property: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
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AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "AGREEMENT") is made and
entered into as of this 24th day of April, 2003 (the "EFFECTIVE DATE") by and
between THE REALTY ASSOCIATES FUND VI, L.P., a Delaware limited partnership
("SELLER"), whose principal place of business is located at c/o TA Associates
Realty, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and CENTENE
MANAGEMENT CORPORATION, a Wisconsin corporation, or its permitted assigns
("PURCHASER"), whose principal place of business is located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
In consideration of the mutual promises, covenants and agreements
hereinafter set forth and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
ARTICLE I.
SALE OF PROPERTY
1.1. SALE OF PROPERTY. Seller hereby agrees to sell, assign and
convey to Purchaser and Purchaser agrees to purchase from Seller, all of
Seller's right, title and interest in and to, the following:
1.1.1 LAND AND IMPROVEMENTS. Those certain parcels of real
property, more particularly described, on Exhibit A attached hereto and
incorporated herein by reference thereto (the "LAND"), together with all
improvements located thereon (the "IMPROVEMENTS").
1.1.2 REAL PROPERTY. All rights, privileges and easements
appurtenant to Seller's interest in the Land and the Improvements, if any,
including, without limitation, all of Seller's right, title and interest, if
any, in and to all mineral and water rights and all easements, licenses,
covenants and other rights-of-way or other appurtenances used in connection with
the beneficial use and enjoyment of the Land and the Improvements (the Land, the
Improvements and all such easements and appurtenances are sometimes collectively
referred to herein as the "REAL PROPERTY").
1.1.3 LEASES. All leases, subleases, licenses and other
occupancy agreements, together with any and all amendments, modifications or
supplements thereto, are hereafter referred to collectively as the "Leases"
being more particularly described on Exhibit E attached hereto.
1.1.4 PERSONAL PROPERTY. All personal property (including
equipment), if any, owned by Seller and located on the Real Property, and all
fixtures (if any) owned by Seller and located on the Real Property as of the
date hereof (the "PERSONAL PROPERTY").
1.1.5 INTANGIBLE PROPERTY. All non-exclusive trademarks and
trade names, if any, used or useful in connection with the Real Property, but
only to the extent that the same are not trademarks or trade names of Seller or
any of Seller's affiliated companies (collectively, the "TRADE NAMES"), together
with the Seller's interest, if any, in and to all guarantees, licenses,
approvals, certificates, permits and warranties relating to the Real Property,
to the extent assignable (collectively, the "INTANGIBLE PROPERTY").
1.1.6 SERVICE AGREEMENTS. All assignable contracts and
agreements executed by or on Seller's behalf (collectively, the "SERVICE
AGREEMENTS") relating to the upkeep, repair, maintenance or operation of the
Property. At Closing, Seller agrees to deliver written notice terminating all
Service Agreements which Seller has the right to terminate, without cause or
penalty, on thirty (30) or less days notice. All other Service Agreements will
be assumed by Purchaser at Closing. The Service Agreements exclude any property
management agreements entered into by Seller, which agreements Seller agrees to
terminate at Closing.
1.2. PROPERTY. The Real Property, the Leases, the Personal
Property, the Trade Names, the Service Agreements and the Intangible Property
are sometimes collectively hereinafter referred to as the "PROPERTY"). It is
hereby acknowledged by the parties that Seller shall not convey to Purchaser any
(a) claims relating to any real property tax refunds or rebates, (b) existing
insurance claims, and/or (c) existing claims against any tenants of the Property
that are applicable to the period prior to the Closing (as hereinafter defined),
all of which claims shall be reserved by Seller.
ARTICLE II.
PURCHASE PRICE
2.1. PURCHASE PRICE. The purchase price for the Property shall be
TWELVE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($12,500,000.00) (the
"PURCHASE PRICE"). The Purchase Price, as adjusted by all prorations as provided
for herein, shall be paid to Seller by Purchaser at Closing, by wire transfer of
immediately available federal funds.
ARTICLE III.
DEPOSITS AND ESCROW AGENT
3.1. DEPOSIT. Within two (2) business day following the Effective
Date, as defined in Section 16.4 of this Agreement and as a condition precedent
to the formation of this Agreement, Purchaser shall deposit TWO HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($250,000.00) (the "INITIAL DEPOSIT") with Chicago
Title Insurance Company, Suite 1700, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ ("ESCROW AGENT" and "TITLE COMPANY") in immediately
available federal funds, the receipt of which is hereby acknowledged by Escrow
Agent's execution hereof. If Purchaser shall fail to deposit the Initial Deposit
within the time period provided for above, Seller may at any time prior to the
deposit of the Initial Deposit, terminate this Agreement, in which case this
Agreement shall be null and void ab initio and in such event Escrow Agent shall
immediately deliver to Seller all copies of this Agreement in its possession,
and thereafter neither party shall have any further rights or obligations to the
other hereunder, except for the Surviving Termination Obligations (as
hereinafter defined). The
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Initial Deposit, together with all interest accrued thereon shall be referred to
herein, collectively, as the "DEPOSIT".
3.2. APPLICATION UPON DEFAULT. If the Closing occurs, the Deposit
shall be paid to Seller and credited against the Purchase Price at Closing. If
the Closing does not occur, the Deposit shall be held and delivered as
hereinafter provided.
3.3. INTEREST BEARING. The Deposit shall (a) be held in an
interest-bearing escrow account by Escrow Agent in an institution as directed by
Purchaser and reasonably acceptable to Seller, and (b) include any interest
earned thereon. To allow the interest bearing account to be opened, Purchaser's
and Seller's tax identification numbers are set forth herein below their
signatures.
3.4. ESCROW AGENT. Escrow Agent is executing this Agreement to
acknowledge Escrow Agent's responsibilities and rights hereunder. Any amendment
to this Agreement which alters Escrow Agent's responsibilities and/or rights
hereunder not executed by Escrow Agent shall be effective as to the parties
thereto, but shall not be binding upon Escrow Agent. Escrow Agent shall accept
the Deposit with the understanding of the parties that Escrow Agent is not a
party to this Agreement except to the extent of its specific responsibilities
and rights hereunder, and does not assume or have any liability for the
performance or non-performance of Purchaser or Seller hereunder. Additional
provisions with respect to the Escrow Agent are set forth in Article XVI.
ARTICLE IV.
CLOSING, PRORATIONS AND CLOSING COSTS
4.1. CLOSING. The closing of the purchase and sale of the Property
shall occur at 10:00 a.m. (local time at the Property) on a date designated by
Purchaser in written notice delivered to Seller at least five (5) business days
prior to the date designated by Purchaser; provided, however, in no event shall
such designated date be later than the thirtieth (30th) day following the last
day of the Inspection Period or such earlier date as may be agreed to by Seller
and Purchaser and shall be held through escrow at the offices of the Escrow
Agent, or at such other place agreed to by Seller and Purchaser. "CLOSING" shall
be deemed to have occurred when the Title Company has been instructed by both
parties to record the Deed. Time is hereby made of the essence. The date of
Closing is referred to in this Agreement as the "CLOSING DATE."
4.2. PRORATIONS. All matters involving prorations or adjustments to
be made in connection with Closing and not specifically provided for in some
other provision of this Agreement shall be adjusted in accordance with this
Section 4.2. Except as otherwise set forth herein, all items to be prorated
pursuant to this Section 4.2 shall be prorated as of midnight of the day
immediately preceding the Closing Date, with Purchaser to be treated as the
owner of the Property, for purposes of prorations of income and expenses, on and
after the Closing Date. The provisions of this Section 4.2 shall survive the
Closing.
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4.2.1 TAXES. Except to the extent payable by the tenants to
the applicable taxing authorities, real estate and personal property taxes and
special assessments, if any, shall be prorated as of the Closing Date. Seller
shall pay all real estate and personal property taxes and special assessments
payable during the calendar year of the Closing and attributable to the Property
to, but not including, the Closing Date. If the real estate and/or personal
property tax rate and assessments have not been set for the taxes and
assessments payable during the year in which the Closing occurs, then the
proration of such taxes shall be based upon the rate and assessments for the
preceding tax year and such proration shall be adjusted in cash between Seller
and Purchaser upon presentation of written evidence that the actual taxes paid
for the year in which the Closing occurs, differ from the amounts used in the
Closing in accordance with the provisions of Section 4.2.5 hereof. All taxes
imposed due to a change of use of the Property after the Closing Date shall be
paid by the Purchaser. If any taxes which have been apportioned shall
subsequently be reduced by abatement, the amount of such abatement, less the
cost of obtaining the same and after deduction of sums payable to tenants under
Leases or expired or terminated Leases, shall be prorated as of the Closing
Date.
4.2.2 INSURANCE. There shall be no proration of Seller's
insurance premiums or assignment of Seller's insurance policies. Purchaser shall
be obligated (at its own election) to obtain any insurance coverage deemed
necessary or appropriate by Purchaser.
4.2.3 UTILITIES. Except to the extent paid directly by the
tenants to the applicable utility company or service provider, the amounts of
all telephone, electric, sewer, water and other utility bills, trash removal
bills, janitorial and maintenance service bills and all other operating expenses
relating to the Property and allocable to the period prior to the Closing Date
shall be determined and paid by Seller before Closing, if possible, or shall be
paid thereafter by Seller or adjusted between Purchaser and Seller immediately
after the same have been determined. Purchaser shall cause all utility services
to be placed in Purchaser's name as of the Closing Date.
4.2.4 RENTS. Rents (including, without limitation,
estimated pass-through payments, payments for common area maintenance
reconciliations and all additional charges payable by tenants under the Leases,
(collectively, "RENTS")) actually collected by Seller prior to Closing shall be
prorated as of the Closing Date. Seller will receive a credit for any Rents due
under the Lease with Centene Corporation ("CENTENE") for the period prior to
Closing to the extent same remains unpaid as of the Closing Date. During the
period after Closing, Purchaser shall, within ten (10) business days following
receipt, deliver to Seller any and all Rents accrued but uncollected as of the
Closing Date to the extent subsequently collected by Purchaser; provided,
however, (a) Purchaser shall apply Rents received after Closing first to payment
of Rent due for the month of Closing, then to current Rent then due, and
thereafter to delinquent Rents in order of maturity (i.e., "oldest"
delinquencies paid first); and (b) "true up" payments received from tenants
attributable to a year-end reconciliation of actual and budgeted pass-through
payments shall not be subject to such priority allocation (as long as
identifiable as such a payment and not as a payment of base rent) and instead
shall be allocated, upon receipt, among Seller and Purchaser pro rata in
accordance with their respective period of ownership as set forth in Section
4.2.5 below. Seller shall have the right, after Closing, to proceed against
tenants for Rents allocable to the period of Seller's ownership of the Property,
provided that Seller shall have no right to commence eviction or similar
proceedings against any tenant. Purchaser shall use commercially reasonable
efforts to collect all pass-through rents payable by tenants and any
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delinquent Rents (provided, however, that Purchaser shall have no obligation to
institute legal proceedings, including an action for unlawful detainer, against
a tenant owing delinquent Rents). The amount of any unapplied security deposits
under the Leases held by Seller in cash at the time of Closing shall be credited
against the Purchase Price; accordingly, Seller shall retain the actual cash
deposits. If any security deposits are in the form of a letter of credit, Seller
shall assign its interest in the letter of credit to Purchaser and deliver the
original letter of credit to Purchaser at Closing. All costs to assign such
letter of credit shall, unless payable by the tenant, be borne by Purchaser.
4.2.5 CALCULATIONS. For purposes of calculating prorations,
Purchaser shall be deemed to be in title to the Property, and, therefore
entitled to the income therefrom and responsible for the expenses thereof for
the entire day upon which the Closing occurs. All such prorations shall be made
on the basis of the actual number of days of the month which shall have elapsed
as of the day of the Closing and based upon the actual number of days in the
month and a three hundred sixty five (365) day year. The amount of such
prorations shall be initially performed at Closing but shall be subject to
adjustment in cash after the Closing as and when complete and accurate
information becomes available, if such information is not available at the
Closing. Seller and Purchaser agree to cooperate and use their best efforts to
make such adjustments no later than sixty (60) days after the Closing or as soon
thereafter as may be practicable, with respect to common area maintenance and
other additional rent charges (including pass-throughs for real estate and
personal property taxes and special assessments) payable by tenants under
Leases. Except as set forth in this Section 4.2, all items of income and expense
which accrue for the period prior to the Closing will be for the account of
Seller and all items of income and expense which accrue for the period on and
after the Closing will be for the account of Purchaser.
4.2.6 LEASING COMMISSIONS AND LEASING COSTS. Seller shall
be responsible for all leasing commissions and other leasing costs due and
payable prior to the Effective Date with respect to Leases executed prior to the
Effective Date. Purchaser shall be responsible for all leasing commissions and
other leasing costs attributable to any new leases or the renewal or expansion
of any existing Lease after the Effective Date and/or due and payable with
respect to any existing Lease (including the Lease with Centene) after the
Closing. If Seller has, prior to the Closing, paid any leasing commissions or
other leasing costs which are Purchaser's responsibility hereunder, Seller will
receive a credit for same from Purchaser at the Closing.
4.2.7 PREPAID ITEMS. Any prepaid items, including, without
limitation, fees for licenses which are transferred to the Purchaser at the
Closing and annual permit and inspection fees shall be prorated as of the
Closing.
4.2.8 DECLARATION ASSESSMENTS. Any assessments payable
under any declaration or similar instrument affecting the Property shall be
prorated as of the Closing Date.
4.3. CLOSING COSTS. Seller shall pay (a) the fees of any counsel
representing Seller in connection with this transaction; (b) one-half (1/2) of
the escrow fee charged by Escrow Agent; and (c) the cost of the Survey.
Purchaser shall pay (i) the fees of any counsel representing Purchaser in
connection with this transaction; (ii) the cost of the Title Policy, including
any endorsements requested by Purchaser to the Title Policy; (iii) the cost of
any changes requested
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by Purchaser or its lender to the Survey; (iv) the fees for recording the deed
conveying the Real Property to Purchaser; and (v) one-half (1/2) of the escrow
fee charged by Escrow Agent. Any other costs or expenses incident to this
transaction and the closing thereof not expressly provided for above shall be
allocated between and paid by the parties in accordance with custom and practice
in Clayton, Missouri.
ARTICLE V.
PURCHASER'S RIGHT OF INSPECTION; INSPECTION PERIOD
5.1. RIGHT TO EVALUATE. From the Effective Date until 5:00 p.m.
(local time at the Property) on Monday, June 9, 2003, i.e., the forty-fifth
(45th) day following the Effective Date (the "INSPECTION PERIOD"), Purchaser and
its agents shall have the right during business hours (with reasonable advance
notice to Seller and subject to the rights of the tenants in possession), at
Purchaser's sole cost and expense and at Purchaser's and its agents' sole risk,
to perform inspections and tests of the Property and to perform such other
analyses, inquiries and investigations as Purchaser shall deem necessary or
appropriate; provided, however, that in no event shall (a) such inspections or
tests unreasonably disrupt or disturb the on-going operation of the Property or
the rights of the tenants at the Property, or (b) Purchaser or its agents or
representatives conduct any physical testing, drilling, boring, sampling or
removal of, on or through the surface of the Property (or any part or portion
thereof) including, without limitation, any ground borings or invasive testing
of the Improvements (collectively, "PHYSICAL TESTING"), without Seller's prior
written consent, which consent may be given or withheld in Seller's sole and
absolute discretion. In the event Purchaser desires to conduct Physical Testing
of the Property, then Purchaser shall submit to Seller, for Seller's approval, a
written detailed description of the scope and extent of the proposed Physical
Testing, which approval may be given or withheld in Seller's sole and absolute
discretion. If Seller does not approve the Physical Testing or approves only a
portion thereof, Purchaser may, at its option, by sending written notice to
Seller, elect to, either (i) terminate this Agreement or (ii) conduct during the
Inspection Period that portion of the Physical Testing approved by Seller, if
any, or if Seller disapproves the entire proposed Physical Testing,
affirmatively agree to forego any Physical Testing of the Property. In the event
Purchaser terminates this Agreement as aforesaid, the Deposit shall be
immediately refunded to Purchaser and this Agreement shall terminate and be of
no further force and effect other than the Surviving Termination Obligations. In
no event shall Seller be obligated as a condition of this transaction to perform
or pay for any environmental remediation of the Property recommended by any
Physical Testing. After making such tests and inspections, Purchaser agrees to
promptly restore the Property to its condition prior to such tests and
inspections (which obligation shall survive the Closing or any termination of
this Agreement). Prior to Purchaser entering the Property to conduct the
inspections and tests described above, Purchaser shall obtain and maintain, at
Purchaser's sole cost and expense, and shall deliver to Seller evidence of, the
following insurance coverage, and shall cause each of its agents and contractors
to obtain and maintain, and, upon request of Seller, shall deliver to Seller
evidence of, the following insurance coverage: commercial liability insurance,
from an insurer reasonably acceptable to Seller, in the amount of One Million
and No/100 Dollars ($1,000,000.00) combined single limit for personal injury and
property damage per occurrence ($2,000,000, in the aggregate), together with
umbrella coverage of at least Five Million and No/100 Dollars
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($5,000,000.00), such policy to name Seller as an additional insured party,
which insurance shall provide coverage against any claim for personal liability
or property damage caused by Purchaser or its agents, employees or contractors
in connection with such inspections and tests. Seller shall have the right, in
its discretion, to accompany Purchaser and/or its agents during any inspection
or tenant interview.
5.2 INSPECTION OBLIGATIONS AND INDEMNITY. Purchaser and its
contractors shall: (a) not unreasonably disturb the tenants of the Improvements
or interfere with their use of the Real Property pursuant to their respective
Leases; (b) not interfere with the operation and maintenance of the Real
Property; (c) not damage any part of the Property or any personal property owned
or held by any tenant; (d) not injure or otherwise cause bodily harm to Seller,
its agents, contractors and employees or any tenant; (e) promptly pay when due
the costs of all tests, investigations and examinations done with regard to the
Property; (f) not permit any liens to attach to the Property by reason of the
exercise of its rights hereunder; (g) restore the Improvements and the surface
of the Real Property to the condition in which the same was found before any
such inspection or tests were undertaken; (h) not interview any tenant, except
if accompanied by Seller or one of its representatives; and (i) not reveal or
disclose any information obtained during the Inspection Period concerning the
Property to anyone outside Purchaser's organization other than its agents,
consultants and representatives. Purchaser shall, at its sole cost and expense,
comply with all applicable federal, state and local laws, statutes, rules,
regulations, ordinances or policies in conducting its inspection of the Property
and Physical Testing. Purchaser shall, and does hereby agree to indemnify,
defend and hold the Seller, its partners, agents and their respective successors
and assigns, harmless from and against any and all claims, demands, suits,
obligations, payments, damages, losses, penalties, liabilities, costs and
expenses (including but not limited to attorneys' fees) to the extent arising
out of Purchaser's or Purchaser's agents' actions taken in, on or about the
Property in the exercise of the inspection right granted pursuant to Section
5.1, including, without limitation, (a) claims made by any tenant against Seller
for Purchaser's entry into such tenant's premises or any interference with any
tenant's use or damage to its premises or property in connection with
Purchaser's review of the Property, and (b) Purchaser's obligations pursuant to
this Section 5.2. This Section 5.2 shall survive the Closing and/or any
termination of this Agreement.
5.3. SELLER DELIVERIES. To the extent not previously delivered to
Purchaser, Seller shall deliver to Purchaser all of the items specified on
Exhibit B attached hereto (the "DOCUMENTS"), within five (5) business days after
the Effective Date to the extent such items are in Seller's possession. Except
as otherwise expressly set forth in Section 7.1, Seller makes no representations
or warranties of any kind regarding the accuracy, thoroughness or completeness
of or conclusions drawn in the information contained in the Documents, if any,
relating to the Property. Seller has no obligation to deliver or make available
to Purchaser Seller's internal memoranda, attorney-client privileged materials,
structural and physical inspection reports, internal appraisals, economic
evaluations of the Property, nor any reports regarding the Property prepared by
Seller or its affiliates solely for internal use or for the information of the
investors in Seller. Purchaser acknowledges that any and all of the Documents
that are not otherwise known by or available to the public are proprietary and
confidential in nature and will be delivered to Purchaser solely to assist
Purchaser in determining the feasibility of purchasing the Property. Purchaser
agrees not to disclose such non-public Documents, or any of the provisions,
terms or conditions thereof, to any party outside of Purchaser's organization
other than its agents,
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consultants and representatives. Purchaser shall return all of the Documents, on
or before three (3) business days after the first to occur of (a) such time as
Purchaser notifies Seller in writing that it shall not acquire the Property, or
(b) such time as this Agreement is terminated for any reason other than Seller's
default. This Section 5.3 shall survive any termination of this Agreement.
5.4. INDEPENDENT EXAMINATION. Purchaser hereby acknowledges that,
except as provided in Section 7.1, Purchaser is relying upon its own independent
examination of the Property and all matters relating thereto and not upon the
Documents and/or any statements of Seller or of any officer, director, employee,
agent, broker, manager or attorney of Seller with respect to acquiring the
Property. Seller shall not, except as otherwise expressly provided in Section
7.1, be deemed to have represented or warranted the completeness or accuracy of
any studies, investigations and reports heretofore or hereafter furnished to
Purchaser. The provisions of this Section 5.4 shall survive Closing and/or
termination of this Agreement.
5.5. TERMINATION RIGHT. In the event that Purchaser determines, in
Purchaser's sole and absolute discretion, that it does not desire, for any or no
reason, to acquire the Property, Purchaser shall provide written notice to
Seller before the end of the Inspection Period, and, subject to the Surviving
Termination Obligations, this Agreement shall terminate, the Deposit shall be
delivered to Purchaser and thereupon neither party shall have any further rights
or obligations to the other hereunder. If Purchaser shall fail to timely notify
Seller in writing of its election to terminate this Agreement on or before the
expiration of the Inspection Period, time being of the essence, the termination
right described in this Section 5.5 shall be immediately null and void and of no
further force or effect. Purchaser's failure to provide such notice on or before
the end of the Inspection Period shall constitute Purchaser's waiver of the
herein-described termination right. Notwithstanding any provision of this
Agreement, this is an "all or none" transaction and Purchaser has no right to
terminate this Agreement as to any part of the Property.
5.6. COPIES OF REPORTS. As additional consideration for the
transaction contemplated herein, Purchaser agrees that it will provide to
Seller, within five (5) days following a written request therefor, copies of any
and all third (3rd) party reports, tests or studies relating to the Property
obtained by Purchaser, including but not limited to those involving
environmental matters. Notwithstanding any provision of this Agreement, no
termination of this Agreement shall terminate Purchaser's obligations pursuant
to the foregoing sentence.
ARTICLE VI.
TITLE AND SURVEY MATTERS
6.1. TITLE. Seller shall provide Purchaser with a title insurance
commitment (the "COMMITMENT") for an Owner's Policy of Title Insurance from
Chicago Title Insurance Company (the "TITLE COMPANY"), covering the Real
Property, together with a copy of all instruments reflected as exceptions set
forth therein, within ten (10) days of the Effective Date. Purchaser shall
notify Seller no later than the expiration of the Inspection Period in writing
of any title exceptions, exclusions from coverage or other matters identified in
the Commitment which Purchaser disapproves (the "TITLE OBJECTIONS"). Any
exception, exclusion from coverage
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or other matter shown in the Commitment as of the end of the Inspection Period
or otherwise not disapproved in writing within said time period shall be deemed
approved by Purchaser and shall constitute a "PERMITTED EXCEPTION" hereunder.
Purchaser and Seller hereby agree that (i) all non-delinquent property taxes as
of the Closing, (ii) the rights of the Tenant under the Lease and Approved New
Leases, (iii) all matters created by or on behalf of Purchaser, including,
without limitation, any documents or instruments to be recorded as part of any
financing for the acquisition of the Property by Purchaser and (iv) the
exceptions to title identified on Exhibit D attached hereto, shall constitute
"PERMITTED EXCEPTIONS". Without Seller's prior written consent, Purchaser shall
not make any application to any governmental agency for any permit, approval,
license or other entitlement for the Property or the use or development thereof.
6.2. SURVEY. Seller has provided Purchaser with a copy of that
certain survey of the Property dated August 7, 2002 prepared by ▇▇▇▇
Incorporated (the "SURVEY"). Purchaser shall have the right to request changes
to the Survey during the Inspection Period. If the Survey discloses any matters
which are unacceptable to Purchaser, in Purchaser's sole and absolute
discretion, Purchaser shall notify Seller in writing no later than the
expiration of the Inspection Period. Any survey matter shown on the Survey not
disapproved in writing within said time period (or otherwise shown on the Survey
as of the last day of the Inspection Period) shall be deemed approved by
Purchaser and shall constitute a Permitted Exception hereunder. Seller may, at
its sole election, on or before the Closing Date, have any Survey matters to
which Purchaser has objected removed; provided, however, in no event will Seller
be obligated to do so or otherwise incur costs with respect thereto.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
7.1. SELLER'S REPRESENTATIONS. Seller represents and warrants that
the following matters are true and correct as of the Effective Date and the
Closing Date.
7.1.1 AUTHORITY. Seller is a limited partnership, duly
organized, validly existing and in good standing under the laws of the State of
Delaware and, to the extent necessary, is qualified to conduct business in the
State in which the Property is located. This Agreement has been duly authorized,
executed and delivered by Seller, is the legal, valid and binding obligation of
Seller, and does not violate any provision of any agreement or judicial order to
which Seller is a party or to which Seller is subject. All documents to be
executed by Seller which are to be delivered at Closing, will, at the time of
Closing, (a) be duly authorized, executed and delivered by Seller, (b) be legal,
valid and binding obligations of Seller, and (c) not violate any provision of
any agreement or judicial order to which Seller is a party or to which Seller is
subject.
7.1.2 9/11 DEALINGS. Neither Seller nor any of its
affiliates, nor any of their respective partners, members, shareholders or other
equity owners, and none of their respective employees, officers, directors,
representatives or agents, is a person or entity with whom U.S. persons or
entities are restricted from doing business under regulations of the Office of
Foreign Asset Control ("OFAC") of the Department of the Treasury (including
those named on OFAC's Specially Designated and Blocked Persons List) or under
any statute, executive order (including
- 9 -
the September 24, 2001, Executive Order Blocking Property and Prohibiting
Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism),
or other governmental action.
7.1.3 COMPLIANCE WITH ZONING AND RELATED MATTERS. Except as
set forth on Exhibit K:
(i) Seller has received no written
notice from any governmental authority that the Improvements fail to comply with
any applicable laws, statutes, ordinances, codes, covenants, conditions and
restrictions of any kind or nature.
(ii) Seller has not received any written
notice from any governmental authority of any proposed change in the zoning for
the Property.
(iii) There are no pending litigation
proceedings, claims, condemnations or sales in lieu thereof asserted against
Seller with respect to Seller's interest in the Property.
(iv) Seller has received no written
notice from any governmental authority of any pending public improvements, liens
or special assessments to be made in respect of, or assessed against, the
Property by any governmental authority.
7.1.4 SERVICE AGREEMENTS. The Service Agreements listed on
Exhibit L which is attached hereto and made a part hereof are, to the best of
Seller's knowledge, all of the agreements concerning the operation and
maintenance of the Property which will affect the Property after the Closing.
7.2. SELLER'S KNOWLEDGE. For purposes of this Agreement and any
document delivered at Closing, whenever the phrases "to the best of Seller's
knowledge", or the "knowledge" of Seller or words of similar import are used,
they shall be deemed to refer to the current, actual, conscious knowledge only,
and not any implied, imputed or constructive knowledge, without any independent
investigation having been made or any implied duty to investigate, of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Seller represents that the foregoing are the
individuals with the primary responsibility for overseeing the operation and
sale of the Property. Such individuals shall have no personal liability
hereunder.
7.3. CHANGE IN REPRESENTATION/WAIVER. Notwithstanding anything to
the contrary contained herein, Purchaser acknowledges that it shall not be
entitled to rely on any representation or warranty made by Seller in this
ARTICLE VII to the extent, prior to or at Closing, Purchaser shall have or
obtain current, actual, conscious knowledge (and not any implied, imputed or
constructive knowledge) of facts contradictory to such representation or
warranty; provided, however, if Purchaser determines prior to Closing that there
is a breach of any of the representations and warranties made by Seller above,
then Purchaser may, at its option, by sending to Seller written notice of its
election either (a) terminate this Agreement, or (b) waive such breach and
proceed to Closing with no adjustment in the Purchase Price and Seller shall
have no further liability as to such matter thereafter, except for liens
resulting from Seller's acts. In the event Purchaser terminates this Agreement
for the reasons set forth above, the Deposit shall be immediately refunded to
Purchaser and neither Purchaser nor Seller shall
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thereafter have any other rights or remedies hereunder other than the Surviving
Termination Obligations. In furtherance thereof, Seller shall have no liability
with respect to any of the foregoing representations and warranties or any
representations and warranties made in any other document executed and delivered
by Seller to Purchaser to the extent that, prior to Closing, Purchaser discovers
or learns of facts (from whatever source, including, without limitation the
property manager, the Tenant Estoppel Certificates (as hereinafter defined), as
a result of Purchaser's due diligence tests, investigations and inspections of
the Property, as a result of Purchaser or Purchaser's affiliate having leased
space within the Improvements or disclosure by Seller or Seller's agents and
employees) that contradicts any such representations and warranties, or renders
any such representations and warranties untrue or incorrect, and Purchaser
nevertheless consummates the transaction contemplated by this Agreement.
7.4. SURVIVAL. The express representations and warranties of Seller
made in this Agreement shall not merge into any instrument or conveyance
delivered at the Closing; provided, however, that any action, suit or proceeding
with respect to the truth, accuracy or completeness of such representations and
warranties shall be commenced, if at all, on or before the date which is six (6)
months after the date of the Closing and, if not commenced on or before such
date, thereafter such representations and warranties shall be void and of no
force or effect.
ARTICLE VIII.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
8.1. Purchaser represents and warrants to Seller that the following
matters are true and correct as of the Effective Date and the Closing Date.
8.1.1 AUTHORITY. Purchaser is a corporation, duly
organized, validly existing and in good standing under the laws of the State of
Wisconsin, and to the extent necessary, is qualified to conduct business in the
State in which the Property is located. This Agreement has been duly authorized,
executed and delivered by Purchaser, is the legal, valid and binding obligation
of Purchaser, and does not, to the best of Purchaser's knowledge, violate any
provision of any agreement or judicial order to which Purchaser is a party or to
which Purchaser is subject. All documents to be executed by Purchaser which are
to be delivered at Closing, at the time of Closing will be duly authorized,
executed and delivered by Purchaser, at the time of Closing will be legal, valid
and binding obligations of Purchaser, and at the time of Closing will not, to
the best of Purchaser's knowledge, violate any provision of any agreement or
judicial order to which Purchaser is a party or to which Purchaser is subject.
8.1.2 ERISA COMPLIANCE. To the best of Purchaser's
knowledge, Purchaser is not (a) a "plan" nor a plan "fiduciary" nor an entity
holding "plan assets" (as those terms are defined under the Employee Retirement
Income Security Act of 1974, as amended, and its applicable regulations as
issued by the Department of Labor and the Internal Revenue Service, "ERISA")
nor, to the best of Purchaser's knowledge, an entity whose assets are deemed to
be plan assets under ERISA, Purchaser is acquiring the Property for Purchaser's
own personal account and, to the best of Purchaser's knowledge, that the
Property shall not constitute plan assets subject to ERISA upon conveyance of
the Property by Seller and the closing of this
- 11 -
Agreement between Purchaser and Seller. Seller shall not have any obligation to
close the transaction contemplated by this Agreement if the transaction for any
reason constitutes a prohibited transaction under ERISA or if Purchaser's
representation is found to be false or misleading in any respect. The foregoing
representation and warranty shall survive the Closing.
8.1.3 NO FINANCING CONTINGENCY. It is expressly
acknowledged by Purchaser that this transaction is not subject to any financing
contingency, and no financing for this transaction shall be provided by Seller.
8.1.4 9/11 DEALINGS. Neither Purchaser nor any of its
affiliates, nor any of their respective partners, members, shareholders or other
equity owners, and none of their respective employees, officers, directors,
representatives or agents, is a person or entity with whom U.S. persons or
entities are restricted from doing business under regulations of the OFAC
(including those named on OFAC's Specially Designated and Blocked Persons List)
or under any statute, executive order (including the September 24, 2001,
Executive Order Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism), or other governmental action.
8.2. PURCHASER'S ACKNOWLEDGMENT. Purchaser or its affiliate
currently leases space within the Improvements and, as a result, is somewhat
familiar with the condition of the Property. Purchaser further acknowledges and
agrees that, except as expressly provided in Section 7.1 of this Agreement,
Seller has not made, does not make and specifically disclaims any
representations, warranties, promises, covenants, agreements or guaranties of
any kind or character whatsoever, whether express or implied, oral or written,
past, present or future, of, as to, concerning or with respect to (a) the
nature, quality or condition of the Property, including, without limitation, the
water, soil and geology, (b) the income to be derived from the Property, (c) the
suitability of the Property for any and all activities and uses which Purchaser
may conduct thereon, (d) the compliance of or by the Property or its operation
with any laws, rules, ordinances or regulations of any applicable governmental
authority or body, including, without limitation, the Americans with
Disabilities Act and any rules and regulations promulgated thereunder or in
connection therewith, (e) the habitability, merchantability or fitness for a
particular purpose of the Property, or (f) any other matter with respect to the
Property, and except as expressly set forth in Section 7.1 of this Agreement or
in any closing document, specifically that Seller has not made, does not make
and specifically disclaims any representations regarding solid waste, as defined
by the U.S. Environmental Protection Agency regulations at 40 C.F.R., Part 261,
or the disposal or existence, in or on the Property, of any hazardous substance
or hazardous waste, as defined by the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, and other applicable state
laws, and regulations promulgated thereunder. Purchaser further acknowledges and
agrees that, except as expressly provided in Section 7.1, having been given the
opportunity to inspect the Property, Purchaser is relying solely on its own
investigation of the Property and not on any information provided or to be
provided by Seller. Purchaser further acknowledges and agrees that, except as
expressly set forth in Section 7.1, any information provided or to be provided
with respect to the Property was obtained from a variety of sources and that
Seller has not made any independent investigation or verification of such
information. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY
PROVIDED IN SECTION 7.1 OF THIS AGREEMENT, AND AS A MATERIAL INDUCEMENT TO THE
EXECUTION AND DELIVERY OF THIS AGREEMENT BY SELLER, THE SALE OF THE PROPERTY AS
PROVIDED FOR HEREIN IS MADE
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ON AN "AS IS, WHERE IS" CONDITION AND BASIS "WITH ALL FAULTS." Purchaser
acknowledges, represents and warrants that Purchaser is not in a significantly
disparate bargaining position with respect to Seller in connection with the
transaction contemplated by this Agreement; that Purchaser freely and fairly
agreed to this acknowledgment as part of the negotiations for the transaction
contemplated by this Agreement. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY,
SELLER SHALL IN NO EVENT HAVE ANY LIABILITY FOR BREACH OF ANY REPRESENTATION,
WARRANTY, INDEMNITY OR COVENANT SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING
DOCUMENT IN EXCESS OF FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00), IN
THE AGGREGATE.
8.3. PURCHASER'S RELEASE. Purchaser on behalf of itself and its
successors and assigns waives its right to recover from, and forever releases
and discharges, Seller, Seller's partners, each of their respective members,
trustees, employees and agents of each of them, and their respective heirs,
successors, personal representatives and assigns from any and all demands,
claims, legal or administrative proceedings, losses, liabilities, damages,
penalties, fines, liens, judgments, costs or expenses known or unknown, foreseen
or unforeseen, that may arise on account of or in any way be connected with (i)
the physical condition of the Property, (ii) the condition of title to the
Property, (iii) the presence on, under or about the Property of any mold or
hazardous or regulated substance, (iv) the Property's compliance with any
applicable federal, state or local law, rule or regulation, or (v) any other
aspect of the Property; provided, however, the foregoing release (a) does not
release Seller for liability for any breach of the representations and
warranties of Seller set forth in Section 7.1 of this Agreement; (b) does not
release Seller from any liability under the special warranty of title set forth
in the Deed; and (c) apply to the existing Lease between Seller, as landlord and
Centene, as tenant. The terms and provisions of this Section 8.3 shall survive
Closing and/or termination of this Agreement.
8.4 SURVIVAL. The express representations and warranties of
Purchaser made in this Agreement shall not merge into any instrument or
conveyance delivered at the Closing; provided, however, that any action suit or
proceeding with respect to the truth, accuracy or completeness of such
representations and warranties shall be commences, if at all, on or before the
date which is six (6) months after the date of the Closing and, if not commenced
on or before such date, thereafter such representations and warranties shall be
void and of no force or effect.
ARTICLE IX.
SELLER'S INTERIM OPERATING COVENANTS.
9.1. OPERATIONS. Seller shall continue to operate, manage and
maintain the Improvements through the Closing Date in the ordinary course of
Seller's business and substantially in accordance with Seller's present
practice, subject to ordinary wear and tear and further subject to Article XII
of this Agreement.
9.2. MAINTAIN INSURANCE. Seller shall maintain until the Closing
Date fire and extended coverage insurance on the Property which is at least
equivalent in all material respects
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to the insurance policies covering the Real Property and the Improvements as of
the Effective Date.
9.3. PERSONAL PROPERTY. Seller shall not transfer or remove any
Personal Property from the Improvements after the Effective Date except for
repair or replacement thereof. Any items of Personal Property replaced after the
Effective Date shall be promptly installed prior to Closing and shall be of
substantially similar quality to the item of Personal Property being replaced.
9.4. NO SALES. Except for the execution of tenant Leases pursuant
to Section 9.5, Seller shall not convey any interest in the Property to any
third party.
9.5. TENANT LEASES. Seller shall not, from and after the last day
of the Inspection Period, (i) grant any consent or waive any material rights
under the Leases, (ii) terminate any Lease, or (iii) enter into a new lease,
modify an existing Lease or renew, extend or expand an existing Lease in each
case without the prior written approval of Purchaser (an "APPROVED NEW LEASE"),
which in each case shall not be unreasonably withheld, conditioned or delayed,
and which shall be deemed granted if Purchaser fails to respond to a request for
approval within five (5) business days after receipt of the request therefor
together with a summary of lease terms and credit information of the proposed
tenant. Purchaser has no right to review and approve any Approved New Lease
during the Inspection Period, but Seller agrees to furnish Purchaser copies of
any Approved New Lease signed during the Inspection Period promptly following
receipt thereof. Seller also agrees to promptly furnish Purchaser with copies of
any new lease, renewal and expansion proposals given or received by Seller
during the Inspection Period. If, during the Inspection Period, Seller receives
an offer (the "OFFER") to lease any currently vacant space within the
Improvements which Seller is willing to accept, Seller agrees to provide written
notice (the "OFFER NOTICE") to Centene setting forth the terms of the Offer,
including the space covered thereby (the "OFFER SPACE"), and providing Centene
with the right of first refusal (the "ROFR") to lease the Offer Space on the
same terms as set forth in the Offer, but not otherwise. Centene shall have five
(5) business days following the date of the Offer Notice within which to elect
to exercise the ROFR as to such Offer Space. If Centene exercises the ROFR and
unconditionally accepts the Offer within such five (5) business day period, the
existing Centene Lease will be deemed automatically amended to expand Centene's
existing premises to include the Offer Space on the terms set forth in the Offer
Notice and, if requested by either Seller or Centene, the parties shall promptly
execute and deliver an amendment to the existing Centene Lease expanding
Centene's premises to include the Offer Space on the terms set forth in the
Offer. If Seller fails to receive written notice from Centene exercising the
ROFR and unconditionally accepting the Offer within such five (5) business day
period, Centene will be deemed to have rejected the Offer and Seller will be
free to lease the Offer Space on the terms set forth in the Offer or such other
terms as Seller may deem acceptable, as long as the base rental rate is no less
than that set forth in the Offer Notice. If Centene fails to exercise the ROFR
and Seller thereafter desires to lease the Offer Space at a rental rate less
than that set forth in the Offer Notice, Seller agrees to provide Centene with
an additional Offer Notice (the "REVISED OFFER NOTICE") offering to lease the
Offer Space to Centene at such reduced rental rate, which must be
unconditionally accepted (or otherwise be deemed rejected) by Centene within two
(2) business days following the date of the Revised Offer Notice. THE ROFR DOES
NOT COVER OR INCLUDE ANY SPACE WITHIN THE IMPROVEMENTS CURRENTLY LEASED OR OVER
WHICH ANY EXISTING TENANT HAS ANY
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EXPANSION OR OTHER RIGHT WITH RESPECT THERETO. FURTHER, THE ROFR SHALL NOT BE
CONSIDERED A PART OF THE CENTENE LEASE AND SHALL AUTOMATICALLY EXPIRE AND BE OF
NO FURTHER EFFECT FROM AND AFTER THE DATE THIS AGREEMENT TERMINATES OR OTHERWISE
EXPIRES BY ITS TERMS.
ARTICLE X.
CLOSING CONDITIONS.
10.1. CONDITIONS TO OBLIGATIONS OF SELLER. The obligations of Seller
under this Agreement to sell the Property and consummate the other transactions
contemplated hereby shall be subject to the satisfaction of the following
conditions on or before the Closing Date except to the extent that any of such
conditions may be waived by Seller in writing at Closing.
10.1.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF
PURCHASER. All representations and warranties of Purchaser in this Agreement
shall be true and correct in all material respects as of the Closing Date, with
the same force and effect as if such representations and warranties were made
anew as of the Closing Date. Any changes to such representations disclosed by
Purchaser shall be acceptable to Seller, and Purchaser shall have performed and
complied in all material respects with all covenants and agreements required by
this Agreement to be performed or complied with by Purchaser prior to the
Closing Date.
10.2. CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligations of
Purchaser under this Agreement to purchase the Property and consummate the other
transactions contemplated hereby shall be subject to the satisfaction of the
following conditions on or before the Closing Date, except as otherwise provided
below or to the extent that any of such conditions may be waived by Purchaser in
writing at Closing.
10.2.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
All representations and warranties of Seller in this Agreement shall be true and
correct in all material respects as of the Closing Date, with the same force and
effect as if such representations and warranties were made anew as of the
Closing Date. Any changes to such representations disclosed by Seller shall be
acceptable to Purchaser, and Seller shall have performed and complied in all
material respects with all covenants and agreement required by this Agreement to
be performed or complied with by Seller prior to the Closing Date.
10.2.2 TENANT ESTOPPELS. Purchaser shall have received
Tenant estoppel certificates in substantially the form attached hereto as
Exhibit C (or, if different, the form required by the applicable Lease or
delivered to Seller prior to Seller's acquisition of the Property) from tenants
who lease, in the aggregate, at least eighty-five percent (85%) of the leased
space (inclusive of the space leased by Centene Corporation) in the Property in
substantially the same form as Seller received from such tenants when Seller
acquired the Property (the "TENANT ESTOPPEL CERTIFICATES"). Purchaser
acknowledges that Seller has no obligation to obtain a Tenant Estoppel
Certificate from Centene Corporation and the threshold set forth above includes
the space leased by such tenant. Seller shall provide Purchaser with
- 15 -
copies of the Tenant Estoppel Certificates prepared by Seller for Purchaser's
review and comment before delivering the completed Tenant Estoppel Certificates
to the Tenants and the completed Tenant Estoppel Certificates shall be deemed
approved by Purchaser on the expiration of three (3) business days following
such delivery unless Purchaser provides Seller in writing any comments to, or
objections concerning the substance of the completed Tenant Estoppel Certificate
to be delivered to the Tenants under the Leases. Notwithstanding the foregoing,
Seller may provide its own estoppel ("SELLER'S ESTOPPEL") in the form attached
as Exhibit J to Purchaser in satisfaction of the foregoing requirements but
Seller may not deliver a Seller Estoppel for more than fifteen percent (15%) of
the leased space. In the event that, after the Closing, Seller delivers to
Purchaser a Tenant Estoppel Certificate from a tenant for whom Seller executed a
Seller's Estoppel at the Closing and such Tenant Estoppel Certificate contains
no information which is contradictory to or inconsistent with the information
contained in the Seller's Estoppel, then Seller thereafter shall be released
from all liability relating to Seller's Estoppel with respect to such Seller's
Estoppel. In no event shall Seller be obligated to deliver updates to any of the
Tenant Estoppel Certificates. Seller will deliver Purchaser copies of the signed
Tenant Estoppel Certificates promptly following Seller's receipt thereof.
Purchaser agrees not to unreasonably object to or withhold Purchaser's consent
to any alternate estoppel form or changes made by any tenant to the form
attached hereto. In particular, Purchaser agrees to accept for each tenant the
same form of Tenant Estoppel Certificate signed by such tenant which Seller
received prior to Seller's acquisition of the Property as long as such Tenant
Estoppel Certificate is revised to show Purchaser as the prospective buyer. If
Purchaser fails to furnish Seller with a written notice of disapproval (which
notice, in order to be effective, must include Purchaser's specific objections),
within five (5) business days from the date of Seller's delivery thereof, such
Tenant Estoppel Certificate will be deemed approved by Purchaser.
10.2.3 TITLE POLICY. Upon recordation of the Deed and
payment of the title insurance premiums, Title Company shall be committed to
issue the Title Policy to Purchaser.
10.2.4 POSSESSION OF THE PROPERTY. Delivery by Seller of
possession of the Property, subject to the Permitted Exceptions and the rights
of tenants under the Leases and Approved New Leases.
ARTICLE XI.
CLOSING
11.1. PURCHASER'S CLOSING OBLIGATIONS. Purchaser, at its sole cost
and expense, shall deliver or cause to be delivered to Seller at Closing the
following:
11.1.1 The Purchase Price, after all adjustments are made at
the Closing as herein provided, by wire transfer or other immediately available
federal funds, which amount shall be received in escrow by the Title Company at
or before 11:00 a.m. St. Louis, Missouri time.
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11.1.2 A general assignment substantially in the form
attached hereto as Exhibit G (the "GENERAL ASSIGNMENT").
11.1.3 Written notice addressed to the tenants in
substantially the form attached as Exhibit H (the "TENANT NOTICE").
11.1.4 Such other documents as may be reasonably necessary
or appropriate to effect the consummation of the transactions which are the
subject of this Agreement, including, without limitation, any certificate of
value or similar instrument required under applicable law.
11.2. SELLER'S CLOSING OBLIGATIONS. Seller, at its sole cost and
expense, shall deliver or cause to be delivered to Purchaser the following:
11.2.1 A Special Warranty Deed (the "Deed"), in the form
attached hereto as Exhibit F.
11.2.2 The General Assignment.
11.2.3 The Tenant Notice.
11.2.4 A certificate substantially in the form attached
hereto as Exhibit I ("NON-FOREIGN ENTITY CERTIFICATION") certifying that Seller
is not a "foreign person" as defined in Section 1445 of the Internal Revenue
Code of 1986, as amended.
11.2.5 To the extent necessary to remove any exception to
the Title Policy for mechanic's liens and general rights of parties in
possession, an affidavit in a form acceptable to the Escrow Agent and Seller
allowing Escrow Agent to issue the Title Policy to Purchaser without such
exception.
11.2.6 A closing statement.
11.2.7 The following items, to the extent in Seller's
possession (which need not be delivered at the Closing, but may, instead, be
delivered in the Property's management office): (a) all keys for all entrance
door and spaces which may be locked (whether occupied or not) in the
Improvements; (b) all original books, records, tenant files, operating reports,
plans and specifications and other materials reasonably necessary to the
continuity of operation of the Property; and (c) the originals (or copies where
originals are not available and copies of the Leases will be certified) of the
Leases and the Approved Contracts.
11.2.8 Such other documents as may be reasonably necessary
or appropriate to effect the consummation of the transactions which are the
subject of this Agreement.
ARTICLE XII.
RISK OF LOSS.
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12.1. CONDEMNATION AND CASUALTY. If, prior to the Closing Date, all
or any portion of the Property is taken by condemnation or eminent domain, or is
the subject of a pending taking which has not been consummated, or is destroyed
or damaged by fire or other casualty, Seller shall notify Purchaser of such fact
promptly after Seller obtains knowledge thereof. If such condemnation or
casualty is "MATERIAL" (as hereinafter defined), Purchaser shall have the option
to terminate this Agreement upon notice to Seller given not later than fifteen
(15) days after receipt of Seller's notice, or the Closing Date, whichever is
earlier. If this Agreement is terminated, the Deposit shall be returned to
Purchaser and thereafter neither Seller nor Purchaser shall have any further
rights or obligations to the other hereunder except with respect to the
Surviving Termination Obligations. If this Agreement is not terminated, Seller
shall not be obligated to repair any damage or destruction but (a) Seller shall
assign, without recourse, and turn over to Purchaser all of the insurance
proceeds or condemnation proceeds, as applicable, (or, if such have not been
awarded, all of its right, title and interest therein) payable with respect to
such fire or other casualty or condemnation, and (b) the parties shall proceed
to Closing pursuant to the terms hereof without abatement of the Purchase Price
except for a Purchase Price credit in the amount of the applicable insurance
deductible.
12.2. CONDEMNATION NOT MATERIAL. If the condemnation is not
Material, then the Closing shall occur without abatement of the Purchase Price
and Seller shall assign, without recourse, all awards or any rights to collect
awards to Purchaser on the Closing Date.
12.3. CASUALTY NOT MATERIAL. If the Casualty is not Material, then
the Closing shall occur without abatement of the Purchase Price except for a
Purchase Price credit in the amount of the applicable deductible and any damage
from such Casualty not covered by the insurance proceeds and Seller shall not be
obligated to repair such damage or destruction and Seller shall assign, without
recourse, and turn over to Purchaser all of the insurance proceeds net of any
reasonable (a) costs of repairs, and (b) collection costs (or, if such have not
been awarded, all of its right, title and interest therein) payable with respect
to such casualty and credit the Purchase Price with the amount of any applicable
insurance deductible.
12.4. MATERIALITY. For purposes of this Article XII (a) with respect
to a taking by eminent domain, the term "MATERIAL" shall mean any taking
whatsoever, regardless of the amount of the award or the amount of the Property
taken, excluding, however, any taking solely of subsurface rights or takings for
utility easements or right of way easements, if the surface of the Property,
after such taking, may be used in substantially the same manner as though such
rights had not been taken, and (b) with respect to a casualty, the term
"MATERIAL" shall mean any casualty such that the cost of repair, as reasonably
estimated by Seller's engineer, is in excess of Six Hundred Twenty-Five Thousand
and No/100 Dollars ($625,000.00).
ARTICLE XIII.
DEFAULT
13.1. DEFAULT BY SELLER. In the event the Closing and the
transactions contemplated hereby do not occur as provided herein by reason of
the default of Seller, Purchaser may elect, as the sole and exclusive remedy of
Purchaser, to (a) terminate this Agreement and receive the
- 18 -
Deposit from the Escrow Agent, and in such event Seller shall not have any
liability whatsoever to Purchaser hereunder other than with respect to the
Surviving Termination Obligations, or (b) enforce specific performance of
Seller's obligation to convey the Property, without adjustment to, or credit
against, the Purchase Price. Purchaser shall be deemed to have elected to
terminate this Agreement (as provided in subsection (a) above) if Purchaser
fails to deliver to Seller written notice of its intent to file a cause of
action for specific performance against Seller on or before fifteen (15)
business days after the originally scheduled Closing Date, or having given
Seller notice, fails to file a lawsuit asserting such cause of action within
ninety (90) days after the originally scheduled Closing Date. Notwithstanding
the foregoing, nothing contained herein shall limit Purchaser's remedies at law
or in equity, as to the Surviving Termination Obligations.
13.2. DEFAULT BY PURCHASER. IN THE EVENT THE CLOSING AND THE
TRANSACTIONS CONTEMPLATED HEREBY DO NOT OCCUR AS PROVIDED HEREIN BY REASON OF
ANY DEFAULT OF PURCHASER, PURCHASER AND SELLER AGREE IT WOULD BE IMPRACTICAL AND
EXTREMELY DIFFICULT TO FIX THE DAMAGES WHICH SELLER MAY SUFFER. THEREFORE,
PURCHASER AND SELLER HEREBY AGREE A REASONABLE ESTIMATE OF THE TOTAL NET
DETRIMENT SELLER WOULD SUFFER IN THE EVENT PURCHASER DEFAULTS AND FAILS TO
COMPLETE THE PURCHASE OF THE PROPERTY IS AND SHALL BE, AS SELLER'S SOLE AND
EXCLUSIVE REMEDY (WHETHER AT LAW OR IN EQUITY), A SUM EQUAL TO THE DEPOSIT. UPON
SUCH DEFAULT BY PURCHASER, SELLER SHALL HAVE THE RIGHT TO RECEIVE THE DEPOSIT
FROM THE ESCROW AGENT AS ITS SOLE AND EXCLUSIVE REMEDY AND THEREUPON THIS
AGREEMENT SHALL BE TERMINATED AND NEITHER SELLER NOR PURCHASER SHALL HAVE ANY
FURTHER RIGHTS OR OBLIGATIONS HEREUNDER EXCEPT WITH RESPECT TO THE SURVIVING
TERMINATION OBLIGATIONS. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN
SHALL LIMIT SELLER'S REMEDIES AT LAW OR IN EQUITY AS TO THE SURVIVING
TERMINATION OBLIGATIONS.
ARTICLE XIV.
BROKERS
14.1. BROKERS. Purchaser and Seller each represents and warrants to
the other that it has not dealt with any person or entity entitled to a
brokerage commission, finder's fee or other compensation with respect to the
transaction contemplated hereby. Purchaser hereby agrees to indemnify, defend,
and hold Seller harmless from and against any losses, damages, costs and
expenses (including, but not limited to, attorneys' fees and costs) incurred by
Seller by reason of any breach or inaccuracy of the Purchaser's (or its
nominee's) representations and warranties contained in this Article XIV. Seller
hereby agrees to indemnify, defend, and hold Purchaser harmless from and against
any losses, damages, costs and expenses (including, but not limited to,
attorneys' fees and costs) incurred by Purchaser by reason of any breach or
inaccuracy of Seller's representations and warranties contained in this Article
XIV. Seller and Purchaser agree that it is their specific intent that no broker
shall be a party to or a third party beneficiary of this Agreement or the
Deposit, that no broker shall have any rights or cause of action hereunder, and
further that the consent of a broker shall not be necessary to any agreement,
amendment, or
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document with respect to the transaction contemplated by this Agreement. The
provisions of this Article XIV shall survive the Closing and/or termination of
this Agreement.
ARTICLE XV.
CONFIDENTIALITY
15.1. CONFIDENTIALITY. Purchaser expressly acknowledges and agrees
that the transactions contemplated by this Agreement, the Documents that are not
otherwise known by or readily available to the public and the terms, conditions
and negotiations concerning the same shall be held in the strictest confidence
by Purchaser and shall not be disclosed by Purchaser except to its legal
counsel, lenders, investors, surveyor, title company, broker, accountants,
consultants, officers, partners, directors and shareholders (the "AUTHORIZED
REPRESENTATIVES"), and except and only to the extent that such disclosure may be
necessary for its performance hereunder. Purchaser agrees that it shall instruct
(and will be responsible for the compliance of) each of its Authorized
Representatives to maintain the confidentiality of such information. Purchaser
further acknowledges and agrees that, unless and until the Closing occurs, all
information and materials obtained by Purchaser in connection with the Property
that are not otherwise known by or readily available to the public will not be
disclosed by Purchaser to any third persons (other than to its Authorized
Representatives) without the prior written consent of Seller. If the transaction
contemplated by this Agreement does not occur for any reason whatsoever,
Purchaser shall promptly return to Seller, and shall instruct its Authorized
Representatives to return to Seller, all copies and originals of all documents
and information provided to Purchaser. Nothing contained in this Section 15.1
shall preclude or limit either party from disclosing or accessing any
information otherwise deemed confidential under this Section 15.1 in connection
with the party's enforcement of its rights following a disagreement hereunder or
in response to lawful process or subpoena or other valid or enforceable order of
a court of competent jurisdiction or any filings with Authorities required by
reason of the transactions provided for herein. The provisions of this Section
15.1 shall survive any termination of this Agreement.
15.2. POST CLOSING PUBLICATION. Notwithstanding the foregoing,
following Closing, Purchaser and Seller shall have each have the right to
announce the sale and acquisition of the Property in newspapers and real estate
trade publications (including "tombstones") publicizing the purchase or as
otherwise required by law, in each instance only in a form which has been
approved by Purchaser and Seller. The provisions of this Section 15.2 shall
survive Closing and/or any termination of this Agreement.
ARTICLE XVI.
MISCELLANEOUS
16.1. NOTICES. Any and all notices, requests, demands or other
communications hereunder shall be deemed to have been duly given if in writing
and if transmitted by hand delivery with receipt therefor, by facsimile delivery
(with confirmation by hard copy), by
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overnight courier, or by registered or certified mail, return receipt requested,
first class postage prepaid addressed as follows (or to such new address as the
addressee of such a communication may have notified the sender thereof) (the
date of such notice shall be the date of actual delivery to the recipient
thereof):
To Purchaser: Centene Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇, Vice President of Facilities
Management
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
To Seller: c/o TA Associates Realty
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
With a copy to: Stutzman, Bromberg, Esserman & ▇▇▇▇▇▇,
A Professional Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇-▇▇▇.▇▇▇
To Escrow Agent: Chicago Title Insurance Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇.▇▇▇
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16.2. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal, substantive laws in which the
Property is located, without regard to the conflict of laws principles thereof.
16.3. HEADINGS. The captions and headings herein are for convenience
and reference only and in no way define or limit the scope or content of this
Agreement or in any way affect its provisions.
16.4. EFFECTIVE DATE. This Agreement shall be effective upon
delivery of this Agreement fully executed by Seller and Purchaser, which date
shall be deemed the Effective Date hereof. Either party may request that the
other party promptly execute a memorandum specifying the Effective Date.
16.5. BUSINESS DAYS. If any date herein set forth for the
performance of any obligations of Seller or Purchaser or for the delivery of any
instrument or notice as herein provided should be on a Saturday, Sunday or legal
holiday, the compliance with such obligations or delivery shall be deemed
acceptable on the next business day following such Saturday, Sunday or legal
holiday. As used herein, the term "legal holiday" means any state or Federal
holiday for which financial institutions or post offices are generally closed in
the state where the Property is located.
16.6. COUNTERPART COPIES. This Agreement may be executed in two or
more counterpart copies, all of which counterparts shall have the same force and
effect as if all parties hereto had executed a single copy of this Agreement.
16.7. BINDING EFFECT. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns.
16.8. ASSIGNMENT. Purchaser shall not have the right to assign the
Agreement without Seller's prior written consent, which consent may be given or
withheld in Seller's sole and absolute discretion; provided, however, Purchaser
may assign this Agreement to another entity without Seller's consent (a) as long
as (i) such assignee is controlled by Centene; and (ii) Purchaser provides
Seller with the name and organizational documents for such assignee and all
members thereof at least five (5) business days in advance of the Closing Date;
and (b) as part of a sale-leaseback transaction in which Centene or a wholly
owned affiliate is the tenant. Purchaser shall in no event be released from any
of its obligations or liabilities hereunder as a result of any assignment. The
respective obligations of Seller and Purchaser under this Section 16.8 shall
survive the Closing and shall not be merged therein. Whenever reference is made
in this Agreement to Seller or Purchaser, such reference shall include the
successors and assigns of such party under this Agreement.
16.9. INTERPRETATION. This Agreement shall not be construed more
strictly against one party than against the other merely by virtue of the fact
that it may have been prepared by counsel for one of the parties, it being
recognized that both Seller and Purchaser have contributed substantially and
materially to the preparation of this Agreement.
16.10. ENTIRE AGREEMENT. This Agreement and the Exhibits attached
hereto contain the final and entire agreement between the parties hereto with
respect to the sale and purchase of the
- 22 -
Property and are intended to be an integration of all prior negotiations and
understandings. Purchaser, Seller and their agents shall not be bound by any
terms, conditions, statements, warranties or representations, oral or written,
not contained herein. No change or modifications to this Agreement shall be
valid unless the same is in writing and signed by the parties hereto. Each party
reserves the right to waive any of the terms or conditions of this Agreement
which are for their respective benefit and to consummate the transaction
contemplated by this Agreement in accordance with the terms and conditions of
this Agreement which have not been so waived. Any such waiver must be in writing
signed by the party for whose benefit the provision is being waived.
16.11. SEVERABILITY. If any one or more of the provisions hereof
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
16.12. SURVIVAL. Except as otherwise specifically provided for herein
or in any closing document (collectively, the "SURVIVING TERMINATION
OBLIGATIONS"), the provisions of this Agreement and the representations and
warranties herein shall not survive after the conveyance of title and payment of
the Purchase Price but be merged therein.
16.13. EXHIBITS. Exhibits A through L attached hereto are
incorporated herein by reference.
16.14. TIME. Time is of the essence in the performance of each of the
parties' respective obligations contained herein.
16.15. LIMITATION OF LIABILITY. The obligations of Seller are binding
only on Seller's interest in the Property and shall not be personally binding
upon, nor shall any resort be had to, any other assets of Seller nor the private
properties of any of the partners, officers, directors, shareholders or
beneficiaries of Seller, or of any partners, officers, directors, shareholders
or beneficiaries of any partners of Seller, or of any of Seller's employees or
agents. All documents executed by Seller shall be deemed to contain (even if not
expressly stated) the foregoing exculpation.
16.16. PREVAILING PARTY. Should either party employ an attorney to
enforce any of the provisions hereof, (whether before or after Closing, and
including any claims or actions involving amounts held in escrow), the
non-prevailing party in any final judgment agrees to pay the other party's
reasonable expenses, including reasonable attorneys' fees and expenses in or out
of litigation and, if in litigation, trial, appellate, bankruptcy or other
proceedings, expended or incurred in connection therewith, as determined by a
court of competent jurisdiction. The provisions of this Section 16.16 shall
survive Closing and/or any termination of this Agreement.
16.17. ESCROW AGREEMENT.
16.17.1 INSTRUCTIONS. Purchaser and Seller each shall
promptly deposit a copy of this Agreement executed by such party (or either of
them shall deposit a copy executed by both Purchaser and Seller) with Escrow
Agent, and, upon receipt of the Deposit from Purchaser, Escrow Agent shall
immediately execute this Agreement where provided below and
- 23 -
send copies to Purchaser and Seller. This Agreement, together with such further
instructions, if any, as the parties shall provide to Escrow Agent by written
agreement, shall constitute the escrow instructions. If any requirements
relating to the duties or obligations of Escrow Agent hereunder are not
acceptable to Escrow Agent, or if Escrow Agent requires additional instructions,
the parties hereto agree to make such deletions, substitutions and additions
hereto as counsel for Purchaser and Seller shall mutually approve, which
additional instructions shall not substantially alter the terms of this
Agreement unless otherwise expressly agreed to by Seller and Purchaser.
16.17.2 REAL ESTATE REPORTING PERSON. Escrow Agent is hereby
designated the "real estate reporting person" for purposes of Section 6045 of
Title 26 of the United States Code and Treasury Regulation 1.6045-4 and any
instructions or settlement statement prepared by Escrow Agent shall so provide.
Upon the consummation of the transaction contemplated by this Agreement, Escrow
Agent shall file Form 1099 information return and send the statement to Seller,
with a copy to Purchaser, as required under the aforementioned statute and
regulation. Seller and Purchaser shall promptly furnish their federal tax
identification numbers to Escrow Agent and shall otherwise reasonably cooperate
with Escrow Agent in connection with Escrow Agent's duties as real estate
reporting person.
16.17.3 LIABILITY OF ESCROW AGENT. Any notice sent by Seller
or Purchaser (the "NOTIFYING PARTY") to the Escrow Agent shall be sent
simultaneously to the other noticed parties pursuant to Section 16.1 herein (the
"NOTICE PARTIES"). If the Notice Parties do not object to the Notifying Party's
notice to the Escrow Agent within ten (10) days after the Notice Parties'
receipt of the Notifying Party's certificate to the Escrow Agent, the Escrow
Agent shall be able to rely on the same. If the Notice Parties send, within such
ten (10) days, written notice to the Escrow Agent disputing the Notifying
Party's certificate, a dispute shall exist and the Escrow Agent shall hold the
Deposit as hereinafter provided. The parties hereto hereby acknowledge that
Escrow Agent shall have no liability to any party on account of Escrow Agent's
failure to disburse the Deposit if a dispute shall have arisen with respect to
the propriety of such disbursement and, in the event of any dispute as to who is
entitled to receive the Deposit, disburse them in accordance with the final
order of a court of competent jurisdiction, or to deposit or interplead such
funds into a court of competent jurisdiction pending a final decision of such
controversy. The parties hereto further agree that Escrow Agent shall not be
liable for failure to any depository and shall not be otherwise liable except in
the event of Escrow Agent's gross negligence or willful misconduct. The Escrow
Agent shall be reimbursed on an equal basis by Purchaser and Seller for any
reasonable expenses incurred by the Escrow Agent arising from a dispute with
respect to the Deposit. The obligations of Seller with respect to the Escrow
Agent are intended to be binding only on Seller and Seller's assets and shall
not be personally binding upon, nor shall any resort be had to, the private
properties of any of the partners, officers, directors, shareholders or
beneficiaries of Seller, or of any partners, officers, directors, shareholders
or beneficiaries of any partners of Seller, or of any of Seller's employees or
agents.
16.18. NO RECORDING. Neither this Agreement nor any memorandum or
short form hereof shall be recorded or filed in any public land or other public
records of any jurisdiction, by either party and any attempt to do so may be
treated by the other party as a breach of this Agreement.
- 24 -
16.19. WAIVER OF TRIAL BY JURY. The respective parties hereto shall
and hereby do waive trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against the other on any matters
whatsoever arising out of or in any way connected with this Agreement, or for
the enforcement of any remedy under any statute, emergency or otherwise.
[SIGNATURES ON FOLLOWING PAGES]
- 25 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal on the date set forth above.
SELLER:
THE REALTY ASSOCIATES FUND VI, L.P.,
a Delaware limited partnership
By: Realty Associates Fund VI, LLC,
its general partner
By: Realty Associates Advisors, LLC,
its manager
By: Realty Associates
Advisors Trust,
its sole member
By:_________________________
Name:
Title:
- 26 -
PURCHASER:
CENTENE MANAGEMENT CORPORATION,
a Wisconsin corporation
By:_____________________________________
Name:
Title:
- 27 -
ESCROW AGENT JOINDER
Escrow Agent hereby executes this Agreement for the sole purpose of
acknowledging receipt of the Initial Deposit and its responsibilities hereunder
and to evidence its consent to serve as Escrow Agent in accordance with the
terms of this Agreement.
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By:_____________________________________
Name:
Title:
Date: April ____, 2003
- 28 -
LIST OF EXHIBITS
EXHIBITS
Exhibit A - Legal Description
Exhibit B - Due Diligence Documents to be Delivered by Seller
Exhibit C - Form of Tenant Estoppel Certificate
Exhibit D - Permitted Exceptions
Exhibit E - Lease Schedule
Exhibit F - Form of Special Warranty Deed
Exhibit G - Form of General Assignment
Exhibit H - Form of Notice Letter to Tenants
Exhibit I - Form of Non-Foreign Entity Certificate
Exhibit J - Form of Seller Estoppel
Exhibit K - Disclosure Schedule
Exhibit L - List of Service Agreements
- 29 -
EXHIBIT A
LEGAL DESCRIPTION
Centene Place
Lots 8, 9 and 10 in Block 13 of the Town (now City) of ▇▇▇▇▇▇▇ according to the
plat thereof recorded in Plat Book 1, Page 11 (now Page 7) of the St. Louis
County Records.
EXHIBIT A - PAGE 1 OF 1
EXHIBIT B
DUE DILIGENCE DOCUMENTS
TO BE DELIVERED BY SELLER
Tenant Information
1. A current rent roll for the Property in the form currently maintained
by Seller.
2. All Leases and amendments thereto, including all subleases and Lease
guaranties.
3. All leasing commission/brokerage agreements
4. All certificates of insurance or other evidence of insurance delivered
by existing tenants of the Property
Operating Information
1. All service, maintenance, equipment and/or supply contracts.
2. Real estate tax bills (including special assessments) for the prior two
(2) years.
3. Year-to-date 2003 operating statements.
4. Year-end 2002 Lease occupancy expense reconciliations.
Other
1. Seller's most current title policy and any title report or commitment
for the Property.
2. Seller's most recent survey of the Property.
3. Any maintenance or repair records relating to the Property from October
1, 2002 to the present - to be made available at the property manager's
office, to the extent in Seller's possession or control.
4. Any "as built" plans and specifications for the Improvements and any
site engineering plans and environmental reports relating to the
Property - to be made available at the property manager's office, to
the extent in Seller's possession or control.
5. All marketing and leasing materials related to the Property - to be
made available at the property manager's office, to the extent in
Seller's possession or control.
6. True and complete copies of all governmental documents and/or approvals
for tax abatement, development, zoning, platting and/or utility
services for the Property, including any reassessment notices from any
taxing authority or assessors office for 2003 - to be made available at
the property manager's office, to the extent in Seller's possession or
control.
EXHIBIT B - PAGE 1 OF 1
7. True and complete copies of any certificates of occupancy for the
Improvements - to be made available at the property manager's office,
to the extent in Seller's possession or control.
8. A list of the Personal Property - to be made available at the property
manager's office, to the extent in Seller's possession or control.
- 2 -
EXHIBIT C
TENANT ESTOPPEL CERTIFICATE
_____________________________________ (the "Tenant") hereby certifies
to The Realty Associates Fund VI, a Delaware limited partnership (the "Owner")
and Centene Corporation, its successors or assigns ("Purchaser") as follows:
1. Pursuant to that certain Lease dated ____________, ______ (the
"Lease"), Tenant leases _______________ square feet of space
(the "Premises"). The Lease, as amended, modified and
supplemented, is in full force and effect, and represents the
entire agreement between Tenant and Owner for the Property.
There are no amendments, modifications or supplements to the
Lease, whether oral or written, except as follows (include the
date of each amendment, modification or supplement):
________________________________
_____________________________________. A true and correct copy
of the Lease, as amended, modified and supplemented, is
attached hereto as Exhibit A.
2. The term of the Lease began on ____________________, ______
and will end on ____________________, 20____. Tenant has
accepted the Premises, is in occupancy, and is paying rent
under the Lease.
3. The Lease does/does not provide for an option to extend the
term of the Lease for ________________ years. Except as
expressly provided in the Lease, Tenant does not have any
right or option to renew or extend the term of the Lease, to
lease other space at the Property, nor any preferential right
to purchase all or any part of the Premises or the Property.
4. The Lease is presently in full force and effect and neither
Owner nor Tenant is in default thereunder. There exist no
facts that would constitute a basis for any such default upon
the lapse of time or the giving of notice or both.
5. Tenant is currently paying [Base Monthly] Rent under the Lease
in the amount of $__________________ and estimated monthly
pass throughs in the amount of __________________. As of the
date of this certificate, to the knowledge of Tenant, there
exist no offsets, counterclaims, or defenses of Tenant under
the Lease against Owner, and there exist no events that would
constitute a basis for any such offset, counterclaim, or
defense against Owner upon the lapse of time or the giving of
notice or both, except the following (if left blank, there
shall be deemed to be none):__________________
6. There are no concessions, bonuses, free rental periods,
rebates, advance rental payments, or other matters affecting
the rental payable by Tenant under the Lease except as
described in the attached Lease
7. A cash security deposit in the amount of $__________________
has been paid to Owner under the Lease, and Tenant has not
given Owner any other security or similar deposit.
EXHIBIT C - PAGE 1 OF 2
8. All improvements or repairs required under the terms of the
Lease to be made by Owner through the date hereof have been
satisfactorily completed. All allowances and other payments
due to Tenant by Owner under the terms of the Lease have been
paid in full, except the following (if left blank, there shall
be deemed to be none):_______________________________________
____________.
9. Tenant acknowledges that: (a) Purchaser will rely on the
statements of Tenant in Purchaser's decision to purchase the
Property from Owner, and (b) Owner may assign its interest in
the Lease to Purchaser and agrees, upon receipt of notice of
such assignment from Owner and Purchaser, to attorn to
Purchaser and to perform all of Tenant's obligations as the
tenant under the Lease, including, without limitation, the
payment of rent, directly to Purchaser, or its agent, as the
landlord under the Lease, from and after the date of such
notice.
Dated this _______ day of ______________, 2003.
[NAME OF TENANT]
By:_____________________________________
Name:
Title:
EXHIBIT C - PAGE 2 OF 2
EXHIBIT D
PERMITTED EXCEPTIONS
1. Real estate taxes and all general and special assessments
applicable to the year of Closing (to the extent not fully
paid at Closing) and subsequent calendar years.
2. Rights of tenants under the Leases.
3. Local, state and federal laws, ordinances or governmental
regulations, including, but not limited to, building and
zoning laws, ordinances and regulations, now or hereafter in
effect relating to the Property.
EXHIBIT D - PAGE 1 OF 1
EXHIBIT E
LEASE SCHEDULE
[Please see rent roll attached hereto]
NOTE: THE RENT ROLL HAS BEEN ATTACHED FOR REFERENCE PURPOSES ONLY AND SELLER
DOES NOT REPRESENT THE ACCURACY THEREOF.
EXHIBIT E - PAGE 1 OF 1
EXHIBIT F
AFTER RECORDING RETURN TO:
_________________________
_________________________
_________________________
_________________________
SPECIAL WARRANTY DEED
THE STATE OF___________ Section
Section KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _____________ Section
THAT, ______________________, ____________________ ("Grantor"), for and
in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good
and valuable consideration in hand paid to Grantor by_______________________
("Grantee"), whose mailing address is _________________,_______________________,
Attention: ___________________, the receipt and sufficiency of such
consideration being hereby acknowledged, has GRANTED, SOLD AND CONVEYED, and by
these presents does GRANT, SELL AND CONVEY unto Grantee that certain real
property being more particularly described in Exhibit A attached hereto and made
a part hereof for all purposes, together with all improvements, structures and
fixtures situated thereon (collectively, the "Property"); subject, however, to
those matters more particularly described in Exhibit B attached hereto and made
a part hereof for all purposes (collectively, the "Permitted Exceptions").
TO HAVE AND TO HOLD the Property, together with all and singular the
rights, and appurtenances thereto in anywise belonging, unto Grantee, its
successors and assigns forever, subject to the Permitted Exceptions; and Grantor
does hereby bind itself and its successors to WARRANT AND FOREVER DEFEND all and
singular the Property, subject to the Permitted Exceptions, unto Grantee, its
successors and assigns, against every person whomsoever lawfully claiming, or
claim the same, or any part thereof, by, through, or under Grantor, but not
otherwise.
IN WITNESS WHEREOF, this instrument has been executed as of (but not
necessarily on) this _____ day of ____________________, 2003.
GRANTOR:
________________________________
By:_____________________________________
Name:
Title:
THE STATE OF _____________ Section
EXHIBIT F - PAGE 1 OF 2
Section
COUNTY OF _______________ Section
This instrument was acknowledged before me on ___________________,
2003, by ____________________________________, a ________________________, on
behalf of such ___________________.
My Commission Expires: ____________________________________
Notary Public, State of_____________
____________________________________
Notary's name printed:
________________________________________
NOTE: THIS FORM WILL BE MODIFIED, AS APPROPRIATE, TO COMPLY WITH APPLICABLE
MISSOURI REQUIREMENTS.
EXHIBIT F - PAGE 2 OF 2
EXHIBIT G
GENERAL ASSIGNMENT
THIS GENERAL ASSIGNMENT (the "General Assignment") is made as of the
______ day of _____________, 2003 by: (i) _____________________ ("Seller"), and
(ii) __________________________________, a _________________________
("Purchaser").
KNOW ALL MEN BY THESE PRESENTS:
Concurrently with the execution and delivery hereof, pursuant to a
certain Agreement of Purchase and Sale dated ________, 2003 (the "Agreement")
between Seller and Purchaser, Seller is conveying to Purchaser all of Seller's
right, title and interest in and to the real property described on Exhibit A
attached hereto and made a part hereof (the "Land") and in and to the building,
parking areas and other structures and improvements located on the Land
(collectively, the "Improvements") located in Clayton, Missouri. The Land and
the Improvements are hereinafter sometimes collectively referred to as the
"Property."
It is the desire of Seller to hereby sell, assign, transfer, convey,
set-over and deliver to Purchaser all of Seller's right, title and interest in
and to the Assigned Property (as hereinafter defined).
1. ▇▇▇▇ of Sale and Assignment.
Seller does hereby sell, assign, transfer, set-over and
deliver unto Purchaser, its successors and assigns, with special warranty of
title and subject to the limitations contained in Section 8.2 of the Agreement,
all right, title and interest of Seller in and to:
a. All personal property (including equipment), if any,
owned by Seller and located on the Property as of the
date hereof, all inventory located on the Property on
the date hereof, and all fixtures (if any) owned by
Seller and located on the Property as of the date
hereof (the "Personal Property"); and
b. All non-exclusive trademarks and trade names, if any,
used in connection with the Property, but only to the
extent that the same are not trademarks or trade
names of Seller or any of Seller's affiliated
companies (collectively, the "Trade Names");
c. Seller's interest, if any, in and to the service,
equipment, supply and maintenance contracts (the
"Contracts") listed on Schedule 1 attached hereto,
and guarantees, licenses, approvals, certificates,
permits and warranties relating to the Property, to
the extent assignable (collectively, the "Intangible
Property"); and
d. The leases, subleases, licenses and other occupancy
agreements, together with any and all amendments,
modifications or supplements thereto (the "Leases")
demising space in or otherwise similarly affecting or
relating to the
EXHIBIT G - PAGE 1 OF 3
Property listed on Schedule 2 attached hereto;
subject, however to the rights of Seller set forth in
the Agreement to rents under the leases assigned
hereby attributable to the period prior to the date
hereof.
TO HAVE AND TO HOLD the Personal Property, the Trade
Names, the Intangible Property and the Leases (collectively, the "Assigned
Property") unto Purchaser, its successors and assigns, forever.
2. Assumption/Indemnity.
Purchaser accepts the foregoing assignment and assumes and
agrees to be bound by and to perform and observe all of the obligations,
covenants, terms and conditions to be performed or observed under the Assigned
Property arising on or after the date hereof. Purchaser further agrees to
indemnify Seller and hold Seller harmless from and against any and all claims,
liens, damages, demands, causes of action, liabilities, lawsuits, judgments,
losses, costs and expenses (including, without limitation, attorneys' fees and
expenses) (collectively, the "Losses") asserted against or incurred by Seller by
reason of or arising out of any failure by Purchaser to perform or observe the
obligations, covenants, terms and conditions assumed by Purchaser hereunder
arising in connection with the Assigned Property and related to the period on or
after the date hereof. Seller agrees to indemnify Purchaser and hold Purchaser
harmless from and against any all Losses asserted against or incurred by
Purchaser by reason of or arising out of any failure by Seller to perform or
observe the obligations, covenants, terms and conditions arising in connection
with or under the Assigned Property and related to the period prior to the date
hereof and during Seller's period of ownership.
3. Exclusions from Personal Property.
It is hereby acknowledged by the parties that the Assigned
Property shall not include claims relating to any real property tax refunds or
rebates for periods accruing prior to the date hereof, existing insurance claims
and any existing claims against tenants of the Property, which claims are hereby
reserved by Seller; provided, however, Seller shall have no right to terminate
the lease, evict or otherwise dispossess any tenant or require Purchaser to
declare a default under the lease of any tenant.
4. Counterpart Copies.
This General Assignment may be executed in two or more
counterpart copies, all of which counterparts shall have the same force and
effect as if all parties hereto had executed a single copy of this General
Assignment.
EXHIBIT G - PAGE 2 OF 3
IN WITNESS WHEREOF, the parties have caused this General Assignment to
be executed as of the date first written above.
SELLER:
_________________________________
By: __________________________________
Name:
Title:
PURCHASER:
______________________________________
a ____________________________________
By: __________________________________
Name:
Title:
EXHIBIT G - PAGE 3 OF 3
EXHIBIT H
NOTICE LETTER TO TENANTS
________________, 2003
CERTIFIED MAIL,
RETURN RECEIPT REQUESTED
Dear Tenant:
We are pleased to advise you that the building in which your premises
are located at ___________________________________________________, has been
sold by _____________________ to _________________________________ (the
"Purchaser") effective as of the date set forth above. Your lease agreement has
been assigned to and accepted by Purchaser and Purchaser has agreed to assume
all responsibility for security deposits currently held under your lease.
All future correspondence relating to your tenancy, as well as rent
checks and other charges, should be made payable and mailed to ___________ c/o
________.
The Purchaser looks forward to working with you in the operation of
this Property.
Very truly yours,
SELLER:
______________________________________
By: __________________________________
Name:
Title:
PURCHASER:
______________________________________
a ____________________________________
By: __________________________________
Name:
Title:
EXHIBIT H - PAGE 1 OF 1
EXHIBIT I
NON-FOREIGN ENTITY CERTIFICATE
Section 1445 of the Internal Revenue Code provides that a transferee of
a U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform the transferee that withholding of tax is not required upon
the disposition of a U.S. real property interest by __________________________
("Transferor"), the undersigned hereby certifies on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in
the Internal Revenue Code and Income Tax Regulations);
2. Transferor's U.S. employer identification number is
▇▇-▇▇▇▇▇▇▇; and
3. Transferor's office address is:
c/o TA Realty Associates
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Transferor understands that this certification may be disclosed to the
Internal Revenue Service and that any false statement made within this
certification could be punished by fine, imprisonment, or both.
Under penalties of perjury the undersigned declares that he has
examined this certification and that to the best of his knowledge and belief it
is true, correct and complete, and the undersigned further declares that he has
the authority to sign this document on behalf of the Transferor.
Dated: _________________, 2003
TRANSFEROR:
______________________________________
By: __________________________________
Name:
Title:
EXHIBIT I - PAGE 1 OF 2
EXHIBIT J
SELLER'S ESTOPPEL CERTIFICATE
THE REALTY ASSOCIATES FUND VI, L.P. (the "Seller") hereby certifies to
____________________________________, its successors or assigns ("Purchaser") as
follows, to its current, actual, conscious knowledge:
1. Pursuant to that certain Lease dated ____________, _____ (the
"Lease") with _______________________________________ (the "Tenant"), Tenant
leases approximately _____________ square feet of space (the "Premises"). A true
and correct copy of the Lease, as amended, modified or supplemented, is attached
hereto as Exhibited A.
2. Seller has neither sent nor received any notice of default
under the Lease which remains uncured except as follows:
_______________________________________________________________________________
_______________________________________________________________________________
3. As of the date of this Certificate, to Seller's knowledge,
there exist no offsets, counterclaims, or defenses of Tenant under the Lease
against Seller, and there exist no events that would constitute a basis for any
such offset, counterclaim, or defenses against Seller, upon the lapse of time or
the giving of notice or both, except the following (if left blank, there shall
deemed to be none):______________________________________.
4. All improvements or repairs required under the terms of the
Lease to be made by Seller through the date hereof have, to Seller's knowledge,
been satisfactorily completed. All allowances and other payments due to Tenant
by Seller under the terms of the Lease have, to Seller's knowledge, been paid in
full, except the following (if left blank, there shall be deemed to be none):__
_________________________________.
The obligations of Seller are intended to be binding only on Seller and
Seller's assets and shall not be personally binding upon, nor shall any resort
be had to, the private properties of any of the partners, officers, directors,
shareholders or beneficiaries of Seller, or of any partners, officers,
directors, shareholders or beneficiaries of any partners of Seller, or of any of
Seller's employees or agents. Any action, suit or proceeding with respect to the
truth, accuracy or completeness of the foregoing representations and warranties
shall be commenced, if at all, on or before December 31, 2003 and, if not
commenced on or before such date, thereafter such representations and warranties
shall be void and of no force or effect.
By its acceptance hereof, Purchaser hereby agrees that if, after the
date hereof, Seller delivers to Purchaser a tenant estoppel certificate from
Tenant and such tenant estoppel certificate contains no information which is
contradictory to the information contained herein, then Seller thereafter shall
be released from all liability hereunder relating to such non-contradictory
information.
Dated: _________________, 2003
EXHIBIT J - PAGE 1 OF 2
SELLER:
THE REALTY ASSOCIATES FUND VI, L.P.,
a Delaware limited partnership
By: Realty Associates Fund VI, LLC,
its general partner
By: Realty Associates Advisors, LLC,
its manager
By: Realty Associates
Advisors Trust,
its sole member
By: ____________________________
Name:
Title:
EXHIBIT J - PAGE 2 OF 2
EXHIBIT K
DISCLOSURE SCHEDULE
None
EXHIBIT K - PAGE 1 OF 1
EXHIBIT L
LIST OF SERVICE AGREEMENTS
Please see list attached behind this exhibit
EXHIBIT L - PAGE 1 OF 1