ASSIGNMENT OF PURCHASE AGREEMENT
AND ESCROW INSTRUCTIONS
MONOGRAM DEVELOPMENT XV, LTD., AS SELLER
AND
SERIES A, LLC, AS BUYER
ASSIGNOR, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, does hereby assign all of its right, title and
interest in that certain Purchase Agreement and Escrow Instructions (the
"Purchase Agreement") described herein, to ASSIGNEE and its successors and
assigns. The Purchase Agreement is described as follows:
DATE OF AGREEMENT: September 30, 2005
ORIGINAL BUYER: Series A, LLC
ASSIGNED TO: ▇▇▇▇ ▇▇ Alliance OH, LLC, a Delaware limited liability
company
PROPERTY ADDRESS: ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
ASSIGNOR acknowledges that it is not released from any and all obligations
or liabilities under said Purchase Agreement with the exception of the ▇▇▇▇▇▇▇
money deposit which is currently in escrow.
ASSIGNEE hereby agrees to assume and be responsible for all obligations
and liabilities under said Purchase Agreement. This Assignment shall be in full
force and effect upon its full execution.
Executed this 19th day of October, 2005.
ASSIGNOR: ASSIGNEE:
SERIES A, LLC, ▇▇▇▇ ▇▇ ALLIANCE OH, LLC,
an Arizona limited liability company a Delaware limited liability company
By: ▇▇▇▇ REIT ADVISORS II, LLC,
a Delaware limited liability company,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇ its Manager
--------------------
▇▇▇▇ ▇. ▇▇▇▇
Authorized Officer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------
▇▇▇▇ ▇. ▇▇▇▇
Its: Senior Vice President
EXHIBIT 10.5
PURCHASE AGREEMENT
AND ESCROW INSTRUCTIONS
BETWEEN
MONOGRAM DEVELOPMENT XV, LTD.
AS SELLER
AND
SERIES A, LLC
AS BUYER
SEPTEMBER 28, 2005
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Alliance, OH
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PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
DATED: Dated to be effective as of September 28, 2005 (the "Effective
Date").
PARTIES: This Purchase Agreement and Escrow Instructions is between MONOGRAM
DEVELOPMENT XV, LTD., an Ohio limited liability company, as
"Seller", and SERIES A, LLC, an Arizona limited liability company,
as "Buyer".
WHEREAS, as of the Effective Date, Seller is the fee title owner of that
certain improved property located at ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇, as
legally described on Exhibit A attached hereto (the "Real Property");
WHEREAS, as of the Effective Date, the Real Property is improved with a
building containing approximately 11,348 square feet (the "Building") which
Building is leased to Rite Aid of Ohio, Inc. ("Tenant"), in accordance with a
written lease (the "Lease"). The Real Property, the Building, the improvements
to the Real Property (the "Improvements"), the personal property, if any, of
Seller located on the Real Property and Seller's interest in the Lease and all
rents issued and profits due or to become due thereunder are hereinafter
collectively referred to as the "Property"; and
WHEREAS, Buyer desires to purchase the Property from Seller and Seller
desires to sell the Property to Buyer free and clear of all liens, all as more
particularly set forth in this Purchase Agreement and Escrow Instructions (the
"Agreement").
NOW THEREFORE, in consideration of the promises set forth in this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Seller and Buyer (each, a "Party" and,
collectively, the "Parties") hereby agree as follows:
1. INCORPORATION OF RECITALS. All of the foregoing Recitals are hereby
incorporated as agreements of the Parties.
2. BINDING AGREEMENT. This Agreement constitutes a binding agreement
between Seller and Buyer for the sale and purchase of the Property subject to
the terms set forth in this Agreement. Subject to the limitations set forth in
this Agreement, this Agreement shall bind and inure to the benefit of the
Parties and their respective successors and assigns. This Agreement supersedes
all other written or verbal agreements between the Parties concerning any
transaction embodied in this Agreement. No claim of waiver or modification
concerning the provision of this Agreement shall be made against a Party unless
based upon a written instrument signed by such Party.
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3. INCLUSIONS IN PROPERTY.
(a) The Property. The term "Property" shall also include the
following:
(1) all tenements, hereditaments and appurtenances pertaining
to the Real Property;
(2) all Seller's interest in mineral, water and irrigation
rights, if any, running with or otherwise pertaining to the Real Property and
all leases thereof;
(3) all interest, if any, of Seller in any road adjoining the
Real Property;
(4) all interest, if any, of Seller in any award made or to be
made or settlement in lieu thereof for damage to the Property by reason of
condemnation, eminent domain or exercise of police power;
(5) all of Seller's interest in the Building, the Improvements
and any other improvements and fixtures on the Real Property;
(6) all of Seller's interest, if any, in any equipment,
machinery and personal property on or used in connection with the Real Property
(the "Personalty");
(7) Seller's interest in the Lease and security deposit, if
any, now or hereafter due thereunder; and,
(8) all of Seller's interest, to the extent transferable, in
all permits and licenses (the "Permits"), warranties, contractual rights and
intangibles (including rights to the name of the Improvements as well as
architectural/engineering plans) with respect to the operation, maintenance,
repair or improvement of the Property (collectively, the "Contracts").
(b) The Transfer Documents. Except for the Personalty which shall be
transferred by that certain ▇▇▇▇ of sale from Seller to Buyer, a specimen of
which is attached hereto as Exhibit B (the "▇▇▇▇ of Sale"), the Lease which is
to be transferred by that certain assignment and assumption of lease, a specimen
of which is attached hereto as Exhibit C (the "Assignment of Lease"), the
Permits and Contracts which are to be transferred by that certain assignment
agreement, a specimen of which is attached hereto as Exhibit D (the "Assignment
Agreement"), all components of the Property shall be transferred and conveyed by
execution and delivery of Seller's special warranty deed, a specimen of which is
attached hereto as Exhibit E (the "Deed"). The ▇▇▇▇ of Sale, the Assignment of
Lease, the Assignment Agreement and the Deed are hereinafter collectively
referred to as the "Transfer Documents".
4. PURCHASE PRICE. The price to be paid by Buyer to Seller for the
Property is Two Million One Hundred Thousand and No/100 Dollars ($2,100,000.00)
(the "Purchase Price"), payable as follows:
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(a) Twenty-Five Thousand and No/100 Dollars ($25,000.00) ▇▇▇▇▇▇▇
money (the "▇▇▇▇▇▇▇ Money Deposit") to be deposited in escrow with Lawyers Title
Insurance Corporation, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇ ("Escrow Agent") not later than five (5)
business days following the receipt by Escrow Agent of a fully-executed original
of this Agreement (said receipt by Escrow Agent of both a fully-executed
original of this Agreement and the ▇▇▇▇▇▇▇ Money Deposit, the "Opening of
Escrow"), which ▇▇▇▇▇▇▇ Money Deposit is to be held by Escrow Agent until
released to Seller or Buyer as provided herein or paid to Seller at close of
escrow ("▇▇▇"); and
(b) Fifty-Thousand and No/100 Dollars ($50,000.00) additional
▇▇▇▇▇▇▇ money to be deposited in escrow with Escrow Agent two (2) business days
after the expiration of the Study Period (defined below). For purposes of this
Agreement, the additional ▇▇▇▇▇▇▇ money deposit shall be added to and become a
part of the ▇▇▇▇▇▇▇ Money Deposit;
(c) Two Million Twenty-Five Thousand and No/100 Dollars
($2,025,000.00) in additional cash, or other immediately available funds (as may
be increased or decreased by such sums as are required to take into account any
additional deposits, prorations, credits, or other adjustments required by this
Agreement), to be deposited in escrow with Escrow Agent on or before ▇▇▇ (the
"Additional Funds") which is to be held by Escrow Agent until cancellation of
this Agreement as provided herein or paid to Seller at ▇▇▇.
5. DISPOSITION OF ▇▇▇▇▇▇▇ MONEY DEPOSIT. Seller and Buyer hereby instruct
Escrow Agent to place the ▇▇▇▇▇▇▇ Money Deposit in a federally insured
interest-bearing passbook account on behalf of Seller and Buyer. The ▇▇▇▇▇▇▇
Money Deposit and interest thereon shall be applied as follows:
(a) if Buyer cancels this Agreement as Buyer is so entitled to do as
provided in this Agreement, the ▇▇▇▇▇▇▇ Money Deposit and all interest earned to
the effective date of withdrawal shall be paid immediately to Buyer;
(b) if the ▇▇▇▇▇▇▇ Money Deposit is forfeited by Buyer pursuant to
this Agreement, such ▇▇▇▇▇▇▇ Money Deposit and all interest earned to the date
of withdrawal shall be paid to Seller as Seller's agreed and total liquidated
damages, it being acknowledged and agreed that it would be difficult or
impossible to determine Seller's exact damages; and
(c) if escrow closes, the ▇▇▇▇▇▇▇ Money Deposit and all interest
earned to ▇▇▇ shall be credited to Buyer, automatically applied against the
Purchase Price and paid to Seller at ▇▇▇.
6. PRELIMINARY TITLE REPORT AND OBJECTIONS. Within ten (10) days after the
Opening of Escrow, Escrow Agent shall deliver a current Preliminary Title Report
(the "Report") for an ALTA extended coverage title insurance policy (the
"Owner's Policy") on the Property to Buyer and Seller. The Report shall show the
status of title to the Property as of the date of the Report and shall also
describe the requirements of Escrow Agent for the issuance of the Owner's Policy
as described herein. The cost of the Owner's Policy shall be paid by the Seller.
Any additional costs for an extended coverage policy shall be paid by Buyer. In
addition
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to the Report, Escrow Agent shall simultaneously deliver to Buyer legible copies
of all documents identified in Part Two of Schedule B of the Report. If Buyer is
dissatisfied with any exception to title as shown in the Report, then Buyer may
either, by giving written notice thereof to Escrow Agent (i) on or before
expiration of the Study Period (as defined below) or (ii) ten (10) days from
Buyer's receipt of the Report, whichever is later, (a) cancel this Agreement,
whereupon the ▇▇▇▇▇▇▇ Money Deposit plus interest shall be returned to Buyer
together with all documents deposited in escrow by Buyer, or (b) provisionally
accept the title subject to Seller's agreement to cause the removal of any
disapproved exceptions or objections, in which case Seller shall (at its sole
cost) remove the exceptions or objections (or, if acceptable to Buyer, obtain
title insurance endorsements over the exceptions and objections) before ▇▇▇.
Seller shall notify Buyer in writing within ten (10) days after receiving
Buyer's written notice of disapproval of any exception, if Seller does not
intend to remove (or endorse over) any such exception and/or objection. Seller's
lack of response shall be deemed as Seller's affirmative commitment to remove
the objectionable exceptions (or obtain title insurance endorsements over said
exceptions and objections, if acceptable to Buyer) prior to ▇▇▇. In the event
the Report is amended to include new exceptions that are not set forth in a
prior Report, Buyer shall have until the later of (i) the expiration of the
Study Period, or (ii) the date seven (7) days after Buyer's receipt of the
amended Report and copies of the documents identified in the new exceptions or
new requirements, within which to cancel this Agreement and receive a refund of
the ▇▇▇▇▇▇▇ Money Deposit plus interest or to provisionally accept the title
subject to Seller's agreement to cause the removal of any disapproved exceptions
or objections. If Seller serves notice to Buyer that Seller does not intend to
remove such exceptions and objections before ▇▇▇, Buyer shall, within ten (10)
days thereafter, notify Seller and Escrow Agent in writing of Buyer's election
to either (i) terminate this Agreement, whereupon the ▇▇▇▇▇▇▇ Money Deposit plus
interest shall be returned to Buyer and all obligations shall terminate, or (ii)
Buyer may waive such objections and the transaction shall close as scheduled. If
written notice of dissatisfaction is not timely given by Buyer to Seller
pursuant to this Section 6, then Buyer shall be deemed to have disapproved of
the condition of the title of the Property as shown by the Report, and shall
have elected to terminate this Agreement.
7. BUYER'S STUDY PERIOD.
(a) The Study Period. Buyer shall have until 5:00 p.m. MST on
October 7, 2005 (the "Study Period"), at Buyer's sole cost, within which to
conduct and approve any investigations, studies or tests deemed necessary by
Buyer, in Buyer's sole discretion, to determine the feasibility of acquiring the
Property, including, without limitation, Buyer's right to: (i) review and
approve the Survey, the Lease, Seller's operating statements with respect to the
Property, and the Contracts; (ii) meet and confer with Tenant; and, (iii)
obtain, review and approve an environmental study of the Real Property and
Building (collectively, "Buyer's Diligence"). Buyer's Diligence does not include
the right to do sampling, testing or borings without Seller's advance consent
thereto.
(b) Right of Entry. Subject to the prior rights of the Tenant in the
Property and any rights of the tenant pursuant to the Oil & Gas Lease (as
defined below), Seller hereby grants to Buyer and Buyer's agents, employees and
contractors the right to enter upon the Property, at reasonable times with
reasonable prior notice during the Study Period, to conduct
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Buyer's Diligence. In consideration therefor, Buyer shall and does hereby agree
to indemnify and hold Seller harmless from any and all liabilities, claims,
losses or damages, including, but not limited to, court costs and attorneys'
fees, which may be incurred by Seller as a direct result of Buyer's Diligence.
Buyer's indemnity and hold harmless obligation shall survive cancellation of
this Agreement or ▇▇▇.
(c) Cancellation. Unless Buyer so notifies Seller or Escrow Agent,
in writing, on or before the end of the Study Period of Buyer's acceptance of
Buyer's Diligence and waiver of the contingencies as set forth in this Section
7, this Agreement shall be canceled and the ▇▇▇▇▇▇▇ Money Deposit plus interest
shall be returned immediately to Buyer and, except as otherwise provided in this
Agreement, neither of the Parties shall have any further liability or obligation
under this Agreement.
8. DELIVERY OF SELLER'S DILIGENCE MATERIALS.
(a) Deliveries to Buyer. Buyer acknowledges that it has received
from Seller all written information in Seller's possession or the possession of
Seller's agents relating to the leasing, operating, maintenance, construction
(including the Certificate of Occupancy for the Property), repair, zoning
(including any zoning verification letters), platting, engineering, soil tests,
water tests, environmental tests, master planning, architectural drawings and
like matters regarding the Property (collectively, "Seller's Diligence
Materials").
(b) Delivery by Buyer. If this Agreement is canceled for any reason,
except Seller's willful default hereunder, Buyer agrees to (i) deliver to
Seller, upon payment by Seller to Buyer of Buyer's cost thereof, copies of those
investigations, studies and/or tests which Buyer may have elected to obtain and
(ii) deliver to Seller, at no cost to Seller, Seller's Diligence Materials
provided to Buyer.
9. THE SURVEY. Seller, at Seller's cost, shall, within fifteen (15) days
of Opening of Escrow, cause a certified ALTA survey of the Real Property,
Building and Improvements (the "Survey") to be completed by a surveyor licensed
in the State of Ohio and delivered to Escrow Agent and Buyer, whereupon the
legal description in the Survey shall control over the description in Exhibit A
attached hereto to the extent they may be inconsistent. The Survey shall set
forth the legal description and boundaries of the Property and all easements,
encroachments and improvements thereon.
10. IRS SECTION 1445. Seller shall furnish to Buyer in escrow by ▇▇▇ a
sworn affidavit (the "Non-Foreign Affidavit") stating under penalty of perjury
that Seller is not a "foreign person" as such term is defined in Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended (the "Code"). If
Seller does not timely furnish the Non-Foreign Affidavit, Buyer may withhold (or
direct Escrow Agent to withhold) from the ▇▇▇▇▇▇▇ Money Deposit and/or the
Additional Funds, an amount equal to the amount required to be so withheld
pursuant to Section 1445(a) of the Code, and such withheld funds shall be
deposited with the Internal Revenue Service as required by such Section 1445(a)
and the regulations promulgated thereunder. The amount withheld, if any, shall
nevertheless be deemed to be part of the Purchase Price paid to Seller.
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11. DELIVERY OF POSSESSION. Seller shall deliver possession of the
Property to Buyer at ▇▇▇ subject only to the rights of Tenant under the Lease
and all other encumbrances approved or deemed approved by Buyer pursuant to
Section 6 hereof.
12. BUYER'S CONDITIONS PRECEDENT. In addition to all other conditions
precedent set forth in this Agreement, Buyer's obligations to perform under this
Agreement and to close escrow are expressly subject to the following:
(a) the delivery by Seller to Escrow Agent, for delivery to Buyer at
▇▇▇, of the executed original Transfer Documents;
(b) the issuance of the Owner's Policy (or a written commitment
therefor) subject only to those matters approved or deemed approved by Buyer
pursuant to this Agreement;
(c) the delivery by Seller to Buyer at ▇▇▇ of all security deposits
and pre-paid/abated rents under the Lease, if any, in the form of a credit in
favor of Buyer against the Additional Funds;
(d) the deposit by Seller with Buyer prior to expiration of the
Study Period of (i) an original estoppel certificate naming Buyer (or its
designee) and Wachovia Bank, National Association as addressees, which
certificate must be reasonably acceptable to Buyer and Seller, and (ii) a
subordination, non-disturbance and attornment agreement, in form and substance
reasonably acceptable to Tenant, for the benefit of Wachovia Bank, National
Association, both executed by Tenant under the Lease;
(e) the deposit with Escrow Agent and Buyer prior to the expiration
of the Study Period of an executed waiver by Tenant of any right of first
refusal under the Lease;
(f) the deposit with Escrow Agent of an executed affidavit of Seller
and such other documentation as may be reasonably required by Escrow Agent to
allow for the deletion of the mechanics' lien exception from the Owner's Policy;
(g) the delivery by Seller to Buyer of the Certificate of Occupancy
for the Improvements or a copy thereof, if available;
(h) the deposit with Escrow Agent of a letter from Seller to the
lessee under that certain Oil & Gas Lease recorded March 9, 1990 in Volume 911,
Page 451 and re-recorded July 23, 1999 in Imaging No. 1999057057 of the ▇▇▇▇▇
County, Ohio real property records (the "Oil & Gas Lease") requesting that
future rent under said Oil & Gas Lease be paid to Buyer;
(i) the deposit with Escrow Agent of a letter from Seller to Tenant
requesting that future rent under the Lease be paid to Buyer; and
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(j) delivery to Buyer of originals of the Lease, the Contracts and
Permits, if any, in the possession of Seller or Seller's agents, and any
correspondence with respect thereto, together with such non-proprietary leasing
and property manuals, files and records which are material in connection with
the continued operation, leasing and maintenance of the Property.
If the foregoing conditions have not been satisfied or expressly waived in
writing by Buyer by the specified date or ▇▇▇ as the case may be, such failure
shall not constitute a breach or default by Seller, but Buyer shall have the
right, at Buyer's sole option, by giving written notice to Seller and Escrow
Agent, to cancel this Agreement, whereupon the ▇▇▇▇▇▇▇ Money Deposit plus
interest shall be paid immediately by Escrow Agent to Buyer and, except as
otherwise provided in this Agreement, neither of the Parties shall have any
further liability or obligation under this Agreement.
13. SELLER'S WARRANTIES. Seller hereby represents and warrants to Buyer as
of the Effective Date and again as of ▇▇▇ that, to the best of Seller's
knowledge:
(a) there are no unrecorded leases (other than the Lease), liens or
encumbrances which may affect title to the Property;
(b) to Seller's knowledge, no notice of violation has been issued
with regard to any applicable regulation, ordinance, requirement, covenant,
condition or restriction relating to the present use or occupancy of the
Property by any person, authority or agency having jurisdiction;
(c) to Seller's knowledge, there are no intended public improvements
which will or could result in any charges being assessed against the Property
which will result in a lien upon the Property;
(d) to Seller's knowledge, there is no impending or contemplated
condemnation or taking by inverse condemnation of the Property, or any portion
thereof, by any governmental authorities;
(e) there are no suits or claims pending or to Seller's knowledge,
threatened with respect to or in any manner affecting the Property, nor does
Seller have actual knowledge of any circumstances which should or could
reasonably form the basis for any such suits or claims which have not been
disclosed in writing to Buyer by Seller;
(f) with the exception of Tenant's right of first refusal under the
Lease, Seller has not entered into and there is not existing any other
agreement, written or oral, under which Seller is or could become obligated to
sell the Property, or any portion thereof, to a third party, and Seller will not
enter into nor execute any such agreement without Buyer's prior written consent;
(g) Seller has not and will not, without the prior written consent
of Buyer, take any action before any governmental authority having jurisdiction
thereover, the object of which would be to change the present zoning of or other
land-use limitations, upon the Property, or any portion thereof, or its
potential use, and, to Seller's actual knowledge, there are no
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pending proceedings, the object of which would be to change the present zoning
or other land-use limitations;
(h) subject to Tenant's right of first refusal under the Lease, this
transaction will not in any way violate any other agreements to which Seller is
a party;
(i) subject to Tenant's right of first refusal under the Lease,
Seller has full power and authority to execute, deliver and perform under this
Agreement as well as under the Transfer Documents, specimens of which are
attached hereto as Exhibits;
(j) Seller has no knowledge of any defaults under any of the
Contracts;
(k) subject to Tenant's right of first refusal under the Lease, no
consent of any third party is required in order for Seller to enter into this
Agreement and perform Seller's obligations hereunder;
(l) except for any item to be prorated at ▇▇▇ in accordance with
this Agreement, all bills or other charges, costs or expenses arising out of or
in connection with or resulting from Seller's use, ownership, or operation of
the Property up to ▇▇▇ shall be paid in full by Seller;
(m) all general real estate taxes, assessments and personal property
taxes that have become due with respect to the Property (except for those that
will be prorated at ▇▇▇) have been paid or will be so paid by Seller prior to
▇▇▇;
(n) from the Effective Date hereof until ▇▇▇ or the earlier
termination of this Agreement, Seller shall (i) operate and maintain the
Property in a manner generally consistent with the manner in which Seller has
operated and maintained the Property prior to the date hereof, and shall perform
in all material respects, its obligations under the Lease, (ii) not amend,
modify or waive any material rights under the Lease, and (iii) maintain the
existing or comparable insurance coverage, if any, for the Improvements which
Seller is obligated to maintain under the Lease;
(o) to Seller's knowledge, there are no proceedings pending for the
increase of the assessed valuation of the Real Property;
(r) should Seller receive notice or actual knowledge of any
information regarding any of the matters set forth in this Section 13 after the
Effective Date and prior to ▇▇▇, Seller will immediately notify Buyer of the
same in writing;
(s) subject to Tenant's right of first refusal under the Lease, the
execution, delivery and performance of this Agreement and the Transfer
Documents, specimens of which are attached hereto as Exhibits, have not and will
not constitute a breach or default under any other agreement, law or court order
under which Seller is a party or may be bound; and
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(t) all representations made in this Agreement by Seller shall
survive the execution and delivery of this Agreement and ▇▇▇ for a period of six
(6) months. Seller shall and does hereby indemnify against and hold Buyer
harmless from any loss, damage, liability and expense, together with all court
costs and attorneys' fees which Buyer may incur, by reason of any material
misrepresentation by Seller or any material breach of any of Seller's
warranties. Seller's indemnity and hold harmless obligations shall survive ▇▇▇
for a period of six (6) months.
14. BUYER'S WARRANTIES. Buyer hereby represents to Seller as of the
Effective Date and again as of ▇▇▇ that:
(a) Buyer has full power and authority to execute, deliver and
perform under this Agreement as well as under the Transfer Documents, specimens
of which are attached hereto as Exhibits;
(b) there are no actions or proceedings pending or to Buyer's
knowledge, threatened against Buyer which may in any manner whatsoever affect
the validity or enforceability of this Agreement or any of the documents,
specimens of which are attached hereto as Exhibits;
(c) the execution, delivery and performance of this Agreement and
the Transfer Documents, specimens of which are attached hereto as Exhibits, have
not and will not constitute a breach or default under any other agreement, law
or court order under which Buyer is a party or may be bound;
(d) should Buyer receive notice or knowledge of any information
regarding any of the matters set forth in this Section 14 after the Effective
Date and prior to ▇▇▇, Buyer will promptly notify Seller of the same in writing;
and
(e) all representations made in this Agreement by Buyer shall
survive the execution and delivery of this Agreement and ▇▇▇ for a period of six
(6) months. Buyer shall and does hereby indemnify against and hold Seller
harmless from any loss, damage, liability and expense, together with all court
costs and attorneys' fees, if awarded by a court of law, which Seller may incur,
by reason of any material misrepresentation by Buyer or any material breach of
any of Buyer's warranties. Buyer's indemnity and hold harmless obligations shall
survive ▇▇▇ for a period of six (6) months.
15. RENTS AND DEPOSITS. Seller and Buyer agree that, in addition to all
other conditions and covenants contained herein, Seller shall deposit with Buyer
and Escrow Agent on the day immediately prior to ▇▇▇ Tenant's security deposit
and advance rents paid/abatements, if any, and a statement as to the date to
which all rents have been paid.
16. BROKER'S COMMISSION. Concerning any brokerage commission, the Parties
agree as follows:
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(a) the Parties warrant to one another that they have not dealt with
any finder, broker or realtor in connection with this Agreement except Sage
Investment Properties ("Seller's Broker");
(b) if any person shall assert a claim to a finder's fee or
brokerage commission on account of alleged employment as a finder or broker in
connection with this Agreement (including Seller's Broker), the Party under whom
the finder or broker is claiming shall indemnify and hold the other Party
harmless from and against any such claim and all costs, expenses and liabilities
incurred in connection with such claim or any action or proceeding brought on
such claim, including, but not limited to, counsel and witness fees and court
costs in defending against such claim. The provisions of this subsection shall
survive cancellation of this Agreement or ▇▇▇; and
(c) Seller shall be responsible for payment of a commission to
Seller's Broker in an amount equal to two percent (2.0%) of the Purchase Price,
which commission shall be paid at ▇▇▇.
17. CLOSE OF ESCROW. ▇▇▇ shall be on or before 5:00 p.m. MST on October
13, 2005, or such earlier date as Buyer may choose by giving not less than five
(5) days prior written notice to Seller and Escrow Agent.
18. ASSIGNMENT. This Agreement may not be assigned by Seller without the
prior written consent of Buyer which consent shall not be unreasonably withheld.
Buyer may assign its rights under this Agreement to an affiliate of Buyer
without seeking or obtaining Seller's consent. Such assignment shall not become
effective until the assignee executes an instrument whereby such assignee
expressly assumes each of the obligations of Buyer under this Agreement,
including specifically, without limitation, all obligations concerning the
▇▇▇▇▇▇▇ Money Deposit. Buyer may also designate someone other than Buyer, as
grantee and/or assignee, under the Transfer Documents by providing written
notice of such designation at least five (5) days prior to ▇▇▇. No assignment
shall release or otherwise relieve Buyer from any obligations hereunder.
19. RISK OF LOSS. Seller shall bear all risk of loss, damage or taking of
the Property which may occur prior to ▇▇▇. In the event of any loss, damage or
taking prior to ▇▇▇, Buyer may, at Buyer's sole option, by written notice to
Seller and Escrow Agent, cancel this Agreement whereupon the ▇▇▇▇▇▇▇ Money
Deposit plus interest shall be paid immediately by Escrow Agent to Buyer and,
except as otherwise provided in this Agreement, neither of the Parties shall
have any further liability or obligation hereunder. In the alternative, Buyer
may attempt to negotiate an appropriate downward adjustment of the Price. If
Seller and Buyer cannot agree upon such a downward adjustment within a
reasonable period (not to exceed ten (10) days from the date Buyer receives
notice of the loss) Buyer may cancel this Agreement as provided above. If Buyer
waives any such loss or damage to the Property and closes escrow, Seller shall
at ▇▇▇ and as a condition precedent thereto, pay Buyer or credit Buyer against
the Additional Funds the amount of any insurance or condemnation proceeds, or
assign to Buyer, as of ▇▇▇ and in a form acceptable to Buyer, all rights or
claims for relief to the same.
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20. REMEDIES.
(a) Seller's Breach. If Seller breaches this Agreement, Buyer may,
at Buyer's sole option, either: (i) by written notice to Seller and Escrow
Agent, cancel this Agreement whereupon the ▇▇▇▇▇▇▇ Money Deposit plus interest
shall be paid immediately by Escrow Agent to Buyer and, except as otherwise
provided in this Agreement, neither of the Parties shall have any further
liability or obligation hereunder; or, (ii) seek specific performance against
Seller in which event ▇▇▇ shall be automatically extended as necessary.
Notwithstanding the foregoing, if specific performance is unavailable as a
remedy to Buyer because of Seller's affirmative acts, Buyer shall be entitled to
pursue all rights and remedies available at law or in equity.
(b) Buyer's Breach. If Buyer breaches this Agreement, as its sole
remedy Seller shall be entitled to retain the ▇▇▇▇▇▇▇ Money Deposit in
accordance with subsection 5(b) as Seller's agreed and total liquidated damages.
Seller hereby waives any right to seek any equitable or legal remedies against
Buyer.
21. ATTORNEYS' FEES. If there is any litigation to enforce any provisions
or rights arising herein in accordance with Section 20(a), the unsuccessful
party in such litigation, as determined by the court, agrees to pay the
successful party, as determined by the court, all costs and expenses, including,
but not limited to, reasonable attorneys' fees incurred by the successful party,
such fees to be determined by the court.
22. NOTICES.
(a) Addresses. Except as otherwise required by law, any notice
required or permitted hereunder shall be in writing and shall be given by
personal delivery, or by deposit in the U.S. Mail, certified or registered,
return receipt requested, postage prepaid, addressed to the Parties at the
addresses set forth below, or at such other address as a Party may designate in
writing pursuant hereto, or tested telex, or telegram, or telecopies (fax), or
any express or overnight delivery service (e.g., Federal Express), delivery
charges prepaid:
if to Seller: Monogram Development XV, Ltd.
c/o Leisure Investments
▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇▇▇ & ▇▇▇▇, S.C.
North 21 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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if to Buyer: Series A, LLC
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, PLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Agent: Lawyers Title Insurance Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Effective Date of Notices. Notice shall be deemed to have been
given on the date on which notice is delivered, if notice is given by personal
delivery, telex, telegrams or telecopies, and on the date of deposit in the
mail, if mailed or deposited with the overnight carrier, if used. Notice shall
be deemed to have been received on the date on which the notice is received, if
notice is given by personal delivery, and on the second (2nd) day following
deposit in the U.S. Mail, if notice is mailed. If escrow has opened, a copy of
any notice given to a party shall also be given to Escrow Agent by regular U.S.
Mail or by any other method provided for herein.
23. CLOSING COSTS.
(a) Closing Costs. Seller and Buyer agree to pay closing costs as
indicated in this Agreement and in the escrow instructions attached hereto as
Exhibit F, and by this reference incorporated herein (the "Escrow
Instructions"). At ▇▇▇, Seller shall pay (i) the costs of releasing all liens,
judgments, and other encumbrances that are to be released and of recording such
releases, (ii) one-half of the fees and costs due Escrow Agent for its services,
(iii) the transfer tax associated with the sale of the Property, if any, and
(iv) all other costs to be paid by Seller under this Agreement. Except as
otherwise provided for in this Agreement, Seller and Buyer will each be solely
responsible for and bear all of their own respective expenses, including,
without limitation, expenses of legal counsel, accountants, and other advisors
incurred at any time in connection with pursuing or consummating the transaction
contemplated herein. Real estate taxes shall be prorated based upon the current
valuation and latest available tax rates. All prorations shall be calculated
through escrow as of ▇▇▇ based upon the latest available
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information, including, without limitation, a credit to Buyer for any rent
prepaid by Tenant for the period beginning with and including the date on which
the closing occurs through and including the last day of the month in which the
closing occurs. All other credits to Buyer shall be similarly prorated. Any
other closing costs not specifically designated as the responsibility of either
Party in the Escrow Instructions or in this Agreement shall be paid by Seller
and Buyer according to the usual and customary allocation of the same by Escrow
Agent. Seller agrees that all closing costs payable by Seller shall be deducted
from Seller's proceeds otherwise payable to Seller at ▇▇▇. Buyer shall deposit
with Escrow Agent sufficient cash to pay all of Buyer's closing costs. Except as
provided in this Section 23(a), Seller and Buyer shall each bear their own costs
in regard to this Agreement.
(b) Post-Closing Adjustment. If after ▇▇▇, the parties discover any
errors in adjustments and apportionments or additional information becomes
available which would render the closing prorations materially inaccurate, the
same shall be corrected as soon after their discovery as possible. The provision
of this Section 23(b) shall survive ▇▇▇ except that no adjustment shall be made
later than two (2) months after ▇▇▇ unless prior to such date the Party seeking
the adjustment shall have delivered a written notice to the other Party
specifying the nature and basis for such claim. In the event that such claim is
valid, the Party against whom the claim is sought shall have ten (10) days in
which to remit any adjustment due.
(c) Instructions. This Agreement, together with the Escrow
Instructions, shall constitute escrow instructions for the transaction
contemplated herein. Such escrow instructions shall be construed as applying
principally to Escrow Agent's employment.
24. ESCROW CANCELLATION CHARGES. If escrow fails to close because of
Seller's default, Seller shall be liable for any cancellation charges of Escrow
Agent. If escrow fails to close because of Buyer's default, Buyer shall be
liable for any cancellation charges of Escrow Agent. If escrow fails to close
for any other reason, Seller and Buyer shall each be liable for one-half of any
cancellation charges of Escrow Agent. The provisions of this Section 24 shall
survive cancellation of this Agreement.
25. APPROVALS. Concerning all matters in this Agreement requiring the
consent or approval of any Party, the Parties agree that any such consent or
approval shall not be unreasonably withheld unless otherwise provided in this
Agreement.
26. Intentionally Omitted.
27. ADDITIONAL ACTS. The Parties agree to execute promptly such other
documents and to perform such other acts as may be reasonably necessary to carry
out the purpose and intent of this Agreement.
28. GOVERNING LAW. This Agreement shall be governed by and construed or
enforced in accordance with the laws of the State of Ohio.
29. CONSTRUCTION. The terms and provisions of this Agreement represent the
results of negotiations among the Parties, each of which has been represented by
counsel of its
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own choosing, and neither of which has acted under any duress or compulsion,
whether legal, economic or otherwise. Consequently, the terms and provisions of
this Agreement shall be interpreted and construed in accordance with their usual
and customary meanings, and the Parties each hereby waive the application of any
rule of law which would otherwise be applicable in connection with the
interpretation and construction of this Agreement that ambiguous or conflicting
terms or provisions contained in this Agreement shall be interpreted or
construed against the Party whose attorney prepared the executed Agreement or
any earlier draft of the same.
30. TIME OF ESSENCE. Time is of the essence of this Agreement. However, if
this Agreement requires any act to be done or action to be taken on a date which
is a Saturday, Sunday or legal holiday, such act or action shall be deemed to
have been validly done or taken if done or taken on the next succeeding day
which is not a Saturday, Sunday or legal holiday, and the successive periods
shall be deemed extended accordingly.
31. INTERPRETATION. If there is any specific and direct conflict between,
or any ambiguity resulting from, the terms and provisions of this Agreement and
the terms and provisions of any document, instrument or other agreement executed
in connection herewith or in furtherance hereof, including any Exhibits hereto,
the same shall be consistently interpreted in such manner as to give effect to
the general purposes and intention as expressed in this Agreement which shall be
deemed to prevail and control.
32. HEADINGS. The headings of this Agreement are for reference only and
shall not limit or define the meaning of any provision of this Agreement.
33. FAX AND COUNTERPARTS. This Agreement may be executed by facsimile
and/or in any number of counterparts. Each party may rely upon any facsimile or
counterpart copy as if it were one original document.
34. INCORPORATION OF EXHIBITS BY REFERENCE. All Exhibits to this Agreement
are fully incorporated herein as though set forth at length herein.
35. SEVERABILITY. If any provision of this Agreement is unenforceable, the
remaining provisions shall nevertheless be kept in effect.
36. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the Parties and supersedes all prior agreements, oral or written, with respect
to the subject matter hereof. The provisions of this Agreement shall be
construed as a whole and not strictly for or against any Party.
37. AS-IS CONDITION. (a) Buyer acknowledges that Buyer will have prior to
▇▇▇ full and adequate right and opportunity to inspect and review the Property.
Buyer's consummation of ▇▇▇ shall constitute conclusive evidence that Buyer is
satisfied with the title and condition of the Property. In closing and
completing this transaction, Buyer will have relied exclusively upon its own
inspections and reviews, and not upon any representation or warranty of Seller
or its agents or employees, except as specifically set forth herein;
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(b) Except as expressly set forth herein, Buyer acknowledges and agrees:
(i) That Seller has made no representation, warranty or guaranty,
express or implied regarding the condition or state of repair of any
improvements upon the Property;
(ii) To accept the Property in its AS-IS / WHERE IS condition with
all faults; and
(iii) That the Purchase Price was determined after taking into
consideration the fact that Buyer is accepting the Property in its
AS-IS / WHERE IS condition;
(c) Buyer agrees that, following ▇▇▇, except as may be set forth herein,
Seller shall be fully and finally released from any and all claims or
liabilities against Seller relating to or arising on account of the
condition of the Property.
38. TAX DEFERRED EXCHANGE. A material part of the consideration to Buyer
and Seller is that each party has the option to qualify this transaction as part
of a tax deferred exchange under Section 1031 of the Internal Revenue Code. Each
party agrees to cooperate with the other party and execute such documentation as
reasonably requested to allow the other party to effectuate such tax deferred
exchange; provided, however, that neither party shall be required to incur any
additional cost or expense in connection with the other party's exchange.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as
of the Effective Date.
SELLER:
MONOGRAM DEVELOPMENT XV, LTD.,
an Ohio limited liability company
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Its: President
BUYER: SERIES A, LLC, an Arizona limited
liability company
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Its: Senior Vice President
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ESCROW AGENT'S ACCEPTANCE
The foregoing fully executed Agreement together with the ▇▇▇▇▇▇▇ Money
Deposit is accepted by the undersigned this _____ day of ____________, 2005,
which for the purposes of this Agreement shall be deemed to be the date of
Opening of Escrow. Escrow Agent hereby accepts the engagement to handle the
escrow established by this Agreement in accordance with the terms set forth in
this Agreement.
LAWYERS TITLE INSURANCE CORPORATION
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title: Escrow Agent
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AMENDMENT TO PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
This AMENDMENT TO PURCHASE AND ESCROW INSTRUCTIONS ("AMENDMENT") is made
and entered into as of this 13th day of October, 2005, by and between Monogram
Development XV, Ltd. ("SELLER") and Series A, LLC ("BUYER").
WHEREAS, Buyer and Seller entered into that certain Purchase Agreement and
Escrow Instructions dated September 28, 2005 (the "SALE AGREEMENT"), for the
purchase and sale of that certain parcel of land and the improvements located
thereon (the "PROPERTY") as further described in the Sale Agreement; and
WHEREAS, Buyer and Seller now desire to amend the Sale Agreement as set
forth herein;
NOW, THEREFORE, for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and for other consideration
including the mutual covenants and agreements set forth herein, and the parties
hereby agree as follows:
1. Close of Escrow. The Close of Escrow, as defined in the Sale Agreement,
is hereby extended to October 25, 2005.
2.Except as expressly amended hereby, the Sale Agreement and all
provisions thereof are and shall remain in full force and effect and binding
upon the parties. In the event of any conflict or inconsistency between the
terms and conditions of this Amendment and the terms and conditions of the Sale
Agreement, the terms and conditions of this Amendment shall control and govern.
3.All capitalized terms used herein and not otherwise defined in this
Amendment shall have the same meaning given such terms in the Sale Agreement.
4.This Amendment may be signed in multiple counterparts which, when taken
together, shall constitute one and the same document. This Amendment may be
executed by facsimile signature.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first set forth above.
BUYER: SELLER:
Series A, LLC Monogram Development XV, Ltd.
By: Leisure Investments, Inc., sole
member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------- ----------------------------------
Its: ▇▇▇▇ ▇. ▇▇▇▇ - Authorized Officer Its: President