EXHIBIT 10.21
ASSIGNMENT OF PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, AS SELLER
AND
SERIES C, 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 described
herein, to ASSIGNEE and its successors and assigns. The Purchase Agreement and
Escrow Instructions is described as follows:
DATE OF AGREEMENT: September 19, 2005
ORIGINAL BUYER: Series C, LLC
ASSIGNED TO: ▇▇▇▇ LO Enterprise AL, LLC
PROPERTY ADDRESS: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
ASSIGNOR acknowledges that it is not released from any and all obligations
or liabilities under said Purchase Agreement and Escrow Instructions 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 and Escrow Instructions. This
Assignment shall be in full force and effect upon its full execution.
Executed this 30th day of November, 2005.
ASSIGNOR: ASSIGNEE:
SERIES C, LLC ▇▇▇▇ LO ENTERPRISE AL, LLC
By: ▇▇▇▇ REIT Advisors II, LLC
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇ its Manager
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇
Authorized Officer
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------
▇▇▇▇ ▇. ▇▇▇▇
Senior Vice President
PURCHASE AGREEMENT
AND ESCROW INSTRUCTIONS
BETWEEN
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
AS SELLER
AND
SERIES C, LLC
AS BUYER
SEPTEMBER 19, 2005
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PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
DATED: Dated to be effective as of September 19, 2005 (the "Effective Date").
PARTIES: This Purchase Agreement and Escrow Instructions is between ▇▇▇▇▇▇
▇▇▇▇▇▇▇, as "Seller", and SERIES C, 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 95,173 square feet (the "Building") which
Building is leased to ▇▇▇▇'▇ Companies, 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 mineral, water and irrigation rights, if any, running
with or otherwise pertaining to the Real Property;
(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) 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 SEVEN MILLION FOUR HUNDRED SEVENTY-FIVE THOUSAND and NO/100 Dollars
($7,475,000.00) (the "Purchase Price"), payable as follows:
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(a) Seventy-Five Thousand and No/100 Dollars ($75,000.00) ▇▇▇▇▇▇▇
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) Seven Million Four Hundred Thousand and No/100 Dollars
($7,400,000.00) 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 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,
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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 five (5) 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 the later of 5:00 p.m.
MST on (i) that day which is thirty (30) days after the Opening of Escrow, (ii)
that day which is thirty (30) days from Buyer's receipt of all deliveries of
Seller's Diligence Materials (as hereinafter defined), (iii) that day which is
ten (10) days from Buyer's receipt of the Report and legible copies of all
documents identified in Part Two of Schedule B of the Report, or (iv) that day
which is ten (10) days from Buyer's receipt of the Survey (as hereinafter
defined) (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").
(b) Right of Entry. Subject to the prior rights of the Tenant in the
Property, Seller hereby grants to Buyer and Buyer's agents, employees and
contractors the right to enter upon the Property, at any time or times during
the Study Period, to conduct 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
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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. Seller agrees to deliver to Buyer
contemporaneously with the Opening of Escrow all information in Seller's
possession or control 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"), all at no cost to Buyer. The foregoing deliveries shall include,
but not be limited to, copies of all: (i) books of account and records for the
Property for the last twenty-four (24) months (including year-end Tenant CAM
expense reconciliations); (ii) the Lease, including any amendments thereto and a
copy of the leasehold title insurance policy delivered to Tenant; (iii) a
detailed listing of all capital expenditures on the Property for the last
thirty-six (36) months; (iv) the maintenance history of the Property for the
last twenty-four (24) months; (v) current maintenance, management, and listing
contracts for the Property including any amendments thereto; (vi) all claims or
suits by Tenant or third parties involving the Property or the Lease or any
Contracts (whether or not covered by insurance); (vii) a list of all claims or
suits by or against Seller regarding the Property for the last thirty-six (36)
months; (viii) any appraisals of the Property; (ix) the site plan with respect
to the Property; and (x) any other documents or other information in the
possession of Seller or its agents pertaining to the Property that Buyer may
reasonably request in writing.
(b) Delivery by Buyer. If this Agreement is canceled for any reason,
except Seller's willful default hereunder, Buyer agrees to 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.
9. THE SURVEY. Seller, at Seller's cost, shall, within fifteen (15) days
of Opening of Escrow, or as soon thereafter as possible, 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 Alabama 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
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"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.
11. DELIVERY OF POSSESSION. Seller shall deliver possession of the
Property to Buyer at ▇▇▇ subject only to the rights of Tenant under the Lease as
approved by Buyer as part of Buyer's Diligence.
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, in Tenant's standard form,
and (ii) a subordination, non-disturbance and attornment agreement,
substantially similar to the form of SNDA attached as an exhibit to the Lease,
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 the original is unavailable;
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(h) the deposit with Escrow Agent of a letter from Seller to Tenant
requesting that future rent under the Lease be paid to Buyer;
(i) delivery of the SEC Filing Information (as hereinafter defined)
and the SEC Filings Letter (as hereinafter defined) by Seller to Buyer not
less than five (5) days prior to ▇▇▇; and
(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 by the specified date or ▇▇▇
as the case may be, then 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:
(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 know 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) 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;
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(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 knowledge after due inquiry, there are no
pending proceedings, the object of which would be to change the present zoning
or other land-use limitations;
(h) this transaction will not in any way violate any other
agreements to which Seller is a party;
(i) 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) no default of Seller exists under any of the Contracts and, to
Seller's knowledge after due inquiry, no default of the other parties exists
under any of the Contracts;
(k) 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) Seller has no actual knowledge that there exists or has existed,
and Seller itself has not caused any generation, production, location,
transportation, storage, treatment, discharge, disposal, release or threatened
release upon, under or about the Property of any Hazardous Materials. "Hazardous
Materials" shall mean any flammables, explosives, radioactive materials,
hazardous wastes, hazardous and toxic substances or related materials, asbestos
or any material containing asbestos (including, without limitation, vinyl
asbestos tile), or any other substance or material, defined as a "hazardous
substance" by any federal, state, or local environmental law, ordinance, rule or
regulation including, without limitation, the Federal
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Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, the Federal Hazardous Materials Transportation Act, as amended, the
Federal Resource Conservation and Recovery Act, as amended, and the rules and
regulations adopted and promulgated pursuant to each of the foregoing;
(p) to Seller's actual knowledge, there is not now, nor has there
ever been, on or in the Property underground storage tanks, any
asbestos-containing materials or any polychlorinated biphenyls, including those
used in hydraulic oils, electric transformers, or other equipment. Seller hereby
assigns to Buyer, effective as of ▇▇▇, all claims, counterclaims, defenses, or
actions, whether at common law, or pursuant to any other applicable federal or
state or other laws which Seller may have against any third parties relating to
the existence of any Hazardous Materials in, at, on, under or about the Property
(including Hazardous Materials released on the Property prior to ▇▇▇ and
continuing in existence on the Property at ▇▇▇);
(q) 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 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) 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
(t) all representations made in this Agreement by Seller shall
survive the execution and delivery of this Agreement and ▇▇▇. 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 ▇▇▇.
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;
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(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 ▇▇▇. 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 ▇▇▇.
15. RENTS AND DEPOSITS. Seller and Buyer agree that, in addition to all
other conditions and covenants contained herein, Seller shall deliver to Buyer
and Escrow Agent not later than the day immediately prior to ▇▇▇ information,
certified by Seller to be true and accurate as of the date thereof and as of the
date of ▇▇▇, with respect to (i) the amount of Tenant's security deposit under
the Lease, if any, and (ii) prepaid and/or abated rents, including, without
limitation, the amount thereof and the date to which such rents have been paid.
16. BROKER'S COMMISSION. Concerning any brokerage commission, the Parties
agree as follows:
(a) the Parties warrant to one another that they have not dealt with
any finder, broker or realtor in connection with this Agreement except ▇▇▇▇
▇▇▇▇▇▇ of ▇▇▇▇ ▇▇▇▇▇▇▇ Company ("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 pursuant to a separate written agreement between Seller and
Seller's Broker, which commission shall be paid at ▇▇▇.
17. CLOSE OF ESCROW. ▇▇▇ shall be on or before 5:00 p.m. MST on the
thirtieth (30th) day after the expiration of the Study Period or such earlier
date as Buyer may choose by giving not less than five (5) days prior written
notice to Seller and Escrow Agent. Buyer may
11
extend the ▇▇▇ date for up to an additional thirty (30) days upon delivery of
written notice to extend the ▇▇▇ date to Escrow Agent prior to the original ▇▇▇
date and by depositing an additional Fifty Thousand and no/100 Dollars
($50,000.00) of ▇▇▇▇▇▇▇ money with Escrow Agent. For purposes of this Agreement,
any additional ▇▇▇▇▇▇▇ money deposited with Escrow Agent pursuant to this
Section 17 shall be added to and become a part of the ▇▇▇▇▇▇▇ Money Deposit.
Additionally, in the event an extension is needed to accommodate Seller's
prepayment of any existing loan encumbering the Property, Seller may extend the
▇▇▇ date for up to an additional sixty (60) days upon delivery of written notice
to extend the ▇▇▇ date to Escrow Agent and Buyer prior to the original ▇▇▇ date.
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.
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.
12
(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: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to Buyer: Series C, LLC
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, PLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
13
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 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
14
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. RELEASES. Except as expressly provided in this Agreement, Seller and
anyone claiming through Seller hereby releases Tenant from any and all claims of
whatever kind or nature, in law or equity, whether now known or unknown to
Seller, whether contingent or matured, that Seller may now have or hereafter
acquire against Tenant for any costs, loss, liability, damage, expenses, demand,
action or cause of action arising from or related to the Lease arising from
events occurring prior to ▇▇▇.
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/JURISDICTION/VENUE. This Agreement shall be governed by
and construed or enforced in accordance with the laws of the State of Alabama.
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 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,
15
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. SEC S-X 3-14 Audit. Seller acknowledges that Buyer may elect to assign
all of its right, title and interest in and to this Agreement to a publicly
registered company ("Registered Company") promoted by the Buyer. In the event
Buyer's assignee under this Agreement is a Registered Company, such Registered
Company will be required to make certain filings with the U.S. Securities and
Exchange Commission required under SEC Rule S-X 3-14 (the "SEC Filings") that
relate to the most recent pre-acquisition fiscal year (the "Audited Year") for
the Property. To assist the Registered Company with the preparation of the SEC
Filings, Seller agrees to provide Buyer with financial information regarding the
Property for the Audited Year requested by Buyer and/or Buyer's auditors. Such
information may include, but is not limited to, bank statements, operating
statements, general ledgers, cash receipts schedules, invoices for expenses and
capital improvements, insurance documentation, and accounts receivable aging
related to the Property ("SEC Filing Information"). Seller shall deliver the SEC
Filing Information requested by Buyer prior to the expiration of the Study
Period, and Seller agrees to cooperate with Buyer and Buyer's auditors regarding
any inquiries by Buyer or Buyer's auditors following receipt of such
information, including delivery by Seller of an executed representation letter
prior to ▇▇▇ in form and substance requested by Buyer's auditors ("SEC Filings
Letter"). A sample SEC Filings Letter is attached to the Purchase Agreement as
Exhibit G; however,
16
Buyer's auditors may require additions and/or revisions to such letter following
review of the SEC Filing Information provided by Seller. Seller consents to the
disclosure of the SEC Filing Information in any SEC Filings by the Registered
Company. Buyer shall reimburse Seller for Seller's reasonable costs associated
with providing the SEC Filing Information. The provisions of this Section 37
shall survive the ▇▇▇ for a period of one (1) year.
38. 1031 EXCHANGE. Seller is selling or may sell the Property as part of a
1031 exchange. In connection with Seller's 1031 Exchange, Buyer agrees to assist
and cooperate in such exchange for the benefit of Seller and will execute any
and all documents, subject to the reasonable approval of its counsel, as are
reasonably necessary in connection with the exchange; provided Buyer shall incur
no liability, cost or expense in connection therewith.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of
the Effective Date.
SELLER: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
An individual resident of the State of New York
BUYER: SERIES C, LLC, an Arizona limited
liability company
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇
Its: Authorized Officer
18
ESCROW AGENT'S ACCEPTANCE
The foregoing fully executed Agreement together with the ▇▇▇▇▇▇▇ Money
Deposit is accepted by the undersigned this 23 day of September, 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: Accounts Administrator
19
AMENDMENT TO PURCHASE AGREEMENT
This Amendment to Purchase Agreement (this "Amendment") is made and
entered into effective as of the 18th day of October, 2005, by and between
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("Seller") and SERIES C, LLC ("Buyer") and provides as follows:
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Purchase Agreement and
Escrow Instructions dated as of September 19, 2005 (the "Purchase Agreement");
and
WHEREAS, Seller and Buyer desire to amend the Purchase Agreement as
hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
the parties hereto hereby agree as follows:
1. Section 7(a) of the Purchase Agreement is hereby amended by deleting
the entirety thereof and substituting the following in lieu thereof:
The Study Period. Buyer shall have until 5:00 p.m. MST on October 27,
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").
2. Section 17 of the Purchase Agreement is hereby amended by deleting the
entirety thereof and substituting the following in lieu thereof:
▇▇▇ shall be on December 1, 2005. Buyer may extend the ▇▇▇ date for up
to an additional thirty (30) days upon delivery of written notice to
extend the ▇▇▇ date to Escrow Agent prior to the original ▇▇▇ date and
by depositing an additional Fifty Thousand and no/100 Dollars
($50,000.00) of ▇▇▇▇▇▇▇ money with Escrow Agent. For purposes of this
Agreement, any additional ▇▇▇▇▇▇▇ money deposited with Escrow Agent
pursuant to this Section 17 shall be added to and become a part of the
▇▇▇▇▇▇▇ Money Deposit.
3. Except as specifically amended herein, all of the terms and provisions
of the Purchase Agreement are hereby ratified and affirmed to be in full force
and effect as of the date hereof. To the extent of any conflict between the
Purchase Agreement and this Amendment, the terms and provisions of this
Amendment shall govern and control.
4. This Amendment may be executed in one or more counterparts, each of
which shall be an original, but all of which when taken together shall
constitute one and the same
instrument binding on all parties. Delivery of a signed counterpart by facsimile
transmission shall be effective as delivery of a manually signed counterpart of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date set forth above.
BUYER: SELLER:
SERIES C, LLC, an Arizona limited
liability company
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇ /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- ----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual resident
Its Authorized Officer of the State of New York
2