AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the 14th
day of January, 1997 (the "Contract Date"), by and between OFFICE OPPORTUNITY
FUND III, L.P. ("Purchaser") and ▇▇▇▇▇ FORUM LIMITED PARTNERSHIP ("Seller").
W I T N E S S E T H:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Fourteen Million Two Hundred Fifty Thousand and 00/100 Dollars
($14,250,000.00) ("Purchase Price"), and on the terms and conditions
hereinafter set forth, the property commonly known as The US West Building,
Murray, Utah, consisting of the following:
1.1 All of Seller's right, title and interest in the real property
("Land") and all buildings and other improvements ("Improvements") situated on
the Land, as more particularly described on Exhibit A attached hereto and made
a part hereof (the Land and the Improvements are sometimes referred to herein
together as the "Property"), together with all easements and appurtenances
thereunto belonging and all of Seller's right, title and interest in and to all
streets, alleys and public ways adjacent thereto, if any, and together with all
of Seller's right, title and interest in and to all strips and gores located on
or adjacent to the Property or located between any parcels constituting the
Land, if any;
1.2 The personal property set forth on Exhibit B attached hereto
("Personal Property"), but shall in all events exclude the personal property
described on Exhibit B under the heading "Excluded Personal Property";
1.3 The tenant leases described in the rent roll set forth on Exhibit C
attached hereto and made a part hereof together with such other tenant leases
of the Property as may be made prior to Closing (as hereinafter defined) in
accordance with the terms of this Agreement ("Leases");
1.4 If and to the extent assignable and to the extent of Seller's
interest therein, if any: (a) all guarantees, warranties and indemnifications,
if any, received from suppliers, contractors, materialmen or subcontractors
arising out of, or in connection with, the installation, construction or
maintenance of the Property including, without limitation, the right to ▇▇▇ any
obligor for any breach of any covenant, agreement, representation, warranty or
guarantee contained therein; (b) all licenses, permits, certificates of
occupancy and franchises issued by any federal, state, county or municipal
authority relating to the use, maintenance or operation of the Property running
to or in favor of Seller or pertaining to the Property; (c) all trade styles,
and trade names, including, without limitation, the name "The US West
Building", and all contract rights, brochures, manuals, lists of prospective
tenants, advertising material, books and records, utility contracts and
telephone numbers; (d) the plans and specifications for the Improvements and
all unexpired claims and sureties, if any, received in connection with the
construction, improvement or equipment of the Improvements; and (e) the service
and maintenance contracts set forth in Exhibit D ("Service Contracts").
1.5 Notwithstanding anything contained in this Agreement to the contrary,
Seller is not conveying or assigning to Purchaser the items described in
Paragraph 15.3 hereof.
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
2.1 Upon the execution of this Agreement, the sum of Three Hundred
Thousand Dollars ($300,000) ("▇▇▇▇▇▇▇ Money"), by check payable to the escrow
agent, to be held in escrow by and in accordance with the provisions of the
Escrow Agreement ("Escrow Agreement") attached hereto as Exhibit E. The
▇▇▇▇▇▇▇ Money shall be held in an interest-bearing account. In the event the
sale of the Property is consummated, the ▇▇▇▇▇▇▇ Money shall be applied to the
Purchase Price. If Purchaser elects to terminate this Agreement in accordance
with its rights under this Agreement, the ▇▇▇▇▇▇▇ Money, together with all
interest earned thereon, shall be returned to Purchaser in accordance with
Paragraph 14 hereof; and
2.2 On the Closing Date (as hereinafter defined), the balance of the
Purchase Price, adjusted in accordance with the prorations, by federally wired
"immediately available" funds, on or before 2:00 p.m. Chicago time. Any
provisions herein providing for the delivery of the ▇▇▇▇▇▇▇ Money to either
party hereof are intended to mean the ▇▇▇▇▇▇▇ Money plus any interest earned
thereon and less all escrow and investment fees.
3. TITLE COMMITMENT AND SURVEY.
3.1 Attached hereto as Exhibit F is a copy of a title commitment for an
owner's standard title insurance policy issued by Charter Title Company, as
agent for Lawyers Title Insurance Corporation, (hereinafter referred to as
"Title Insurer"), dated October 10, 1996, for the Property ("Title
Commitment"). For purposes of this Agreement, "Permitted Exceptions" shall
mean: (a) general ad valorem real estate taxes for the year 1996 and
subsequent years not yet due and payable; (b) association assessments, special
district taxes and related charges not yet due and payable; (c) matters shown
on the Survey (as hereinafter defined); (d) matters caused by the action or
inaction of Purchaser or its agents; (e) the title exceptions set forth in
Schedule B of the Title Commitment as Numbers 1-19 and 23; (f) the rights of
tenants under leases identified on the Rent Roll attached hereto as Exhibit C;
and (g) liens or encumbrances of a definite or ascertainable amount which may
be removed or insured over by the payment of money or other security at the
Closing Date, and which Seller removes or causes to be insured over at the
Closing Date in accordance with Paragraph 5 hereof. All other exceptions to
title shall be referred to as "Unpermitted Exceptions". On the Closing Date,
Title Insurer shall deliver to Purchaser a standard title policy in conformance
with the previously delivered Title Commitment, subject only to Permitted
Exceptions (excluding, however, the Permitted Exceptions described in subclause
(g) above) and Unpermitted Exceptions waived in writing by Purchaser ("Title
Policy"). The Title Policy shall be conclusive evidence of good title as
therein shown as to all matters to be insured by the Title Policy, subject only
to the exceptions and requirements therein stated. Purchaser and Seller shall
equally divide the costs of the Title Commitment and Title Policy and Purchaser
shall pay for the cost of any endorsements to, or extended coverage on, the
Title Policy as requested by Purchaser or Purchaser's lender.
3.2 Purchaser has received an ALTA survey of the Property prepared by
Mountain States Survey under Job Number 2213.100 ("Survey"). Purchaser and
Seller shall equally divide the cost of the most recent update to the Survey.
Subject to Paragraph 3.4 below, Purchaser hereby acknowledges that all matters
disclosed by the Survey are acceptable to Purchaser and are Permitted
Exceptions for purposes of Paragraph 3.1 above.
3.3 The obligations of Purchaser and Seller to pay various costs set
forth in Paragraphs 3.1 and 3.2 shall survive the termination of this
Agreement.
3.4 Notwithstanding the terms of this Paragraph 3 or anything to the
contrary contained herein or in the Escrow Agreement, if prior to the end of
the Inspection Period, Purchaser conducts a review of the Title Commitment or
Survey and finds any of the title exceptions or survey exceptions referred to
therein unacceptable, Purchaser shall be entitled to exercise its right to
terminate this Agreement in accordance with the provisions of Paragraph 7.1
below.
4. PAYMENT OF CLOSING COSTS.
4.1 In addition to the costs set forth in Paragraphs 3.1 and 3.2,
Purchaser and Seller shall equally divide the costs of the documentary or
transfer stamps to be paid with reference to the Deed (as hereinafter defined)
and all other stamps, intangible, transfer, documentary, recording, sales tax
and surtax imposed by law with reference to any other sale documents delivered
in connection with the sale of the Property to Purchaser.
5. CONDITION OF TITLE.
5.1 If, prior to Closing (as hereinafter defined), a date-down to the
Title Commitment discloses any new Unpermitted Exceptions which, in the
aggregate, do not exceed $25,000 (each, a "Minor Unpermitted Exception"),
Seller shall, at Seller's expense, bond over, cure and/or have such Minor
Unpermitted Exceptions removed from the Title Commitment or have the Title
Insurer commit to insure against loss or damage that may be occasioned by such
Minor Unpermitted Exceptions. Notwithstanding the foregoing, if such date down
to the Title Commitment discloses any new Unpermitted Exceptions which, in the
aggregate, equal or exceed $25,000, Seller shall have the right, but not the
obligation, to bond over, cure and/or have such exceptions removed from the
Title Commitment or to have the Title Insurer commit to insure against loss or
damage that may be occasioned by such Unpermitted Exceptions. If Seller fails
to bond over, cure or have any Unpermitted Exception removed or have the Title
Insurer commit to insure as specified above within five (5) business days from
the date of the date down to the Title Commitment, Purchaser may terminate this
Agreement upon written notice to Seller within three (3) days after the
expiration of such five (5) business day period; provided, however, and
notwithstanding anything contained herein to the contrary, if the Unpermitted
Exception which gives rise to Purchaser's right to terminate was recorded
against the Property as a result of the affirmative action of Seller with the
intention of preventing the sale (and not by any unrelated third party) or if
Seller is able to bond over, cure or remove a Minor Unpermitted Exception for a
cost not to exceed $25,000 or the Title Insurer is willing to insure over a
Minor Unpermitted Exception for a cost not to exceed $25,000 in accordance with
the terms hereof and Seller fails to expend such funds in either case, then
Purchaser shall have the additional rights contained in Paragraph 14 herein.
Absent notice from Purchaser to Seller in accordance with the preceding
sentence, Purchaser shall be deemed to have elected to take title subject to
said Unpermitted Exception, without any reduction in or setoff against the
Purchase Price as a result thereof. If Purchaser terminates this Agreement in
accordance with the terms of this Paragraph.
5.1, this Agreement shall terminate without further action of the parties
and all ▇▇▇▇▇▇▇ Money theretofore deposited into the escrow by Purchaser,
together with any interest accrued thereon, shall be returned to Purchaser, and
neither party shall have any further liability to the other, except for those
covenants and obligations that specifically survive termination of this
Agreement.
5.2 Seller agrees to convey fee simple title to the Property to Purchaser
by special warranty deed ("Deed") (in the form attached hereto as Exhibit G) in
recordable form subject only to the Permitted Exceptions and any Unpermitted
Exceptions not objected to by Purchaser in accordance with Paragraph 5.1 above.
Evidence of title shall be the issuance by the Title Company at Closing of its
ALTA Owner's Policy of Title Insurance in a form reasonably acceptable to Buyer
insuring that fee title to the Property is vested in Purchaser, subject only to
the Permitted Exceptions and Unpermitted Exceptions not objected to by
Purchaser in accordance with Paragraph 5.1 above.
6.CONDEMNATION, EMINENT DOMAIN, DAMAGE AND CASUALTY.
6.1 Except as provided in the indemnity provisions contained in Paragraph
7.1 of this Agreement, Seller shall bear all risk of loss with respect to
theProperty through the Closing. Seller agrees to maintain its existing "all
risk" replacement cost casualty insurance and rent loss insurance in place
until the Closing Date. Notwithstanding the foregoing, in the event of damage
to the Property by fire or other casualty prior to the end of the Inspection
Period, repair of which would cost less than or equal to $150,000 (as
determined by Seller in good faith) ("Minor Damage"), Purchaser shall not have
the right to terminate its obligations under this Agreement by reason thereof,
but Seller shall have the right to elect to either repair and restore the
Property if such repair or restoration may be completed prior to the Closing
Date or to assign and transfer to Purchaser on the Closing Date all of Seller's
right, title and interest in and to all insurance proceeds paid or payable to
Seller on account of such fire or casualty plus the amount of Seller's
insurance deductible; provided, however, if Minor Damage occurs after the end
of the Inspection Period, Purchaser may direct Seller to either repair and
restore the Property if such repair or restoration may be completed prior to
the Closing Statement or to cause Seller to assign and transfer to Purchaser on
the Closing Date all of Seller's right, title and interest in and to all
insurance proceeds paid or payable to Seller on account of such fire or
casualty plus the amount of the Seller's insurance deductible. Seller shall
promptly notify Purchaser in writing of any such fire or other casualty and
Seller's estimate of the cost to repair the damage caused thereby. In the event
of damage to the Property by fire or other casualty prior to the Closing Date,
repair of which would cost in excess of $150,000 (as determined by Seller in
good faith), then this Agreement may be terminated at the option of Purchaser,
which option shall be exercised, if at all, by Purchaser's written notice
thereof to Seller within ten (10) business days after Purchaser receives
written notice of such fire or other casualty from Seller and Seller and
Purchaser agree upon the amount of such damages, and upon the exercise of such
option by Purchaser this Agreement shall terminate without further action by
the parties, the ▇▇▇▇▇▇▇ Money deposited by Purchaser shall be returned to
Purchaser together with interest thereon, and neither party shall have any
further liability or obligations hereunder, except for those covenants and
obligations which expressly survive termination of this Agreement. In the
event that Purchaser does not exercise the option to terminate in accordance
with this Paragraph 6.1, the Closing shall take place on the Closing Date and
Seller shall assign and transfer to Purchaser on the Closing Date all of
Seller's right, title and interest in and to all insurance proceeds paid or
payable to Seller on account of the fire or casualty and shall pay to Purchaser
the amount of Seller's insurance deductible. Notwithstanding anything contained
herein to the contrary, Seller's obligation to transfer all insurance proceeds
paid to Seller as set forth more fully in this Paragraph 6.1 shall survive the
Closing and the recording of the Deed.
6.2 Except for the pending condemnation action described on Exhibit N
attached hereto (the "Pending Condemnation Action"), if between the date of
this Agreement and the Closing Date, any condemnation or eminent domain
proceedings are initiated which might result in the taking of any part of the
Property or the taking or closing of any right of access to the Property,
Seller shall immediately notify Purchaser of such occurrence. In the event that
the taking of any part of the Property shall: (i) impair access to the
Property; (ii) cause any non-compliance with any applicable law, ordinance,
rule or regulation of any federal, state or local authority or governmental
agencies having jurisdiction over the Property or any portion thereof; or (iii)
impair the use of the Property as it is currently being operated (hereinafter
collectively referred to as a "Material Event"), Purchaser may:
6.2.1 terminate this Agreement by written notice to Seller, in
which event the ▇▇▇▇▇▇▇ Money deposited by Purchaser, together with interest
thereon, shall be returned to Purchaser and all rights and obligations of the
parties hereunder with respect to the closing of this transaction will cease,
except for those covenants and obligations hereunder which expressly survive
termination of this Agreement; or
6.2.2 proceed with the Closing, in which event Seller shall
assign to Purchaser all of Seller's right, title and interest in and to any
award made or to be made in connection with such condemnation or eminent domain
proceedings. Notwithstanding anything contained herein to the contrary,
Seller's obligation to transfer Seller's interest in such award as set forth
more fully in this Paragraph 6.2.2 shall survive the Closing and the recording
of the Deed.
Purchaser shall then notify Seller, within five (5) business days after
Purchaser's receipt of Seller's notice, whether Purchaser elects to exercise
its rights under Paragraph 6.2.1 or Paragraph 6.2.2. Closing shall be delayed,
if necessary, until Purchaser makes such election. If Purchaser fails to make
an election within such five (5) business day period, Purchaser shall be deemed
to have elected to proceed with Closing in accordance with Paragraph 6.2.2. If
between the date of this Agreement and the Closing Date, any condemnation or
eminent domain proceedings are initiated which do not constitute a Material
Event, Purchaser shall be required to proceed with the Closing, in which event
Seller shall assign to Purchaser all of Seller's right, title and interest in
and to any award made in connection with such condemnation or eminent domain
proceedings.
6.3 Purchaser and Seller acknowledge and agree that the Property is
subject to the Pending Condemnation Action. At closing, Seller shall assign to
Purchaser all of Seller's right, title and interest in and to any award made or
to be made in connection with the Pending Condemnation Action. Provided that
Purchaser closes on the purchase of the Property pursuant to this Agreement,
any award collected by Seller shall be deemed held in trust for the benefit of
Purchaser and shall be delivered to Purchaser promptly upon the later of the
Seller's receipt or the Closing. Notwithstanding the terms of this Section 6.3
or anything to the contrary contained herein, or in the Escrow Agreement, if
prior to the end of the Inspection Period, Purchaser conducts a review of the
Pending Condemnation Action and finds it unacceptable for any reason, Purchaser
shall be entitled to exercise its right to terminate this Agreement in
accordance with the provisions of Paragraph 7.1 below.
7. INSPECTION AND AS-IS CONDITION.
7.1 During the period commencing on the date hereof and ending at 5:00
p.m. Chicago time on January 31, 1997 (said period being herein referred to as
the "Inspection Period"), Purchaser and the agents, engineers, employees,
contractors and surveyors retained by Purchaser may enter upon the Property to
inspect the Property and to conduct and prepare such studies, tests and surveys
as Purchaser may deem reasonably necessary and appropriate, including, without
limitation, a review of the Leases. Seller agrees to reasonably cooperate in
assisting Purchaser to interview existing Tenants or their designated
representatives. In connection with Purchaser's review of the Property, Seller
has delivered to Purchaser copies of the current rent roll for the Property,
the most recent tax and insurance bills, copies of the Leases, utility account
numbers, a personal property inventory, the Service Contracts, unaudited annual
operating statements from 1995, and monthly or year-to-date unaudited operating
statements from 1996. At all times prior to the Closing Date, Seller shall
reasonably cooperate to make all information regarding the Property which is in
Seller's possession or control available to Purchaser. All of the foregoing
tests, investigations and studies to be conducted under this Paragraph 7.1 by
Purchaser shall be subject to the following:
(i) Such tests, inspections and investigations shall take place
during normal business hours upon reasonable notice to Seller or
its designated agents;
(ii) Except as may be required by Purchaser to complete its due
diligence during the Inspection Period or to obtain financing in
order to close this transaction, all information set forth in the
documents to be reviewed hereunder by Purchaser, its employees and
agents shall be held in strict confidence until Closing and
thereafter in the event that the Closing does not occur;
(iii) In the event the Closing does not occur, Purchaser shall
promptly return to Seller any documents obtained from Seller or
Seller's agents;
(iv) Purchaser shall not suffer or permit any lien, claim or
charge of any kind whatsoever to attach to the Property or any part
thereof; and
(v) such tests, investigations and studies shall be at
Purchaser's sole cost and expense, and in the event of any damage to
the Property caused by Purchaser, its agents, engineers, employees,
contractors or surveyors (including, without limitation, pavement,
landscaping and surface damage), Purchaser shall pay the cost
incurred by Seller to restore the Property to the condition existing
prior to the performance of such tests, investigations or studies.
Purchaser shall defend, indemnify and hold Seller and any affiliate or parent
of Seller, and all shareholders, employees, officers, directors and partners of
Seller or Seller's affiliate or parent (hereinafter collectively referred to as
"Affiliates of Seller") harmless from any and all liability, cost and expense
(including without limitation, reasonable attorneys' fees, court costs and
costs of appeal) (collectively, "Claims") suffered or incurred by Seller or
Affiliates of Seller for injury to persons or property caused by Purchaser's
investigations, tests, studies and inspections of the Property, except to the
extent such Claims are caused by or result from the negligence or wilfull
misconduct of Seller or its affiliates. Purchaser shall undertake its
obligation to defend set forth in the preceding sentence using attorneys
selected by Purchaser and reasonably acceptable to Seller. Prior to commencing
any such tests, studies and investigations, Purchaser shall furnish to Seller a
certificate of insurance evidencing comprehensive general public liability
insurance. Purchaser shall also require anyone conducting tests, studies or
investigations on the Property to carry similar insurance.
If Purchaser, in its sole discretion, is dissatisfied with the results of
the tests, studies or investigations performed or information received pursuant
to this Agreement, or otherwise, Purchaser shall have the right to terminate
this Agreement by giving written notice of such termination to Seller at any
time prior to the expiration of the Inspection Period. If written notice is
not given by Purchaser pursuant to this Paragraph 7.1 prior to the expiration
of the Inspection Period, then the right of Purchaser to terminate this
Agreement pursuant to this Paragraph 7.1 shall be waived. If Purchaser
terminates this Agreement by written notice to Seller prior to the expiration
of the Inspection Period: (i) Purchaser shall promptly deliver to Seller copies
of all studies, reports and other investigations obtained by Purchaser
inconnection with its due diligence during the Inspection Period ("Purchaser's
Reports"); and (ii) the ▇▇▇▇▇▇▇ Money deposited by Purchaser shall be
immediately paid to Purchaser, together with any interest earned thereon, less
the sum of One Hundred and No/100 Dollars ($100.00), which shall be paid to
Seller in consideration for such period of inspection, and neither Purchaser
nor Seller shall have any right, obligation or liability under this Agreement,
except for those covenants and obligations which expressly survive the
termination of this Agreement. Notwithstanding anything contained herein to
the contrary, Purchaser's obligation to indemnify Seller and pay the costs of
restoring the Property, as more fully set forth in this Paragraph 7.1, shall
survive Closing and recording of the Deed and the termination of this
Agreement, as applicable. Seller hereby acknowledges that (i) Purchaser has
not made and does not make any warranty or representation regarding the truth
and accuracy or any Purchaser's Reports and Purchaser has not undertaken any
independent investigation as to the truth or accuracy thereof, and (ii) Seller
shall have no right to rely on any Purchaser's Reports. Purchaser shall have
no liability or culpability of any nature as a result of having provided such
information to Seller.
7.2 Except for the express representations and warranties of Seller set
forth herein and except for those conditions that would have been revealed to
Purchaser but for Seller's fraud, Purchaser acknowledges and agrees that it
will be purchasing the Property and the Personal Property based solely upon its
inspections and investigations of the Property and the Personal Property, and
that Purchaser will be purchasing the Property and the Personal Property "AS
IS" and "WITH ALL FAULTS", based upon the condition of the Property and the
Personal Property as of the date of this Agreement, ordinary wear and tear and
loss by fire or other casualty or condemnation excepted and that Seller makes
no warranty or representation, express or implied, or arising by operation of
law, including, but not limited to, any warranty of condition, habitability,
merchantability or fitness for a particular purpose, in respect of the
Property. Without limiting the foregoing, Purchaser acknowledges that, except
as may otherwise be specifically set forth elsewhere in this Agreement, neither
Seller nor its consultants, brokers or agents have made any representations or
warranties of any kind upon which Purchaser is relying as to any matters
concerning the Property or the Personal Property, including, but not limited
to: (i) the condition of the Land or any improvements comprising the Property;
(ii) the existence or non-existence of any pollutant, toxic waste and/or any
hazardous materials or substances; (iii) economic projections or market studies
concerning the Property, or the income to be derived from the Property;
(iv) any development rights, taxes, bonds, covenants, conditions and
restrictions affecting the Property; (v) the nature and extent of any right of
way, lease, lien, encumbrance, license, reservation or other title matter;
(vi) water or water rights, topography, geology, drainage, soil or subsoil of
the Property; (vii) the utilities serving the Property; (viii) the suitability
of the Property for any and all activities and uses which Purchaser may elect
to conduct thereon; or (ix) the compliance of the Property with any zoning,
environmental, building or other laws, rules or regulations affecting the
Property. Seller makes no representation or warranty that the Property
complies with the Americans with Disabilities Act or any fire code or building
code. Purchaser hereby releases Seller and the Affiliates of Seller from any
and all liability in connection with any claims which Purchaser may have
against Seller or the Affiliates of Seller, and Purchaser hereby agrees not to
assert any claims for contribution, cost recovery or otherwise, against Seller
or the Affiliates of Seller, relating directly or indirectly to the existence
of asbestos or hazardous materials or substances on, or environmental
conditions of, the Property, whether known or unknown. As used herein, the
term "hazardous materials or substances" means (i) hazardous wastes, hazardous
substances, hazardous constituents, toxic substances or related
materials,whether solids, liquids or gases, including but not limited to
substances defined as "hazardous wastes," "hazardous substances," "toxic
substances," "pollutants, "contaminants," "radioactive materials," or other
similar designations in, or otherwise subject to regulation under, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. Section 9601 et seq.; the Toxic Substance Control Act, 15
U.S.C. Section 2601 et seq.; the Hazardous Materials Transportation Act, 49
U.S.C. Section 1802; the Resource Conservation and Recovery Act, 42 U.S.C.
Section 9601. et seq.; the Clean Water Act, 33 U.S.C. Section 1251; the Safe
Drinking Water Act, 42 U.S.C. Section 30Of et seq; the Clean Air Act, 42 U.S.C.
Section 7401 et seq.; and in any permits, licenses, approvals, plans, rules,
regulations or ordinances adopted, or other criteria and guidelines promulgated
pursuant to the preceding laws or other similar federal, state or local laws,
regulations, rules or ordinance now or hereafter in effect relating to
environmental matters (collectively, "Environmental Laws"); and (ii) any other
substances, constituents or wastes subject to any applicable federal, state or
local law, regulation or ordinance, including any Environmental Law, now or
hereafter in effect, including but not limited to (A) petroleum, (B) refined
petroleum products, (C) waste oil, (D) waste aviation or motor vehicle fuel and
(E) asbestos, except that this release shall not relieve Seller of its
liability for fraud or any breach of Seller's representations and warranties in
Paragraph 17 hereof. Purchaser acknowledges that 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 that the information
provided and to be provided with respect to the Property was obtained from a
variety of sources, and that Seller (x) has not made any independent
investigation or verification of such information and (y) makes no
representations as to the accuracy or completeness of such information, except
as provided herein.
7.3 Seller has provided to Purchaser certain unaudited historical
financial information regarding the Property relating to certain periods of
time in which Seller owned the Property. Seller and Purchaser hereby
acknowledge that such information has been provided to Purchaser at Purchaser's
request solely as illustrative material. Except for the express representations
and warranties of Seller set forth herein, Seller makes no representation or
warranty that such material is complete or accurate or that Purchaser will
achieve similar financial or other results with respect to the operations of
the Property, it being acknowledged by Purchaser that Seller's operation of the
Property and allocations of revenues or expenses may be vastly different than
Purchaser may be able to attain. Purchaser acknowledges that it is a
sophisticated and experienced purchaser of real estate and further that
Purchaser has relied upon its own investigation and inquiry with respect to the
operation of the Property and releases Seller and the Affiliates of Seller from
any liability with respect to such historical information, except that this
release shall not relieve Seller of its liability for fraud or any breach of
Seller's representations and warranties in Paragraph 17 hereof.
7.4 Seller has provided to Purchaser the following existing reports: (i)
Phase t/Ltd. ACM dated June 25, 1990 prepared by Law Associates; and (ii) ACM
Survey, undated, prepared by Hygienetics ("Existing Reports"). Seller makes no
representation or warranty concerning the accuracy or completeness of the
Existing Reports. Purchaser hereby releases Seller and the Affiliates of
Seller from any liability whatsoever with respect to the Existing Reports,
including, without limitation, the matters set forth in the Existing Reports,
and the accuracy and/or completeness of the Existing Reports. Furthermore,
Purchaser acknowledges that, if Purchaser elects to purchase the Property
pursuant to Paragraph 7.1, it will be purchasing the Property with all faults
disclosed in the Existing Reports.
7.5 Notwithstanding anything contained herein to the contrary, the
acknowledgements, agreements, waivers and releases of Purchaser set forth in
this Paragraph 7 shall survive Closing and recording of the Deed and the
termination of this Agreement as applicable.
8. CLOSING. The closing of this transaction ("Closing") shall be on February
14, 1997 ("Closing Date") through escrow with Title Insurer, at which ▇▇▇▇
▇▇▇▇▇▇ shall deliver possession of the Property to Purchaser. This transaction
shall be closed in accordance with the provisions of the Escrow Agreement. All
deed and money escrow fees shall be shared equally between the parties.
9. CLOSING DOCUMENTS.
9.1 On the Closing Date, Seller and Purchaser shall execute and deliver
to one another a joint closing statement. In addition, Purchaser shall deliver
to Seller the balance of the Purchase Price, an assumption of the documents set
forth in Paragraph 9.2.3 and 9.2.4, counterparts of any transfer tax
declarations and such other documents as may be reasonably required by the
Title Insurer and not inconsistent with the terms of this Agreement in order to
consummate the transaction as set forth in this Agreement.
9.2 On the Closing Date, Seller shall deliver to Purchaser the following:
9.2.1 the Deed, subject to Permitted Exceptions and those Unpermitted
Exceptions waived by Purchaser in writing or not objected to by Purchaser in
accordance with Paragraph 5.1 hereof;
9.2.2 a special warranty ▇▇▇▇ of sale conveying the Personal Property
(in the form of Exhibit H attached hereto);
9.2.3 assignment and assumption (with respect to periods from and
after the Closing) of intangible property (in the form attached hereto as
Exhibit I);
9.2.4 an assignment and assumption (with respect to periods from and
after the Closing) of Leases and security deposits (in the form attached hereto
as Exhibit J);
9.2.5 non-foreign affidavit (in the form of Exhibit K attached
hereto);
9.2.6 originals of the Leases (including any Lease guarantees) in
Seller's possession (unless Seller elects to leave such documents in the
on-site management office);
9.2.7 all documents and instruments reasonably required by the Title
Insurer to issue the Title Policy;
9.2.8 possession of the Property to Purchaser, subject to the Leases
and the Permitted Exceptions;
9.2.9 evidence of the termination of the management agreement, along
with a lien waiver executed by the property manager, if applicable;
9.2.10 notice to the tenants of the Property of the transfer of title
and assumption by Purchaser of the landlord's obligation under the Leases and
the obligation to refund the refundable security deposits (in the form of
Exhibit L);
9.2.11 an updated rent roll certified by Seller to be true, complete
and correct, subject to the provisions of Paragraph 17.1 and Paragraph 19
hereof;
9.2.12 a Broker's Lien Waiver signed by Insignia Mortgage and
Investments Company ("Insignia");
9.2.13 an Owner's Title Affidavit or ALTA extended coverage statement
in form reasonably acceptable to Seller and Title Insurer;
9.2.14 such formative and authorization documents of Seller as may be
reasonably required by Title Insurer;
9.2.15 copies of all books and records as may be necessary to
calculate tenant escalations and reconciliations (unless Seller elects to leave
such documents in the on-site management office); and
9.2.16 a certificate which Seller shall remake each representation
and warranty of Seller set forth in Paragraph 17, and which certifies that each
such representation is materially true as of Closing, or sets forth the reason
that any such representation or warranty is no longer true.
10. ESTOPPEL CERTIFICATES.
10.1 Seller agrees to use commercially reasonable efforts to obtain tenant
estoppel certificates in the form of Exhibit M ("Tenant Certificates") for
tenants listed on the rent roll attached hereto as Exhibit C. If Seller is
unable to obtain Tenant Certificates from each Tenant occupying, or having the
right to occupy, 10,000 rentable square feet or more in the Improvements and at
least seventy-five percent (75%) of the other tenants (the "Required Tenants"),
Seller shall be obligated to deliver to Purchaser a Seller Tenant Certificate
for such Required Tenants who failed to execute and return a Tenant
Certificate. As used herein, "Seller Tenant Certificate" shall mean a Tenant
Certificate signed to Seller with respect to a particular Tenant which failed
to execute and deliver a Tenant Certificate.
10.2 Notwithstanding anything contained herein to the contrary, the
representations and warranties contained in any Seller Tenant Certificate
executed by Seller (i) shall be made only to the knowledge of both Seller as
set forth in Paragraph 17 hereof, and (ii) shall be subject to the provisions
of Paragraph 18 hereof.
10.3 Upon receipt after Closing by Purchaser of a Tenant Certificate
containing the information herein required from a tenant under a Lease for whom
Seller has executed and delivered a Seller Tenant Certificate at Closing, or
from any other tenant or tenants which would, in computing the Required Amount,
negate the need for any or all of the Seller Tenant Certificates, any Seller
Tenant Certificate executed and delivered by Seller at Closing which is no
longer needed in achieving the Required Amount shall become null and void, and
the Tenant Certificates received from the tenant or tenants shall be
substituted therefor.
10.4 Notwithstanding anything contained in this Agreement, the obligations
of Purchaser to purchase the Property from Seller shall be subject to
Purchaser's receipt of Tenant Certificates from the Required Tenants on or
before the Closing. This Agreement may be terminated by Purchaser if such
Tenant Certificates from the Required Tenants are not delivered to Purchaser at
or before the Closing. If Purchaser terminates this Agreement as aforesaid,
all ▇▇▇▇▇▇▇ Money theretofore deposited into escrow by Purchaser, together with
interest accrued thereon, shall be returned to Purchaser, and neither party
shall have any further liability to the other, except for those covenants and
obligations that specifically survive the termination of this Agreement.
11. SERVICE CONTRACTS. On the Closing Date, Seller shall assign the Service
Contracts to Purchaser, and Purchaser shall assume in writing responsibility of
the obligations arising from and after the Closing Date under the Service
Contracts. Seller shall use reasonable efforts to obtain any required consent
with respect to the assignment of the Service Contracts; provided, however,
that Seller's inability to obtain such approval shall not be a default
hereunder or a condition precedent to Purchaser's obligations to close
hereunder.
12. LEASING OF PROPERTY. Prior to the expiration of the Inspection Period,
Seller shall advise Purchaser of the terms of any new lease, modification of
lease or extension of lease that Seller intends to execute at least three (3)
business days prior to Seller's execution of the same and shall deliver to
Purchaser a copy of any new leases or modifications or extensions executed by
Seller from and including the date hereof through the end of the Inspection
Period, together with information as to any tenant improvement obligations and
leasing commissions, and such other information as Purchaser may reasonably
require. Such new leases or lease modifications and extensions shall be
included in the definition of Leases and Purchaser shall be responsible to pay
for all leasing commissions, tenant improvement costs or other costs and
expenses (including reasonable attorneys' fees) incurred by Seller with respect
to such leases. After the expiration of the Inspection Period, Seller shall not
enter into any lease for any portion of the Property or any modification,
extension or amendment to any Lease without first obtaining the prior consent
of Purchaser, which consent shall not be unreasonably withheld. If Purchaser
has not responded within five (5) business days of receipt of a request by
Seller, Purchaser's consent shall be deemed given. If Purchaser closes the
transaction contemplated by this Agreement, Purchaser shall be responsible to
pay for all leasing commission, tenant improvement costs or other costs and
expenses (including reasonable attorneys' fees) incurred by Seller with respect
to any such lease approved by Purchaser. Seller agrees to pay any outstanding
brokerage commissions now or hereafter due or payable with respect to the
existing term of any Lease. Seller does not represent or warrant that any
particular Lease will be in effect at Closing or that the tenant will have
performed the tenant's obligations thereunder. The termination of any Lease
prior to Closing by reason of a tenant's default will not affect the
obligations of Purchaser under this Agreement in any manner, or entitle
Purchaser to an abatement of or credit against the Purchase Price, or give rise
to any other claim by Purchaser, and if any space in the Improvements is vacant
on the Closing Date, Purchaser will accept the Premises subject to the vacancy;
provided, however, that if Seller terminates any Lease which covers 10,000 or
more rentable square feet of space after the last day of the Inspection Period
through the Closing Date, Purchaser shall have the right to terminate this
Agreement by giving written notice of such termination to Seller at any time
through the Closing Date. If Purchaser terminates this Agreement pursuant to
the prior sentence, the ▇▇▇▇▇▇▇ Money deposited by Purchaser shall be
immediately paid to Purchaser, together with any interest earned thereon, less
the sum of One Hundred and No/100 Dollars ($100.00) which shall be paid to
Seller in consideration for this Agreement and neither Purchaser nor Seller
shall have any right, obligation or liability under this Agreement, except for
those covenants and obligations which expressly survive the termination of this
Agreement.
13. DEFAULT BY PURCHASER.
ALL ▇▇▇▇▇▇▇ MONEY DEPOSITED INTO THE ESCROW IS TO SECURE THE TIMELY
PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND UNDERTAKINGS UNDER THIS
AGREEMENT. IN THE EVENT OF A DEFAULT OF PURCHASER UNDER THE PROVISIONS OF THIS
AGREEMENT, SELLER SHALL RETAIN ALL OF THE ▇▇▇▇▇▇▇ MONEY AND THE INTEREST
THEREON AS SELLER'S SOLE RIGHT WITH RESPECT TO DAMAGES OR ANY OTHER REMEDY,
EXCEPT FOR THOSE COVENANTS AND OBLIGATIONS OF PURCHASER WHICH EXPRESSLY SURVIVE
TERMINATION OF THIS AGREEMENT. THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL
DAMAGES, IN THE EVENT OF A DEFAULT BY PURCHASER, WOULD BE EXTREMELY DIFFICULT
OR IMPRACTICAL TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE
PARTIES ACKNOWLEDGE THAT THE ▇▇▇▇▇▇▇ MONEY HAS BEEN AGREED UPON, AFTER
NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES.
14. SELLER'S DEFAULT
IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S DEFAULT, PURCHASER'S SOLE
REMEDY SHALL BE THE RETURN OF ALL ▇▇▇▇▇▇▇ MONEYTOGETHER WITH ANY INTEREST
ACCRUED THEREON, AND UPON THE RETURN OF THE ▇▇▇▇▇▇▇ MONEY THIS AGREEMENT SHALL
TERMINATE WITHOUT FURTHER ACTION OF THE PARTIES AND THE PARTIES SHALL HAVE NO
FURTHER LIABILITY TO EACH OTHER AT LAW OR IN EQUITY, EXCEPT FOR THOSE COVENANTS
AND OBLIGATIONS WHICH EXPRESSLY SURVIVE TERMINATION OF THIS AGREEMENT.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IF SELLER'S DEFAULT
RESULTS FROM (i) ITS (AND NOT AN UNRELATED THIRD PARTY'S) AFFIRMATIVE ACTION
DONE WITH THE INTENTION OF PREVENTING THE SALE WHICH RESULTS IN THE RECORDING
OF AN ENCUMBRANCE AGAINST THE PROPERTY AND WHICH GIVES RISE TO PURCHASER'S
RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO PARAGRAPH 5 HEREOF; (ii) ITS
FAILURE TO EXPEND UP TO $25,000 IF (a) SELLER IS ABLE TO BOND OVER, CURE OR
REMOVE A MINOR UNPERMITTED EXCEPTION FOR A COST NOT TO EXCEED $25,000 OR (b)
THE TITLE INSURER IS WILLING TO INSURE OVER A MINOR UNPERMITTED EXCEPTION FOR A
COST NOT TO EXCEED $25,000 IN ACCORDANCE WITH THE TERMS HEREOF OR (iii) ITS
REFUSAL TO DELIVER THE DEED, THEN PURCHASER WILL BE ENTITLED TO ▇▇▇ FOR
SPECIFIC PERFORMANCE. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY ACTUAL,
PUNITIVE, SPECULATIVE OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY DEFAULT BY
SELLER. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BUT SUBJECT
TO THE LIMITATIONS OF LIABILITY CONTAINED IN PARAGRAPH 18, IN THE EVENT THE
CLOSING OCCURS AND IN THE EVENT OF A BREACH BY SELLER OF ANY REPRESENTATION,
WARRANTY, COVENANT, AGREEMENT, PRORATION OR REPRORATION OBLIGATION OR INDEMNITY
WHICH SURVIVES CLOSING OR OF ANY FRAUD OR INTENTIONAL MISREPRESENTATION BY
SELLER,, THE PURCHASER SHALL HAVE ALL RIGHTS AND REMEDIES AT LAW OR AT EQUITY;
PROVIDED, HOWEVER, THAT IN EVENT SHALL SELLER'S LIABILITY UNDER ANY SUCH
REPRESENTATION, WARRANTY, COVENANT, AGREEMENT, PRORATION, REPRORATION
OBLIGATION OR INDEMNITY MADE HEREUNDER OR UNDER ANY CLOSING DOCUMENT EXCEED TO
$650,000 ("SELLER'S MAXIMUM LIABILITY").
15. PRORATIONS.
15.1 Water and other utility charges; fuels; prepaid operating expenses;
real and personal property taxes prorated on a "net" basis (i.e. adjusted for
all tenants' liabilities, if any, for such items); tenant reimbursement
obligations for operating expenses paid by Seller for the period prior to the
Closing Date; unpaid operating expenses for the period prior to the Closing
Date prorated on a "net" basis, as set forth above; and all other items of
expense and income shall be adjusted ratably as of 12:01 a.m. on the Closing
Date ("Proration Date"). Seller shall be entitled to a credit for all
transferable utility deposits transferred hereunder, if any, and all other
utility deposits, if any, may be withdrawn by and refunded to Seller and
Purchaser shall make its own replacement deposits for utilities as may be
required by the respective utilities involved. Assessments, excluding regular
ad valorem real estate taxes, payable in installments which are due prior to
the Closing Date shall be paid by Seller. Assessments, excluding regular ad
valorem real estate taxes, payable in installments which are due subsequent to
the Closing Date shall be paid by Purchaser. If the amount of any of the items
to be prorated is not then ascertainable, the adjustments thereof shall be on
the basis of the most recent ascertainable data. If any ongoing real estate
tax contest has not been finalized as of the Closing Date, Purchaser and Seller
agree that the tax ▇▇▇▇ existing prior to the contest, shall be the most recent
data for the tax year being contested and (i) Purchaser agrees to re-prorate
such amount as it relates to the real estate tax proration for the current tax
year to the extent such tax contest is successful. All other prorations will
be final except as to delinquent rent referred to in Paragraph 15.2 below and
as provided in Paragraph 15.3.
15.2 All basic rent paid following the Closing Date by any tenant of the
Property who is indebted under a Lease for basic rent for any period prior to
the Proration Date in an amount greater than the amount of all current basic
rent and any delinquency accruing after the Closing Date owed by said tenant to
Purchaser shall be deemed a "Post-Closing Receipt" until such time as all such
indebtedness is paid in full. Within ten (10) days following each receipt
byPurchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing
Receipt to Seller. Purchaser shall use its reasonable, good faith efforts, at
no additional cost or expense to Purchaser, to collect all amounts which, upon
collection, would constitute Post-Closing Receipts hereunder, provided
Purchaser shall not be obligated to incur any expense, terminate any Lease or
institute eviction or legal proceedings to collect "post-closing receipts."
Purchaser shall promptly deliver to Seller any Post-Closing Receipts owing to
Seller and not previously delivered to Seller in accordance with the terms
hereof. Purchaser shall provide Seller with any information reasonably
necessary to verify the accuracy of the Post-Closing Receipts reconciliation
statement and upon the verification of additional funds owing to Seller,
Purchaser shall pay to Seller said additional Post-Closing Receipts. Seller
shall be responsible for preparing all 1996 operating expense reconciliation
statements and shall pay to Tenants any amounts owed to Tenants for overcharges
in 1996 or any previous year in accordance with the provisions of the
respective Leases. This Paragraph 15.2 of this Agreement shall survive the
Closing and the delivery and recording of the Deed.
15.3 All refunds in connection with any ongoing real estate tax protests
for the Property initiated by Seller prior to the Closing shall remain the
property of Seller and are not being assigned by Seller to Purchaser pursuant
to this Agreement. In the event any such refunds are paid to Purchaser,
Purchaser agrees to promptly remit all such sums to Seller. Purchaser agrees,
at no cost or expense to Purchaser, to execute any documents reasonably
requested by Seller in connection with such tax protests.
16. BROKER. The parties hereto represent and warrant that no broker commission
or finder fee is due and payable in connection with this transaction, by reason
of their respective actions, other than to Insignia (to be paid by Seller).
Seller's commission to Insignia shall only be payable out of the proceeds of
the sale of the Property in the event the transaction set forth herein closes.
Purchaser and Seller shall indemnify, defend and hold the other party hereto
harmless from any claim whatsoever (including without limitation, reasonable
attorneys' fees, court costs and costs of appeal) from anyone claiming by or
through the indemnifying party any fee, commission or compensation on account
of this Agreement, its negotiation or the sale hereby contemplated other than
to Insignia. Seller shall indemnify, defend and hold Purchaser harmless from
any claim (including, without limitation, reasonable attorneys' fees, court
costs and costs of appeal) for any claim by Insignia for any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated, other than any claim by Insignia on account of any agreement or
negotiations between Insignia and Purchaser. The indemnifying party shall
undertake its obligations set forth in this Paragraph 16 using attorneys
selected by the indemnifying party and reasonably acceptable to the indemnified
party. The provisions of this Paragraph 16 will survive the Closing and
delivery of the Deed.
17. REPRESENTATIONS, WARRANTIES AND COVENANTS.
17.1 Any reference herein to Seller's knowledge or notice of any matter or
thing shall only mean such knowledge or notice that has actually been received
by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇, who is Seller's asset manager (collectively,
"Seller's Representative"), and any representation or warranty of Seller is
based upon those matters of which Seller's Representative has actual knowledge,
after discussing each of the representations and warranties contained in
Paragraph 17.2 below with the manager of the Property. Any knowledge or notice
given, had or received by any of Seller's agents, servants or employees shall
not be imputed to Seller, the general partner or limited partners of Seller,
the subpartners of the general partner or limited partners of Seller or
Seller's Representative.
17.2 Subject to the limitations set forth in Paragraph 17.1, Seller hereby
makes the following representations and warranties, which representations
andwarranties are made to Seller's knowledge and which shall survive Closing
and recordation of the Deed for the period through November 30, 1997, and shall
be null and void after November 30, 1997 except for any claims filed in a court
of competent jurisdiction: (i) except as listed on Exhibit N, Seller has no
knowledge of any pending or threatened litigation, claim, cause of action or
administrative proceeding concerning the Property or Seller's right to sell the
property; (ii) Seller has the power to execute this Agreement and consummate
the transactions contemplated herein; (iii) the rent rolls attached hereto as
Exhibit C and updated as of the Closing Date are accurate in all material
respects as of the date set forth therein; (iv) Seller has not given or
suffered any assignment, pledge or encumbrance with respect to any of the
Leases or its interests thereunder; (v) the list of Service Contracts attached
hereto as Exhibit D is accurate as of the date hereof; (vi) except as listed on
Exhibit N, Seller has received no written notice or claim from any governmental
authority relating to an uncured breach or violation of any Environmental Laws
or any other laws in connection with the Property; (vii) Seller has received no
notice of any uncured landlord default from any tenant in connection with any
Lease; (viii) no proceedings under any federal or state bankruptcy or
insolvency laws have been commenced by or against Seller which have not been
terminated; no general assignment for the benefit of creditors has been made by
Seller; and no trustee or receiver of Seller's property has been appointed;
(ix) Seller has no employees; (x) Seller has not hidden, concealed or otherwise
deliberately failed to make available any documents or information which
materially affect the Property which are in Seller's possession; and (xi)
except for the Existing Reports, Seller is not in possession of any other
environmental reports regarding the Property.
17.3 Purchaser hereby represents and warrants to Seller that Purchaser has
the full right, power and authority to execute this Agreement and consummate
the transactions contemplated herein.
17.4 Seller covenants to operate, maintain and manage the Property in the
same manner that it has managed, maintained and operated the Property during
the period of Seller's ownership, subject to reasonable wear and tear and
casualty.
18. LIMITATION OF LIABILITY. None of Seller's beneficiaries, shareholders,
partners, officers, agents, employees, heirs, successors or assigns shall have
any personal liability of any kind or nature for or by reason of any matter or
thing whatsoever under, in connection with, arising out of or in any way
related to this Agreement and the transactions contemplated herein, and
Purchaser hereby waives for itself and anyone who may claim by, through or
under Purchaser any and all rights to ▇▇▇ or recover on account of any such
alleged personal liability.
19. NOTICES. Any notice or demand which either party hereto is required or
may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express, by facsimile transmission or made by United States
registered or certified mail addressed as follows:
TO SELLER: ▇/▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
with copies to: The Balcor Company
Bannockburn Lake Office Plaza
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (FAX)
TO PURCHASER: c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Associates
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (FAX)
with copies to: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇
Farella, Braun, ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(415) 954-4400
(▇▇▇) ▇▇▇-▇▇▇▇ (FAX)
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be deemed
to be delivered or made on the next business day if sent by overnight courier,
or the same day as given if sent via facsimile transmission and received by
5:00 p.m. Chicago time, or on the fourth (4th) business day after the same is
deposited in the United States Mail as registered or certified mail, addressed
as above provided, with postage thereon fully prepaid. Any such notice, demand
or document not given, delivered or made by registered or certified mail or by
overnight courier or by facsimile transmission as aforesaid shall be deemed to
be given, delivered or made upon receipt of the same by the party to whom the
same is to be given, delivered or made. Copies of all notices shall be served
upon the Escrow Agent. All time periods for responses by either party set forth
in this Agreement shall commence upon the receipt of notice as set forth
hereinabove.
20. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute two
(2) copies of this Agreement and three (3) copies of the Escrow Agreement and
forward them to Seller for execution, accompanied by the ▇▇▇▇▇▇▇ Money payable
to the escrow agent set forth in the Escrow Agreement. Seller will forward one
(1) copy of the executed Agreement to Purchaser and will forward to the escrow
agent the ▇▇▇▇▇▇▇ Money, along with three (3) copies of the Escrow Agreement
signed by the parties with a direction to execute two (2) copies of the Escrow
Agreement and deliver a fully executed copy to each of Purchaser and Seller.21.
MISCELLANEOUS
(a) Time is of the essence of each provision of this Agreement.
(b) This Agreement and all provisions hereof shall extend to and be
obligatory upon and inure to the benefit of the respective heirs, legatees,
legal representatives, successors and assigns of the parties hereto.
(c) The section and paragraph headings of this Agreement are for
convenience only and in no way define, limit or enlarge the scope or meaning of
the language hereof. The terms "hereby," "herein," "hereof," "hereto,"
"hereunder" and any similar terms used in this Agreement refer to this
Agreement. The term "including" shall not be construed in a limiting nature,
but shall be construed to mean "including, without limitation." Words
importing persons shall include firms, associations, partnerships, trusts,
corporations and other legal entities, including public bodies, as well as
natural persons. Words importing the singular shall include the plural andvice
versa. Words of the masculine gender shall be deemed to include correlative
words of the feminine and neuter genders.
(d) This Agreement contains the entire agreement between the parties
relating to the transactions contemplated hereby, and all prior or
contemporaneous agreements, understandings, representations and statements,
oral or written, are merged herein. No representations, warranties,
undertakings or promises (whether oral or written, express or implied), can be
made or have been made by Seller or its agents, representatives or brokers to
Purchaser or any other person unless expressly stated herein. No modification
or amendment of this Agreement or any waiver of any provision hereof shall be
effective unless the same is in writing signed by the party against whom
enforcement of such modification, amendment or waiver is sought.
(e) This Agreement shall be governed by and construed in accordance
with the laws of the State of Utah. If any of the provisions of this Agreement
or the application thereof to any persons or circumstances shall, to any
extent, be deemed invalid or unenforceable, the remainder of this Agreement and
the application of such provisions to persons or circumstances other than those
as to whom or which it is held invalid or unenforceable shall not be affected
thereby, and every provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
(f) This Agreement and any document or instrument executed pursuant
hereto may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
(g) The submission by Seller of this Agreement to Purchaser for
examination does not constitute an offer by Seller to sell, or a reservation of
or option to purchase the Property. This Agreement shall not become a contract
until executed and delivered by Purchaser and Seller in the manner set forth
herein.
(h) If Purchaser consists of more than one person or entity, then
each such person or entity executing this Agreement as Purchaser shall be
jointly and severally liable for the obligations of Purchaser hereunder.
(i) Purchaser shall not record this Agreement or any memorandum
hereof, and any such recording shall be a default hereunder.
(j) Purchaser and Seller shall jointly prepare and issue all
releases of information relating to the sale of the Property, and any inquiries
regarding the transaction contemplated hereby shall be responded to only after
consultation with the other party hereto.
(k) If either party institutes a legal action against the other
relating to this Agreement or any default hereunder, the unsuccessful party to
such action will reimburse the successful party for the reasonable expenses of
prosecuting or defending such action, including without limitation, attorneys
fees and disbursements and court costs.
(l) This Agreement shall not be construed more strictly against one
party than against the other merely by virtue of the fact that the Agreement
may have been prepared primarily by counsel for one of the parties, it being
recognized that both Purchaser and Seller have contributed substantially and
materially to the preparation of this Agreement.
(m) Purchaser shall not have the right to assign its interest in
this Agreement without the prior written consent of Seller. Any assignment or
transfer of, or attempt to assign or transfer, Purchaser's interest in this
Agreement shall be an act of default hereunder by Purchaser and subject to the
provisions of Paragraph 13 hereof. Notwithstanding the foregoing, Purchaser
may make one (1) assignment of its interest in this Agreement without the
consent of Seller to any entity affiliated with or controlled by Purchaser or
whose general partner or manager is the general partner of Purchaser
("Assignee"), provided that Purchaser remains liable for and the Assignee
assumes the obligations of Purchaser hereunder. If the Assignee petitions or
applies for relief under any bankruptcy laws or is adjudicated as a bankrupt or
insolvent, or if Assignee files any petition, application for relief or
answer-seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under any
present or future federal, state or other statute, law, code or regulation
relating to bankruptcy, insolvency, or other relief for debtors (collectively,
a "Bankruptcy Filing") on or before the Closing Date, said Bankruptcy Filing
shall be a default under this Agreement and Purchaser shall indemnify Seller
for all costs, attorney's fees and expenses of Seller resulting from Seller's
efforts to obtain the ▇▇▇▇▇▇▇ Money as liquidated damages and to clear title to
the Property with respect to any encumbrance resulting from the Bankruptcy
Filing.
[Signatures appear on next page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
PURCHASER:
OFFICE OPPORTUNITY FUND III, L.P.,
a California limited partnership
By: Opportunity Capital Partners III, LLC,
a California limited liability company
Its: General Partner
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Its: Manager
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SELLER:
▇▇▇▇▇ FORUM LIMITED PARTNERSHIP
By: ▇▇▇▇▇ Forum Partners, Inc.,
an Illinois corporation,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------
Its: Senior Vice President
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Insignia Mortgage and Investment Company ("Broker") executes this Agreement in
its capacity as a real estate broker and acknowledges that the fee or
commission ("Fee") due to it as a result of the transaction described in this
Agreement is the amount as set forth in the listing agreement between Broker
and Seller. Broker also acknowledges that payment of the aforesaid Fee is
conditioned upon the Closing and the receipt of the Purchase Price by Seller.
Broker agrees to deliver a receipt to Seller at the Closing for the Fee and a
release stating that no other fees or commissions are due to Broker from Seller
or Purchaser.
INSIGNIA MORTGAGE AND
INVESTMENT COMPANY
By: /s/ ▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
LIST OF EXHIBITS
A. Legal Description
B. Personal Property
[Excluded Personal Property]
C. Leases/Rent Roll
D. Service and Maintenance Contracts
E. Escrow Agreement
F. Copy of Title Commitment
G. Limited Warranty Deed
H. Special Warranty ▇▇▇▇ of Sale
I. Assignment and Assumption of Intangible Property
J. Assignment and Assumption of Leases and Security Deposits
K. FIRPTA
L. Tenant Notice Letter
M. Tenant Estoppel Certificate
N. Disclosures